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Old 05-30-2011, 07:29 PM   #107
El Minion
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Join Date: Apr 2005
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Originally Posted by tsiguy96 View Post
except the players are the ones who wont sit at the negotiating table to try and make a deal.
Jeez, stop. Neither party intended to negotiate in good faith. When the owners opted out, which either side could have done BTW not just the owners, as some posters tend to believe, they negotiated for lockout insurance. What does that tell you of the owner’s intentions? They weren't negotiating for union strike insurance. The union could have I'm sure extended the CAB talks this past Feb/Mar but both sides knew what the other was planning to do including each others counter strategy. It was inevitable; the only known unknown is the court rulings that will give one side the leverage it needs to negotiate once there are no more options to play for the losing side.

And it depends how far the players and owners want to push this and the power of unintended consequence. Do the owners really want to crush the union? It is ironic that the owners are arguing to have the courts reform the NFLPA, what other industry wants to negotiate with a union? The owners needs the NFLPA to continue being a cartel and all the anti-trust protections that come with it. The players maybe not. Both sides need to be careful what they wish for because they just might get it.:

Smith contemplating permanent decertification
Michael Silver

BETHESDA, Md. – Back in March of 2009, when he was elected to succeed the late Gene Upshaw as the NFL Players Association’s executive director, DeMaurice Smith considered himself the ultimate union man.

Two years later, when Smith announced that the NFLPA would decertify and become a trade association after negotiations with league owners on a new collective bargaining agreement broke down, most people assumed that this was a temporary tactical maneuver designed to allow players to seek leverage through the legal system. The NFL has enunciated this argument in a complaint with the National Labor Relations Board, charging that the NFLPA’s move to decertify and become a trade association was a sham.

Smith, however, insists that he has embraced decertification as an enduring state of existence, much in the same way that Upshaw did in the early ’90s before – at the NFL’s insistence – he agreed to re-form the union. In an interview with Y! Sports earlier this month, Smith revealed that he envisions navigating the NFLPA through a union-free future, even after a possible settlement of the Brady et al antitrust lawsuit and a new contractual agreement between players and owners.

“I’ve come full circle,” Smith said as he sat in a downtown Bethesda plaza, a few miles from the NFLPA’s Washington D.C. headquarters, on a sunny spring morning. “When I went into this, my attitude was that the only way you have power is collectively, and I believed in unions as vehicles for employees asserting their rights. But looking back on what Gene experienced and understanding this particular situation, I’ve now come to appreciate the value of decertification in our particular circumstance. And I don’t see why we’d want to go back to being a union.”

If Smith’s comments seem shocking, consider that he is touching upon a pressure point that dates back more than 20 years. Certainly, the owners would strongly resist any post-settlement arrangement in which the players weren’t unionized, just as they did in 1990, when the league sued the NFLPA to try to force it to represent the players in labor negotiations.

Absent a union, players would be free to assert their legal rights under the Sherman Antitrust Act, and accepted institutions such as the NFL draft and rules governing free agency would be vulnerable to courtroom challenges. It’s also possible that a non-unionized workforce could gain legal protection from a lockout, as the players did in April in successfully obtaining an injunction from U.S. District Court Judge Susan Nelson.

Only with maximum leverage could the players attempt to force the owners to accept such a post-union reality
. For example, if the Eighth Circuit fails to overturn Nelson’s order (which it stayed pending appeal) in a June 3 appellate hearing initiated by the owners, the players could return to work while seemingly headed toward a decisive victory in the Brady et al antitrust suit – and would likely be emboldened to resist any efforts to recertify.

This is precisely where Upshaw found himself 22 years ago when, after a failed players strike two years earlier, he filed decertification papers with the U.S. Department of Labor and set in motion a series of antitrust lawsuits which led to the historic 1993 collective bargaining agreement ushering in the modern era of unrestricted free agency. The CBA was technically a settlement of the pending litigation, and Upshaw had no desire to re-unionize, believing the players’ antitrust protections could eventually be eroded if they were to resume such an arrangement.

Smith, who has studied many of Upshaw’s old documents, including letters and journal entries, said he has come to a similar conclusion.

“I think we might be better off staying a trade association and getting the antitrust protections that the law affords,” Smith said. “That’s where Gene was back in 1993. He had decided it would be better not to recertify. It was the last impediment to the settlement, because the owners insisted on it.”

At that point, according to Smith, then and current NFLPA attorneys Jeffrey Kessler and Jim Quinn “met with Gene for five hours and tried to talk it through with him, but he wouldn’t budge. So they went back to the owners and told them: ‘Gene won’t do it.’ That’s when they came up with the idea of writing up the affidavit that was included in that CBA [and all future CBAs] saying that if he ever wanted to decertify again they wouldn’t challenge it. That was the only way they could get Gene to agree to recertify.

“So given that history, and where we are now, let me ask you a question: What could they possibly tell me that could get me to agree that recertifying is a good idea?”

Lest people doubt Smith’s portrayal of his predecessor’s views, Upshaw, who died in August of 2008, enunciated them in a variety of forms at the time. In a November 1990 interview with San Francisco Chronicle columnist Glenn Dickey, Upshaw insisted that “the players are better off without the union,” citing a significant increase in player salaries since decertification.

Later that month, Upshaw wrote a three-page letter to former Miami Dolphins safety and ex-NFLPA president Dick Anderson in response to public charges by Anderson that the leaders of the decertified NFLPA were “just pulling the wool over the players’ eyes.”

In the letter, a copy of which was obtained on Thursday by Y! Sports, Upshaw made his position clear: “The players have a right to have a union [and] they also have the right not to be represented by a union. The Eighth Circuit essentially made the players choose between collective bargaining and pursuing their legal right to free agency. That choice has been made and it is final. The NFLPA is no longer a union or a bargaining representative for the players of the NFL.”

Upshaw also informed Anderson that “the players changed the constitution and bylaws which now [prohibit] anyone from representing them in collective bargaining” on Dec. 5, 1989.

“Finally,” Upshaw concluded, “the players are much better off without a union and collective bargaining, and each and every player only has to look at his game check to realize that simple fact.” He told Anderson that “… it is the NFL screaming for a union because it is in their best interests to have one.”

Ultimately, the owners were able to persuade Upshaw to abandon his position by including the provision in the CBA which read: “The Parties agree that, after the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.”

Upshaw during a Super Bowl week news conference seven months before his death.

Eighteen years later, as Smith pointed out, the owners are now arguing that the union’s decertification was unlawful, claiming that the NFLPA technically acted hours before the expiration of the CBA, rather than “on or after expiration.” It’s unclear which side will prevail on this pivotal point, but the owners’ actions were enough to convince Smith that only a permanent state of decertification can prevent the process from playing out indefinitely.

“We’d have to set up something separate to handle the grievances, and another entity to administer the pensions,” he said. “But yes, we could absolutely continue to function as a trade association.”

Even if the players were to possess enough leverage to compel the owners to accept such an arrangement, its implementation would be far from cut-and-dried. Could the two sides enter into a contractual agreement in which the players remained a non-unionized workforce?

“That’s an interesting question, and it seems to me the answer would be very messy,” says Georgetown law professor Jim Oldham, an expert in alternative dispute resolution, contracts and labor and employment law. “Being the most generous as I can be, this is a creative idea.”

Oldham explains that such an agreement would essentially be a private contract between players and their employers governed by the contract laws of the respective states in which their teams were headquartered, rather than by the National Labor Relations Act.

“You have to keep in mind that a collective bargaining agreement is not governed by other contract principles,” Oldham says. “It’s almost like a treaty. If you try to mimic it, it gets highly complicated.”

In theory, Oldham says, “the league or its individual teams can enter into any kind of contract with players that they wanted to. You could do that, but what would the terms of the contract be? Would it designate the trade association as the exclusive bargaining agent of the players and try to mimic the prior situation? That would be problematic because these individuals are then third parties who could try to enforce the contract through the courts.

“Could the trade association say that private individuals are precluded from making private deals with the league or the teams on their own? Perhaps you’d need a separate rider for each player stating, ‘I agree to be represented by the trade association, and in exchange I am indemnifying the trade-association from third-party claims I could make as an individual.’ It would be something like a copy of what was authorized by a federal statute.

“Then the question is, what about things that are guaranteed by federal law but for which there’s no counterpart in state contract law – for example, a quid pro quo agreement not to strike and the possible remedies associated with this, such as the ability to get an injunction? As you can see, it gets very messy.”

Oldham, who served as a grievance arbitrator for disputes between the NHL owners and the players association during the 2004 lockout, believes that NFL owners would be exceptionally resistant to such a scenario. “Undoubtedly,” he says. “I would think it’s a non-starter.”

Smith, however, is convinced the players are better off without operating as a unionized workforce – a conclusion his predecessor reached more than two decades ago, and one Upshaw viewed as reflective of the wishes of his constituents. As the late NFLPA executive director wrote in the letter to Anderson: “The undisputed fact is that no one can make you be a union if the members don’t want you to be.”

As for the current labor dispute, if and when the conflict moves closer to a resolution and settlement talks become more serious, will Smith fight to achieve the post-union future that Upshaw abandoned in the name of labor peace?

It’s a question the owners may have to ponder, for if they lose their appeal before the Eighth Circuit, Smith’s vision of a permanent state of decertification will seem like anything but a sham.
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