The decision was the latest in a virtually unbroken line of defeats in court for the NFL stretching back decades. While the decision will be appealed, the thoroughness and reason of the opinion now has experts saying it has very little chance to be overturned on appeal. In other words, sooner or later, this lockout is going to end in time to save the regular season.
The ruling was another sledge-hammer (albeit a polite one) against most of the NFL’s arguments, revealing just how flimsy they were in the first place. In fact, I feel the media has done a disservice to fans by making it sound like the NFL had better arguments and a better chance to win than it really has. The reality is that the NFL’s strategy has been poor, and their argumentation flimsy from the start. However, to build tension among fans and ensure that viewers stay tuned many press pundits have exaggerated the NFL’s odds of winning.
The ruling last night was not a surprise. It was an inevitability.
Nelson expertly dispatched ridiculous positions by the NFL such as the ‘decertification is a sham’ argument. The media (goaded by the NFL) acted as if somehow the ‘motivation’ for decertification mattered. In other words, the NFLPA decertified only to sue, therefore it was a ‘sham’. While that makes sense on an emotional level, it’s nonsense as law. On page 40 of the ruling, she notes that the NLRB settled this issue already:
“[T]he fact that the disclaimer was motivated by ‘litigation strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits and to free the players to engage in individual bargaining for free agency, is irrelevant so long as the disclaimer is otherwise unequivocal and adhered to.
Furthermore, she crushed the notion that random comments by Mike Vrabel or anyone else were evidence that the union had not in fact decertified.
Here, the NFL claims the Union is still functioning as such despite “rebrand[ing]” itself as a “trade association.” (Doc. No. 34, at 30 & n.5 (Mem. at 22 & n.5) (noting Players’ statements that, for example, “we’ll be back”).) But the offhand, anecdotal comments of individual players are inconclusive. Moreover, it seems beyond dispute that the defining attribute of a union is its function as the collective bargaining agent of its members. This Court is unaware of any such activity still occurring here.
It doesn’t matter why the NFLPA decertified or what anyone says. The only thing that matters is the law. They legally decertified and have not functioned as a union for collective bargain purposes nor have they tried to assert any of the legal rights of a union. Therefore they are not a union.
The media portrayed the ‘irreparable harm’ issue as a difficult one for the players to win. Instead, Nelson felt it was the most obvious and non-debatable issue of the case. Much of Nelson’s language should strike fear into the hearts of NFL owners. Her discussion of Peyton Manning and Vincent Jackson’s plight under the franchise tag implies that the NFL could face serious and significant damages should they employ tags in 2011 free agency. Pages 75 through 77 of the ruling (I encourage you to read them yourself).
When the injunction (that has been appealed) takes effect in full, the NFL will likely employ 2010 rules (at the peril of massive damages). That means the continued use of franchise tags. It is unlikely the case would be resolved in time to free Manning from that tag. He’s going to have to sign a deal with Indy, or at least sign the 2011 tender and play under the tag. However, the result of the inevitable court victory for the players could result in massive financial damages in favor of Manning, the future invalidation of his tag, or in a worst case scenario: the invalidation of whatever new contract he would sign.
It was this kind of apocalyptic scenario that Goodell railed against yesterday. However, his position is entirely cynical. This devastation is occurring because his owners canceled a good and fair CBA early because they couldn’t agree with each other how to share revenue. They then defrauded the players by signing bad TV contracts in order to prepare for a union crushing lockout. They then refused to make any new offer for two years, waiting until the last weeks before the deadline. They refused to take the negotiations seriously, playing mind games with the players. And finally, they made a crappy offer minutes before time expired. They did all this in order to get what they wanted most: a lockout.
For weeks I’ve been arguing against the insanity of this position. These men are stupid enough to destroy the NFL and every court set-back seems to surprise them, while seeming inevitable to the rest of us. If they NFL continues on this course, they’ll be lucky to get a new CBA that was as good for them as the one they opted out of. The NFL may well believe they are right, but the law does not.
For Colts fans, every ruling brings Peyton Manning closer to the open market. There’s no immediate threat of it thanks to this ruling, but the warning was clear: the NFL owners had better get serious about a fair deal or everything they’ve built will be crushed by the courts. A fair offer will restore balance, keep the tags in place, preserve the draft and keep the league moving forward. Suddenly, opening their books shouldn’t seem like such a bad idea.
It does not matter whose arguments you find more emotionally persuasive.
All that matters is the law. The law favors the players.
It’s time the owners realized that.