The Other Kind of Court

Butler has saved us all.

If not for the welcomed distraction of the Bulldogs improbable run to Houston, I’d be forced to think about the CBA all the time.  Having said that, I’m going to take a brief hiatus from Happy-Happy Land and jump back into the sludge that is the legal fights between the players and owners.  There were some developments yesterday, and at least one of them has a very real chance of forcing the game back to work.

Before getting into the ins and outs of all the briefs filed and the nasty letters sent, here’s a good article reminding everyone what the real issue is:  money.

In their last ditch proposal of March 11, the owners offered a Cash Minimum, requiring teams to spend at least 90% of their TS negotiable dollars on their players.

The Cash minimum is something the players’ have to achieve in this CBA, as a Cap minimum is relatively meaningless. It appears that is on the table; it is now their challenge to raise the number higher than 90%.

In terms of striking a deal, the (former) union should be less focused on what the Cap number is and more focused on what the Cash minimum spending requirement is.

Now, the first thing that went down is that the players contacted the owners to start negotiations.  Great news, right? 


The trick is that the players want the NFL to negotiate a settlement of their lawsuit with their lawyers.  The NFL refuses to recognize that the NFLPA is gone, and they will only negotiate with Smith and company.  By denying the validity of the decertification, they’ve put themselves in a position where negotiations are impossible.  The players did not take that well.  They noted that historically:

when the Reggie White class-action suit was settled in 1993 after negotiations between players and owners, both sides agreed in writing not to use the discussions against each other.

In this case, the league would be unable to point to the talks as proof before the N.L.R.B. or the courts that the players were still acting as a union, and the players would not be able to use it as evidence that the owners were acknowledging the decertification.

The players offered to resume talks on the same basis now.

But an agreement under those conditions would still be subject to oversight by the court, just as the White settlement, overseen by Doty, was for 18 years.

So, it goes back to the fact that the owners don’t want to talk in any environment in which they might be subject to courts.  Why? Because the history of sports labor versus management in court cases is an ugly one for ownership.

Meanwhile, the race toward the April 6th injunction hearing soldiers on. No matter who you support in this struggle, all fans ought to be pulling hard for the players in this hearing.  If the injunction against the lockout is granted, that’s it: we have football again.  It’s not a solution, but it forces the owners to open the doors while the sides talk and battle it out in court.  In other words, it relegates the rest of the fight to the background while fans can focus on the game.  The key to players winning is their claim that a lost offseason will do ‘irreparable harm’ to the locked out players.  The odds are good that we’ll have a ruling on it before the end of April.

If the players win their injunction, they will still get paid while the negotiations continue, allowing them to hold out for a fair deal.  If the owners win and the lockout stands, they’ll shut down football for as long as it takes to force the union to cave.  That has been their plan all along.

There were two pieces of good news. The first is that the Players decided not to hold an event competing with the draft.  Jeff Saturday said they wouldn’t hold it against any new player who wanted to attend the draft

Second, another lawsuit was filed, and this one might well put the owners in a box they can’t wriggle out of.  Retired players have sued the NFL in a class action suit that challenges the validity of the draft in a lockout environment:

“The owners say the union has unlawfully decertified and the union should be ordered to reconstitute and forced to sit at the bargaining table,” lead attorney Michael Hausfeld of the Washington D.C.-based Hausfeld LLC told Y! Sports. “If you look at the last CBA, it represents the rookies that have been drafted and the rookies who have begun negotiating with teams.”

Therefore, college players awaiting next month’s draft are not represented by the union and can’t be faulted for its decertification. However they are, Hausfeld argues, being affected by the lockout.

“These players have an antitrust claim,” Hausfeld said. “They’ve essentially staked the pursuit of a career on being eligible for the NFL.


The NFL, Hausfeld said, would have to work out a deal with the NFLPA or risk taking on an antitrust case without its top counterarguments. If the league were to lose, it would risk the basic structures of its business – the salary cap, the draft, free agency and so forth. It would be better off agreeing to a deal.

“We see something different,” Hausfeld said. “[The NFL has] created more of a mess for themselves. If we can end the lockout and there is no union then they’re going to individually negotiate with every player and former player.

“This is basically the proverbial straw that breaks the camel’s back. Hopefully it forces everyone to the table.”

It’s brilliantly constructed trap designed to force the owners to chose between risking the draft itself or actually negotiating. 

My position on all of this has remained steady.  Court is a losing option for the owners.  It has been for the last 30 years.  The owners are desperately trying to avoid court by pushing the ‘sham’ decertification angle, but if that fails they are going to have to get serious about settling. In the end, I predict the owners will long for a deal as good as the 2006 CBA.  

Tomorrow:  More on Butler, how to decide a champion and what it means to be “the best team”.