September 11, 2010
New Orleans Saints and Minnesota Vikings fans are recounting their season opener, and every other NFL fan is getting ready to cheer on his or her favorite team on Sunday and Monday. The last thing people want to hear about right now is another development in the struggle to get a new labor agreement together, but if you want to see football in 2011, there's something going on that is a very big deal in the grand scheme of things.
As first reported by Liz Mullen of Sports Business Journal, the NFLPA will be seeking a player vote that allows the union to de-certify in the face of a lockout. As NFLPA Executive Director DeMaurice Smith visits every NFL locker room through the season, he will hand out voting cards to all players and get a tally that will let him know how the players feel about such a move. The New Orleans Saints were the first team to vote, and you might say it was a bit one-sided -- the "yays" outnumbered the "nays", 59-0.
The very short version: Decertification would allow the players to act as a trade organization instead of a union, which would allow a lawsuit if the owners lock them out next March. The league would then likely countersue and claim that the decertification is simply a move to gain entry to the antitrust laws the union does not currently enjoy. It has been clear for a while now that while the NFLPA under Gene Upshaw preferred to hash things out at the negotiating table, the Smith-led NFLPA would be just as happy to take these matters to court, where it has defeated the league soundly in several recent cases.
There are also disadvantages to decertification, though. There would be no collective bargaining for the players, essentially making this a last-ditch move to keep football going as the union kills itself to live. There would be no grievances to be filed on behalf of the players, ostensibly taking us back to the age of the Freeman McNeil "Plan B" lawsuit, in which the former New York Jets running back and several other plaintiffs successfully argued that the NFL was engaging in an illegal version of free agency. That led to the 1993 implementation of the free agency system we're familiar with -- the same one that gave us the salary cap, the most competitive era in the sport's history, and the absolute establishment of pro football as America's favorite game.
It's difficult to know what a new decertification would do to the NFL. A court could conceivably issue an injunction against a lockout in a ruling against the owners in the same way that current Supreme Court Justice Sonia Sotomayor ruled against Major League Baseball in 1995 and brought an end to the strike that ruined the 1994 season. How? By striking down unfair labor practices in the same way that decertification could open a court do in this case. That decision didn't solve baseball's problems, but it kept the owners and players from permitting the game to implode completely over an even longer period of time.
With a seeming impasse between both sides in the current NFL-NFLPA war, the players would be wise to funnel this matter to an impartial arbiter. And if the NFL knows what's good for it, it will make a move to settle before that ever comes to pass.
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