The tone of the ongoing meetings between the players and owners could take an interesting turn after a Friday ruling from the Eighth Circuit Court, which maintains that the lockout is legal and that the court would not intervene on the players' behalf in the Brady v. NFL lawsuit. The ruling itself is not a surprise; nearly everybody involved expected this particularly pro-business court to rule in favor of the owners, and the owners always saw that court as its primary hammer as the litigation process rolled along.
The timing, however, is a rather large shock. Common perception was that the mediator in charge of the current negotiations, Judge Arthur Boylan, was keeping all courts involved in current litigation on a string, and that any major rulings would wait until talks broke apart.
But this week, after two days between legal teams, drug policy experts, salary cap managers, and other ancillary personnel, groups of owners and players gathered together in Manhattan to meet Thursday in yet another marathon session with one end goal in mind: Get that much closer to ending the lockout. The two sides met for a little over 12 hours, until 10:30 p.m. ET Thursday, in talks that were said to be tense but productive, according to sources with inside knowledge.
The ruling itself is interesting. After a brief history of NFL labor litigation, in which the court balanced the two arguments — the owners' position that the NFLPA had decertified in a sham move to get on the right side of antitrust law, and the players' contention that absent such a process, the league would act in concert to deny players their rights under the Sherman Act.
As expected, the court saw the decertification as a sham, and ruled decisively in favor of the owners by definition and on principle.
The League and the players' union were parties to a collective bargaining agreement for almost eighteen years prior to March 2011. They were engaged in collective bargaining over terms and conditions of employment for approximately two years through March 11, 2011. At that point, the parties were involved in a classic "labor dispute" by the Players' own definition. Then, on a single day, just hours before the CBA's expiration, the union discontinued collective bargaining and disclaimed its status, and the Players filed this action seeking relief concerning industry-wide terms and conditions of employment. Whatever the effect of the union's disclaimer on the League's immunity from antitrust liability, the labor dispute did not suddenly disappear just because the Players elected to pursue the dispute through antitrust litigation rather than collective bargaining.
In other words, the players can't have their cake and eat it, too, based on two decades of collective bargaining. However, two groups of involved parties — rookies and free agents -- are exempt from that ruling, because there's no defined working relationship under the current terms.
The district court enjoined not only the League's lockout of employees, i.e., players under contract, but also the League's refusal to deal with non-employees, i.e., free agents and prospective players or "rookies." As to these latter groups of players, § 4(a) does not apply. The refusal of the League and NFL clubs to deal with free agents and rookies is not a refusal "to remain in any relation of employment," for there is no existing employment relationship in which "to remain."
An injunction with respect to the League's actions toward free agents and rookies, however, cannot be issued except in strict conformity with § 7 of the NLGA, 29 U.S.C. § 107, because this is "a case involving or growing out of a labor dispute." Id. §§ 101, 107. The present injunction does not conform to § 7.
The promise given by Judge Kermit Bye (who dissented in this case) before this ruling came down — i.e., that neither side would get the ruling they wanted — came to fruition. The ruling that free agents would not be a part of the party mentioned may take right of first refusal off the table for the owners, and the legality of the lockout being balanced to the sense of disadvantage. Expecting one side or the other to try and use this as leverage seems presumptuous.
Basically, the court ruled that if the two sides don't keep talking, they're in for a lot of chaos down the road. We'll have more about the continuing talks later.
Both sides issued a brief joint statement soon after the ruling came down: "While we respect the court's decision, today's ruling does not change our mutual recognition that this matter must be resolved through negotiation. We are committed to our current discussions and reaching a fair agreement that will benefit all parties for years to come, and allow for a full 2011 season."