Players' battle with owners not a lost cause

When assessing the impact of Monday's legal setback to NFL players in their ongoing labor clash, a foreboding ruling by the U.S. Court of Appeals for the Eighth Circuit granting the league's owners a temporary stay of U.S. District Court judge Susan Nelson's earlier order lifting the lockout, I can't help but recall some recent football history.

And with that, I take you back to 2003 in Minneapolis for a surreal postgame locker-room scene featuring then-Minnesota Vikings owner Red McCombs and his head coach at the time, Mike Tice.

Their encounter after a loss to the New York Giants at the Metrodome was humorous in retrospect but ludicrous at the time. The Vikes had stormed to a stunning 6-0 start, winning as many games as they had the previous season, before falling to the Giants – prompting McCombs to tell his players they'd "embarrassed me and our fans out there today" and Tice to blow his lid in response as the clueless McCombs literally slapped him on the back.

While it's possible that Monday's ruling represents a major leverage shift toward the owners in this ongoing staredown, I'm sensing a little bit of McCombs-style overreaction from many of my fellow journalists, albeit without the nonsensical rambling.

For the players, Monday's ruling constituted a single defeat after a long run of good news on the legal front. By no means was it a conclusive death blow. The players are still standing firm in their quest for a better deal than the ones which have been offered by the owners on March 11, shortly before the NFL Players Association decertified and the existing collective bargaining agreement expired, and during mediation sessions on Monday and Tuesday.

Rest assured that neither the rank and file nor the leaders on the players' side, including NFLPA executive director DeMaurice Smith, are panicking in the wake of Monday's opinion. The smart move would be to stay calm, counter the owners' most recent offer and attempt to negotiate a compromise that results in a new, multiyear CBA and leaves both sides feeling reasonably good about the outcome.

Based on my conversations with key figures on both sides of the conflict, I believe that's ultimately what will happen, despite the posturing from each camp.

For now, as we wait for the June 3 hearing before the Eighth Circuit in St. Louis, the players have plenty of reasons for not acting like the pushovers many expect them to become if or when Judge Nelson's ruling that a decertified union cannot be locked out is overturned on appeal.

Here are some things to consider:

The appeal isn't yet a lost cause. Granted, two of the three Eighth Circuit justices who will decide the case concluded in Monday's ruling that "the League has made a strong showing that it is likely to succeed on the merits." So yes, at first blush, the appeal's outcome is as telegraphed as a Ryan Leaf pass in the flat. However, it's not impossible that one or both of the judges who issued the majority opinion could reverse course after considering the full weight of Judge Nelson's 89-page ruling and being persuaded by arguments submitted by the attorneys representing the players. One of those attorneys, Ted Olson, happens to be one of the nation's top litigators. Consider that he and his fellow lawyers on the players' side haven't even filed their brief to the Eighth Circuit, let alone argued in front of the panel. The former U.S. Solicitor General has made some strong comments in support of the players' position and will undoubtedly be a dogged advocate before the judges. If he's unsuccessful in swaying either of the judges in question, the players would surely appeal to the U.S. Supreme Court – but with decidedly low expectations. Even if the nation's highest court agreed to hear the case, which would be unlikely, the players would seem to be facing long odds given the prior rulings of the nine justices in question.

Mike Brown (left) and Jerry Richardson arrive to mediation one day after the owners' request for a stay was granted.
(Getty Images)

The players can still get some legal leverage from U.S. District Court judge David Doty, who has yet to decide on damages from the "lockout insurance" case following his ruling that the owners had sought to "harm" the players by illegally creating a $4 billion lockout fund via renegotiated television contracts. The players are seeking up to $2.8 billion in compensatory and punitive damages, and it's possible that Doty could both deprive the owners of a significant chunk of income and essentially provide the players with a lockout fund of their own which could be distributed among the roughly 1,900 members of the decertified NFLPA. In other words, a protracted lockout could be far less palatable to owners and that much more sustainable to players. However, it should be noted that any ruling by Doty could also be subject to reversal on appeal. It's also possible the entire $4 billion could be placed in escrow until the process has run its course, which would be a partial victory for the players – at least in the short-term.

We may not have heard the last from Judge Nelson's courtroom, either. Though it's assumed that the Brady et al antitrust suit against the league could last for two years or more, the plaintiffs have already filed a motion for summary judgment. If granted by Nelson, it could sway leverage to the players' side and motivate the owners to offer a more attractive CBA as part of settlement discussions.

There's another legal strategy, not yet endorsed by the NFLPA but being contemplated by at least one prominent agent, that could theoretically put owners on the defensive: Numerous players signed for the 2011 season may file individual breach-of-contract lawsuits in the respective municipalities where their teams are headquartered, claiming that because they're ready, willing and able to perform their duties they should be compensated accordingly – or have their contracts voided, thus becoming unrestricted free agents. "It's one of the arrows in our quiver, and it's a large one," says agent Peter Schaffer, who is also an attorney. "We hope that it doesn't come to that point. We hope that cooler heads prevail, that the two sides find a resolution, and that at the end of the day people negotiating the deal will put the interests of the game ahead of their own. But yes, it's a possibility." Whereas some coaches and other team employees have language in their contracts stipulating revised terms in the event of a work stoppage, this is not true of the standard player agreement. The owners would undoubtedly argue that a lockout, which is governed by federal labor law, supersedes the individual contract claims – but it's a battle they might find themselves fighting on numerous fronts. If they're unsuccessful, scores of prominent players could be declared unrestricted free agents – at least in the absence of a new CBA.

President Obama might intervene. It's unlikely the President would be willing or able to force the owners to end the lockout, but he could make his feelings known in a way that benefits the players. In the wake of the successful raid and killing of Osama bin Laden, Obama has newfound political clout, and it's possible he could elect to use some of it by calling for a cessation of the lockout to serve the interest of football fans. Certainly, the owners could ignore the President, but it would represent another pressure point.

If all else fails and the lockout continues into the season, the players may be better equipped to withstand a staredown than is commonly thought. For one thing, even if the specter of missed game checks and lost career opportunities rankles a significant portion of players, the notion that they'll cave is somewhat complicated. Unlike the strike of 1987, when players crossing picket lines and returning to work literally served to break the union and cede power to the owners, the manifestations for unrest among the locked-out ranks are far less tangible. Players can complain publicly about their predicament and pressure NFLPA leaders and the plaintiffs in the Brady case to accept a less favorable settlement and/or new CBA, but it would take a formal vote of more than 50 percent of them to change the current power structure. Unless or until that happens, agitated players will have no actual power to effect change and will be unable to return to work, even if they're willing to swallow the terms dictated by the owners. Meanwhile, as owners (some of whom own relatively new stadiums with sizable debt payments) lose out on revenue and face what is likely to be increased public outcry, some of them may blink and advocate a less hawkish stance.

All of this, from my vantage point, suggests that neither side is going to be beaten into submission by a single legal opinion or another seemingly pivotal development – and it reminds me that, without a doubt, settlement remains the most prudent option for both sides.

As much as I can envision some or all of these contentious and risky scenarios playing out, my gut tells me a deal will get done before too much lasting damage results. And in recent days, I've been encouraged by discussions I've had with influential figures from each faction.

Smith (right) with NFLPA attorney Jeffrey Kessler.
(Getty Images)

In the wake of Monday night's decision, an owner insisted to me that "we are trying [to do a deal]" and expressed hope that Smith and others on the players' side would be more motivated to negotiate after absorbing the legal setback. I believe this owner is sincere and sensible and is frustrated by the events which have taken place since the CBA expired, and I certainly didn't sense any chest-beating or gloating.

This would seem to be a prime opportunity for the players' representatives, having shown they're not the wallflowers some expected them to be heading into the widely anticipated lockout, to adopt a more conciliatory approach as well. While I believe they're far from agreeing to a deal they consider to be unfavorable, I'm hopeful that Smith and other leaders (including Brady plaintiffs and their lawyers) will react to the legal uncertainty by making an honest push for a compromise.

Last Wednesday, during a long conversation I had with Smith in Maryland, the NFLPA executive director insisted that he, too, was committed to reaching a mutually satisfying accord – rather than merely attempting to pummel the owners through various legal maneuverings.

"Do people actually think that I really don't want to make a deal?" Smith asked. "We chose litigation because we knew they were going to lock us out, and I can only counterpunch. But here's the fundamental disproof to the charge that we wanted to litigate: We offered to keep playing under the old deal. What more do you want the players to do to demonstrate their commitment to playing football?"

When I asked Smith if he hoped to gain enough leverage through the legal process to make the owners capitulate and sign a CBA slanted toward the players' interests, he gave a highly sensible answer: "That won't happen because good deals are based on fairness for both sides. If any side believes they got more than they were entitled to, the only thing that ensures is a fight sometime down the road. The way lasting business partnerships work is both sides reaching a state where there's mutual trust, where neither side is in position to believe it's getting disadvantaged or that the other side has an obvious advantage."

In other words, the best outcome is if neither side has to cave. At this point, any belief to the contrary should result in an embarrassment far beyond that which Red McCombs experienced eight years ago.

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