Litigation best way to counter owners

Jason Cole
Yahoo! Sports

As NFL owners and players take the next step in their lockout legal battle Friday when they argue in front of a three-judge panel at the Eighth Circuit Court of Appeals in St. Louis, there is one overarching question:

Is this legal wrangle a good or bad thing for the NFL?

The obvious answer from most corners of the league – be it New York Jets linebacker Bart Scott(notes), New England Patriots owner Robert Kraft or anyone in between those polar opposites – is that the lockout is bad. In recent weeks, former players such as Terry Bradshaw and Cris Collinsworth have weighed in with opinions echoing league officials, essentially saying the matter should be negotiated, not litigated.

In the backdrop, the decertified NFL Players Association has been talking tougher in recent days, with executive director DeMaurice Smith saying the trade association might not assemble as a union again. Similarly, players such as Drew Brees(notes), London Fletcher(notes) and Chester Pitts(notes) have backed up Smith by saying they are prepared for a long fight that could curtail or completely wipe out the 2011 season.

On Wednesday, NFL general counsel Jeff Pash said he considered Smith's statements a thinly veiled attempt to back up the players' court case.

"I assume it's principally meant by DeMaurice to bolster their media position and their legal claim that this was not simply a tactical move for negotiating position," Pash said. "I think that DeMaurice would admit that other than to support their legal position, it doesn't help generate a fair deal that both sides will benefit from. It doesn't help the current players, and it doesn't help the retired players."

While Pash's explanation makes sense because a formal collective bargaining agreement helps protect the many mechanisms that maintain the NFL's competitive balance such as the NFL draft and the assorted restrictions on free agency, there is a flipside to being in court:

It helps keep the peace, which ultimately has been part of the NFL's huge growth.

The longest run of labor peace in modern NFL history has been over the past 23 years. That coincides with when the NFLPA, then under the leadership of the late Gene Upshaw, decided to stop negotiating with the owners. Instead, the NFLPA and Upshaw went to court in 1990 and filed the antitrust lawsuit that became the Reggie White case and resulted in the 1993 CBA that expired in March.

Prior to that, the NFL and the NFLPA were regularly at odds. There were strikes in 1982 and 1987, both of which caused games to be cancelled. Previously, the relatively powerless NFLPA, which was officially recognized by the owners in 1968 when the two sides struck a CBA, voted three times to go on strike. However, none of the instances (1968, 1970 and 1974) resulted in missed regular-season games.

Ultimately, that means that over a 19-year span, the players either voted to go on strike or went on strike five times. As a result, union leadership changed drastically, with the 1982 strike resulting in the departure of former union chief Ed Garvey.

So while the current labor dispute may not be ideal for owners, players or outsiders, there is a positive side.

"I'm not going to say we were powerless, but there's no question there was a limit to what we could do," said Jeff Van Note, who spent his entire 18-year career with Atlanta Falcons from 1969-86 and was the team's union representative in the 1980s. "The strikes just weren't effective. The players couldn't outwait the owners no matter what … the strategy [Upshaw] came up with [following the '87 strike] was really smart. It was the only way the players were ever going to get any real leverage."

Since the now-expired CBA began in '93, the resulting labor peace has contributed to unparalleled economic growth. Now, however, players fear that the gains made over the past 20 years could be jeopardized if they are no longer under the umbrella of the court, where threats of antitrust lawsuits have largely kept the owners at bay.

When the NFLPA first decertified in the late 1980s, it took away the antitrust protections the owners had because the owners were dealing with individuals rather than a unionized workforce that was negotiating as one group. When the CBA was worked out in '93, the owners required the players to recertify as a union as part of the settlement because the owners wanted protection from lawsuits, like in 2003 when Maurice Clarett challenged the NFL's draft rule on underclassmen.

Now, the players have returned to court for basically the same reason they did in the late 1980s. As Van Note indicated, the owners consistently have leverage over the players because of the nature of the game. More so than in baseball and basketball players, football players have relatively short careers. The risk of losing a year of pay in a sport where your ability to play is regularly in jeopardy because of injury is extremely difficult to accept.

Without the ability to take the owners to court, the players have consistently lost because the labor process is so long.

Pash eloquently disagreed with the notion that court supervision helped create labor peace.

Jeff Pash
(AP Photo)

"I don't believe that the court supervision has contributed in any way to the labor peace that we've had from 1993 through 2010," Pash said. "What contributed to it was recognition by both sides that negotiations and collective bargaining, which is what went on for all that time, was in their interests and that they were able to build something great together. They were able to work through their issues in an honest and candid way that involved compromise.

"The owners certainly didn't get everything they wanted through that time and the players didn't get everything they wanted through that time. But together they recognized that what unified them was much stronger than what divided them. And that had nothing to do with the court. That had to do with recognition of where people's mutual interests lay, that they had a shared responsibility to 100 million Americans who follow the National Football League and care about it passionately. That's what gets agreements done, not complaints and lawsuits. Agreements get done when people have shared interests."

Perhaps, but didn't those "mutual interests" exist in the 1980s, when there were two work stoppages?

"You are sort of asking me to go back to a time when I wasn't nearly as involved, but I think it did exist," Pash said. "But it's like any relationship: Sometimes it has its rocky points and so you had a strike in 1982 and then a strike in 1987, but both times the parties resolved those disputes and got the game back on the field and that can happen again. No court intervened in 1982 to get the game back on the field. No court intervened in 1987 to get the game back on the field. The players and the clubs got the game back on the field."

Maybe, but even after 1987, the players walked away from the process dissatisfied with what they received, leading to the move to the courtroom.

More than two decades later, the players still hold a strong distrust of the owners. Whether they will be able to protect themselves in court remains to be seen.

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