Is the NFLPA prepared to cross the Rubicon?
In 49 BC, Julius Caesar lead a legion of Roman troops over the river Rubicon. The river marked the border into Italy proper, and Generals were expected to disband their army before entering or face the punishment of death. Caesar's crossing of the river made civil war in Rome inevitable, and the phrase "crossing the Rubicon" has become parlance for the moment when groups face a point of no return.
As we wait on the eve of possibly the longest off-season in NFL history, I wanted to explore the NFLPA's crucial sheathed weapon. Unlike Caesar, who refused to disband his army, the NFLPA's point of no return may very well be the disbanding and decertification of the NFLPA.
And if the NFLPA opts to decertify tonight, this season of football will be one that is not played out on the football field but in the courtroom.
In most years, this is the time Denver Broncos fans would assemble on the internet in hopes Pat Bowlen would approve a marquee free agent signing to bolster the team. There will be no free agency today, but its important to point out that a truly free agency has not always existed.
In the past, one of the rules the league installed, the "Rozelle Rule," virtually ended free agency. Although players were allowed to sign with new teams when their contract expired, a team signing a free agent was forced to compensate the player's former team, often in the form of future draft picks. While the rule created parity in the league, it also stifled free agent signings, because teams were wary of trading away draft picks. The rule also prevented players from achieving the maximum salary, because they couldn't offer their services on an open market.
In 1976, in Mackey v. National Football League, the Eighth Circuit Court ruled that the "Rozelle Rule," violated antitrust law because it prevented competition for players' services. The critical factor in the court's decision in 1976, was that the "Rozelle Rule" was implemented unilaterally by the owners, and was not the result of collective bargaining. It is important to note, that the case took over five years from when the original motion was filed until the court made it's final ruling.
After the ruling, however, free agency still did not resemble the free agency of Today. By using their leverage during collective bargaining, owners established a right of first refusal to match free agent contract offers for their players. The player strikes of 1982 and 1987 sought changes to free agency and other League policy, but their efforts were unsuccessful.
The players again sought relief in the courts. In Powell v. National Football League, the players argued that the right of first refusal again violated anti-trust law. While Judge Doty of the Minnesota District Court ruled in favor of the players, he was overruled in an appeal by the owners to the Eighth Circuit Court of Appeals in 1989. The critical difference between the ruling in Mackey and Powell was that the "Rozelle Rule" was created unilaterally by the owners, while first refusal was the result of a collectively bargained agreement by the players and owners.
To briefly touch antitrust law, (by which I am not an attorney, ipso facto not an expert) labor has certain exemptions that prevent antitrust liability. In sports, this means player unions and owners can come to agreements, that under normal circumstances would be considered monopolistic behavior. The most obvious of these behaviors, is the NFL Draft, which restricts where a rookie player can sign. The draft is not liable to antitrust law because the system is agreed upon by the NFLPA and NFL and generally adds to the excitement and parity of the game.
Still with me?
Two days after the Powell v. NFL ruling on December 3rd, 1989, the NFLPA decertifed and ceased operation as a union. The NFLPA existed as an organization that represented the individual rights of players, instead of the collective wishes of all players. Although the switch may have seemed small, it had huge ramifications on the legal fortunes of the players. The NFLPA begun funding legal challenges of individual players, and while the NFL described the move as a "union in hiding," and claimed they were still protected from antitrust liability, the courts ruled otherwise.
In 1990, eight players filed suit against the NFL. In McNeil v. NFL, Judge Doty ruled that the NFL was no longer exempt from antitrust law, and a jury eventually awarded damages to four of the players. In Jackson v. NFL, Judge Doty granted an injunction against the NFL's right of refusal system, and players were immediately able to freely sign with new teams. In 1992, a class action lawsuit, Reggie White v. NFL, threatened to seek treble damages for a large swath of NFL players.
In order to avoid paying such momentous damages, the NFL opted to settle with the players in an agreement that was approved by Judge Doty. A significant result of the settlement was that Judge Doty's Minnesota District Court would continue to hold legal jurisdiction over the settlement. The settlement created the momentum for a new CBA signed between the owners and the reformed players union in May of 1993. The new CBA included a modern free agency which satisfied the players, but also a salary cap that satisfied the owners. The new CBA also included language that Judge Doty would hold jurisdiction over future disputes, and if the CBA ever differed from the settlement, the settlement would trump the CBA. Since 1993, the Collective Bargaining Agreement has been amended five times, last in 2006.
As the NFL prepares to lockout out players, decertification remains one of the only weapons that the NFLPA has at its disposal. If the past is any indication, whenever the distance between the opinions of the NFL and the NFLPA has been vast, legal action has been the most productive option.
If the NFLPA opts to decertify, they will most likely do so before the current CBA expires (either Tonight at 10:00 PM MST or later if the mediator grants an extension.). The reason being that provisions in the CBA would prevent the NFLPA from decertifying for another six months. Also, decertifying during the current CBA would keep the litigation in Judge Doty's jurisdiction.
When the NFLPA first brought litigation against the NFL in the 1970's, they hired representation based in Minnesota. The NFLPA could bring suit in any court that had jurisdiction where a NFL franchise existed. The option to file in Minnesota proved fortuitous for the players, because the first case was randomly assigned (as well as almost all subsection cases) to Judge David S. Doty. As a judge, Doty has served fairly, but he has overwhelming sided with the NFLPA in most cases. The NFL has even filed motions asking Doty to recluse himself from certain cases, on the basis that he has substantial bias against the NFL owners. If the NFLPA can keep legal actions in Doty's courtroom, it would be equivalent to establishing "home court advantage," and could significantly alter the course of the NFL, considering Doty's past interpretation of the law. (Doty was also the judge who recently ruled the the TV contracts the NFL signed violated the CBA).
I see the option to decertify akin to the NFLPA kicking an onside kick in the closing seconds of a football game. Currently the NFLPA does not have much leverage in the negotiations, but gambling the negotiations in the courts could dramatically shift the momentum of the talks, in the same way that recovering an onside kick can give a football team momentum. In the legal arena, a decertified NFLPA could file an antitrust lawsuit against the NFL that they probably could win. The NFL will claim that decertification is a "sham," but the NFLPA's sham would still have legal grounds and was viewed favorably in 1989. The decertifed union could also seek an injunction against a lockout, which would allow football to resume. In American Needle v. NFL, the U.S. Supreme Court found that the NFL was a monopoly, and as a monopoly, the NFL may not be able to prevent individual players from being lockout from football.
NFLPA choosing to decertify and litigate could be a powerful tool in changing the playing field of the current CBA negotiations. Its a strategy, however, that could take years, and make this long offseason even longer. Whatever the NFLPA decides to do, we are reaching the hours of reckoning in the NFL (unless there is an agreement on a short term extension). The NFLPA has to decide if its time to cross the Rubicon, and flaunt an open battle with the NFL.
Feel free to drop your questions/corrections below. I don't know everything, but I'll try to answer any questions or correct any mistakes.