2011 NFL Lockout, CBA Roundup: Decertification explained

Yesterday a breath of fresh air came from the ongoing negotiations between the league and the NFLPA as both sides agreed to a 24 hr extension, extending the deadline for one day. Almost immediately following that Jason LaConfora reported that this was likely enough time to figure out how much longer to extend it. This actually makes great sense to me, and I would not be surprised to see the two sides agree to a 5-7 day extension.

There's been some serious give and take going on in the past couple days, even more so yesterday. The owners apparently made a "major proposal" during yesterday's session. My feeling is that this 24 hr extension was agreed to by the players to consider whatever proposal that was and to give them time to agree (not likely given that we're in the opening stages of bargaining), or offer a counter-proposal. The other day Adam Schefter likened these negotiations to two teams being on opposite 5 yard lines. I actually think it's more likely that the two sides are on opposing 30 yard lines. Still a ways to go to meeting in the middle, but also close enough that there's light at the end of the tunnel.

As such I fully expect an announcement for an extension of 5-7 days. I think that decertification is a horrible move by the NFLPA, and I don't think the owners are fully committed to a lockout. 

What exactly is decertification anyway, and why is it a big deal?

Simply put, decertification is the NFL Player's Association dissolving itself as a union, leaving no organizing body for the NFL owners to negotiate with. The players would then form a loose trade association to conduct internal business and deal with the media--but it would not be able to negotiate with owners. 

The strategy behind decertification is to allow the players to present a class-action lawsuit against the owners. Courts are loathe to take on labor cases when there's a union involved, because they feel that the union and management should be able to figure things out. With no union around the players will be free to take their case to the courts where they feel like they'll have a better chance of success.

Should we come to that point you won't see a lawsuit asking the judge to order the league to increase benefits to retirees, or to extend health care to current players. About all they can do in this case is to seek an injunction against the NFL to stop the lockout and allow football to continue. They would likely have a fairly strong case for anti-trust action given that the owners are the ones stonewalling them. 

The single greatest change to the NFL in the last 20 years was the advent of free agency, which only came about because of a legal challenge. The union met with the owners in 1987 to negotiate a new CBA. The previous year the union had polled the players on what the highest priority was and the result was nearly unanimous for free agency. After several negations during the summer of 1987, the NFLPA went on strike. The strike only lasted one month before the players voted to cross the picket line. This was due to poor support among the players (some 89 players crossed the lines early, including Joe Montana), and the willingness of the owners to use replacement players and the networks to broadcast those games. 

Despite voting to end the strike the players were not allowed back on the teams for another week. The owners had decided to punish the players by forcing them to miss another week's pay. The NFLPA quickly filed an anti-trust lawsuit against the NFL, and in January 1988 Judge David Doty ruled in favor of the NFLPA.

This prompted the league to offer what was called Plan B free agency in an attempt to stave off more anti-trust lawsuits. Plan B allowed a limited type of free agency, where each team could designate 37 players as protected players, with rights of first refusal/compensation. Basically like the restricted free agency we know today, only not limited by number of years served and horribly restrictive on the players. 

The players played the 1988 and 1989 seasons without a CBA because of the continued court actions. On November 1, 1989 the 8th Circuit Court of Appeals struck down Judge Doty's decision because the players were still being represented by a union and so couldn't sue under anti-trust laws. On November 3, just two days later, the players voted to decertify the NFLPA. 

In the spring of 1990 the players filed an anti-trust case against the NFL with Freeman McNeill as the lead plaintiff. Also in 1990 a judge with the National Labor Relations Board ruled in favor of the NFLPA in the Powll vs NFL case, awarding $19 million in back payments to the players who were affected by the 1 game lockout. In 1992 a jury trial found that Plan B was illegal under anti-trust. Some owners still wanted to fight it out in court believing gthey could exhaust the funds of the NFLPA, but in 1993 Reggie White filed a class action lawsuit against NFL which brought them back to the bargaining table.

That bargain brought about the current CBA with it's free agency and salary cap. 

So why wouldn't decertification be a good idea now?

Several reasons I think. First, I don't see the NFLPA as having that big a grievance against the owners. The current battle is over how much revenue to give to active players. It's not about funding benefits for retirees, or having a rookie salary cap, or extended health benefits for players, or even an 18 game season. Simply put it's about how to split up a $9 billion pie, a pie that keeps growing in size. 

I'm definitely not a lawyer but I can't see which of those issues could be won in an anti-trust lawsuit. About the only that could be accomplished would be to stop a lockout, presumably following the guidelines of the last year before the expiration of the CBA (i.e. 2010).

Secondly any decertification would set the NFLPA back to the beginning. They'd have to fight these battles in court, a process that can be glacial at times. The last time the union did this it took 5 years to get the desired result. Do they really want to spend 5 years in the courts without a CBA? I think this CBA is pretty good to the players, and it's particularly good in that there's a minimum salary for veteran players, a feature that probably not be there otherwise.

Thirdly, this move would damage the NFLPA in the public perception. Their mantra has been "Let Us Play", casting the owners as the villains in this fight. Decertifying would mean the players taking a proactive move, attacking, not defending. 

Fourthly (is that even a word?) a decertification would destroy any goodwill built up among the owners. Sure, there are the Jerry Richardsons; of the owners but there are also the Bob Kraft's. Just like with the players there are factions and degrees of hostility.

Lastly decertification would bolster the NFL's case against the union with the NLRB. The NFL has filed a complaint with the NLRB alleging that the union has not been negotiating in good faith due to the decertification talk. If the NFLPA does not wait until the lockout happens and jumps the gun it would add significant weight to that argument.

One other thing as well--this tactic was new in 1989 when it was first tried. Would it be seen as inventive now, or just a copycat, and how would the courts view it given the current attitudes towards unions in this country?

Those interested in further reading on the history of the NFLPA might want to check out some of the following links.

NFLPA timeline (from USAToday)

Legal Issues Behind the NFL CBA Negotiations

NFLP history (from the NFLPA website)

Washington Post article after the 1992 ruling