Naylor: Players hope to win battle against NFL using courts

Dave Naylor
3/14/2011 10:29:17 PM
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From the outset, the current NFL labour situation has been different than those that have come before in professional sports.

There have been no cries of poverty from owners, suggestions that the game is in trouble or desperate pleas that unless something changes the whole circus tent is going to collapse.

No, not even NFL owners could make those claims with a straight face. This is a league that has little trouble filling its lavish new stadiums, has no apparent cracks in its business model and is coming off the most-watched Super Bowl game in history.

Hard times, indeed.

A work stoppage in sports usually winds up as a game of chicken, a who-will-blink-first stalemate in which both sides claim moral high ground despite the fact it brings no real power or leverage. The end comes only when one side finally gives in, usually after its members have turned on each other first.

No group of players have had less success at this game than those in professional football.

With short careers, non-guaranteed contracts and a large percentage of their membership making near the league minimum, keeping solidarity in tact, demanding that players sacrifice the short term for the long, is no easy task.

Which is why the NFL has had only three work stoppages in its history and why all three were decisive victories for the owners. There was the 1974 training camp strike that gained the players absolutely nothing, the 1982 strike that lasted eight weeks and yielded minimal gains, and the 1987 strike that lasted just over three weeks and ended with groups of players crossing picket lines to play alongside replacements.

None of which has been missed on current NFLPA executive director DeMauric Smith.

Smith understood that if the players couldn't get a deal to their liking at the negotiating table in the weeks leading up to the expiry of the CBA, it was unlikely they would gain any leverage after the deadline passed.

So by decertifying the union to open the door for a class-action suit by a group of players (a list that includes Tom Brady and Peyton Manning) the players have brought the fight to a forum where they believe they stand a much better chance than at the bargaining table.

Though the public may not have historically sided with professional athletes in matters of labour, the courts have been much friendlier.

It was in court that baseball players became the first pro athletes to be granted the right to free agency during the 1970s, a move that paved the way for the same freedom in other pro sports. It was in court where NFL players won a good share of their current rights and freedoms in 1993 by decertifying and later reforming to side a new collective agreement.

And it was in court where the 1994 baseball strike finally ended after a judge ruling in early 1995 in complete favour of the players. Throw in a trio of player victories in baseball for owner collusion and it's clear why players in any sport see the courtroom as potentially friendly confines.

And why owners have reason to fear it since many of the ways that professional sports operate are in a strick sense illegal, raising anti-trust issues for anti-competitive behaviour.

That's not an area where professional sports leagues care to go, but that's exactly where DeMaurice Smith, by decertifying the NFLPA on Friday, is trying to take the NFL.
And once there, the players will challenge a whole lot of things about the way the NFL operates, claiming in a 52-page document the current situation is the result of 32 businesses conspiring to behave like a monopoly.

The suit alleges NFL owners have conspired to deny the players ability to market themselves "through a patently unlawful group boycott and price-fixing arrangement or, in the alternative, a unilaterally imposed set of anticompetitive restrictions on player movement, free agency and competitive market freedom."

Which means that up for legal debate could be such things as the NFL draft, salary cap and free-agent restrictions such as franchise-player tags.

NFL owners, not happy about potentially having to defend those mechanisms in court, derided the players strategy of decertification as a "sham."
That will be for a judge to decide, the first of many critical decisions to come.

As will whether to grant the players an injunction next month that would force the owners to end the lockout and play the 2011 season under terms of the expired agreement.

At some point, this will all end up back at the negotiating table again.

By then, the dynamics will be drastically different. By then the courts will have substantially weaked the bargaining position of either one side or the other.

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