WASHINGTON — With the National Football League’s players union’s agreement with owners set to expire at midnight Thursday, and little progress reported in eight days of negotiations that have included a federal mediator, the union is planning to effectively dissolve itself. þþTwenty-two years ago, a similar decision by the union allowed individual players to sue the league, and they won a momentous victory — the right to free agency that they still enjoy. þþInstead of remaking the system the way they did in the late 1980s and early 1990s — when the union became the first and only one in a major sports league to dissolve itself — players hope to use the process known as decertification to save what they already have, by blocking owners from locking out players in a dispute over how to divide the $9 billion in annual revenue the N.F.L. generates. Union leaders say they would decertify simply as a way to get players back on the field, and to prevent a work stoppage that threatens the 2011 regular season. þþIf the union decertifies, owners will face a decision. They could impose their own rules that would allow the games to continue, a decision likely to expose the league to a series of antitrust lawsuits brought by players that would attack the underpinnings of the current game: the salary cap, the franchise tag that restricts movement of some free agents, and even the validity of some player contracts. þþThe goal would be less to alter the shape of the game than to create pressure on owners to make a deal by arguing that the rules unreasonably restricted players’ earning power. If the players won, the owners would be subject to triple damages — a potentially devastating loss of billions of dollars. Unions cannot sue an employer for antitrust violations, which is why the National Football League Players Association could decertify. þþIt is an unusual, and risky, maneuver for the union. Players would lose benefits and, at least for a while, a say in how the league is run. But decertification received the necessary votes from players in the fall when DeMaurice Smith, the union’s executive director, asked for the authority to dissolve the union. A decision to decertify could come by Thursday, hours before the current labor deal expires. þþ“In 1989, players were fighting for free agency,” said Gabe Feldman, the director of Tulane University’s sports law program. “They thought it necessary to exercise all their leverage. Here, I think we’re dealing with a game of chicken, and both sides are flexing their muscles trying to get the best possible deal and wait it out as long as they can before the regular season starts.” þþIf the union decertifies, it would operate as a trade association. With a player as a plaintiff, it would immediately file for an injunction from a federal judge seeking to stop a lockout. A hearing would likely not be heard until late March. þþ“The N.F.L. players have had some success with antitrust litigation strategy,” said an attorney familiar with labor relations and sports, who spoke on the condition of anonymity because he does not have direct knowledge of the union’s plans. “That was how they built themselves up after the debacle of the replacement games in the 1980s. It doesn’t surprise me that that is their strategy.” þþBut litigation could take years and cost substantial amounts of money as it works through the courts. During that time, if there was no union, there would be no way for players to negotiate on any other issue — pension, health care, even grievances. þþThis time, the owners seem unlikely to let the games be played because the players would be earning a paycheck while the suits worked their way through the courts. Owners consider that one of the fundamental mistakes they made the last time the union dissolved. þþ“It is a worst-case scenario for the owners,” Mr. Feldman said. þþStill, the ramifications of decertification worry N.F.L. owners enough that they are in an odd position for management — they want the union to remain intact and they will claim that decertification is a sham. þþ“When management says you must have a union even if you don’t want one, that tells you the world has turned upside down,” said one veteran of sports labor negotiations who spoke on the condition of anonymity because he was not authorized to speak publicly. þþThe union’s tactic could spread. The N.B.A.’s collective bargaining agreement expires at the end of this season, and the National Basketball Players Association has considered decertification as a means of combating a lockout. þþLast month, the N.F.L. filed a complaint to the National Labor Relations Board claiming that the union was failing to negotiate in good faith because it was planning to decertify. The N.F.L. said that the union was engaged in “surface bargaining” and tactics designed to avoid reaching an agreement before the collective bargaining agreement expires so it could file antitrust litigation against the league to try to block a lockout. The league noted that the union had done this once before. þþAfter the union decertified in 1989, an action unsuccessfully challenged by the N.F.L, it acted as a trade association. It was allowed to re-form as a union and resume collective bargaining activities when a settlement with owners was reached in 1993. þþThe N.L.R.B. has not yet ruled on the N.F.L.’s complaint. That leaves the owners likely to lock out players when the current deal expires, essentially shutting down the league. þþ“Staying with the status quo is not an option,” N.F.L. Commissioner Roger Goodell said in an op-ed article last month. þþThat would send everybody into uncharted sports territory. An informal agreement between owners and union officials could keep talks going. But players could allege that the owners were engaged in a group boycott — a violation of antitrust law. Hundreds of players who are due to receive roster bonuses in a few weeks, and who would not receive them in a lockout, might argue that they should be free agents because their contracts were broken. þþ“Then it’s up to a federal judge whether a lockout is a massive antitrust violation,” said one lawyer with experience in labor issues who requested anonymity because he was not authorized to speak by his employer. “The question is, can you have a lockout if there is no union?” þþNobody knows the answer to that. þþ“We can’t look to settled law to try to predict what’s going to happen because this will create the law,” Mr. Feldman said. “As a sports fan, this is a terrible time. As a sports law professor, this is pretty great stuff.” þþþKen Belson contributed reporting.þþþ
Source: NY Times
