NFL Labor Talks: What Does Union Decertification Mean for the NFL and NFLPA?

Tom DaleCorrespondent IOctober 7, 2010

WASHINGTON - NOVEMBER 03: National Football League Commissioner Roger Goodell, Rob Manfred, executive vice president of labor and human resources in the Office of the Commissioner of Baseball, Major League Baseball, NFL Players Association Executive Director DeMaurice Smith, Michael Weiner, general counsel for the Major League Baseball Players Association, Travis Tygart, CEO of the United States Anti-Doping Agency, Gabriel Feldman, associate professor of law and director of the Sports Law Program at Tulane University Law School, and Jeffrey Standen, professor of law at the Willamette University College of Law (L-R), testify on Capitol Hill on November 3, 2009 in Washington, DC. The hearing focused on doping in professional sports.(Photo by Brendan Hoffman/Getty Images)
Brendan Hoffman/Getty Images

Yesterday, the players on the Pittsburgh Steelers were the latest to join nine other teams in voting to decertify the National Football Leagues' Players Association (NFLPA).

While the history of the NFLPA dates back into the 1950s, it was in the 1970s that the player's union had the resources to engage the NFL in meaningful court actions to represent its constituents interests when necessary.

In 1987, the NFL and NFLPA reached an impasse while negotiating a new Collective Bargaining Agreement (CBA), resulting in the player's union voting in the early spring to authorize a strike.

The response of the NFL's owners was to move forward with the season by replenishing their rosters with players from the defunct United States Football League (USFL), college players who hadn't made NFL teams, etc.

Additionally, about 15 percent of the union's membership crossed the picket lines and returned to their teams. This is commonly referred to as the "scab" season in reference to those players who decided to participate in the season.

By the third week of the 1987 season, the player's union realized that ownership was committed to it strategy of using replacement players, and voted to end the strike and return to their teams. That same day, the NFLPA filed an antitrust lawsuit (Powell v. NFL) which it won, but was ultimately overturned in 1989 on appeal by the NFL.

The appeals court judgment basically said that players had to pick between being a union and represented under labor laws, or to not unionize and pursue its antitrust rights as individuals.

That decision sets the stage for where we are today in the negations between the NFL and NFLPA.

The major issues in current CBA negotiations from the NFL's perspective are free agency, a rookie pay scale, and player compensation. The NFLPA is looking for transparency into each team's financial position to address these issues, and to gain a greater share of the NFL's total revenues (particularly television).

Up until this past May, the NFL had little incentive to reach an agreement with the players, as it was awaiting what it believed to be a favorable legal decision from the U.S. Supreme Court in the case of American Needle v. NFL.

Had the NFL received a positive verdict in that case it would have a legal precedent that as a business it was a single entity and not a collection of 32 separate entities.

This precedent would give the NFL a much stronger position against any claims brought against it under the antitrust laws.

The bad news for the NFL was that it lost its case 9-0.

Therefore, with the NFL having a significantly weaker position to defend itself against antitrust claims, the union is in the process of decertifying itself to move its potential legal battles from the jurisdiction of labor laws to those covering antitrust.

This move will transition the players from a union to a "trade organization" designed to prevent the NFL from locking the players out as it did back in 1987.

Should the NFL attempt a lockout, the NFLPA could sue the league under antitrust laws that it was being subjected to a group boycott, which is illegal.

All of this is shaping up to be bad news for fans of professional football. Recently NFL Commissioner Roger Goodell in responding to a question stated that, "If there is no union who you negotiate with, that is an issue." Goodell went on to say, "They have to determine whether they are a union or not a union."

If the the players decertify the NFLPA, or if some type of deal is not reached by the end of the current CBA in March 2011, look for this one to be fought in the courts and not on the football field.

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