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Former Chair Of NLRB Clarifies Key Issues In NFL Labor Battle

Maury Brown
Senior Contributor
SportsMoney
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When it comes to what is transpiring in the labor battle between the NFL and NFLPA, it’s heady stuff for fans (and yes, the media) to comprehend. The technical maneuvering surrounds labor law – the ground rules that business and unions engage in – and it's not for the weak to comprehend.

While the NFL and NFLPA have agreed to extend talks for a second time (the CBA is now set to expire on Friday, March 11 at midnight), there are still chances that a deal may not be reached. If so, a series of legal moves will take place.

With so many questions and information being published in articles and in social network platforms such as Twitter, it’s no wonder that, given the complexities, the exact sequence of events has been portrayed incorrectly on occasion.


Bill Gould is the former chair
of the NLRB

In an attempt to get to the bottom of some of these topics, we approached Bill Gould. Gould is the former chairman of the National Labor Relations Board (NLRB), and is currently Charles A. Beasley Professor of Law, Emeritus at Stanford University. He has been a member of the National Academy of Arbitrators since 1970 and has arbitrated and mediated more than 200 labor disputes, including the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee. He currently serves as independent monitor for FirstGroup America, addressing freedom of association complaints.  As Gould notes, in terms of labor law, there are many moving parts surrounding the NFL at the moment.

“The current situation between the NFL and NFLPA is very exciting,” said Gould. “It’s a veritable smorgasbord for labor law.” Here’s his clarifications around the labor issues confronting the NFL and NFLPA.

If the NFLPA dissolves, are they disclaiming over decertification due to “blocking charges”?

The differences between “disclaiming interest” and “decertification” are this: In disclaiming interest, the union would walk away from the players and dissolve. In decertification, employees (in this case, the players) want a union to no longer represent them. The NFL has filed charges that the NFLPA has conducted unfair labor practices (see the complete text), and due to that, reports have said, the NFLPA must disclaim interest over decertification as the claim filed by the NFL is a “blocking charge”. Not so, says Gould.

“The blocking charge aspect that has been widely misportrayed in the mainstream and online media,” said Gould. “The reason that the NFLPA would disclaim or decertification is due to the delays involved in the NLRB process. It could take months for a decertification to be processed while the NFLPA can disclaim as soon as a letter is given Judge Doty. The blocking charge only has relevance to an NLRB petition, which they won’t do.”

Why would they not do so? According to Gould, the NFLPA disclaimed interest prior in 1989 when the NFL had no unfair labor practice claim filed, a sign that if the option to decertify or disclaim were just about the blocking charge, the NFLPA could have gone the decert route over disclaiming interest at that time (See Freeman McNeil v NFL where NFL free agency was eventually reached).

What’s the latest the NFLPA could dissolve?

On Thursday, this was a subject that had two answers floating about. Some reported that it had to be close of business – the filing had to be to Judge David Doty by then. That is incorrect, according to Gould. “For the purposes the NFLPA is seeking, they could notify in letter to Doty right up to just before the current CBA were to expire,” Gould said. Based upon that, if the sides were not close at the end of the current 7-day extension (Friday at midnight), the NFLPA could wait as late as 11:59pm to dissolve.

Won’t the NFL claim that that the NFLPA dissolving is a “sham” because they did it prior?

As noted, in Freeman McNeil v NFL, the NFLPA has dissolved before in 1989 only to resurface as a union in 1993. The NFL will claim that in dissolving for a second time, it’s a “sham” – a legal move to avoid bargaining in good faith as a union.

But, there’s some wiggle room for the NFLPA that was brokered as part of the current CBA.

(b) The Parties agree that, after the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.

If the NFLPA were to dissolve, when could the players file antitrust claims?

To block any lockout, the mechanism of disclaiming interest by the NFLPA would dissolve them into a trade association, and the players would then become individual employees. As 32 entities working in concert as a league, the players are ready to file antitrust charges saying the league is ostensibly setting up a “boycott” of the players (see If CBA Not Extended, Drew Brees, Peyton Manning, Tom Brady Become Plaintiffs For Antitrust Claims).

The big question is, when could the players do so? According to Gould, it could happen as soon as the NFLPA were to dissolve. That means, it does not, necessarily need to occur when the CBA expires.

Why not file antitrust claims after the CBA expires?

Because, the NFLPA negotiated with the NFL that they have to wait six-months after the current CBA expires to do so. From the CBA:

(a) Following the expiration of the express term of this Agreement, then, if the NFLPA is in existence as a union, the Parties agree that none of the Class Members (as defined in the Settlement Agreement) nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later; at that time, the Parties reserve any arguments they may make regarding the application of the labor exemption.

Are there any NLRB rules saying how long a union must remained dissolved before it can reestablish itself?

There’s been some talk that the NFLPA has to wait some specified period of time before they could reestablish themselves after any action to dissolve into a trade association. According to Gould, there are no such guidelines. “Nothing says that the union can’t reestablish as soon as they like,” said Gould. “But, it could play into any “sham” litigation outside of what the CBA addresses.

Can the NFLPA use the “lockout insurance” ruling to gain concessions with the owners?

On March 1, U.S. District Judge David Doty ruled in favor of the NFLPA, regarding claims that the league negotiated television contract extensions that were designed as “lockout insurance” as opposed to growing total revenues – revenues that determine the salary cap for the league (read the entire filing by the NFLPA). Those extensions were designed to pay owners over $4 billion in rights fees, even if games were not played. The league had claimed that those provisions were within the agreements before the extensions were released. Doty is scheduled to hold a hearing to determine whether there will be an injunction to block those fees being paid to the owners, monetary damages to the players, or both.

When asked if the NFLPA might use a settlement of that ruling to leverage owners into some concessions that the owners are seeking, Gould said that could be an option.

Although he said that he had not heard one way or another whether that scenario was being played out, Gould said, “There’s nothing stopping the players from doing so.”

Could Judge Doty still play a part in negotiations after the current CBA expires?

Judge David Doty’s ruling – and prior rulings for the players – have had an incredible impact on where the negotiations are at now, and what the final outcome of a new CBA will be. The owners would love nothing more than to have him be out of the picture while the players would like to keep him in play as long as possible.

Technically, Doty’s oversight ends when the current CBA does. But, it’s still a shot that Doty could be involved after.

If the CBA were to expire, the NFLPA dissolves and the players file antitrust claims blocking a lockout, the courts would decide how to administer labor matters until a new CBA is reached. While there is nothing saying Doty would be the judge selected, Gould said that it behooves the process to have a judge that is familiar with the current state of affairs in the labor battle. That could mean Doty could remain in play.

Can the NFL and NFLPA continue to extend the deadline for the expiration of the current CBA?

Yes. According to Gould, this could be done in perpetuity – done as long as they wish. As a practicality, as training camps approach, it seems unlikely matters could go that far, but there’s nothing to say that we may not have yet another extension when the current 7-day extension expires.

Does any extension have to be approved by federal mediator George Cohn?

No. Cohen is simply facilitating dialog between the sides. The players and NFL can negotiate the ground rules for extending talks without input from any mediator.

LOOK FOR FURTHER REPORTS LEADING UP TO A NEW CBA BEING REACHED IN THE NFL

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Maury Brown
Maury Brown