The Barrister

I feel like tattooed notes to ourselves may be the only way to guarantee that the certain truths of this NFL Lockout are not lost on us.  Because, honestly, our collective lack of focus and grasp of basic facts is getting ridiculous.

A couple weeks ago, when the 8th Circuit decided that the injunction against the lockout would not be granted, but allowed the underlying issue of whether the lockout was illegal to remain in federal court, I opined that it might be a good idea for the owners to take a moment and fully consider whether their strategy was wise, and whether some concessions might be appropriate so that a deal could be done quickly.  After all, the risk of treble damages in the event that the full season does get locked out...well, you get the idea.  My point was only that the owners, and those lawyers counseling them, might be smart to find the quickest way to a deal, even if it meant swallowing a little crow along the way.

Boy if these shady sons of bitches didn't just up and decide to do the exact opposite. 

Thursday night, I got to my buddy's place for some drinks before dinner, and we were watching the ESPN coverage of the NFL's decision to agree on a CBA. The coverage was upbeat - finally, something optimistic to report on, and finally some hope that The Network's cash cow would be ready for another season.

Yet, despite my friend's assurance that the players would sign off on deal ASAP (an opinion he based heavily on a conversation down in Cabo this spring with a Jets O-Lineman "who just wants to play"), something wasn't sitting right with me and my gut was telling me that this is far from resolved.  Lost in the coverage, at least initially, was really any discussion of what was in the approved CBA, and whether the players would be ok with the proposed deal.  Indeed, a fan watching ESPN that night was probably left with the impression that the players had, in fact, ratified the deal already, since the upbeat coverage glossed over the fact that whatever the owners decided on had been a decision solely of their own.  In other words, there was no telling during those early moments of coverage if the proposed CBA was a product of negotiations with the players or, as I suspect may be at least partly true, whether the proposed CBA has a bunch of terms that are in direct conflict with the positions of the now-decertified NFLPA.

And then, when DeMaurice Smith had to shoulder his way in between Chris Mortensen and George Smith, just to make it clear that the players hadn't EVEN SEEN THE PROPOSED CBA, it all became all too clear.

Over at Gooses's Roost today, Corey posted the exact kind of reaction that one would expect from the current state of things in the NFL - in essence, fuck 'em all.  Part of me wants to jump on board after all of this, but after Thursday night's "deal," and the subsequent revelation that the deal was not the true product of negotiations between ownership and the players, and that certain big issues remain completely unresolved, I'll be remaining on my "fuck the owners (and not the players)" wagon.

Thursday's announcement was nothing more than a transparent attempt to swing the pressure towards the players, and to make them the sole remaining party standing in the way of a 2011 NFL Season. 

What a brilliant and completely dick move. 

In the end, I suspect that the players will fold, because, in the end, that's what labor does in situations like this.  Workers need to work more than owners need to pay their salaries, and most of the players in the NFL don't have the savings to hunker down for a protracted fight without paychecks.  It's sad, because the "defender of principle" in me wants to see the fight, and wants to see the little guys get their victory (not to mention their health care coverage).

But, in the event I'm wrong, and we get to see this fight march on, let's all try to remember - no matter what bullshit ESPN is feeding us - that it's the owners that brought us here.  The players, who - if you have the privilege to ask any of them - really just want to play, are not the ones who chose the lockout, who chose to deny access to financial statements that might assist in negotiating a compromise, or who chose to present a media narrative that a deal is done without actually allowing their adversaries to consider the terms.  These are the indicia of bad faith negotiations, and even if we have to tattoo it on our hand, we need to remember.

The Barrister

[Note: I recognize that my last post on the NFL labor situation may not have endeared me to all corners of the DGWU readership.  So, perhaps I shouldn't be wading back into the waters so deeply.  But, desperate times (i.e. an offseason with little to write about) call for desperate measures (i.e. pretending I know what the hell I'm talking about). In the spirit of conciliation, however I've toned down my use of the F bomb, and have tried to avoid telling anyone that they should probably consider suicide as an alternative to their pathetic excuse for an existence.  See? I'm progressing. Now, please read, enjoy, and punch a fucking Pats fan in the face while you're at it. Shit.  That didn't last long...]

Part of the thing about this lockout that has bothered me so much is that we're constantly being told that there will be an NFL season.  Maybe not bothered, so much as quietly nagged.  While the NBA is embroiled in a labor dispute that might, and very likely will, last into next season, we've been fed this message from all corners of sports media that a deal will be made, an agreement reached, and that there's no way the owners and players will walk away from all that money.  Indeed, this media message has been so consistent that one might very well wonder whether both sides are participating in a mutual effort to keep faith in the NFL alive - faith from fans, sure, as well as sponsors.  The NFL saw what happened when the NHL took a year off - decreased media coverage, relegation to a second-rate network (though, to be fair, Versus is always improving), a true overhaul to the structure of the league.  And while the NHL - it seems now - benefited from the time out, there has been this self-serving narrative sold by the NFL and the union formerly known as the NFLPA, and at least in part by the puppets within the world of sports media who often do little else but parrot the statements fed to them by the athlete, coach or owner they're interviewing. 

And I mean puppet in the nicest way possible. I promise.

I bring up this general observation of the current state-of-things in the land of Professional American Football to merely point out that things aren't always what they seem, and that while we're being told that a deal is within a week or two of being reached, I think it's fair to doubt the message we're getting. 

Take, by way of illustration, the following: For years we've been hearing about how good the NFL is at managing its image. I mean, how else can you explain the fact that Major League Baseball has had a slew of steroid scandals, while the league with jacked up, 300+ pound guys has pretty much avoided significant controversy.  Sure, the NFL got ahead of the problem by regulating its players long before MLB did, but don't tell me that the decision to do so wasn't largely a calculation by the league to deal with the issue internally in order to avoid heat for the league's and players' past indiscretions.  Somehow the hundreds of steroid users (not to mention the coke. Oh good Lord, the cocaine...) within the NFL's history were glossed over as we praised the league's progressive stance against use of all controlled substances, and Major League Baseball was grilled and chastised for its failure to act nearly as quickly. 

These guys are good at damage control.  You get the point.

So, left musing on the actual truth - or lack thereof - behind the current "we'll have a deal by July 21st" message, I have a little less faith than most regarding whether a deal is actually in the works, or whether we might be seeing a lot more hockey coverage on ESPN this fall.

Not that I want this to happen, and not that I have been all that convinced that it's all that probable. 

That is, until Friday's 8th Circuit decision, and my reading and subsequent agreement with the analysis from Mark Levinstein @sports4good on the Tweet Machine.  Now, I preface this by saying that I have never heard of this guy, nor do I consider him some source of insider information with respect to the NFL's labor dispute.  Google tells me that he might be a sports attorney with decent credentials and, thus, enough experience to know his ass from his elbow.  I don't this for sure.  But, I do know the look of a good argument, and he was spot on. 

By way of background, and to refresh our collective consciousness to the goings-on of the legal end of the NFL lockout, the 8th Circuit came to its decision on the issue of whether the NFL could be enjoined from continuing the lockout.  The 8th Circuit said that it could not.  Generally speaking, injunctions - the judicial mechanism by which someone prevents someone else form doing something - requires that the party seeking the injunction demonstrate, among other things, that they are likely to succeed on the merits of their underlying case and that they will face irreparable harm if an injunction is not granted while the underlying litigation is still pending.  In other words, the players would need to establish that they'd be injured - financially in this case - with no hope of recovering those losses if the court doesn't step in and put an end to the conduct - coordinated group boycotts purposed towards unfairly influencing the owners'r bargaining position in this case - that the players complaining about.  Not an impossible standard to meet in the case of a lockout, but one not even considered by the 8th Circuit. 

Instead, the 8th Circuit refused to even reach the issue of whether the players had met that burden, and instead found that the Norris-LaGuardia Act establishes that the federal courts lack the power to grant an injunction within the context of a labor dispute.  The Act, in its application, was implemented to prevent court's from being used by union-busting robber barons who had, as a matter of practice, successfully sought injunctions against labor strikes.  Flipping the switch on this particular idea, the 8th Circuit reasoned that the Act similarly strips the Court of the power to issue an injunction against owners who are locking out labor.  What a fucking bastardization of the original intent. 

Rage over this particular instance of American jurisprudence aside....

This means the owners won the day, right? Lockout on, so they have the upper hand, right? 

Well, it depends on how you look at it, and how deeply you care to indulge the feeling that a deal might not necessarily be negotiated within the coming days.  And, to be fair, how much you want to credit the argument of an  unknown (at least to me) Mr. Levinstein and Your Friendly Neighborhood Barrister who so eagerly gobbles that argument up.  (And please, don't dwell on the image of me as a gobbler too long...it might take you to an unpleasant place). 

Yes.  The owners won.  To the extent the short-term goal is to keep the lockout in place and keep the players motivated to come to a deal sooner rather than later, the owners won.  But, long-term... if no deal is reached and games are missed... the 8th Circuit left the door WIDE open. 

You may remember that, when I talked about the rules for injunctions, I noted that the NFLPA would have had to establish that there was a likelihood that they it be successful on the merits of their underlying case.  That's what's important now - the underlying case - as the 8th Circuit decision settles in and the parties evaluate their best move going forward.  Because, even though the lockout is still on, the Court of Appeals didn't reach the merits of the more fundamental issue: whether the lockout, in fact, runs afoul of antitrust law.  And, so long as the NFLPA remains decertified (putting aside the potential success of arguments that the decertification was a sham, as those arguments were rejected back in 1992 when the NFLPA last decertified), the NFL can't hide behind the nonstatutory labor exemption (which was also originally created to help unions, not owners) they had enjoyed while the NFLPA was a union.  And, exposed to the light of day, there is a real risk that the owners' collective decision to lock out, and the context of that lockout to get more concessions from the players, could be found to be in violation of antitrust principles. While history doesn't provide many examples of what to expect for the NFL in particular, the players have reason to hold out hope for success on the merits if the lockout does continue into the season.

Oh, and if they win - they get treble damages.  Treble, as in triple.  As in three times their losses.  As in three times the salary lost due to the lockout.

This is where I'm left to wonder.  Over the past day, it has become clear that the sides are "getting closer," but the murmurs back-dropping each of the reports is that the players are frustrated at having made so many concessions already, and that they feel the owners are not doing their fair share of compromising.  If you ask me, this is the PERFECT recipe for disaster. 

After we've been told for so long that the lockout would not last because there's too much money to be made, we have to wonder whether the 8th Circuit's decision - which allows the players to continue their class action lawsuit and, perhaps, prevail on their claims relating to the effective group boycott organized by NFL owners - will make the players think about whether a deal, right now, is really the best thing for them.  After all, as Mr. Levinstein pointed out in those thoughtful tweets, who wouldn't rather stay home and get 3x their salary? Sure, there's a risk for the players should they go forward with the suit instead of reaching a deal.  They could lose, and that would mean they lose their salaries outright, with no remedy.  But, look at the risk for the owners.  No deal, and they're sitting on a ticking time bomb of exposure... And the players know it. 

I think a deal will be made at some point, after all of this, but I think this decision is going to make it get pushed even further into the future unless the owners get real about the very significant risks now facing them in the wake of the 8th Circuit's ruling.  With this ruling, the lockout isn't just about the potential lost revenue for the owners, but also about the potential treble salaries that they will have to pay if the lockout marches on and the players ultimately prevail.  That risk, as potentially crippling to the financial stability of the owners as it is, needs to guide the negotiations going forward or else the owners could find themselves watching the players walk away from the negotiating table in the hopes of tripling their annual wages. And, honestly, I can't say that I'd blame them.