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.

The Barrister

The current situation with the NFL is pretty hard to write about as a blogger who daylights as a lawyer. Part of me figures that I should bring my skills of legal analysis to the table, while another part of me is absorbed with my frustration with the situation as a fan, while a third part of me thinks those first two parts are stupid for even thinking I could have anything worth reading on the topic at this point.  After all, devoid of contract negotiations, trades and training camp to talk about, ESPN's focus on the NFL, its favorite son, has been almost exclusively focused on the NFL lockout and the legal proceedings surrounding it.  Well, even so, I'm going to indulge a few thoughts about what's happened to bring us here, and where I hope to see this thing go when all is said and done.

But, before I really get started, we all could use a little background on this one. Why? Because typical fans don't like thinking about the nitty-gritty of the sports labor issues because (a) they're boring, and (b) they make use furious when we think about the amounts of money involved.  I can already feel the hate welling up. THINKING OF MY HAPPY PLACE. THERE IT IS. 

The NFL, with roots back to the 1920s, didn't have organized labor until the 1950s. Frankly, I'm surprised it took that long for players to get sick of busting their asses without getting a fair shake from the owners. In 1957, a year after the players union was formed, the Supreme Court decided the case of Radovich v. NFL, wherein it held that antitrust law did, indeed, apply to the NFL, despite the immunity previously granted to Major League Baseball.

[Sidebar: Anyone who wants to make the point about the American justice system being a dysfunctional mess need only refer to the fact that MLB is free of antitrust laws, while ALL OTHER AMERICAN PRO LEAGUES ARE.  Why? Because a decision in 1922 by Oliver Wendall Holmes called it "just a game" and unrelated to "production," the thing antitrust law was supposedly concerned with. While I certainly agree that the Mets, for instance, are completely uninterested in producing, I think Justice Holmes's argument needs to be rethought.]

Under the umbrella of antitrust law, certain rules generally apply to the NFL's activities. Now, I reiterate that I generally don't know shit about antitrust laws, but the basics aren't all that complex.  As applied to labor - a resource of business - these principles suggest that, just as it is bad (and most often illegal) for companies to band together to fix prices at specifically high rates that are not commiserate with the true market price as set by supply and demand, it is also generally bad for companies to band together and fix wages at artificially low rates that are not in line with the true market rate for such labor.  Or, taking the principles even further, antitrust law generally tells us that separate businesses can't band together to create a system that funnels new labor resources and dictates where they can and cannot work. 

Wait, but that's exactly what the NFL and every other league in America does, how could that be right? (Not Europe, though; they don't need fairytale concepts of fairness and parity to keep their leagues going. Not good enough? Fuck you then, you're relegated. Maybe next time, try getting some better players and not losing so much).

As you can see, the NFL - as it is currently set up - has found its way out of the scope of antitrust law. But, unlike MLB, the NFL did so through a bargain. A collective bargaining agreement, to be exact, which included - among other things - a basic agreement that the NFLPA would not bring any sort of antitrust litigation during the length of the CBA plus six months. In place of antitrust law, the NFL operates on a set of rules that appears to violate every principle of fair play in the marketplace.

I mention this general observation of the NFL to illustrate that the NFL's model of success, built on a business model that blatantly disregards the principles of antitrust law, has been hanging by a contractual thread.  The things we like the most about the NFL as fans - the forced parity of the draft or the salary cap, for example - were possible only by virtue of the agreement that the players and owners came to back in the late 80s, and which was extended in 2006.  The league, booming since that deal, has opted out of the agreement and, in my view, has done so with an utter disregard for the reality that the presence of a CBA  - and the resulting immunity from antitrust restrictions - made the NFL the money-making machine that it is today.

So, yeah, basically  FUCK THE OWNERS. It is a shocking move of hubris to ignore the fact that your success, built upon a model of price fixing and collaboration between businesses, is only possible due to a CBA, and then to make the active choice to opt-out of the very thing that makes your business out of the reach of rules that apply to all other businesses.

Beyond that, my liberal brain feels that - valid or not - the owners' points deserve to be shat upon because the Mega-Rich should never be allowed to pretend that a shortage of a few million dollars is putting them in dire straits. I don't care about any arguments about the NFL taking off due to their investment in it, and that fairness dictates that they are entitled to a bigger cut. The NFL is the most popular sport in the country because fans who - in comparison - barely have two pennies to rub together have utterly devoted themselves to the sport. Sponsorship and corporate dollars followed that wave of interest in America's Everyman, and the dollars have been coming in by the bucket-load. The owners got real rich, and now they want to get a little richer. Don't sit there and pretend I should feel sorry for you and your life that all us plebes would fucking kill for. All this talk about how expensive it is to grow the game and how there's a lack of incentives for clubs to invest is asinine. If there wasn't an incentive, how the fuck did this monstrosity get built?

So, no, I don't buy that one fucking bit. And even if I was inclined to believe that owners were seriously hampered by the latest CBA, the place to make that argument is at the negotiating table, with hard facts to support that claim. Because, honestly, all I see is the dollar signs and I want to punch someone in the throat.

Which brings me to perhaps my most central point about the owners - they've been complaining about this shit since the last CBA extension was signed in 2006. WHY FUCKING SIGN IT THEN? My guess is that they did so because there was money to be made, and where there's money to be made, there's an incentive to invest. If owners are running at losses, that's one thing, but most of these guys are independently wealthy and basically chose to own a team because it seemed like an awesome and fun thing to do. And, frankly, from what I've heard from those speaking out of the NFLPA, the owners never even went so far as to show the union any records that might demonstrate the financial difficulties they described or that further investment in the league has really ever been in doubt.

Incidentally, the owners arguments are the same ones we've been hearing from most sectors of the super-rich American upper class:  the current system governing Industry X doesn't give the wealthy enough of a return on their investment to make further investment worth it, and that unless we all (through our government, often) agree to redefine the basic rules of Industry X, those dollars of investment will be picked up and taken elsewhere. This risk of capital flight acts as effectively as a knife to our throats, but is rarely if ever backed up with actual evidence that the current system - whether it be the tax code or a set of "oppressive" environmental regulations - is actually a threat to sustainable growth and investment in the particular industry.  Yet, even though we're not given evidence and we're often given little else than a spoiled over-sized rich kid complaining that he wants more and he wants it now, we so fear losing those rich kid dollars that we cave in and reach a new agreement to give more - more tax breaks, more exemptions from regulations. And then, a few years later, when that new status quo is attacked with an eerily similar set of threats, it is likely that we, collectively, won't  notice that we're being duped all over again. 

Given the parallels to American big business and the crock of shit that corporate barons have been shoving down our throats, it is really hard for me to not side with the players. The owners CHOSE to end the CBA early, and they CHOSE to lock the players out.  In doing so, they sharpened the knife against the throat of the players.  But, rather than just mindlessly cave at the threat, the players are fighting back - if only to demand the common decency of being allowed to see the actual evidence supporting the NFL's position.  The NFLPA's decision to decertify the union, which the owners are branding a "sham" within the pending appeal in the Eighth Circuit, was a last-ditch effort to re-balance the bargaining positions. Once decertified, the players had an opportunity - pending the Court's forthcoming decision - to get the Court's assistance in stopping the lockout and, in essence, putting the owners back in their place.  And, in the meantime, as the sides continue to negotiate a new CBA, the unresolved and fundamental legal questions of whether the courts can even get involved in stopping the lockout remain a useful weapon for the players, if only because those questions mean that the NFL can't simply bank on a continued lockout. 

Of course, this begs the question - what if the court makes its decision before the sides have reached an agreement? Well, if the players; argument wins the day and they get their injunction (stopping the lockout), the bargaining table will be an even playing field again. If the owners succeed in their argument that the court doesn't have the jurisdiction to issue an injunction in this labor dispute, the players may have no other choice but to bend to the owners' whims or just accept the lockout and ditch the season.  And if the NFL continues in its absurd refusal to succinctly lay out its argument for a new CBA, and continues unwilling to give in to player demands about compensation for an extra two regular season games and revenue set aside for long-term player health care, the players may honestly have no choice but to balk from the bargaining table. Such a move if not good for anyone - except maybe the NHL - though it still may be better than the alternative.

But, clearly, what the hell do I know? I'm just a fan, and I like players - not owners. (Except T-Pegs. I Love you Terry!!) However this plays out, I just hope that our heroes get a fair deal, and that they aren't afraid to bust some heads to get there.