What makes this year's labor dispute different than past disagreements? This time, the owners are up against a much better organized group of players.
The NFL players and owners have completed yet another round of closed door, court-ordered mediation in Minneapolis. The result of the talks can best be summed up in baseball terms: no runs, no hits, no errors.
The issues haven't changed so much as the length of a football since the Collective Bargaining Agreement between owners and players expired on March 3. The players' motivation to hold together couldn't be simpler, and the owners have solidified them by locking them out. The owners are demanding the players give back $1 billion dollars in revenue without explicitly stating why they need it. Of course, as both sides know, the owners want the money to offset the cost of those new stadiums that taxpayers are no longer willing to subsidize. But as National Football League Players Association executive director DeMaurice Smith correctly summarized it, "When Ford wants to build a new factory, they don't ask the autoworkers to pay for it."
The two sides will be sitting down again on June 7, four days after a key appeals court hearing in St. Louis on the legality of the lockout, after which we have to wait to find out whether the lockout is lifted. (The court has promised to expedite their decision.)
If the court rules that Judge Susan Richard Nelson's decision that the lockout was illegal and the lockout is lifted, the press will say that the players won. If the court overrules Judge Nelson, the padlocks will stay on the doors and many will say that the owners won.
In fact, nothing will have been resolved. If the lockout is lifted, the owners could continue the work stoppage by completely shutting down their operations, locking out their own personnel as well. (This seems unlikely, but it is possible.) If the court decides the lockout is legal, well then, the lockout will simply continue.
No matter what the outcome of the June 3 hearing, the 2011 NFL season is already perilously close to being scrapped. The players usually report to preseason training camps around the first of July, and the first preseason game is less than 12 weeks away, which doesn't leave much time to forge a new collective bargaining agreement—even if the major issues were to be quickly resolved.
Whatever happens, it would be wise for the NFL owners to understand that this time around they are up against a different kind of opponent. This time—unlike the five previous work stoppages, the last in 1987—they are dealing with a real union.
In the past all collective bargaining agreements between the NFL owners and players have had two things in common. First, the talks were defined by how much the players were going to give back. The causes of the 1982 strike were similar to the 2011 lockout as the players were asked to take a smaller percentage of gross revenues; in the 1987 strike, it was over limits to free agency. The second was that the National Football League Players Association was essentially a company union—a poor cousin to its baseball counterpart. The MLB Players Union is not merely the most successful union in sports but the most successful union in the country over the last four decades.
This time the NFL players are represented by DeMaurice Smith, who has instilled in his membership a sense of camaraderie and solidarity that football players have never displayed before. For instance, in 1987 Joe Montana, the biggest star in the sport, crossed the picket line with 11 of his San Francisco Forty-Niners teammates right behind him. Montana tried to rationalize his decision by saying, "We don't have a strong leader like Marvin Miller [who founded the baseball players union] to represent us."
Now they've got one, and three of the best known players in the sport—the New England Patriots' Tom Brady, the New Orleans Saints' Drew Brees, and the Indianapolis Colts' Peyton Manning—are not only not likely to cross a picket line, they are plaintiffs in an antitrust lawsuit against the NFL.
This is perhaps the most important aspect of the entire labor clash, though it's received scant attention from the press. In all past sports labor disputes—most notably in baseball, with Curt Flood's 1970 lawsuit seeking free agency—courts have told the players that their grievance was " a matter for collective bargaining." Which is why the NFLPA's Marth 11th decision to decertify the union was central to the players' strategy .
The decertification left the players free to sue the NFL for antitrust violations which, as a union, they could not do under U.S. labor law. Without a certified union, the courts can't tell them to seek justice through collective bargaining, and the players are free to assault the league where it is the most vulnerable: through the antitrust exemption that it has enjoyed since 1961.
By any definition of the term, the NFL is a monopoly. What does an exemption from antitrust laws mean to the owners? Everything. It gives the league's teams almost complete control over licensing and merchandising and leaves them free to make television deals which all but shut out potential rivals. Though there has been no break in their ranks yet, it's a safe bet that nothing sends a cold chill into an NFL owner's heart like the thought that he might lose his antitrust exemption.
At this point in the negotiations, which might be called roughly the beginning of the fourth quarter, it wouldn't be wrong to say the game is tied and that the refs are reviewing a potential game-turning play. But whatever the courts decide, it's not going to remove that antitrust lawsuit looming on the horizon. Only a reconciliation of management and labor will do that. It's easy to believe that several of the owners, even if they can't so say so publicly, want exactly what the players want—a return to the status quo and a quick end to a pointless lockout.
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