ST. LOUIS (CN) – If the National Football League Players Association truly did not exist, then negotiations such as those held last week in Chicago are illegal, NFL lawyers argued Friday before the 8th Circuit.
“There’s no question that to the extent that what’s going on is continuing negotiations,” NFL attorney Paul Clement said. “I think what that underscores is that the union has not disappeared forever, and obviously everybody can make their own judgment, but I think the problem with the argument on the other side is it sort of assumes that the union is gone forever, and I don’t think many people who are a student of this game or a student of this industry really believe that is the fact.”
Yesterday, a federal judge in Minnesota canceled court-ordered mediation scheduled for June 7 and 8, citing the progress of meetings between NFL owners and player representatives.
George Atallah, assistant executive director of external affairs for the players association, said Clements’ assumption is wrong.
“To anybody who believes that litigation or settlement, there was a choice between the two, those people are wrong,” Atallah said. “I think we’re here today to try to end the lockout so that players can play football. At the same time that doesn’t mean that negotiations or settlement negotiations couldn’t continue. You saw that over the past couple of days. It’s a false choice to think that one could happen over the other.”
Clement also argued that provisions in the Norris-LaGuardia Act did not require a union to have a labor dispute.
“One of the problems for them is that a labor dispute is defined broadly,” Clement said, referring to the players. “It clearly states that no union is needed for a labor dispute.”
Clement said that a lockout presents economic incentive for both sides, noting it would be nothing more than a “self-inflicted wound” unless it was a means to an end. The NFL estimates it would lose $1 billion if the lockout continues through August, before forfeiting even a single regular-season game.
Theodore Olson, an attorney for the players, argued that unlike other professional sports, union membership has no advantage for the players. He pointed out that it would take a series of steps, and time, to reorganize a union even if the players wanted one.
“There is no on-and-off switch,” Olson said. “It is not something the players want to do. They want to be protected by antitrust laws.”
Olson also scoffed at the NFL’s notion that employer-employee relations do not exist without the union. Olson pointed out that three different kinds of relationships existed: players currently under contract who are still subject to NFL rules, free agents, and rookies who have yet to sign a contract.
By saying there is no employer-employee relationship, the NFL is basically saying, “We will eat the dinner, but not pay the bill,” Olson said. “There is a relationship of employment there.”
At the heart of the matter is the players’ decertification of their union on March 11, the same day their collective bargaining agreement with the NFL ended. With no union to punish, the players said the lockout was illegal and asked a federal judge in Minnesota to lift it. The judge granted the injunction on April 25. Two days later, the NFL appealed to the 8th Circuit, which granted a temporary stay of the injunction until Friday’s hearing.
The court’s three-judge panel had numerous questions for each lawyer. Judge Kermit Bye questioned Clement on the lockout’s harm to the players.
“Do you concede that the players are suffering irreparable harm with not being able to work out and the rookie symposium being cancelled?” Bye asked. “It seems that it would be important for those guys [to get used to what is expected of them].”
“I would not be concerned about that,” Clement said. “We also have representatives calling in daily saying this is the best thing that has ever happened to me. They are enjoying the summer and spending time with their families.”
Clement’s answer brought noticeable chuckles from the players in attendance. While players have not made a great turnout at pervious hearings, the courtroom on Friday drew between 20 and 30 current and former players.
Judge Steven M. Colloton questioned Olson about the definition of a labor dispute.
“My concern is this,” Colloton said. “There’s a situation where there is not a union and a situation where the employees are dissatisfied with the conditions of the shop or plant, and the employees say we’re going to walk out until the employer cleans this up. Wouldn’t that thing be a labor dispute?”
Colloton quickly interrupted as Olson tried to answer that the employees acted as a union in such a hypothetical situation.
“Wouldn’t that mean the district court erred by stating [the players were] not a union?” Colloton asked.
Olson replied: “I think the district court was right in the context of what a labor dispute meant.”
The same three-judge panel – consisting of Colloton, Bye and Judge Duane Benton – lifted the stay after a 2-1 vote, with Bye being the dissenter. If the judges again rule in favor of the NFL, the lockout stays in effect. If they reverse their ruling, the lockout is lifted.
With training camp scheduled less than two months from now, there is a growing sense of urgency. A decision is expected within two to four weeks.
The hearing concluded with some humor from Bye.
“We will take this case and render our decision in due course,” Bye said. “We will not be hurt if you guys decide to settle this before our decision.”
Former players association head DeMaurice Smith declined to comment on the hearing, but current and former NFL players discussed their resolve in the issue.
“Clearly the plan has been for years is just to lock the doors on the guys,” said Ernie Conwell, a former tight end for the St. Louis Rams and New Orleans Saints. “Our hope is that we can get some type of relief here and that there can be settlement reached, but while we’re trying to reach a settlement that guys can go back to work and football can be played again.”
Another Rams player, guard Adam Goldberg, echoed that sentiment.
“Our only purpose here today was to show that it’s important to us and to represent our players and to show both the court and public that it’s important to us and we want to get back to work,” Goldberg said.