Wednesday, October 4, 2023
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NFL Insists it Can|Lock Out its Players

MINNEAPOLIS - The NFL insists its lockout of players "is unquestionably lawful and permitted by federal labor law." The league on Monday filed a 57-page memo attacking its players' request for an antitrust injunction to stop the NFL and its member clubs from imposing the lockout.

The NFL cites three main reasons to deny the players' request for a preliminary, in its Memorandum of Law in Tom Brady et al. v. National Football League et al.

The NFL says Section 4 of the Norris LaGuardia Act "prohibits this court from issuing an injunction against a lockout. That prohibition applies regardless of whether or not the NFLPA [National Football League Players Association] remains a union. The jurisdictional bar applies as long as this case 'involves or grows out of' a labor dispute, a test that is clearly satisfied here."

The NFL also claims that the NFLPA did not negotiate in good faith, but disclaimed their union status "to gain a tactical bargaining advantage, rather than disclaiming unequivocally and in good faith, as the federal labor laws require."

The league claims that "plaintiffs' suit raises threshold questions about the representational status of their union and whether its purported disclaimer is valid under federal labor law. Those questions fall squarely within the primary jurisdiction of the National Labor Relations Board. The validity of the purported disclaimer is a threshold issue because, if it is invalid under the labor laws, the nonstatutory labor exemption unquestionably protects the NFL clubs' exercise of their labor law rights, including their right to lock out, from antitrust scrutiny.

"The NLRB is now considering whether the union has purported to disclaim in order to gain a tactical bargaining advantage, rather than disclaiming unequivocally and in good faith, as the federal labor laws require. If the Board finds such a violation, it will issue an order requiring the union to return to the collective bargaining table. Under the primary jurisdiction doctrine, the court must stay this case pending the outcome of the Board proceedings.

"Third, even if this Court had jurisdiction to consider the request for an injunction, plaintiffs could not demonstrate that one should issue."

The NFL claims the collective bargaining agreement in effect until the NFLPA union dissolved itself "would have barred antitrust claims for at least six months if the disclaimer had occurred after expiration, [so] the union purported to disappear a full eight hours before the midnight expiration."

The NFL cites a statement it attributes to NFLPA representative Kevin Mawae: "[T]he idea of decertification, the tactic and the strategy worked back in 1989... . [T]he whole purpose [of disclaimer] is to have that ace in our sleeve. ... And at the end of the day, guys understand the strategy, it's been a part of the union strategy since I've been in the league ... ." (Brackets as in the memorandum.)

U.S. District Judge Susan Nelson has scheduled an April 6 hearing on the request for an injunction.

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