Saturday, September 11, 2010
The NFL Players Association is seeking player approval to decertify in advance of a potential lockout by owners in March when the current collective bargaining agreement expires, according to the SportsBusiness Journal. Decertifying would allow players to sue the owners under antitrust laws if the owners did lock the players out. And any effort to impose a labor agreement on the players could provide the players with treble damages.
This was the tactic the players resorted to in 1989, and it eventually gave them enough leverage to establish free agency in 1993, when the players recertified the association as their exclusive representative.
The Saints have unanimously voted to authorize this tactic, and the NFLPA hopes the rest of the teams follow suit by Thanksgiving. According to the article,
The letter does not present decertification as a fait accompli, but rather as giving the union the option to use that leverage if the need arises.
It also indicates that the union wants the option to decertify before the CBA expires. The letter states that if the NFLPA were to wait until after the CBA expires to decertify, it could not sue the NFL for six months.
If the union were to try to decertify, the league would likely sue the NFLPA, challenging the decertification as a “sham” and saying the NFLPA was still acting as a union but only filing to gain access to the antitrust laws. A source close to the league has told SportsBusiness Journal in the past that the NFL would have a strong case, because the NFLPA decertified in 1989, only to become a union again in 1993, after it won a jury trial in the Reggie White v. NFL case.
But the union has long contended that it has the right to decertify under the White settlement. That settlement was the basis for the current CBA, which was first agreed to in 1993 and has been extended several times.
So this reflects the upside of decertification, but the NFLPA would have a lot to lose by decertifying, as well. It would lose the ability to collectively bargain for the players, file grievances for them, compel them to pay dues, or control their marketing rights. The players also could lose their collective strength, something far more dangerous to the large number of players that aren't stars. The league may even gain with the decertification if it can strike deals with individuals to allow a greater percentage take of revenues for owners and convince players to allow it to control their marketing and licensing rights.
Regardless of the outcome, sports disputes seem to just about always make for more engaged labor students, so it's a win for those of us teaching labor law.
Hat tip: John O'Connell