An important thing to remember

Happy Memorial Day, friends.  My craziness around moving and traveling is mostly over, but I still have to spend a good part of today cleaning my old place, which is just the worst part of moving.  I've been too busy to write anything in awhile, though, and I wanted to take a few minutes to get something out today.

Unfortunately, we remain in a world where the NFL is locked out despite the fact that the NFLPA decertified as a union and disavowed any interest in collective bargaining on behalf of NFL players.  In the wake of the decertification, several class action antitrust lawsuits have ensued, and the merits are clearly with the players, even if time isn't on their side.  The Eighth Circuit ruled for a stay of Judge Susan Nelson's injunction against the lockout, by basically surmising that the Norris-LaGuardia Act doesn't allow federal judges to enjoin labor actions.

Interestingly, that law was passed in 1932 to prevent judges from trying to force unions back to work.  Now, it's being used as a technicality to temporarily extend an illegal lockout of a non-organized workforce.  I've been repeatedly seeing idiotic commentary lately, that opines that "the players" should come back to the bargaining table.  "The players" want to litigate, rather than negotiate.  The owners made the last offer, so "the players" should make one now.

The thing is, there is no "the players."  They decertified their union and did so legally, and per the finding of Susan Nelson, which has not been remotely disputed by the Eighth Circuit to date, they've demonstrated clear intent not to engage in collective bargaining on behalf of the players.  The Eighth Circuit made a procedural statement, saying that it was likely that the three-judge panel would find that the injunction was illegal.  They did not comment on the merits of the lawsuit that led to the granting of the injunction.

Every time the NFL or anybody else talks about "the players" as if they're one bargaining unit, it's a subtle attempt to take away the legal rights of workers to choose not to be in a union.  If "the players" suddenly showed up in New York tomorrow and said, "OK, guys, let's negotiate, we represent all players" then they'd be undermining their own action to decertify.  That's what the NFL wants, because they know that over a long enough timeline, they're going to lose big in court. 

The Nelson injunction may end up being permanently overturned by the Eighth Circuit, but that doesn't change the fact that locking out a non-union workforce is against the law.  Eventually, that ruling will come down from Nelson's court, as will rulings about other antitrust matters, like the legality of salary caps, drafts, and restricted free agency.  Judge David Doty is likely going to hammer the NFL for their lockout insurance deal and award NFL players (not "the players") large damages.

For better or worse, NFL players chose to act in their own interests in decertifying their union.  The owners of NFL teams acted in their own interests in declaring a lockout, even though they were reasonably sure that it was rendered illegal by the decertification action of the players.  All actors in any conflict should act in their own interests, so I think only confused people have a problem with either side doing so.  What has followed, and will continue to follow - is a spin-fest - which will be aided and abetted by media types who don't understand what's really going on in the legal sense. 

When somebody says "the players", you should hear the air quotes, because legally, there is no "the players."  There have been absolutely no reports, at any time, of the NFLPA acting as a shadow bargaining unit since its decertification.  That's because it hasn't been happening - because the leadership of the now-trade association had its ducks in a row, and is running a strictly-prescribed playbook designed never to give one scintilla of indication that it's conducting bargaining, or advising its members on bargaining.  Just the other day, DeMaurice Smith said that he now understood why Gene Upshaw didn't want to recertify in 1993, and that he now thinks that enjoying the antitrust protections afforded by law are probably better than collective bargaining.

Eventually, the lockout is going to be ended, because it's patently illegal.  It's just a question of when, at this point, and whether the broad population of NFL players can hold out long enough for it to happen.  Noted moron Pete Prisco tweeted last night that he thinks players aren't unified, but some private grumbling doesn't get anything done.  There's no collective bargaining without a union, and it would take a groundswell of players wanting to capitulate to force it to happen.  I don't expect that to happen, and rather, football will begin once the lockout is specifically ruled illegal, and settlement negotiations will or will not take place in the background over the months and years to come - just like back in the late 1980s and early 1990s.  Just listen for the air-quotes, and remember that both sides should act - and are acting - in their own interests, and don't be surprised when the NBA labor situation goes roughly the same way later this summer.

Since there is no union.

1.  I’m not in the arguing business, I’m in the saying what I think business.
2.  I get my information from my eyes.

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Ted's Analysis