NFL Players Association ups the lockout ante
NFL Players Association ups the lockout ante
According to Lester Munson of ESPN.com, the NFL Players Association filed a legal action Wednesday attacking the NFL's $4 billion in guaranteed television contracts that will pay owners for the 2011 season whether or not any games are played. The union and its attorneys claim that league owners are using the agreements as leverage against the players and to finance a lockout when the current collective bargaining agreement (CBA) ends in March 2011. They assert that instead of working to increase the TV revenue they share with the players, the owners made deals that are designed to enhance their bargaining leverage with the union as the CBA expires.
This is the most significant public action that DeMaurice Smith has taken since he became the leader of the union, and it demonstrates that the players understand the serious nature of the lockout possibility and are willing to fight the owners on the most significant of issues: money. The owners have been preparing for a lockout for many months. They made TV deals that guarantee income to the owners even without games to broadcast. They hired Robert Batterman, the attorney who led NHL owners through a season-long lockout. They have included lockout clauses in contracts with coaches. They hired Troy Vincent, the former president of the players' union, as an owner emissary to players, which many on the labor side view as an obvious attempt to divide and to break the union. They attempted to obtain a ruling from the U.S. Supreme Court in the American Needle case that would have significantly reduced player bargaining leverage, a maneuver that failed in a 9-0 opinion from the high court but is indicative of the owners' aggressive lockout strategy.
Now, in this action, the players have counterattacked. Their attack is aimed at the heart of the owners' lockout strategy. If the players are successful in this action, the owners will lose the $4 billion safety net they thought they had created for the duration of their planned lockout.
It would be easy to say that filing a lawsuit against them is not a good way to make an agreement with the owners. But this legal action by the players probably reduces the probability of a lockout. The legal action filed against the owners on Wednesday, along with the unanimous Supreme Court decision against the NFL in the American Needle case, seriously damages the owners' plans for a lockout. If the players prevail in this action before Special Master Stephen Burbank of the University of Pennsylvania, the owners' leverage over the players will be seriously reduced. Instead of enjoying what union leader Smith called a season of "windfall profits," the owners would face a year of interest payments and stadium payments without any income from games or the broadcasting of games. Even if the players do not win this case, the threat of a win will be a factor in collective bargaining talks that are now under way. The owners, who have been sure of their ability to withstand a long lockout, must now think it through again.
The legal action filed Wednesday is expected to move quickly to a conclusion at this first level but would undoubtedly be appealed. The important thing to remember is that the owners and players will be battling on this case at the same time they are bargaining over a new labor deal.
Can the players win this case? Yes. The union and lead attorney Jeffrey Kessler have achieved historic and important gains for players through litigation. This could easily be another breakthrough for them. This action is creative and is based on the precedents and agreements that the players have earned with epic struggles that began with a failed strike in 1987. If, for example, the players and Kessler are correct in their assertion that league owners gave away highly valuable digital rights (broadcast of games and the Red Zone channel on phones) to DirecTV and allowed DirecTV to pay for them next season, it appears to be a clear breach of the agreement between the players and the owners. As the players investigate other deals with Fox, ESPN and NBC, other breaches may be discovered. This is no mere "distraction," as the league suggests. This is a serious case, and could be a winner for the players.
The players want the TV networks to pay the money to the league as the 2011 contracts require, but they want a court order that requires the league to deposit the money in an escrow until a lockout ends with a new collective bargaining agreement. If the owners see their money sitting in an escrow and watch their loan interest piling up, they are likely to be considerably more interested in striking a bargain with the players that will allow the games to begin.