Lockout might never happen

VikingUpdate.com
Posted Feb 18, 2010


There are a lot of legal terms being thrown around in the NFL’s labor dispute, but there doesn’t have to be a work stoppage next year. The issue could get tangled up in court while the league plays on.

The prevailing feeling heading into what is almost sure to be an uncapped season in 2010 is that a work stoppage in 2011 is almost a done deal. However, given the way that labor law is structured and how it is implemented between opposing sides doesn’t necessarily apply to the NFL.

In most occupations, if a union goes on strike, management attempts to compensate for that by hiring replacement workers. In some fields, like airline pilots, that is too risky a proposition. In other fields, “scab” employees are simply part of a strike scenario. But in the NFL, it simply won’t work.

The NFL tried that ploy in 1987 – the last time there was a work stoppage in the NFL. It was an unmitigated disaster. The Vikings were convinced an 11th-hour agreement would be reached and made little to no effort to go out and sign players weeks before the walkout was expected. As a result, the Vikings fielded one of the most hideous scab teams in the league – losing all three games that were played by a combined score of 70-33. It didn’t help that all three losses were divisional games and effectively torpedoed the regular season for Minnesota. The fans revolted, the players caved and they returned to work. The same scenario may play itself out in 2011 if no agreement is reached, but it may not be an automatic that there will be a work stoppage.

During his pre-Super Bowl press conference, NFL commissioner Roger Goodell made the obvious point that the NFL and the players would both lose in a strike scenario. What he didn’t say is that the players would have to walk away from the table and call a strike for any work stoppage to occur. The term “lockout” has been called into play often, insinuating the owners would prevent the players from working by shutting the doors until an agreement is reached.

Using the same timetable as the current CBA has – it officially ends March 5 with the start of free agency and a new NFL year – assume both sides negotiate until March 2011 and can’t reach an agreement. Labor laws, even those for near-monopolies like the NFL, are designed to promote avoiding work stoppages. The words “strike” and “lockout” are the buzz words now, but a year from now, the buzz word will be “impasse” if no agreement can be reached, likely followed at some point by the new buzz phrase “decertification.”

Instead of locking out players if no new collective bargaining agreement is in place by next March, the NFL will simply announce that it has reached an impasse with the NFLPA. At that point, U.S. labor laws allow management to unilaterally set new rules for things such as wages, conditions of employment and just about anything else that would be contested between the two sides. Since the owners are clearly not willing to accept the terms of the soon-to-expire CBA, those post-impasse rules would call for the owners to get a bigger piece of the defined gross revenue – currently about 60 percent for players and 40 percent for owners.

The owners won’t be foolish enough to impose rules that would scale back the player’s portion to an insulting level. Most likely, the new rules that would be imposed would be approximately the same league proposals in the final months, weeks and days of negotiations prior to March 2011. With rules in place, whether liked or not by the players, there would be no lockout. The next step would be decertification.

Decertification would happen if the players union went after the NFL under federal anti-trust laws. It would be a grueling process – they often takes several years to run through the challenges to decisions one way or the other – and the players themselves would lose millions – both in the percentage of the revenue and the cost of fighting the cases in court. Rest assured the NFL has very deep pockets to pay lawyers to protect their brand.

In the end, a work stoppage would likely be averted with the promise to players that they will win in court and the NFL will have to fork over billions to the players in the league from 2011 to whenever a final ruling would be made years beyond that, like 2016 or 2017. In the interim, the league would continue on and games would be played. The only way this scenario won’t play out is if, when the owners hypothetically impose the new set of rules and stipulations for a de facto CBA (slanted heavily toward their proposals during negotiations), the players union says it is unacceptable and votes to strike.

This would be a near-doomsday scenario for the players. The owners will be able to contend that they tried to negotiate from the time they opted out of the current CBA (which was their right) and legally instituted new rules and regulations to operate their businesses that tried be more equitable to both sides. The onus would be on the players for going out on strike.

Hopefully, the give and take that is part of negotiations will take precedence and there won’t be a need to hear the words “impasse” and “decertification.” But, that is more likely what is on the horizon for the NFL rather than a work stoppage. If the players union votes to strike, everyone will lose. But it may be time to quit talking so much in terms of “lockout,” because it seems unlikely that an actual lockout will ever take place – in 2011 or any time thereafter.

THURSDAY NOTES

  • Of all the factors that may weigh heavily into the ultimate decision as to whether Brett Favre returns for another season or not won’t take place at Winter Park or down on the farm in Kiln, Miss. Instead, it will happen in a Minneapolis courtroom. Hennepin County District Court Judge Gary Larson is scheduled to give a ruling this morning as to whether Pat and Kevin Williams can sue the NFL for violating Minnesota laws concerning drugs in the workplace. Attorneys for the Williamses cited two state workplace acts that deal with drug testing and the policies that need to be followed to punish an employee of a Minnesota company. The NFL won court decisions in federal district court, getting all claims with the exception of the two Minnesota laws introduced by the Williamses’ attorneys thrown out. Both Pat and Kevin face a four-game suspension if they lose their case in state court. If Judge Larson rules they can sue the NFL, the case will drag on for several more months as the two sides prepare for trial and the potential of an appeal of a losing decision.

  • The Browns released running back Jamal Lewis Wednesday. He was placed on injured reserve in December with post-concussion symptoms. Lewis said that his initial concussion injury this season came in the opener against the Vikings and that he is still suffering from headaches.

  • The Bears are getting busy for the draft despite not currently having a pick in the first two rounds thanks to the Jay Cutler trade. The Bears have allegedly invited TCU offensive tackle Nic Richmond to a pre-camp visit with the team. It’s unclear if Richmond is flattered by the invite or if it made him realize at least one team is convinced that he’ll be drafted no earlier than the third round.

  • Another downside for players in the pending uncapped season is that it will give owners a chance to purge themselves of high-priced veterans that have crippling contracts. The primary reason that players get cut around June 1 is because the salary cap hit of their accelerated signing bonus money could be spread over two years instead of one big hit. With no salary cap, there will be no salary cap hit, so owners may be able to shed some albatross contracts and just eat the guaranteed money they shelled out.


    John Holler has been writing about the Vikings for more than a decade for Viking Update. Follow Viking Update on Twitter and discuss this topic on our message boards. To become a subscriber to the Viking Update web site or magazine, click here.


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