Wednesday, March 30, 2011

The Basics on the Brady Bunch Brief

In the case of Tom Brady et al. vs. NFL, the players filed their brief on Monday. In it, the players are asking the Court to end the NFL lockout on the basis that it is contrary to antitrust (or competition) laws. Click here to access a full copy of the brief.

The Skinny Part 1

In response, the players have argued that the NFL owners agreed as part of the settlement last time around in 1993 that it would not challenge decertification (or technically disclaiming interest).

According to the players, that means that the NFL can't now argue that decertfication is a “sham”.

The Skinny Part 2

The NFL argued that the Court cannot rule until the labor board (NLRB) rules on whether decertification is a sham.

In response, the players have argued that the Court can and should rule now and that it doesn't need to wait for the labor board to make its decision. 

In support, the players argued that the last time around in a similar situation, the Court decided that it did not have to wait for the decision of the NLRB. 

Bottom line on all this: the players are arguing this was all fine last time around, and the NFL even agreed not to challenge decertification - so the lockout should be lifted.

Diggin' Deeper

The players have argued that they gave up a lot when they disclaimed the union and it's not a sham:
By disclaiming their union, the Players have given up the right to strike, to collectively bargain, to have union representation in grievances, to have union representation in benefits determinations, and to have union regulation of agents. The Players sacrificed these labor law rights for one reason: to gain the ability to assert antitrust claims against anticompetitive restrictions imposed by Defendants. Every court presented with this issue...has stated that if players decide to end their union, the non-statutory labor exemption also ends. It is established law that a union can renounce collective bargaining to enable its workers to protect themselves from antitrust violations.
It was also argued that last time around, disclaiming interest wasn't found to be a sham:
Defendants argue that the NFLPA’s disclaimer is a “sham.” On virtually identical facts, this Court rejected that argument in McNeil. The NFLPA disclaimed union representation and the majority of Players voted to end the NFLPA’s status as their bargaining representative, exactly the same actions that were found sufficient in McNeil.
The NFL can't force the players to remain unionized:
Moreover, employers cannot force employees to remain a union. Section 7 of the NLRA unequivocally provides that “[e]mployees shall have the right to selforganization, . . . to bargain collectively through representatives of their own choosing, . . . and shall also have the right to refrain from any or all of such activities..."
The players also state that the NFL waived its right to argue that disclaiming the union is a sham as part of the last settlement agreement:
Defendants ... unequivocally waived their purported “sham” defense in connection with settling White.

Defendants assert their waiver applies only “when the players’ decision ‘to end the collective bargaining status of the NFLPA’ is made ‘at or any time [] after’ the ‘express term’ of the CBA.”...This is what happened here. A majority of Players indicated they wished to end the NFLPA’s union status as of eight hours prior to expiration of the CBA – an unequivocal and continuous disclaimer effective “at” and “after” the CBA’s expiration.
On the issue of waiting for the labor board to make its decision, the players noted as follows:
[T]his Court held that...a court is empowered to enjoin antitrust violations directed at a player market where, as here, there is no competing labor law policy at issue because the collective bargaining relationship has ended.
...There is thus no basis for this Court to delay its decision on preliminary relief – while Plaintiffs suffer ongoing, irreparable harm – to await resolution of a NLRB proceeding that may never be initiated, could take years to conclude, and cannot resolve any of the legal issues within this Court’s exclusive jurisdiction.
The hearing is set for April 6 and don't expect the players to negotiate before then.

If you have any questions, I'm happy to address.

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