Why the NFLPA’s “decertify and deny” labor strategy was a busted flush

Last March, the newly decertified NFL Player’s Association asked a Minnesota federal judge to grant an injunction prohibiting the NFL owners from continuing their institution of a “lockout” of the players. The federal judge granted their request and ordered an immediate end to the lockout, citing the need to prevent “irreparable harm” being done to free agents and unsigned rookies.

In June, the Eighth Circuit stayed the federal court order, thus lifting the injunction and signaling their feelings on the matter.  Yesterday, the Eighth Circuit formally reversed.  The NFLPA’s legal “stunt”, as I will call it, appears to have been a collossal waste of valuable time and union resources.

The NFLPA’s legal strategy and the reason it failed

As you all know, the NFLPA and the NFL had a labor agreement.  After it expired, the NFL declared an impasse in the collective bargaining and exercised what it believed was its right to “lock” its unionized employees out of the workplace until a new agreement was made.

The NFLPA immediately decertified.  Why?  Because it believed that the NFL’s ability to act collectively without running afoul of the federal antitrust statutes hinged upon the so-called “nonstatutory labor exemption” that the courts carved out in Powell v. NFL.  Once the union disappeared, the reasoning went, so too would the antitrust exemption.

The NFLPA was confident in that outcome because it had used a similar tactic to defeat the NFL’s infamous “Plan B” Free Agency regime implemented in the wake of the failed 1987 player’s strike.   Following the ’87 strike, the union similarly decertified and individual player plaintiffs were able to prevail together in a string of class action antitrust suits against the league, specifically against the restrictive nature of “Plan B”.  The union believed the same tactic, or at least the imposition of the tactic, would scare the NFL enough to tilt the labor negotiations heavily in there favor.

So once again the union decertified and once again a select group of NFL players filed a class action against the NFL, this time alleging that the lockout itself constituted an unlawful collective action that violated antitrust laws.  One court bought their argument, but a higher court did not. (There’s always a bigger fish).

Why did the strategy fail this time? Because the circumstances were not similar. This time, unlike the cases from the 1990s, the Appellate Court resolved the matter on a jurisdictional issue, not on antitrust grounds.  The Court held that the long-standing Norris-LaGuardia act prohibited the Minnesota federal court from issuing any permanent or temporary injunction in a case like the one in front of them that grew out of or involved a labor dispute.

The court reasoned that it did not matter — technically speaking — that there was no classic labor law dispute involving a union and management. The “lockout” action was still covered by the dictates of Norris-LaGuardia because it “grew out of” a dispute that qualified under Norris-LaGuardia as “a labor dispute”.  The NFL dispute qualified as a labor dispute because it was a dispute between “individuals in the same industry” (the NFL teams) and “one or more employees” (NFL players under contract).  Clever, cleaver.  By sleight of hand, the Appellate Court essentially read the word “union” out of one of the nation’s most famous and enduring pieces of labor legislation.

As a result of this creative reading, the Appellate Court found that the Minnesota federal judge who enjoined the NFL lockout actually lacked the power necessary to do so, and accordingly it overturned her in full.

And the upshot of all that is that the NFLPA’s big move, the big legal gambit that it said was going to tip everything in its favor this time around, turned out to be a complete busted flush.

(Note: whether you agree with the decision or not, there is irony here.  The Norris-LaGuardia Act, passed during the Great Depression, was intended to shield unions from the constant federal court interventions that had repeatedly been used to short-circuit their one great bargaining chip: the peaceful strike. The authors would probably be appalled to find it being interpreted to provide a sword to management.  Actually, they would probably be more appalled that the only significant labor actions left are those involving unions protecting men who drive Cadillac Escalades from men who own fleets of yachts, but that’s a story for another day).

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