26 April 2011


ProfessorBainbridge.com | Stephen Bainbridge | NFL lockout lifted: Some thoughts from a non-labor lawyer

US District Court Judge Susan nelson has granted a preliminary injunction lifting the NFL's lockout of its players. I must confess that this is not my area of the law, but I'm struck by a couple of things.

First,the judge insisted at p.47 that the NFLPA's decision to decertify is a two way street. Yes, the NFL could not lock out the players once the union decertified, but the players no longer have the right to strike:
The League objects, arguing that the Players cannot just flip the “light-switch” and disclaim the Union. But again, employees have the right not to be a union as much as they have the right to be or organize as a union. Moreover, if negotiating as a union has proven unsuccessful, such organized employees also have the right to terminate the union. There is nothing inherently unfair or inequitable about a disclaimer effecting an immediate termination of the framework of labor law. Such an election cannot be viewed as mere gamesmanship, because it only comes with serious consequences to the Players making the election.The Players no longer derive the negotiating benefit of collective bargaining or any of the other rights they had enjoyed while they were unionized.35

35. For example, unionized employees have the right to strike as the counterpart to management’s right to lockout its unionized employees. But once the Players have renounced their Union, they could not engage in any meaningful “strike.” The League could simply fire them all for failure to show up for work.
The absurdity of the Boeing/WA/SC factory thing was what finally put me over the edge into concluding that trying to analyze contemporary labor relations and legislation as if it were a rational edifice is foolish. So really I shouldn't even be bothering to apply any real thinking to a labor situation like this, but it's football, and that means I am compelled to consider it.

Okay. Bainbridge comments:
But is the right to "fire" Peyton Manning or Tom Brady really a very meaningful one? It's not exactly like firing the proverbial "Joe Six-Pack," after all. Those of us of a certain age are old enough to have seen scab football and it wasn't pretty. In this rather unique context, decertification clearly was pure gamesmanship, designed to produce precisely this legal outcome so as to give the "union"negotiating leverage. So there does seem to be something inequitable here. The NFL has lost the ability to lock out the players, but the players can still de facto strike and shut down the league.
I don't think you would have to fire Manning or Brady if you're an owner. There are a lot of players and hence a lot of members of the (former?) NFLPA who could be fired and easily replaced. How many guys can you name on your favorite NFL team? Maybe two dozen, if you're a big fan. Meanwhile there are 53 guys on the roster. There are more players you wouldn't notice missing than those you would. And for every one of them there are two or three more guys who narrowly miss out on making the team during training camp who could be doing those jobs pretty damn well.

Let's say the owners decide to fire the fifteen or twenty guys who are least likely to be missed by fans. (Note that a subset of those guys are the sorts of on-the-bubble itinerant players who may not have had a job with the team next season anyway. I'm not sure if this matters, but keep it in mind.) Do you think the NFLPA — and the Mannings and Bradys in it — will be able to shrug that off? For the sake of solidarity they need to treat that situation as seriously as if they themselves just got fired as well. So I think the ability to fire players is a stronger tool than Bainbridge does because it gives an owner the ability to make Tom Brady act (and vote [wait - now that they're decertified is there still voting going on?]) as if he could be fired even though he likely won't/can't be.

What I'm trying to say is that you don't actually have to fire a Tom Brady to influence the collective decisions of the players.*  You can fire a couple of Ryan Kuehls* instead and get a similar result.

(* This is assuming there is still a collective decision to be made.  This whole decertification thing confuses me and I've made no efforts to figure it out.)

(** Oh, you've never heard of Ryan Kuehl?  Yeah.  That's sort of my point.)

~ ~ ~

Okay this is starting to make less sense even to me. My latest batch of simulations just finished and is demanding some analysis, so I'm posting this and then ceasing to think about it. Before I do though here's my NFL labor dispute question:

Assume there is no NFL season this fall. You are a college athletic director. Under what circumstances do you consider switching a game to Sunday when there will suddenly be significantly less competition for TV viewership? What factors do you consider? And what sorts of schools are most likely to reschedule in this way, if any?

No comments:

Post a Comment