Two minute drill

The clock is ticking on the expiration of the extended collective bargaining agreement between the National Football League (NFL) and the National Football League Players Association (NFLPA). Current deadline is tonight at 11:59 p.m. USA Today has an interesting, if bare bones assessment of what could happen. My bet is on another extension. The players have signaled their willingness to talk - there has been no talk of a strike. The owners have rattled the lockout saber thereby assuming the roll of the party willing to walk, but really? This labor/management dispute plays to labor's strengths. Highly skilled athletes bargaining for more. Billionaire owners wanting to increase their guaranteed slice of the estimated 9 billion dollar golden goose that is the NFL. It does not hurt the players position that the owners want a $100% increase in their guaranteed slice off the top. This dispute plays out against the backdrop of the fans. Who will they blame if Sundays from August to February (and a few Mondays, Saturdays and Thursdays too) are devoid of action, or if the only action is by replacement players? I think thats an easy call if the owners lockout the players. Nevertheless a lockout has the same potential economic consequences for the players as a strike, and they are all adverse. No pay, no benefits, and potentially a lost season for players who have precious few years to play anyway. The owners should be gleeful the players threaten to decertify the union (actually a disclaimer of interest that would lead to decertification). It allows the owners to back off the lockout position and continue negotiations, at least at this point. Decertification likely will likely place all of this in a courtroom, a consequence which should be feared more by the defendant, because the teams, as defendants in an antitrust action have a potential dreadful downside. I think the owners should be very concerned about American Needle v. NFL, which rejected the owners argument that the league by necessity had to act jointly in marketing decisions. Yeah, that may be a simplistic analysis, but the case firmly rejected the NFL's broad interpretation of the anti-trust exemption.

Brees opposes NFL position

Drew Brees has penned an interesting piece in the Washington Post concerning American Needle v. NFL. Thats the case challenging the NFL's right to enter into an exclusive marketing arrangement for stuff with team logos. The small company challenging the NFL's exclusive arrangement with Reebok lost in the lower court which found no anti-trust violation in the deal because the NFL is essentially a single entity for marketing purposes. After the deal took effect the cost of a cap with a team logo increased by ten dollars. If you're thinking what does this have to do with employment law, Saint Drew explains. It seems the NFL is asking the Supreme Court to broaden the ruling. The league wants the Supreme Court to declare the NFL is a single entity for virtually every purpose, rather than 32 extremely competitive football teams. If that were the case, bye bye free agency and the many other advances players earned using the anti-trust laws. Oral argument is set for January 13, 2010. Praise for Drew and more details in this opinion piece from the San Francisco Chronicle.