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Thursday, February 17, 2011
The NFL's Unfair Labor Practice Claim & Article LVIII(3)(A) of the CBA

By now, most football fans know that the NFL has filed an unfair labor practice claim against the NFLPA, alleging that the NFLPA has consistently failed to negotiate with the league in good faith. Most media reports, however, fail to offer a meaningful explanation about what the NFL stands to gain by filing this grievance.

Here's my hunch: The NFL grievance is about trying to delay the NFL players' right, without decertifying prior to the expiration of the CBA, to bring an antitrust challenge against certain NFL practices. This is based my reading of a particular provision buried on p. 238 of the NFL Collective Bargaining Agreement: Article LVII(3)(A).

Upon careful review, Article LVII, Section 3(A) of the NFL collective bargaining agreement (p. 238 of PDF) states as follows:
Following the expiration of the express term of this Agreement ... if the NFLPA is in existence as a union, the Parties agree that none of the Class Members ... nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and the NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later.
Thus, pursuant to Article LVII, Section 3(A), the event of impasse would trigger the start to a six month waiting period before the NFLPA, if it is in existence, could attempt to challenge the NFL salary cap, draft and other labor-side restraints under Section 1 of the Sherman Act.

As a matter of law, however, impasse cannot occur where the party seeking to benefit from declaring impasse has bargained in bad faith. Therefore, if the NFL can show that the union is engaged in some sort of "bad faith" bargaining, impasse would be delayed, and so too would be the players rights under the collective bargaining agreement to bring an antitrust suit against the league's draft, salary cap and other restraints.

Of course, the thought of the NFLPA bringing an antitrust challenge against certain league-wide practices is a real fear for NFL team owners. Indeed, the NFL players, after a failed strike, implemented this strategy successfully in the case McNeil v. Nat'l Football League, 790 F.Supp. 871 (D. Minn. 1992).


Thanks. On the flip side, is it possible that the NFL would want to declare an impasse, avoid the lockout and have football in the fall? Decertification would remain an option in both scenarios for the players.

Anonymous Anonymous -- 2/17/2011 10:46 AM  


I read that section differently. To me, that section says that once the CBA expires, the antitrust suit can't be brought until the later of one of these two occurs: 1) the parties bargain to impasse or 2) 6 months pass. So, impasse doesn't trigger the 6 month waiting period. Instead, the expiration of the CBA triggers the it. Pushing back the impasse date would only have an impact if the impasse occurred more than 6 months after the expiration of the CBA (which seems unlikely even with the NFL filing charges against the PA).

Blogger Gabe Feldman -- 2/17/2011 11:43 AM  

I agree with the reading provided by Mr. Feldman, but would also add that during the last decertification (and in the McNeil lawsuit), the players were actively trying to obtain free agency. In their successful antitrust suit, they attacked the reasonableness of the NFL free agency compensation system.

What are the challenges here? Surely the NFL isn't short-sighted enough to institute similar free agency restraints, so what policies could the NFL institute that would be challenged in an anti-trust suit? I think it very unlikely that the NFLPA could win an antitrust lawsuit based on NFL unilateral policies, especially after courts have said that things like salary caps and rookie drafts are not antitrust violations.

Anonymous Alex Bard -- 2/17/2011 11:59 AM  


I agree fully with your reading, and probably could have presented that point in the post more clearly.

However, if the NFL believes they have evidence of "bad faith" bargaining, I do not think they want to be unduly slothful in filing their grievance. In essence, a showing of bad faith bargaining now may help support a showing of continued bad faith bargaining down the road (as well as not enough time with good faith bargaining to get to impasse). And, based on the reading of the current collective bargaining agreement, it seems the NFL, even at the time of drafting, was fearful of the "decertify and file an antitrust suit" strategy.

That, of course, however, gets back to the question of whether hard bargaining is bad faith bargaining. It's interesting, with the antitrust angle involved, to see management and a union having to reverse their traditional view of this issue.

Blogger Marc Edelman -- 2/17/2011 12:16 PM  


I believe your reading of past case law is somewhat inaccurate. Courts have found that collectively bargained salary caps and rookie drafts are exempt from Section 1 of the Sherman Act under the non-statutory labor exemption. The outer contours of this exemption remain a subject of debate, as well as how far, beyond impasse, such an exemption would apply. (Issues not clearly addressed by the Supreme Court in Brown v. Pro Football).

Courts, however, have NOT FOUND that salary caps and rookie drafts are "not antitrust violations." Where these restraints lie outside of the non-statutory labor exemption, and the league exercises "market power," such restraints might be found to violate the Rule of Reason.

Blogger Marc Edelman -- 2/17/2011 12:23 PM  

Is there any similar language in the NBA CBA to your knowledge? I haven't looked over it in quite some time.

Blogger Andrew -- 2/17/2011 4:29 PM  

You have misread the CBA provision you quote. It was written before the Supreme COurt decision in Brown and is no longer relevant or applicable. The NFLPA can decertify immediately and then the players can sue immediately. The NFL ULP is an attempt to block the decertification.

Anonymous Anonymous -- 2/19/2011 11:07 AM  

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