Yesterday, Ruling Sports discussed why the National Basketball Players Association (“NBPA”) should wait until November, at the earliest, to decertify. Today’s focus is on how the decertification of players associations adversely affects the bargaining power of players after the conclusion of a labor dispute and extends the length of labor disputes.
Labor unions, like the currently decertified NFL Players Association (“NFLPA”) and National Basketball Players Association (“NBPA”) largely originated in Europe during the Industrial Revolution. Thinking back to your high school history classes, you will likely remember that the Industrial Revolution was spurred by innovations in textiles (can you say, “Spinning Jenny”?), steam power and iron. This expansion of innovation and “. . .the lack of skill necessary to perform most jobs shifted employment bargaining power almost completely to the employers’ side, causing many workers to be mistreated and underpaid.“ Thus, labor unions were formed to represent the interests of employees in such things as bargaining for fair wages with employers.
The body of law in the United States which largely governs how employers can respond to the actions taken by labor unions is the National Labor Relations Act. Violations of the National Labor Relations Act, which include the refusal of employers to bargain collectively, are prosecuted by the National Labor Relations Board. Thus, in the simplest sense, an impasse in negotiations between employers and labor unions should be dealt with by the National Labor Relations Board.
However, as discussed here yesterday, the alternative to allowing the National Labor Relations Board to resolve issues when negotiations between employers and labor unions are at a standstill, is for the union to decertify and proceed with antitrust remedies. The question remains, though, if after the conclusion of a labor dispute, a labor union will resume as an entity with strong bargaining power if it decertifies during the course of the dispute.
Some guidance on this question can be found in the bargaining history of the NFLPA and NBPA in previous labor disputes.
Founded in 1956, the NFLPA has endured three labor disputes during the course of its recognition as the labor union representing NFL players.
The 1982 NFL strike, largely resulting from negotiations over gross revenues given by teams to players, lasted for 57 days and did not result in the NFLPA decertifying.
While the 1987 NFL strike only resulted in the cancellation of one week of the season, as teams brought in replacement players and the NFLPA voted to return to play in October, 1987. However, this return to play was made without the support of a newly negotiated and agreed upon collective bargaining agreement. Thus, without a collective bargaining agreement, the players rights and interests were largely left unprotected.
Thereafter, still without a collective bargaining agreement, the NFLPA decertified in 1989, and several antitrust lawsuits were filed on behalf of individual players. Most notable of this series of lawsuits, was arguably that brought by eight players, including Freeman McNeil, against the NFL. In McNeil v. National Football League, the plaintiffs alleged that the NFL violated 15. U.S.C.S. section 1 (the Sherman Antitrust Act), as a result of the NFL’s proposed wage scale eliminating all individual contract negotiations with players. (McNeil v. National Football League, 790 F. Supp 871). Ultimately, at trial, a jury found in favor of the plaintiffs. (McNeil v. National Football League, 1992 U.S. Dist. LEXIS 21561). The jury awarded $540,000.00 to four of the eight players, which under antitrust laws, was tripled to $1.63 million. Given the high cost of litigation, as well as the division of the awarded money between players, it is arguable that this result did not bring the players involved a result which fully addressed their needs.
However, another antitrust lawsuit, White v. NFL, 41 F.3d 402 (1994), was brought by NFL players as a result of the deceritification. This lawsuitultimately ended the six-year labor dispute, resulted in a new collective bargaining agreement and brought about the reemergence of the NFLPA.
The collective bargaining agreement entered into between the NFL and NFLPA in 1993 was extended five times and expired on March 3, 2011. On March 11, 2011, the NFLPA decertified, which led to the NFL locking out its players. Subsequently, two antitrust lawsuits have been filed on behalf of former players of the NFLPA. While there has been some interesting legal proceedings in these cases, including Judge Susan Nelson’s invalidation of the lockout (Brady v. NFL, 2011 U.S. Dist. LEXIS 44523 (D. Minn., Apr. 25, 2011))and the 8th Circuit Court of Appeal’s grant of the NFL’s motion for stay of that ruling (which subsequently kept the lockout afloat) (Brady v. NFL, 640 F.3d 785 (8th Cir. 2011)), a trial date in this matter will likely not be seen before kickoff is tentatively scheduled on September 8, 2011. Given that, it is unlikely that a collective bargaining agreement between the two parties will emerge anytime soon.
In stark contrast to the negotiation methods of the NFLPA, is the NBPA. The NBPA is the oldest labor union of the four major American sports leagues.
The NBA has forced lockouts in 1995, 1998 and again in 2011. To date, the NBA has never decertified. The 1995 lockout which began on July 1, 1995, was resolved on September 12, 1995 and no games were lost that season. The 1998 lockout lasted nearly 200 days and resulted in teams playing a shortened 50-game schedule. However, at the conclusion of each of the lockouts, the NBA and NBPA were able to successfully negotiate new collective bargaining agreements. To date, the NBPA has not decertified as a result of the July 1, 2011 NBA lockout.
Strength of the union entity
A clear division exists between the negotiating strategies of the NFLPA and NBPA, with the NFLPA appearing quick to decertify in an effort to bring about resolution to its labor disputes through antitrust litigation and the NBPA staying its course as a labor union and engaging in negotiations in an effort to rigorously promote the rights of its members.
Arguably, the NBPA’s method of remaining a collective unit which vigorously represents the interests of its members has proven the more effective model of the two. The NBPA’s model has provided a quicker method to achieving resolution of labor disputes, while also avoiding the high costs and publicity of litigation. In opposite, is the NFLPA’s method of decertifying and seeking antitrust remedies, which has previously resulted in NFL players being without the protection of a collective bargaining agreement for six years, as well as the current nearly four-month long lockout.
Thus, when faced with labor disputes, before pulling the plug on the entity which was formed specifically to protect the interests of players, players associations should uphold the purpose they were created for, and vehemently and stringently exercise their negotiating power for their workers’ rights.