Category Archives: Labor Law

Track and Field Athletes Unionize to Protect Interests

By:  Kaitlyn Kacusta, Ruling Sports Intern (Twitter:  @KRKacsuta)

Track and Field athletes from around the world have recently agreed to band together as a single, unified body.  The Track and Field Athletes Association (TFAA) is now a global union that seeks to represent the collective interests of athletes and to make a professional career in the sport a more realistic and viable option.  The lack of a trickle-down from the massive sums of money generated by the 2012 Games to the track and field competitors has given life to TFAA.

This unionization to make the sport profitable for all athletes has been an ongoing struggle in track and field.  Between the 1972 and 1976 Olympic Games, the greatest American distance runner, Steve Prefontaine, battled with the Amateur Athletic Union (AAU), and argued that there was no way for athletes to properly train to represent their countries in the Olympics unless they generated an income from meets that brought in millions because of the star power of athletes like Pre and Frank Shorter.

While the track and field circuit is now full of professional athletes, the conflicts over the sport’s profits still exist.  Sanya Richards-Ross, a TFAA Board member, explained that TFAA seeks change because, “[a] lot of athletes in our sport are severely underpaid, hold two or three jobs just to train and stay in the sport.”  Though accurate data for the salaries of track and field athletes is not clear, it is estimated that athletes in ranked in the top 10-25 internationally, in their respective discipline, only earn between $10,000 to $50,000 annually in sponsorships, stipends, grants and prize money.  For comparison purposes, the minimum salary for a National Hockey League player in 2011-12, a league that is in the midst of a lockout and collective bargaining dispute, was $525,000;  members of USA Swimming ranked 16 in the world or better are eligible for a $3,000-per month stipend from the governing body, an amount that does not take into account any other sources of income for the athlete.

TFAA’s goals include institution of revenue sharing, collective bargaining, and changing sponsorship logo and athlete image rules.  TFAA membership gained the much-needed support of international track superstars, like Usain Bolt and Sanya Richards-Ross, in the wake of the London Olympics Rule 40

In response to the Rule, Track and Field athletes began the #WeDemandChange movement to protest Rule 40.  The Olympic Charter Rule limits the ability of athletes to appear in advertising leading up to and during the Games.   With respect to the London Games, Rule 40 therefore, prevented athletes from appearing in ads or using social media to recognize or acknowledge their private sponsors.  The rationale of Rule 40 “goes back to the amateur roots of the Olympic movement,” and was instituted to prevent private sponsors from “us[ing] their association with athletes . . . to suggest or imply that they have an association with the Olympic Games.”

While Rule 40 is a major barrier to an athlete’s ability to maximize profits, there are other International Association of Athletics Federations (IAAF) rules and issues that TFAA will be fighting to overturn.  Under the current IAAF Regulation 4.1, athletes are only permitted to display either, one logo of a private sponsors or one club logo, on competition uniforms or singlets.  An athlete’s uniform may also display one manufacturer logo.  The Regulations go on to limit the size of those logos.  Another sponsorship issue facing the sport, the rules regarding the use of an athlete’s image by the track and field organizations.  While organizations may use the image of an athlete to promote an event, athletes do not have the ability to use their own image without permission.

The TFAA agenda hopes to change these rules so that “athletes show a return on investment to their sponsors.”  TFAA is not currently planning to oppose IAAF competitions, such as the Diamond League, by holding independent club meets or to go on strike.  In fact, a primary goal of the union is to have a seat at the bargaining table with the likes of the International Olympic Committee (IOC), IAAF and United States Olympic Committee (USOC).

The now-globalized track and field union, while in its infancy, has admirable goals of protecting its athletes, growing the sport and its revenue.  In many ways, unionization is long overdue for a sport that is seen by many as the premiere sport of every Olympiad and most notably, the Games’ pre-eminent event, the100-meter dash.  However, TFAA faces significant obstacles going forward in order to achieve sustainability. 

First and foremost, TFAA must increase its membership with plans for a requirement that all professional track and field athletes, worldwide, join its membership – à la the players’ unions of North American professional sports leagues.  To date, TFAA members include athletes from Bermuda, Canada, Cape Verde, Dominican Republic, Ethiopia, Great Britain, Germany, Haiti, Italy, Jamaica, Kenya, Puerto Rico, Qatar, Saint Kitts and Nevis, Slovenia, Trinidad and Tobago, and the United States.  While that is a step in the direction of worldwide unity, TFAA has been in existence since December 2009, yet it only became global after London.

TFAA must also be willing to concede some issues to foster good will with its governing bodies.  For example, in order for TFAA to realize the sponsorship changes it deeply desires, the union may have to agree to stronger anti-doping rules and penalties for violators.  Leading up to London 2012, IAAF imposed bans on nine track and field athletes.  Less that a week after the close of the Olympics, a shot putter was stripped of her gold medal for a positive test.  It was also reported on October 3, 2012 that two Jamaican runners, who did not participate in the London Games, were face hearings as a result of positive tests.  The anti-doping message that TFAA puts forth will go a long way to improving the image of the sport and getting the union off the ground.

The viability of the TFAA will may become apparent within the next ten months.  The IAAF 2013 World Championships will take place in Moscow, Russia in August.  Should TFAA make inroads with sponsorship logo changes, fans, sponsors and athletes will see those changes on uniforms and singlets.

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Why a potential strike by the Public and Commercial Services union could have severely disrupted the London Olympic games

By:  Danielle Blanchard, Ruling Sports Intern (Twitter:  @Elle087)

Thousands of members of the Public and Commercial Services union (PCS) threatened a strike on the eve of the Olympic games in London, which would have had a detrimental impact on the games. The PCS is the fifth largest trade union in the United Kingdom and represents thousands of workers, including operating members of the London tube and bus system, train drivers, platform guards, and the Home Office, which is responsible for passport checks at Heathrow Airport. This strike has been brewing for quite a while now, last year legislation was passed that would cut the value of public sector pensions. This prompted the biggest strike in three years in November of last year. In addition, the union was trying to get extra pay/bonuses for the workers working during the Olympic games. This was denied. Len McCluskey, leader of the Unite, spoke in February in an interview with the Guardian and said that the attacks on the public sector workers were “so deep and ideological” that targeting the Olympic games would be reasonable.  Around July 23, members that were a part of the bus and subway staff cancelled a walkout after receiving an Olympic bonus package, but members of the Home Office were still planning on a strike.

A strike during the Olympics would have had a significantly negative impact on the games, and on London as host of the games. As of July 25, 2012 the PCS has called off the strike after the government promised to create 1,100 new jobs. This figure includes 800 jobs for the border force and 300 at the passport service.  This is not necessarily a win for the union. The PCS called off the strike only hours before the court was supposed to hear an injunction application that was aimed at blocking the strike. The British government sought a High Court injunction to prevent border staff from taking strike action.  The Government believed there was a “procedural error” in the ballot of members of the PCS union. Apparently, only about ten to twelve percent of the PCS union members voted for the strike because of pay and jobs. Only about half of the members of the union even voted on the ballot and less than half of those members voted for the strike. Roughly one per every ten union members voted for the strike. This is the procedural error that the government is arguing. There are many reasons as to why the PCS called off the strike; for one, the strike was highly unpopular according to public opinion and even among members of the union. Culture Secretary Jeremy Hunt, who is coordinating the Olympic games, also said that enough immigration officials could be deployed to prevent disruption if the strike happened as planned, and the government agreed to provide 1,100 new jobs within the Home Office department.

If the strike had gone on as planned, and the passport service workers failed to show, it would have resulted in chaos at Heathrow airport on what is expected to be the biggest travel day the airport has seen. The lines for checking passports to get into the country have already be two plus hours over the last few weeks, and this strike would have made getting into the country even worse.  The director of the Home Office has said, even after the strike has been called off, that it does not guarantee smooth sailing for the thousands of people trying to enter the country. In the days leading up to the Olympics some of the biggest modes of transportation that connect London with the destinations where Olympic events will be held are facing possible strike action and mechanical failures due to spending cuts. Union drivers at Stagecoach Group Plc (SGC)’s East Midlands Trains, that will be largely responsible for travel of U.K. athletes are threatening a strike, as are members Serco Group Plc (SRP)’s “Boris Bike” cycle-borrowing service, named after the mayor. The latter’s members have threatened to refuse overtime too. It remains to be seen whether these remaining strikes are just empty threats, but if not they could potentially irreparably harm the centuries-long Olympic tradition, a history icon for international sports.

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From Wells We Didn’t Dig: John Wooten and the Fritz Pollard Alliance

In 1920, Frederick Douglass “Fritz” Pollard became one of the first two African-American players in the football league which would become the NFL.  One year later, in 1921, Pollard became the first African-American head coach in NFL history.

By 1933, however, no African-American players remained in the league.  The eradication of African-American players from the league is attributed to numerous factors, including the overt racism of the owner of the Boston Braves (which would become the Washington Redskins), as well as a tumbling economy caused by the Great Depression.

Thirteen years after African-Americans were removed from team rosters, a move by the then Cleveland Rams to Los Angeles forced the reintegration of African-American players into the league.

The Rams desired to play at the Los Angeles Coliseum.  However, recognizing that the Coliseum was paid for using public funds, the Los Angeles Coliseum Commission informed the Rams that if they wanted to lease the Coliseum, they must have at least one African-American player on their roster, to comply with applicable law.  Thereafter, the Rams signed UCLA football standout Kenny Washington to a contract in 1946, thereby securing their move to Los Angeles and a lease with the Coliseum.

In 1936, three years after the NFL was re-segregated and ten years before an African-American player would set foot on an NFL playing field again, John Wooten was born in Riverview, Texas.

The sixth and last child born to his parents, Wooten’s destiny would become that of ensuring that African-Americans were given the opportunity to pursue positions in the NFL of which they were deserving.  While the Cleveland Rams left Ohio to move to Los Angeles and subsequently reintegrate the NFL, the other team in Cleveland–the Browns–drafted Wooten out of college.  In 1967-68, Wooten would finish his NFL playing career with the Washington Redskins.  This was the same Washington Redskins team whose owner, George Preston Marshall, is largely recognized for re-segregating the NFL, due to his stark opposition to signing African-American players.

As the sixth child born to his family, Wooten grew up in a low-economic environment.  He credits the help others gave him for his success in becoming an NFL player, and later a member of the front offices of the Dallas Cowboys, Philadelphia Eagles, Baltimore Ravens and the NFL itself.

“All of my life, someone has helped me and done something for me to help me proceed or go further.  Whether it was job opportunities or something, someone was always there to help me.  I came from a low-economic family.  I was the youngest of six, so someone always helped me,” said Wooten.

Former NFL player and current Fritz Pollard Alliance chairman John Wooten. Photo Credit: The Fritz Pollard Alliance.

Cognizant of the great opportunities he had received through the help of others, along with his own talent and drive, Wooten was aware that he could help other minorities gain hold of similar opportunities.  In his time working with the Cowboys, Eagles and Ravens, he witnessed several programs which assisted minorities in becoming NFL coaches, including the Black Coaches Visitation Program.  The Black Coaches Visitation Program was instituted by former NFL Commissioner Pete Rozell, and granted African-American coaches the opportunity to visit and participate in NFL training camps.

“One of the things that we were always doing while working in the front office with the Dallas Cowboys, Philadelphia Eagles and Baltimore Ravens, was trying to open up avenues where more minorities would get the opportunity to coach or work in the front office for teams,” said Wooten.

While Wooten notes the progress made by the Black Coaches Visitation Program and other efforts, he is quick to note that real movement in the effort to promote diversity amongst the NFL hiring process was only made beginning in 2002.

In 2002, famed trial lawyer Johnnie Cochran and attorney Cyrus Mehri commissioned University of Pennsylvania economics professor Dr.  Janice Madden to complete a study related to the number of African-American coaches in the NFL.  The final product, “Black Coaches in the National Football League:  Superior Performance, Inferior Opportunities,” showed that only six of the 139 head coaching opportunities in the NFL from 1986 to 2001 had gone to African-Americans.

Citing the study, Cochran announced in 2002 that it was he and Mehri’s desire to avoid litigation, yet promote conversation as to the disparaging number of African-American coaches in the NFL.

Wooten heard Cochran’s call to action and was ready to lend his support to the cause.

“When this happened, I saw it as a godsend.  This is what we needed:  the legal side of it; men who understood the law,” said Wooten.

Previously familiar with Cochran from attending the Essence Music Festival in New Orleans and hearing Cochran speak there on the “Brother to Brother” panel, Wooten called Mehri’s office and said that if he and Cochran were serious about the cause they were promoting, that the group should meet at the NFL Combine in Indianapolis and put a plan together.

While at the Combine, the group of men presented their ideas and research to minority coaches and scouts.  Later, they would meet with NFL representatives to create a plan of action for promoting the hiring of minority coaches and NFL front office executives.  Their work would lead to then-NFL Commissioner Paul Taligabue forming an NFL diversity committee.

In 2003, the efforts of Cochran, Mehri, Wooten and the NFL culminated in the Rooney Rule.  Named after Pittsburgh Steelers owner, Dan Rooney, who has been long recognized for his efforts in promoting diversity, the rule requires NFL teams to interview at least one minority candidate for every head coaching and senior football operation position they have open.

Today, Wooten serves as the Chairman of the Fritz Pollard Alliance.  Named after the first African-American NFL head coach, the Fritz Pollard Alliance exists to “promot[e] diversity and equality of job opportunity in the coaching, front office and scouting staffs of National Football League (“NFL”) teams. . .”

Wooten says that the success of the Rooney Rule has been “outstanding.”  Amongst other advances of the role of minorities in the NFL, Wooten notes that in this year’s NFL playoffs, of the twelve teams, eight had minority head coaches and/or front office executives.  Of the final four teams remaining in the playoffs, two (New York and Baltimore) have minority general managers.

The Fritz Pollard Alliance’s slogan is, “We drink from wells we did not dig.”

Throughout his life, Wooten has credited the help others provided him for his success.  Today, Wooten is lending his strength to dig new wells from which men and women seeking careers in the NFL will benefit from for coming years.

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Jump Ball: Did the NBA Tip-Off Litigation Too Soon?

One day after meeting to discuss settlement of its labor dispute for the first time since the NBA locked out its players on July 1, 2011, the NBA filed a claim with the National Labor Relations Board (“NLRB”) and a lawsuit in federal court against the National Basketball Players Association (“NBPA”).

The lawsuit, filed in the United States District Court for the Southern District of New York, was brought by the NBA and its individual member teams.  The lawsuit names as defendants the NBPA and various players, including:  NBPA President Derek Fisher; other officers of the NBPA; New York Knicks NBPA player representative and New York resident Amar’e Stoudemire; New York resident and free agent Mike Dunleavy; New York resident and 2011 NBA draftee Jimmer Fredette; other 2011 NBA draftees; and “all those similarly situated.”

The lawsuit seeks a declaratory judgment from the court.  This means that the NBA is seeking for the court to state what its rights are with respect to the current labor dispute it is engaged in with the NBPA.  28 U.S.C. section 2201 allows for “. . . any court of the United States, upon the filing of an appropriate pleading, [to] declare the rights and other legal relations of any interested party seeking such declaration. . .”

In its lawsuit, the NBA seeks for the court to make the following declarations:

1.  That regardless of whether the NBPA can validly decertify as a union under law (for more on decertification, see this post), the NBA’s lockout of its players is “. . . lawful and protected from antitrust attack by virtue of the labor exemption provided by Section 20 of the Clayton Act. . .”

2.  That the “. . . lockout is lawful and protected from antitrust attack by virtue of the non-statutory labor exemption.”

3.  That the lockout doesn’t violate the antitrust laws.

4.  That the “. . . Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the lockout.” (For a discussion of the Norris-LaGuardia Act, see this post).

5.  That if the NBPA validly decertifies, thus terminating the collective bargaining relationship between the NBA and NBPA, then “. . . all existing contracts between NBA players and NBA teams would be void and unenforceable.”

In order for a court to issue a declaratory judgment under 28 U.S.C. section 2201, an “actual controversy” must exist.  A “precise test” does not exist for determining what constitutes an “actual controversy.”  However, the United States Supreme Court has found that in determining whether an “actual controversy” exists, “. . . the question. . . is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issue of declaratory judgment.”  Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

In this instance, it is arguable that a substantial controversy exists.  The NBA locked out its players on July 1, 2011 upon the expiration of the most-recent collective bargaining agreement entered into between the parties.  Prior to the expiration of the collective bargaining agreement and subsequent lockout, the parties engaged in negotiations in an effort to ratify a new collective bargaining agreement.  Since the July 1, 2011 lockout, the parties have met just once to negotiate a new labor agreement.  According to reports, this meeting did not produce any movement toward the negotiation of a new collective bargaining agreement by the NBA and NBPA.  Thus, substantial controversy arguably exists, as the parties remain divided over the terms they desire to be present within a new collective bargaining agreement.

Additionally, the NBA and NBPA arguably have adverse legal interests.  This is demonstrated by the fact that upon the expiration of the collective bargaining agreement previously entered into between the parties, the NBA locked out the players represented by the NBPA.  Thus, the legal posturing between the parties arguably differs, as the NBPA seeks to protect the rights of players and the NBA seeks to promote the profit-earning ability of its teams.  It is arguable though, that because the NBPA has not decertified as a union, that the parties do not have adverse legal interests.  The NBPA could assert that both parties’ legal interest at this time is in collective bargaining in order to reach a new labor agreement.  More than likely though, the parties have adverse legal interests.

However, the issue remains as to whether there is “. . sufficient immediacy and reality to warrant the issue of declaratory judgment” in this instance.

Throughout its lawsuit, the NBA refers to the NBPA threatening to decertify as a union and file an antitrust lawsuit against the NBA.    While the lawsuit references threats made by the NBPA to decertify during previous labor disputes, the NBPA has never decertified.  Every previous labor dispute between the NBA and NBPA has been resolved through negotiation of a new collective bargaining agreement by the NBA and NBPA.  NBPA attorney, Jeffrey Kessler, further deflated any possibility of the existence of a “sufficient immediacy and reality to warrant the issue of declaratory judgement” when he stated, “The NBA Players Association has made no decision to decertify. They talk about the fact that this is something the players have considered for 30 years, and that’s true. And they haven’t done it for 30 years”

Thus, the defense should argue against declaratory judgment in this matter by showing that the course of action taken by the NBPA in previous labor disputes and currently undertaken in the present labor dispute demonstrates that the NBPA will not decertify, and that as such, sufficient immediacy and reality do not exist to warrant a declaratory judgment.  In order to make this argument, however, the NBPA must stay its course as a labor union and not decertify.  This decision is in-line with my previous post explaining why, if ever, the NBPA should decertify after November 2011.

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One Chip Off of the Table: NFL Remains Locked Out After 8th Circuit Ruling

On Friday, July 8, 2011, the United States Court of Appeals for the Eighth Circuit , vacated a District Court’s order granting an injunction to the lockout issued by NFL owners against players.

Much of the Eighth Circuit’s majority decision in Brady v. National Football League centered upon the Norris-LaGuardia Act.  Signed in 1932, the Norris-LaGuardia Act restricts the power of federal courts to issue injunctions in cases ‘involving or growing out of a labor dispute.'”

Largely in dispute in this matter between the NFL and the players, represented in name by New England Patriots Quarterback Tom Brady, was whether the current lockout of NFL players by team owners constitutes a “labor dispute” under the Norris-LaGuardia Act.  In relevant part, the Norris-LaGuardia Act defines “labor dispute” as follows:  [a labor dispute] “. . . includes any controversy concerning terms or conditions of employment. . .”  29 U.S.C. section 113 (c).

The players argued that the Norris-LaGuardia Act was inapplicable, since a labor union is not involved in the current dispute between players and the league.  The players were able to assert this argument due to the fact that the labor union which formerly represented NFL players, the NFLPA, decertified as a labor union on March 11, 2011.  This argument was upheld by the District Court in issuing the injunction.  The District Court found that the current lockout was not a “labor dispute,”  because a “labor dispute” can only exist between an employer and an union.

However, the league and the Eighth Circuit disagreed with this finding.  In its decision, the Eighth Circuit majority spent a significant amount of time evaluating the meaning of the word “includes” in the Norris-LaGuardia Act.  For non-legal scholars, this analysis would likely seem largely time-consuming and unnecessary.  However, legal scholars understand the importance of plain language and legislative history in determining the meaning and use of a word in a statute.

The Eighth Circuit’s ruling which ultimately kept players locked-out also relied upon precedent to recognize that under the Norris-LaGuardia Act, “labor dispute” does not require that the participating parties be an employer and a union.  In particular, the Eighth Circuit’s majority decision cited New Negro Alliance v. Sanitary Grocery Co, 303 U.S. 552 (1938) for the proposition that a “labor dispute” can exist even if the employee-side of the dispute is not represented by a labor union.

While this decision by the Eighth Circuit is unlikely to hamper current negotiations between the NFL and players in an effort to end the lockout and reach a new collective bargaining agreement,  it is a further disclaimer to players as to how to orchestrate their union when proceeding in future labor disputes with the league.

In previous entries, I have expressed my disfavor of the NFLPA’s early decertification during the course of this dispute.  Today’s ruling by the Eighth Circuit technically removes another chip from the player’s bargaining table, as the league has essentially been allowed for the time being to keep players locked out.  This result was obtained by the court system through which the non-union represented players sought antitrust relief.  This reflects the difficult battle that plaintiffs face when seeking relief to end a dispute with a league using antitrust remedies rather than bargaining power through a union.

Therefore, I maintain that in labor disputes between leagues and players, it is best for the union which represents players to stay its course and negotiate steadfastly with the league (even after the imposition of a lockout).  Only when a clear impasse arises, should a players union seek to decertify and pursue the course of antitrust relief.

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There is no “I” in Team: How Decertification Extends Labor Disputes and Weakens Post-Lockout Bargaining Strength

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.

NFLPA

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.

NBA

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.

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Nuclear November: Why the NBA Players Association Should Wait to Decertify

When the clock struck midnight and the calendar page turned to July 1, 2011, the collective bargaining agreement (“CBA”) between the NBA and the NBA Players Association expired.  The expiration of the CBA entered into between the parties on July 29, 2005 led to a league lockout of players.

Over the course of the past eighteen months, the two parties attempted negotiations in an effort to prevent a lockout.  However, time and again, the negotiations reached an impasse and reports circulated that the disparity between each party’s demands was great.  According to NBA.com, team owners’ desire “. . . greater competitive balance and profitability,” and team owners were not accepting of the NBA Players Association’s most recent deal, which would raise the average NBA player’s salary by $2 million in the sixth-year of the new CBA.  The NBA’s last pre-lockout offer guaranteed players $2 billion annually for ten years, yet in 2010-2011, players received $2.17 billion.  NBPA.org notes that the NBA Player Association’s final pre-lockout offer “. . . would result in a transfer of over $8 billion dollars from the players to the owners. . .”

The league’s bold move of locking out its players for the first time since the 1998 season creates the risk of an absence of the 2011-2012 season, after a 2010-2011 season which enjoyed large viewership boosts.  Given this, along with the clear gap between each party’s wants and needs, the NBA Players Association must decide if it will continue negotiating with the league as a union, or choose what NBA Commissioner David Stern has termed the “nuclear decision,” and decertify as a union and pursue individual antitrust remedies.

Avoiding Decertification and Negotiating as the NBA Players Association

To understand the negotiating power that the NBA Players Association maintains by remaining intact as a union through the early stages of post-lockout negotiations, one must first understand the law governing CBAs.

The largest body of law governing CBAs is the National Labor Relations Act (“NLRA”).  In short, the NLRA is what gives NBA players as “employees” the right to collectively bargain with their employers–the NBA–and join the players’ union, the NBA Players Association.

Given that the NLRA governs collective bargaining agreements, the NBA Players Association filed a pre-lockout complaint with the National Labor Relations Board on May 24, 2011, asserting that the NBA failed to negotiate a new collective bargaining agreement in good faith.  The National Labor Relations Board is an independent federal agency which through the NLRA is “. . .vested with the power to safeguard employees’ rights.”

To date, the National Labor Relations Board has not ruled on the merits of the NBA Players Association’s complaint.  Should the National Labor Relations Board rule in favor of the complaint, the National Labor Relations Board may seek make-whole remedies on behalf of the NBA Players Association, including petitioning the “. . .  appropriate U.S. District Court for temporary injunction orders to restore the status quo where rights have been violated, under Section 10(j) of the [NLRA].”  If granted by a court, a temporary injunction could end the lock-out, restore the 2005 CBA and require both parties to return to the negotiation table in good faith to draft a new CBA.

The NBA’s paycheck schedule is arguably the greatest single factor as to why the NBA Players Association should remain certified as a union, enjoy the legal protections of the NLRA and continue negotiating with the NBA until November.   The largest percentage of NBA players will not miss a paycheck as a result of the lockout until November, while those on a 12-month paycheck schedule are scheduled to be paid through December 1, 2011.  Therefore, given that the NBA Players Association has already instituted action with the National Labor Relations Board, the NBA Players Association should continue earnest negotiation attempts with the NBA through November, as the status quo is arguably not affected until that time.  Until the status quo is affected, individual lawsuits pursued through antitrust remedies are arguably non-responsive to the concerns of the players in negotiating with the NBA to reach a new CBA.

A recent New York Times article noted that, “The [National Labor Relations Board] is known to move at a deliberate pace.”  Arguably, the most deliberate time for the National Labor Relations Board, an agency with the power to “. . . safeguard employee’s rights. . .”  to enter into the lockout drama would be when NBA players first miss a paycheck.  Given that the most recent known negotiations included an offer by the NBA to provide players $.17 billion less annually, while the NBA Players Association was willing transfer $8 billion to the owners, the NBA Players Association has a credible argument that the NBA is not fairly negotiating.  Thus, by November, if a closer proximity is not reached between the range of wants and needs on each party’s table, the National Labor Relations Board will have no choice but to deliberately rule on the matter and move forward with instituting temporary injunction proceedings on behalf of the unpaid players.  This posturing would likely cause the NBA to reassess its bargaining power and come to the table with a more equitable CBA proposal prior to being forced into negotiating one by a U.S. District Court Judge.

Thus, until players do not receive paychecks, the NBA Players Association’s bargaining power will not be strengthened by decertifying, as individual harm has arguably not been felt by the players until that point, making antitrust remedies unnecessary.  Given this, the NBA Players Association should move forward patiently as a union with earnest negotiations and allow the law governing the crux of the lockout–CBAs–to move the parties to a resolution of this matter.

Check back tomorrow, when I will further develop the case against decertification of the NBA Players Association by describing how decertification provides an inadequate remedy to the player’s needs in drafting a new CBA.

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Filed under Labor Law, NBA, NBPA