Earlier this week, the NFL and its players seemingly were making progress toward a new labor deal. “Secret” talks were held outside a courtroom or mediator’s office for the first time since well before the previous collective-bargaining agreement expired in mid-March. Finally, there was a tangible reason to believe the league might reopen its doors and the 2011 season would be played as scheduled.
Then came Friday’s legal skirmish that threw a soaking wet blanket on any such optimism.
If any progress is being made between the two sides, you would have never known Friday inside the Eighth Circuit of Appeals. That’s where a three-judge panel heard arguments from the Brady v. NFL litigants about whether the lockout should be lifted.
During the process, lawyers fired many of the same shots that have fueled the stalemate between the NFL and its players.
“They want to eat the dinner but won’t pay the bill” was the expression used by plaintiff attorney Ted Olson while describing the league’s alleged mistreatment of players by imposing the lockout.
NFL attorney Paul Clement not only argued that the lockout should remain in place but that the court didn’t need to set a deadline to lift it. Clement disputed the plaintiff argument that players are suffering “irreparable harm” as 20-plus current and former ones sat incredulously inside the 28th-floor courtroom.
And when the 70-minute hearing was completed, Clement issued a media comment that could have a chilling effect on future negotiations between the NFL and player representatives. Clement claimed the recent private negotiations were further proof that the NFL Players Association continues to act like a union despite officially decertifying — an argument that is at the crux of the league’s legal defense in the Brady v. NFL antitrust case.
“What is going on are continuing negotiations,” Clement said. “What that underscores is that the union has not disappeared forever. Obviously, everybody can make their own judgment. But I think the problem with the argument on the other side is that it assumes that the union is gone forever. I don’t think many people who are students of this game or industry really believe that’s the fact.”
Maybe so. But who could blame player reps now if they opted not to continue face-to-face CBA discussions if such talks are going to be used against them by the league?
Statements like that provide further ammunition to those who believe attorneys should take a back seat in the negotiating process like during the clandestine NFL-player talks in Chicago. They also add to the mistrust that players and NFLPA employees have toward the league.
“I know the arguments today — the only way you do this is bargaining and getting back to the table, dah, dah, dah,” said former NFL tight end Ernie Conwell, who became an NFLPA representative after his 2007 retirement. “I think players feel like we’ve been there. We were there. We didn’t have a willing participant on the other end (before the CBA expired). Clearly, the plan has been for years to lock the doors on these guys.”
Although the group has remained united so far, Conwell admitted the work stoppage has taken a toll on players.
“There is a lot of stress on these guys right now not knowing what the future holds for them,” he said. “The league understands that. That’s why the lockout is in place. We’re not going to own a team for 50 years and pass it on to our kids. Time is on the league’s side. Players understand they have a short time.
“The only relief they can have is to go back and work.”
Unless there are more private negotiating sessions that yield results, that player relief will come only through a court order lifting the lockout. Circuit Judge Kermit Bye said a decision will come in “due course” that is expected to take at least a couple of weeks.
Bye also urged a settlement agreement and warned that the court’s ruling could be one that “neither side will like.”
Considering how things unfolded Friday, that might become one of the few things the NFL and its players can agree upon.