Friday, June 24, 2011

The Irony

I found it interesting to see what was happening in labor law over the past winter and into the spring, from state capitals to sports CBA negotiating strategies.

We all saw the highly charged political environment in Wisconsin, where the governor and legislature have been attempting to reel in the costs of state government, even if that means doing so at the expense of lucrative labor union contracts. Lucrative for the unions, that is.

The volatile atmosphere revolved around what many in the labor community charged was an effort by the Wisconsin government to break unions. The result was an energized and even more resilient union base. It resulted in an environment where unions were trying to strengthen support for, and membership in, unions.

And then along come the NFL player's union to ruin all that.

Isn't it funny that in the middle of this charged pro-union atmosphere, that the NFL player's union, a member of the AFL-CIO, decided that being unionized was a bad thing? That the player's made a choice to de-certify and no longer be represented by a union? That they wholly rejected unionization as the best choice for their future?

That's what the players indicated in March, when they officially decertified during the current NFL lockout.

The answers, of course, are that the de-certification was, irony of ironies, the most collective thing the players could have done. By de-certifying, the players were not rejecting their union, but trying to gain leverage against the owners.

That's because, as non-union workers, the players had a right to sue the NFL owners for anti-trust violations. But as a collective unit, the players were unable to sue the owners.

And make no mistake, football -- and just about any sport -- are walking violations of antitrust law. The act of competitive entities (owners) collectively scheduling their product output (scheduling of games), of dividing up their raw materials (the draft), and other collective measures, are against antitrust law. Just about the only thing the owners have a right to do is combine their efforts to negotiate television contracts and broadcast games, a right they were
given under federal law, in exchange for agreeing not to broadcast NFL games against high school and college football. On the collective negotiation of television rights, the players could not
sue the owners.

So here are the players, having officially decertified, for the obvious purpose of gaining leverage against the owners. It was a smart, calculated move. Deciding that they (officially) no longer
wanted to collectively bargain was probably the most collective thing they could do. And make no mistake, this is just a ploy by the players. They will no doubt re-certify the first chance they
get. And this wouldn't be the first time the players played this de-cert, re-cert game. In 1987, the NFLPA decertified in order to pursue antitrust litigation to win free agency. They recertified in 1993.

Mark my words, the players will recertify again, even if it is just a formality. They'll become a union again, just in time to go march in support of unionized labor in Wisconsin. Yeah, that will be the day.

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