CBA Today: Mediation Day Two

Collective Bargaining Agreement (CBA) Today will provide daily updates regarding the ongoing negotiations between the NFL and NFLPA, and its affect on Chicago players, coaches and personnel.

For the second day in a row, representatives from both the NFL and NFLPA spent six hours in the offices of the Federal Mediation and Conciliation Service, a U.S. government agency base in Washington. Both sides are attempting to bridge the ever-widening gap in expectations for the next CBA.

Both NFL Commissioner Roger Goodell and Executive Director of the NFLPA DeMaurice Smith declined to dcomment after the meetings. The current CBA expires in less than two weeks.

Legal issues regarding NFL CBA

Gabriel A. Feldman recently penned an outstanding two-part article for the "Huffington Post" looking at all of the legalities involved in the current CBA negotiations. He answers nearly every legal question a person could pose. Some highlights:

"Would the NFL owners be permitted to lock the players out? Yes, as long as the lockout is used for the purpose of increasing bargaining power, not to discourage union membership or to interfere with the players' organizational rights. What can the Players do if there is no agreement? The players have their own economic weapons. Labor law encourages collective bargaining by providing a proper balance of power between employees and employers. To ensure this balance, the principle weapon that labor law provides to employees is the right to strike. Decertification is also a potential weapon for the players.

What is decertification? Decertification occurs when employees formally revoke the authority of their union to engage in collective bargaining on their behalf. In other words, decertification dissolves the union (a related concept is the "disclaimer of interest," where the union formally terminates its right to represent the players).

Why do the players have to break up their union to bring an antitrust suit? Here's the short version: Because of a doctrine known as the "non-statutory labor exemption." This exemption protects the product of collective bargaining from attack under antitrust law. Thus, any terms of the collective bargaining agreement are immunized from attack under antitrust law. But, the exemption extends beyond just the terms of an actual agreement -- the Supreme Court has held that the exemption applies, even in the absence of a current collective bargaining agreement, as long as a bargaining relationship still exists.

What would the players be challenging under antitrust law? Section 1 of the Sherman Act prohibits agreements that unreasonably restrain trade. Generally speaking, an agreement is an unreasonable restraint if its anticompetitive effects outweigh its procompetitive benefits, as judged under the "Rule of Reason." The players would be arguing that all rules that restrict a player's ability to make money or restrict a player's mobility -- including the salary cap, the draft, and free agency restrictions -- are unreasonable restraints.

Why can't the NFL players force the owners to open up their books and show them their financials? Didn't the NBA owners volunteer to show the NBA players their books? This has become one of the focal points of the negotiations. The owners claim they need to pay the players less because of rising costs, but they refuse to reveal the details of these costs. Whether or not this is a smart negotiating tactic, the NFL owners have no legal obligation to open up their books. Labor law is very clear on this point -- as long as the owners don't claim an "inability to pay," the players cannot compel them to open their books. The owners can claim, however, that they are having "general economic difficulties," as long as they don't say "we can't afford to pay the players." The NBA owners, however, have previously claimed an inability to pay, so they knew the players were entitled to see the books. For the NBA, the argument is "we can't pay." For the NFL, the claim is "we won't pay." That's the difference between open and closed books.

If there is a lockout, will there still be an NFL draft? Yes. The NFL Draft will take place on April 28-30, and will be the last "League activity" under the current CBA. However, with a lockout in place and no new agreement, the league has indicated that teams cannot sign their draft picks and cannot sign undrafted players or other free agents. The signing of drafted and undrafted players will remain frozen during a lockout. So, the teams can pick the players in the draft, but that's it.

What happens to the players who are under contract for next year and beyond? Will they get paid during a lockout? No. The general rule under labor law is clear -- employers do not have to pay employees during a lockout. After all, the lockout is an economic weapon owners can use to give them leverage during negotiations. It is designed to put economic pressure on employees by depriving them of the ability to work and the ability to get paid. If employees were paid during a lockout, the lockout would be less of a threat and the employees would have little incentive to return to the bargaining table and reach a deal.

Can players who are still under contract play in the UFL or another football league during the lockout? Perhaps, but this is a much tougher question, and we're back in uncharted territory. This issue simply does not come up in other industries. In a typical industry, an employee's contract ends when the CBA expires. So, if an employer locks out his/her employees after the expiration of a CBA, the employees are no longer under contract and are free to work elsewhere. In the NFL, however, players sign contracts that can -- and often do -- extend beyond the terms of the CBA."

Read the full articles here: Part 1 and Part 2.

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