Professor Rapp Redux

Law professor Geoffrey Rapp returns for more NFL labor talk with The OBR's T-Dog.

Since the NFLPA and NFL owners failed to agree on a new collective bargaining agreement and the NFLPA decertified March 11, fans have been left in limbo. When will this be settled? Will there be football next season? Why is there such a problem to divvy up $9 billion in revenue? Can't these millionaires and billionaires just figure it out?

For those interested in what is going on, but are confused on the tactics, The Orange and Brown Report's forum administrator, T-Dog, reached out to a law professor. For those who are unfamiliar, T-Dog is a Browns fan with many varied interests who writes under the pseudonym of, well, ‘T-Dog'.

Geoffrey Rapp has been a professor at the University of Toledo's College of Law since 2004. He is a 1998 graduate of Harvard College and a 2001 graduate of Yale Law School. Among the courses Rapp teaches, is Sports Law and he is an editor of the Sports Law Blog.

Rapp was kind enough to answer some more questions proposed by The OBR's T-Dog.

The first interview with Professor Rapp can be found HERE.

Q.  I have read that it would be illegal to hire replacement workers during during a lockout.  Is that true?

PROFESSOR RAPP: That's an accurate statement -- it is unlawful to discharge or to "permanently replace" employees during a lockout.  However, the employer can hire "temporary replacements" for the period the lockout lasts.  A "locked out" worker is entitled to his or her job at the end of the lock out.  But for some players, a long lock-out period may mean they come back to the football field changed men -- perhaps not as strong or ready to withstand injury.  While such players are entitled to their jobs at the end of the lockout, for a few their careers may end up being shorter.

Q.  It seems odd to me that you can have a contract with a player to play football for, say $6 Million a year, and that the owners could lock the players out, have games played by replacement players, and then not have to pay anything to the regular NFL players who are under contract.  Why wouldn't the NFL owners be liable to pay the players under contract if games are played during a lockout?

PROFESSOR RAPP: Actually, the now-terminated Collective Bargaining Agreement (in Article XIV) contains a clause that provides that all player contracts expire on the last day of the last league year subject to the CBA.  Now that the CBA has terminated, there are technically no players "under contract."  In theory, then, any player is now free to sign an agreement to play with any NFL team, with a professional football team in Canada or an arena football team in the USA, or even with a rugby or Aussie rules team somewhere.  Presumably, when the two sides to settle this dispute, they will agree on a provision that reinstates player contracts executed under the prior CBA.  It's also possible that the players will be able to negotiate some sort back-pay to cover any missed salary payments during the lockout as part of the resolution of the dispute.  But the bottom line is that lock outs like the one the teams are pursuing are meant to exert economic pressure on employees precisely by denying them regular payments.

Q.  Individual players have said some pretty dumb things leading up to the lockout and afterwards.  While the "slavery" comments are just a public relations nightmare for the NFLPA, the comments about the NFLPA reforming, and the decertification being tactical are featured prominently in the NFL's brief opposing the players' attempt to obtain an injunction against the lockout.  How useful are those comments to the NFL's case that the decertification is a "sham"?

PROFESSOR RAPP: Part of the problem for the players in managing public relations is that they have so many individuals who could speak out of turn, whereas the owners only have to control the statements of two dozen sophisticated business people.  In its complaint, the NFL does indeed highlight the comments of NFLPA player representatives for various teams, trying to make the case that the union has not really decertified.  The problem is, there was a decertification vote.  The union is no more, legally speaking.  While it's tempting to criticize what appear to be "tactical" moves by the players, from a legal perspective those moves are binding.  I think the NFL will need to show more – in effect, that the union remains in place and fully operational as the exclusive representative of players – in order to convince a court to buy the "sham" argument.

Q.  Why would it matter if the decertification of the players' union were done for purely tactical reasons?  One way of looking at the NFLPA is simply the players' agent - it represents them as a group.  Usually, if I want to change agents (or negotiate for myself) because it would be to my benefit to do so, the party I am negotiating with can't force me to continue to use an agent I no longer want representing me.  How is the situation with the NFLPA different from the usual principal-agent relationship, where the principal can terminate the relationship with the agent pretty much whenever he wants?

PROFESSOR RAPP: The major difference is that once a union is certified and recognized, it becomes the exclusive bargaining agent for all players.  No individual player, if there is a union, gets to choose to negotiate a contract contrary to the CBA and the Uniform Player Contract it contains.  Players can change agents, but the only way to change a union is to decertify it and either negotiate individually or establish another union.  I'd also say that just because a move is "tactical" in nature, that doesn't automatically make it a sham.  Much of relations between employees and employers in unionized settings involves tactical and strategic decision making.  The NFL's lockout itself is a "tactic," meant to push players to the NFL's preferred financial resolution.

Q.  One of the NFL's main arguments is that the Norris-LaGuardia Act prevents the District Court from intervening in a labor dispute.  In your view, is the NFL's legal argument a likely winner, a long shot, or a loser?

PROFESSOR RAPP: I think this is a long shot.  The decertification vote appears to have been legally valid.  That means there is no longer a union, and the dispute is now between the individual players and the teams, not between a union and a multi-employer bargaining unit.  The Norris-LaGuardia Act typically stops courts from intervening where the collective bargaining process remains intact; so long as it does, labor law remedies are the only ones available.  But once the collective bargaining relationship collapses, antitrust claims become available to players as a weapon.  The underlying purpose of the Norris-LaGuardia Act was to stop federal courts from intervening to bar labor unions from striking and from negotiating CBAs.  Prior to the Act, courts regularly declared unions and the CBAs they negotiated to be violations of the antitrust laws.  The use to which the NFL seeks to put the statute, while creative, doesn't strike me as one that has a ton of legal support.

Q.  As the anti-trust litigation goes forward, will the players be able to use the "discovery process" to get the financial information they want from the owners?  Or will the owners be able argue that detailed financial information for each team isn't relevant to the players' claims?  Or can they keep the information out of the players' hands by some other legal strategy?

PROFESSOR RAPP: The law is that the players can use the discovery process to get documents relating to, and force the teams to answer questions relating to, anything that is probative of the underlying antitrust claims.  That doesn't mean the players will get access to the complete books of each of the teams, as they have asked the NFL to produce in negotiations.  The players' anti-trust claims involve collusion on player hiring, the draft and the like.  Players will be able to obtain information on player compensation, transfers of funds between teams and the league and vice versa, and the like.  The players' claims don't involve whether a particular team pays its front office staff exorbitant bonuses or employs family members of team owners in high-paying but essentially meaningless roles.  Some of what the NFL doesn't want public will likely remain hidden from players and from the public view.  In the labor negotiations, the teams claimed they were nearly losing money and would become unprofitable unless the CBA were altered, and the players questioned that claim and asked to see the complete books.  But that dispute isn't the legal argument players are making in the antitrust case, so the information they'll be able to ferret out won't be the same.  That said, once the Commissioner and other owners take the stand in any trial, it may be hard to keep everything under wraps.

Q.  As far as the injunction goes, I have seen some arguments that the players are not likely to get it because injunctions are difficult to get in anti-trust cases.  Others have said that the issue - a lockout where there is no union - is so clearly illegal conduct by the NFL that an injunction will probably be granted.  Which side has it right?  Or are they both wrong?

PROFESSOR RAPP: The trend in antitrust law over the past twenty years has been to avoid condemning collusive business practices as clearly illegal.  Instead, the courts tend to prefer to evaluate the "reasonableness" of restraints on trade, which generally means a full blown trial.  Since the owners have an argument that some kinds of cooperation among teams are necessary to regulate the industry and preserve the integrity of the NFL as a whole, I think it's likely the players will have to bring their case to the trial stage, and I tend to side with the view that a preliminary injunction stopping the lock-out won't be granted.

Q.  Mike Vrabel appeared to propose that the NFLPA meet with the owners without the lawyers being present.  The owners immediately "accepted" - although it appears they still wanted their lawyers involved.  Is that something that could happen with the NFLPA presently decertified?

PROFESSOR RAPP: Since the NFLPA has decertified, it technically can't meet with and bargain with employers on behalf o the players.  I don't think that would stop a group of players – leaders, so to speak – from talking to the teams about how to settle the dispute.  However, I think it would be wise for both sides to be represented by, and advised by, attorneys.  There is a tendency to think that once a party "lawyers up," getting a resolution of a dispute becomes more difficult outside of court. My experience has been that the opposite is true.  If the various legal teams are doing their jobs, they will be helping their clients come to a resolution that both sides find acceptable.

Q.  If it did happen, and the NFLPA met with the owners to negotiate a new collective bargaining agreement, wouldn't the NFL's lawyers just run into court with the evidence that the NFLPA was acting like a union, even though they were 'decertified'?

PROFESSOR RAPP: That's certainly a possibility, which is why the players are likely to be very careful about how they characterize any discussions aimed at resolving the dispute.  The union won't be sitting down at the table, even if it appears as if those player leaders are speaking on behalf of all players.  I'd also hope that if the NFL wants to settle the dispute in good faith, it would be open to such discussions and would not seek to use them as leverage in the "sham" litigation.

Q.  As the party seeking the injunction, what do the NFL players have to prove to the District Court judge?

PROFESSOR RAPP: The basic requirements for obtaining a preliminary injunction – that is, an injunction issued by a court before a full resolution of the issues raised in the lawsuit at trial – are that the party seeking the injunction will likely succeed on the merits of its claims at trial, that it would suffer irreparable harm if a preliminary injunction were not granted, and that on balance, granting the injunction would avoid more harm than it would cause.  One problem for the players will be the second requirement – irreparable harm.  That means the kind of harm that can't be remedied were a court to later simply award money damages.  Even if the players' underlying antitrust claims are strong, I have a hard time seeing why awarding the players money at the end of a trial – plus the triple damages provided by antitrust law – would not more than repair any harm done by the lockout.

Q.  A new lawsuit has been filed against the NFL by former players and college players.  They are also suing the NFL on anti-trust grounds.  What advantages, and disadvantages, do these two groups have as plaintiffs, as compared to the Brady/Manning/etc. litigants?

PROFESSOR RAPP: The additional lawsuit brings more pressure on the NFL because it significantly expands the scope of damages for which the league could be held accountable.  In addition, the college players have an interesting potential advantage, in that since they have never been formally represented by the NFLPA, they may not be affected by the NFL's "sham" argument.  The college players had nothing to do with the decertification of the union.  On the other hand, the former players may not have the same incentive that the current players do to resolve the dispute.  It may be that the suits by former and college players continue, even after the suits involving current players are resolved.  I'm also under the impression that the suit involving college players – while seeking certification as a class action – has not yet identified any particular college players to serve as representative plaintiffs.  That will be a big problem down the line – and it's possible that no eligible players, meaning ones good enough to get drafted and play in the NFL, will choose to step up as class representatives.  The history for players challenging leagues – from Curt Flood to Maurice Clarett – seems to suggest that such efforts have a negative effect on players' career prospects.  If I'm a college star worried about my future NFL career, I might choose to stay on the sidelines of this dispute.

Q.  If the NFL loses, and an injunction is issued against continuation of the lockout - can the NFL just shut down operations and accomplish the same thing as a lockout?

PROFESSOR RAPP:  The NFL's options, were an injunction issued, will depend on the nature and the scope of the injunction.  While the NFL might be able to simply cease operations, over the long run that would cost the league so much money, and open the door to potential start-up rivals, that I think that's an unlikely prospect.

Q.  It looks like the injunction issue is going to be decided by District Judge Susan Nelson.  Neither side has - yet - asked to have the case transferred to Judge Doty.  What can you tell us about Judge Nelson?

PROFESSOR RAPP:  While I have no first-hand experience with Judge Nelson, she seems to be extremely well regarded by lawyers who've spent time in her courtroom.  She has a reputation for being able to find common ground among contesting parties and bring sides to settlement.  Given her reputation, I think this is a good development, both for the two sides in the dispute, and for NFL football fans.


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