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The NFL Players on Offense: The NFLPA dissolves and takes the owners to court over lockout

By Brendan Fitzgerald and Miriam Rosen

After weeks of mediation failed to produce a new Collective Bargaining Agreement (CBA), the National Football League Players Association (NFLPA) has dissolved as a union.   Now playing offense, the NFL players are now taking their labor battle with the NFL to court.

On Friday, March 11, 2011, the NFLPA filed paperwork to dissolve as a union. Running the “dissolution” play frees the players to challenge the lockout in court.

Later on March 11th, 10 NFL players, including MVP quarterbacks Tom Brady, Peyton Manning, and Drew Brees, did just that.  The players filed a lawsuit against the NFL asking the court to enjoin the lockout and, for good measure, seeking treble damages for alleged federal antitrust violations. The antitrust claim based on the 1890 Sherman Act, a federal antitrust law that limits monopolies and restrictions on commerce, alleges that the league’s policies on the draft, salary cap, free-agent restrictions along with the lockout are evidence of an anti-competitive restraint on trade.

The suit is also a not-so-sneak attempt to keep this labor dispute before U.S. District Court Judge David Doty, who has issued a number of union-friendly rulings recently, including siding with players regarding the owners’ negotiation of TV contracts as lockout insurance.

Despite the players’ suit, at 12:00 am Saturday, March 12, 2011, NFL owners locked out the players when the league’s CBA expired.  In an attempt to lobby for public support for the lockout, Commissioner Roger Goodell published an open letter to NFL fans detailing the NFL’s final proposal that the union rejected.

So, what are the players’ chances of scoring with their lawsuit?

The injunction play is a long shot.  An injunction is a court’s most drastic remedy and is a very high bar for the players to reach.   In fact, the request for an injunction is not expected to be successful because the players likely cannot show: (a) that they are likely to suffer irreparable harm in the absence of an injunction or (b) that an injunction is truly in the public’s interest.

Even if the players can’t get the court to issue an injunction, the players’ antitrust litigation is really their most powerful offensive weapon for pressuring the owners for a more advantageous deal. The owners know that they are vulnerable on the antitrust issue and are unlikely to risk taking that issue to trial.  In fact, last year, in American Needle v. NFL.PDF, a unanimous U.S. Supreme Court rejected the NFL’s claim that it was not a monopoly that is subject to antitrust litigation.

The NFL players aren’t going into this without a playbook.  During the 2004-05 season, the National Hockey League (NHL) players were locked out by team owners.  The NHL players never decertified or dissolved their union, continued negotiations, and eventually caved to the owners’ biggest demands in order to resume playing and collecting paychecks.  By dissolving and filing an antitrust suit, NFL players are clearly signaling that they learned from the NHL players’ mistakes in dealing with their lockout.

The players’ suit, however, will not be a quick fix and is only the next down in this high-profile labor war between the owners and players. It is likely that the litigation will drag on for months and may jeopardize the 2011-12 NFL season.

Is there a silver lining for NFL fans watching from the sidelines?  Well, in a way. This labor dispute will have lots of offensive and defensive plays — unfortunately, they just won’t be on the field.