Five Things to Know about the NFL Lockout

Today has been a slow day in the NFL (and, of course, a very big day for other -- much more important -- news). In large part, it seems like people on all sides are recovering from the flurry of activity last week and over the weekend. So during this pause in the action, let's take stock of where things stand. Here are five things to know about the NFL Lockout: how we got here, what the two sides are saying, and what to expect down the road.

1. The Owners Forced the Issue. In 2006, the players and owners negotiated a collective-bargaining agreement. In 2008, the owners opted out of the CBA, because they felt like it was not adequately accounting for the increasing costs that owners faced. If the owners had not opted out of the CBA, we wouldn't be here today, becuase the 2006 CBA would have, by its terms, run through the 2012 season.

2. The Players Aren't Making Things Any Easier. The NFL Players' Association, almost from the beginning, was making preparations to "decertify". Antitrust law prevents competitors -- the 32 NFL clubs -- from acting together in an anticompetitve manner. So, for example, rules about the draft, free agency, the salary cap, etc., could potentially violate antitrust law. But a union cannot sue an employer for antitrust violations. The NFLPA "decertified" so that individual players could sue the NFL. (That's why the lawsuit is captioned "Brady v. NFL", rather than "NFLPA v. NFL".) Decertification typically takes place when employees are dissatisfied with a union. Here, decertification was more of a legal tactic.

3. The Legal Battle is Far From Over. When the union decertified, the owners imposed a lockout and the players sued. The players asked for, and got, a "preliminary injunction", which lifted the lockout. The owners asked the district court for a "stay" -- which would have put the ruling on hold pending appeal -- but the court denied it. The owners have asked the Appeals Court for a stay, and that request is pending. But in the meantime, the Appeals Court has issued a temporary stay. This reinstates the lockout temporarily, while the court decides if it should lift the lockout or allow it to remain in place while the owners challenge the underlying order granting a preliminary injunction. A decision on the preliminary injunction appeal will take weeks if not months. Judge Nelson's district court decision granting the injunction was a big step; the appeals court's decision on the stay will be the next big step.

4. Players Are Feeling the Effects of the Lockout Already. In their brief, the owners argue that we are in the NFL's offseason, so the players are not suffering "irreprable harm". This may be true from a legal standpoint; "irreparable harm" is a term of art. But it is undisputed that players -- particularly incoming rookies -- are feeling the effects of the lockout. For example, in the few days the lockout was "lifted" (between Judge Nelson's order and the Eighth Circuit's temporary stay) there was serious talk of a draft-day deal involving Philadelphia Eagles Quarterback Kevin Kolb. The Eagles likely could have gotten a first-round pick for Kolb, maybe even a top-10 pick. The Eagles reportedly have a first-round offer for 2012 for Kolb, but that is much less valuable than a guaranteed top-10 pick. (Teams are ranked within each round in reverse order of their record. If a team with a top-10 pick in 2011 did very well in the upcoming season, their pick next year might wind up being in the 20s, and thus much less valuable to the Eagles.)

Over the weekend, 254 players were drafted by 32 teams. But every year, undrafted rookie free agents sign with teams, and many make a big splash. Undrafted free agents can be quite productive -- the Packers won the Super Bowl with three undrafted free agents among their 22 starters. But those types of player transactions cannot occur during a lockout.

Even drafted players feel the pinch. Rookies cannot work out with teammates, study playbooks or film at team facilities or meet with coaches. NFL football is much more complicated than college football, and these rookies may be behind the curve even if the year starts on time. On the other hand, the owners are right: you can't unscramble eggs. What if free agency opened, only to have it close again a few weeks later? Would trades be invalidated? Would free agent signings be undone?

5. Parties Bargain in the Shadow of the Law. In an earlier post, I wrote about an article (in a different context) where two law professors wrote that the law does not impose obligations; instead, it sets up a framework and parties negotiate within that framework. I suspect that's what will happen here. The Eighth Circuit will issue a stay pending appeal, or not. Within that framework, the parties will negotiate a settlement that reflects each side's new-found (or lost) leverage. For us poor fans, the next best chance of a settlement will be later this month, when the parties re-convene for a mediation on May 16. Presumably by then the Eighth Circuit will have decided one way or another on the stay, and the losing party will want to get to a resolution quickly.

I am still optimistic that the parties will work something out. But then again, in 1992, the players went to trial, and won, on antitrust claims against the owners. Although trial is extremely unlikely -- some 95% of cases in general settle -- it is always a lurking possibility. Jim Quinn, an attorney for the players, was the players' trial counsel in 1992, so he is no stranger to this process.

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As always, I'll continue to keep an eye on things and let you know when I have any news. I've previously covered in more depth the legal issues presented by the lockout here and here.