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N.F.L. And Players Head To Court To Argue Lockout

Publication Date: 
April 05, 2011
Source: 
The New York Times
Author: 
Judy Battista

Professor William B. Gould IV spoke with Judy Battista of the New York Times about the NFL labor dispute and the strength of the players’ argument in the now-expired collective bargaining agreement.

After nearly a month of idleness, the N.F.L. will be in action again Wednesday morning, if only in a courtroom.

With the draft the remaining event on the N.F.L. calendar — and with general managers second-guessing their free-agent evaluations because they have too much time on their hands — the hearing on the players’ request for an injunction to halt the lockout may be the most activity anyone, except for the lawyers, sees for a while.

The players’ antitrust charges against the league could take years to wind through the courts, but the more immediate question is whether United States District Judge Susan Richard Nelson will grant an injunction — and whether an appellate court would uphold her decision — so the off-season can start again. If so, the players will gain leverage in future talks with the owners.

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The strength of the players’ argument, said William B. Gould IV of Stanford Law School, the former chairman of the National Labor Relations Board, is language in the now-expired collective bargaining agreement that barred owners from using the sham argument to discredit a union decertification. Nelson will probably have to determine if the timing of the decertification negates that language, as the owners contend. The union decertified before the expiration of the agreement.

“This contract language is the owners’ Achilles’ heel,” Gould said. “The great strength of the owners’ brief is they argued: ‘Hey, look, the emperor has no clothes. This is a tactic by the union. They can say it as many times, argue until they’re blue in face that it isn’t a tactic, but it is a tactic.’ ”

Still, Gould gives the slight edge to the union in its pursuit of the injunction because of the contract language.

“But I wouldn’t bet the farm on it,” he said.