A day after the NFL lockout was lifted, Charlie Batch and Ryan Clark of the Pittsburgh Steelers report to the South Side training facility on April 26, 2011 in Pittsburgh, Pennsylvania. (Photo by Jared Wickerham/Getty Images)
This in-depth explanation of the meaning of Judge Susan Richard Nelson's ruling on the NFL Lockout was provided by Allen Barra. Barra has written about economics and labor in sports for The Wall Street Journal, The New York Times, The Daily Beast, and other publications. he is the co-author of "A Whole Different Ball game," the autobiography of Marvin Miller."
The NFL players might be forgiven for not entirely understanding Monday's order by U.S. District Judge Susan Richard Nelson. For that matter, the NFL owners might be forgiven, too. After all, the players have never won a labor confrontation before -- not really.
Simply, what Judge Nelson did was grant the players' request for an injunction to lift the lookout which the owners had imposed, ending the work stoppage -- or perhaps we should say the workout-stoppage -- in its 45th day. Whether or not the players will be allowed into the facilities, whether the weight rooms will be open, whether or not some teams will dispute that certain players have earned their "workout bonuses," or whether or not some players will resume contract discussions -- all this will be decided later. But all these matters will be decided.
As Minnesota Vikings linebacker Ben Leber put it, "It may all seem like the ‘Wild West,'" but if it does, it's now apparent that there's a new marshal in town, and the Wyatt Earp of pro football is DeMaurice Smith, executive director of the National Football League Players Association.
What Smith has done for the first time is to instill in the pro football players the same spirit of camaraderie that has been the mainstay of the Major League Baseball Players Association since Marvin Miller took over as executive director in 1966. The days when the head of a sports union is recognized for his ability to get along with management (as Gene Upshaw was for many years when the NFLPA was essentially a company union) or when a player of the stature of Joe Montana crosses the picket line are over.
The NFL owners are still in denial, as evidenced by their stubborn refusal to get back to work and stop their appeal of Judge Nelson's decision. But the truth is, it's over. In fact, it's probably true that it was over from the moment when Smith rallied his players, won their confidence, and got them to go along with the gutsy move to decertify the union after months of non-negotiation.
From the beginning the sports media has been quick to note that neither side was willing to compromise, but what Smith did was make it clear to the players that they had no reason to compromise. They were, after all, being asked to give up revenue they had fought hard for as the starting point of any negotiations. The central facts leading to the lockout were not in dispute: the National Football League pulled in more than $9 billion last season, and the owners wanted the players to give back one billion of their share from the first snap. Not because the owners were suffering any economic hardship -- certainly none that they were ready to open up their books to reveal -- but because they wanted the players to pay for new stadiums.
In case you're wondering who has been footing most of the bill for these new stadiums over the years, the answer is: you, or rather, us. For the most part, the NFL, largely by threatening to move franchises to new cities, has always been able to snooker local politicians into forking over the taxpayers' money for new venues -- you know, the ones with the luxury boxes that you can't afford.
After years of preaching the virtues of the free market while profiting on municipal and state money, the public teat, it appears, has run dry. The owners' response was to turn to the NFLPA and say, in effect, we need some new suckers to foot our bills.
The players' reaction, expressed through DeMaurice Smith, was "Does Ford demand that autoworkers pay for the cost of new factories?"
The owners' tactic in negotiations was essentially no negotiation at all. In the past, it had almost been enough to just wait the players out. After all, said many in the sports press, the owners have much more money than the players and can hold out longer. This may have had some validity in the past before the league's revenue could be measured in billions. But when you are grossing that much money, you have far more to lose.
The media was adamant that it would be far more difficult for Smith to hold together hundreds of players than for NFL Commissioner Roger Goodell to hold together a relative handful of owners. This, too, was dubious: 32 owners -- or 31 and whoever represents the Green Bay Packers -- are by definition 32 supreme egoists, while even the most successful football players, if only because of the times they've lost on the field or somewhere else in life, have learned some measure of humility.
Besides, Smith understood one very important fact from the start, probably through his conversations with Miller last fall: this was not a strike, this was a lockout. Smith did not need to unite the players; the owners, by locking them out, accomplished that. The only real difficulty for Smith was convincing the players of the need to decertify the union.
Why was -- and why is -- decertification such an important step? For the simple reason that it allowed the players to attack the owners where they're most vulnerable: namely, their exemption from antitrust laws. For years, whenever baseball players asked the courts for the right to become free agents, they were told, in one set of words or another, "That is a matter for collective bargaining." The courts, in fact, have never ruled for baseball players in any important decision. Everything they've ever won has come through collective bargaining.
By decertifying their union, individual players, hundreds of them, are free to sue the NFL for being a monopoly, and judges could not then respond that they had to go through collective bargaining because the players no longer had a union through which to bargain. And since the NFL is a living, breathing example of monopoly in its purest form, the owners had a great deal to lose. Just one lawsuit might have been enough to wipe out a team's court-granted control over any given area and allow a new league to move in. This nearly happened a couple of decades ago with the USFL. It also might cause each team to lose millions of dollars in their monopoly of team-licensed merchandise.
Just one victory in court could topple the league's antitrust exemption (and still might, for that matter, unless the players graciously agree to drop all their suits). And since the league's highest profile players - Tom Brady, Peyton Manning, and Drew Brees are plaintiffs -- there isn't any chance of the threat to the antitrust exemption going unnoticed. (Brady, Manning and Brees are the leaders in this work stoppage that Montana failed to be in 1987.)
You'd think the owners would have understood that this time, and from now on, the players are acting as a real union and are not going to be bullied. In fact, no doubt many owners do understand that and will be letting Goodell know that they know it, which is the reason why the remaining obstacles towards getting the 2011 football season on track, no matter how complicated they seem, will soon be resolved.
Judge Nelson's ruling may have, as Detroit Lions player rep Kyle Vanden Bosch said, "created more questions than answers," but this time around the answers will be what the players want to hear.
Goodell, in what can only be regarded as a desperation pass, wrote a piece late Monday night which was posted on the Wall Street Journal's website, saying, "Nelson's ruling may significantly alter professional football as we know it ... By blessing this negotiating tactic [the players' right to dissolve their union] the decision may endanger one of the most popular and successful sports leagues in history."
He was one for two: the ruling does significantly alter football as we know it - from now on the players are going to have a big say in decisions involving their livelihood. As for endangering football, it if isn't obvious now, it soon will be that the players have dragged their bosses, kicking and screaming, into a new decade of prosperity.