Get Your Football Fix While You Still Can - Fordham Intellectual Property, Media & Entertainment Law Journal
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Get Your Football Fix While You Still Can

Get Your Football Fix While You Still Can

The National Football League Players Association (NFLPA) is using the kickoff of the season to publicize an important warning to fans everywhere: There may be no kickoffs of any kind next year.  On September 8, 2010, NFLPA Executive Director DeMaruice Smith reinforced his belief that, due to the lack of progress made in negotiations so far, “a lockout is still coming in March.” Smith’s statement is a part of a larger campaign by the Players Association to drum up support for their cause.  On September 9, the players released a “Kickoff Message From All NFL Players to Our Fans” on the Players Association website emphasizing their intent to “STAND AS ONE” throughout the lockout negotiations and fight for “the Players who came before [them].”

But despite the chest-pounding by the NFLPA, labor law and sports law specialists agree that a lockout is extremely unlikely.  Earlier this year David Cornwell Sr., President of the sports law firm DNK Cornwell explained that work stoppages in professional sports do not benefit either side. To the contrary, the players take a huge hit in lost income, while the owners damage the integrity of the game and needlessly provoke their fan bases.

Cornwell explains that the more likely solution, and the one most beneficial to both sides, is a negotiation, which results in an impasse.  At that point, Cornwell expects the 2011 labor negotiations to closely mirror the last players’ strike in 1987.  During those negotiations, the National Football League (NFL) used the occasion to pass new labor rules for the entire league.  In response, NFLPA invoked a labor law rule relating to decertification, which, as Cornwell explains, “stripped the NFL of the antitrust exemption and opened the door for a wave of antitrust lawsuits against the NFL’s then unilaterally imposed system.”  However, Cornwell expects that the 2011 version of this process will heavily benefit the owners since any pre-impasse proposal is certain to reduce the total amount owners are required to pay players.

The result of this whole process will leave the NFLPA in the difficult position of choosing between going on strike or filing a series of anti-trust lawsuits following its decertification.  Cornwell sees the decertification route as the only viable option for union lawyers who cannot risk sacrificing player paychecks for an entire year.  Therefore, he believes the players will take to the field with their labor battle continuing behind courthouse doors.

Noted labor laywer Bob Steptoe, Chairman of Steptoe & Johnson, echoed Cornwell’s analysis summarizing the NFL’s ultimate attitude: “[w]e can’t reach an agreement, so our last offer will be the new rules.  If you don’t like it, go on strike.”

We’ll have to wait six months to figure out if Cornwell and Steptoe got it right.  But if you’re a “glass half-empty” football fan and give credence to the NFLPA’s words, then enjoy the next nineteen Sundays as if they’re your last . . . for a while at least.

Colin Missett