NFL filing in NFLPA’s antitrust litigation: Union’s “‘heads I win, tails you lose’ approach is not and cannot be the law”

Last Monday (March 21), the NFL filed in U.S. District Court in Minnesota its opposition brief in the NFLPA’s antitrust litigation. Following are excerpts from the brief:

  • One party to a collective bargaining relationship cannot, through its own tactical and unilateral conduct, instantaneously oust federal labor law or extinguish another party’s labor law rights.
  • The NLRB is now considering whether the union has purported to disclaim in order to gain a tactical bargaining advantage, rather than disclaiming unequivocally and in good faith, as the federal labor laws require. If the Board finds such a violation, it will issue an order requiring the union to return to the collective bargaining table. Under the primary jurisdiction doctrine, the Court must stay this case pending the outcome of the Board proceedings.
  • The injunction sought by plaintiffs here is precisely the kind of relief that Congress barred by enacting the Norris-LaGuardia Act.
  • [T]he question whether the NFLPA remains a collective-bargaining representative is fundamental to determining numerous rights and responsibilities of the parties under the labor laws. It is therefore a core labor-law question that demands uniform resolution by the expert agency. If this Court were to enter an injunction reflecting its view that the Union has validly disclaimed, but the NLRB were to determine otherwise and issue an order compelling the Union to return to the collective bargaining table as the players’ representative, all parties to this controversy would find themselves in an untenable position.
  • Under the [National Labor Relations Act], a union’s disclaimer of interest in collective bargaining is effective only if it was “unequivocal” and “made in good faith.” Disclaimers are made in bad faith—and are therefore ineffectual and invalid—when they are done as a “tactical maneuver,” or when the disclaimer was “obviously employed only as a measure of momentary expedience, or strategy in bargaining.”
  • In short, the National Labor Relations Board will likely conclude that the NFLPA has not engaged in the good faith, unequivocal renunciation that the NLRA requires, and it likely will issue an order requiring the Union to resume collective bargaining negotiations with the NFL member clubs.
  • Plaintiffs cannot show a likelihood of success on the merits because, notwithstanding the NFLPA’s purported disclaimer, the challenged lockout is protected from antitrust scrutiny by the nonstatutory labor exemption.
  • The Court should be especially wary of finding that this situation is “sufficiently distant in time and in circumstances” that the exemption no longer applies, given this Union’s previous history of disclaimer followed by bargaining, and the multiple recent statements of its leadership confirming that its purported disclaimer was an interim step, undertaken for tactical reasons, in anticipation of reaching another collective bargaining agreement.
  • Under plaintiffs’ theory, the NFL is subject to antitrust liability if it ceases or refuses to continue football operations, and it is subject to antitrust liability if it does not. This “heads I win, tails you lose” approach is not and cannot be the law.
  • Enjoining one side in a labor dispute from using the economic tools available to it under the labor laws would contravene the policy underlying the Norris-LaGuardia Act, the primary jurisdiction of the NLRB, and federal labor law generally, by replacing bilateral negotiation with a unilateral ability to place a judicial injunctive thumb on the collective bargaining scale.

For the complete brief, click here.

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