NFL counsel Paul Clement: “The way to get labor peace is to allow both sides to use tools of labor law”

NFL outside legal counsel Paul Clement today stressed the importance of allowing both sides in a labor dispute to use the tools of labor law to reach labor peace.

“The way you get labor peace is you allow both sides to use the tools that the labor law gives them,” Clement said after this morning’s hearing at the United States Court of Appeals for the Eighth Circuit in St. Louis. “That means the employees get a right to strike in certain situations; employers get to lock people out.  There are other tools available to both sides. 

“The idea is using those labor law tools will accomplish labor peace,” Clement continued. “That is not our view; that is the view that Congress took in a couple of statutes; that is the view that the Supreme Court has taken in dozens of its opinions.”

Following are post-hearing comments from Clement:

NFL OUTSIDE LEGAL COUNSEL PAUL CLEMENT

POST-COURT HEARING MEDIA BRIEFING

June 3, 2011

 

On what was accomplished today:

I think what we hope the rest of the world will take home from it is the idea that the fastest way to get football back on the field is to get extraneous antitrust law considerations out of this and get back to the bargaining table. I think that’s the real takeaway here. Beyond that, we obviously accomplished answering the judges’ questions and giving them our best thoughts about why it is that not only is it the common sense way to get football back on the field, but that’s also the answer that the laws provide. The laws provide that the way you get labor peace when you have a dispute about the terms and conditions of employment is that you don’t have the antitrust laws involved; you have negotiations between the interested parties and you get to a settlement. It’s not an antitrust settlement, it’s a labor settlement. And then you get back on the field.

On if there is anything to take from the dissenting judge (Judge Bye) not asking many questions:

I certainly wouldn’t read too much into it. Judges have different styles on the bench; some of them ask a lot of questions, some of them hold back. As you saw, Judge Bye asked a lot of good questions at the end, and I think when you’re the presiding judge you can wait until the end. And the other judges had great questions. So I thought all of the judges had great questions for both sides.

On why he would term the antitrust laws extraneous:

Mr. Olson talked a lot about cartelization and cartels. But the problem with that is every multi-employer bargaining association could be labeled a cartel if you wanted to. But not only are multi-employer bargaining associations not forbidden by the antitrust laws, they’re affirmatively encouraged by the labor laws. So the antitrust laws, they’re just a sore thumb here. They don’t work and they’re an extraneous consideration.

On the stay ruling:

It’s relatively unusual to have opinions of that length, and they certainly I think were helpful to both sides to getting a sense of where the court’s concerns were. But I don’t think either side took anything for granted based on the stay ruling.

On the ‘year of the business cycle’ mentioned in the court hearing:

It is very important.  The argument in the court was about the length at which you can have the non-statutory labor exemption apply.  The answer to that is, in our view, that it should apply for at least a year but that does not mean that you would have a lockout that would last a year or anything like that.  It simply means that there would be no substantive antitrust liability for a year.

As we tried to make clear in there, we think that the lockout is actually the best way to get players back on the field.  You can say, ‘Why do you think that?’ and I would say, ‘We think that because that is what all of the labor laws say.’  The way you get labor peace is you allow both sides to use the tools that the labor law gives them.  That means the employees get a right to strike in certain situations; employers get to lock people out.  There are other tools available to both sides.  The idea is using those labor law tools will accomplish labor peace.  That is not our view; that is the view that Congress took in a couple of statutes; that is the view that the Supreme Court has taken in dozens of its opinions. 

On how long the Eighth Circuit Court of Appeals will take to rule on the preliminary injunction:

Judge (Kermit) Bye used the phrase ‘due course.’  That means that we will get an opinion as soon as the judges are ready to issue one. 

On the recent agreement emanating from an antitrust charge:

You could say it emanated antitrust charge. You could also say that all of those agreements have been embodied in a collective bargaining agreement, and that’s because it’s almost the way that a sports industry has to be regulated.

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