Tuesday, July 5, 2011

What about us? Retired Football Players seek to Intervene in NFL CBA Negotiations

NFL Hall of Famers Carl Eller, Franco Harris, Marcus Allen and Paul Crause filed a motion asking U.S. District Judge Susan Richard Nelson to halt the mediation she ordered between the NFLPA and NFL Owners, and order that neither party can negotiate on behalf of the retired players. The retired players fear that the NFL Owners and current players are conspiring to dilute the retired players' benefit amount as a way to come to an agreement on how to split the $9 billion in revenue. Previously, the retired players and their legal representatives had been involved in the earlier mediation sessions, but as the mediation venue has changed, and as the NFLPA and players get closer to an agreement, the retired players have been excluded from the recent negotiations. The complaint alleges:
'Through the settlement they are forging, the Brady plaintiffs, the NFLPA and the NFL defendants are conspiring to set retiree benefits and pension levels at artificially low levels[.]'
Usually, a third party who may be affected by an eventual collective bargaining agreement is not allowed to challenge or intervene in the bargaining process. This is typically enforced through the "hiring hall" exception where a Union can enter into agreements that affect potential employees outside of the bargaining unit. In Clarett v. National Football League, 369 F.3d 124 (2d Cir. 2004), the United States Court of Appeals for the Second Circuit, in a decision written by now Supreme Court Justice Sonia Sotomayor ruled against then standout running back Maurice Clarett's antitrust claim. Clarett argued that the NFL's Draft rule that prohibited players from entering the NFL Draft unless they are three years removed from high school was an anti-trust violation. However, the Second Circuit rule that because this rule was negotiated at arms-length during the collective bargaining process, it was protected from antitrust challenges due to the non-statutory labor exemption. In determining that the challenged restraint was exempt, the court used a three factor test analyzing (1) whether the agreement terms primarily affects only parties to the CBA; (2) whether the agreement concerns a mandatory subject of bargaining; and (3)whether the agreement sought to be exempted is the product of bona fide arm's length bargaining and found that Clarett could not challenge the restraint.

Similarly to Clarett, the retired players may have a difficult time proving that their anti-trust claim should not be exempt from the non-statutory exemption and that the NFL's and NFLPA's agreement to divide the $9 billion falls outside of the hiring hall exception. In a potential challenge, the NFL will likely be able to prove that (1) the agreements' terms primarily affects the owners and current players; (2) the agreement splitting the $9 billion is a mandatory subject of collective bargaining because it affects players' wages; and (3) the agreement seems to be the product of bona-fide arm's length bargaining because as we know, this is the major contention that is currently holding up an agreement between the players and the owners.

The retired players would probably have to assert that (1) the agreements' terms have a significant affect on them that weighs outweighs the affects on owners and players. However, my guess is that the agreed to CBA will not leave the retired players without anything; probably just not what the retirees think they should receive.

Another and possibly even more interesting argument that the retirees can make is that because the NFLPA decertified their union, antitrust law and the non-statutory labor exemptions should not apply and therefore, the entire collective bargaining agreement is not shielded from anti-trust protection.

Either way, this development sure has thrown a sizable wrench in the ongoing NFL labor dispute and it will be interesting to see what occurs. It is difficult enough trying to meet all the interests of parties in a bilateral negotiations; it becomes extremely difficult when a third party is added to a mix. Because of that, I do not see an agreement or the end of the lockout occurring during this week.

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