What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:

"No one will bully us into a test"

The Legal Costs for Super Bowl XLVI

Yesterday's Super Bowl definitely was an exciting finish to an NFL Season that was on the brink of never occurring.  Remember that lockout that threatened to wipe out the season?  Well, here's a friendly a reminder I am sure most labor lawyers would be interested in.   The average Super Bowl ticket cost  $1,999.00, which is small beans in comparison to the amount that the NFL Players Association paid in legal fees incurred this past year. 

The Am Law Daily took an in depth look at how much was spent in legal costs leading up to the NFL lockout from March 1, 2010 through February 28, 2011.  The NFLPA, like all other Unions, have to file public LM-2 forms with the National Labors Relations Board.  The NFLPA spent approximately $63.2 million on representational fees including outside legal fees, and an additional $1.7 million on lobbying and political activities.  The top three law firms to rake in legal fees Latham & Watkins ($3.1 million), Dewey & LeBoeuf ($2.9 million), and Patton Boggs ($948,983).   DeMaurice Smith, former Latham and Patton Boggs Partner, and who is the current NFLPA Executive Director, did not do too shabby for himself either.  After agreeing to accept a $1 salary while the lockout was going on, Smith collected $1.5 million in back pay and an additional $1 million bonus for a job well done in resolving the labor quagmire. 

It will be interesting to see how large the legal fees were for next years disclosure that will include fees earned related to the lockout that occurred from March 2011 through July 2011.  I'll also provide a rundown of the NBPA and MLBPA's legal costs related to their CBA expenses once they become available.  However, Am Law Daily did a good job estimating their respective (MLBPA and NBPA) legal costs based on past disclosures. 

Professional Athletes' Workers' Compensation? NOT IN MY HOUSE (California)!

One of the little discussed, but increasingly important NFL Collective Bargaining Agreement (CBA) issue in professional sports law is matters relating to professional athletes' workers' compensation claims. A disagreement has arose because numerous professional athletes have decided to choose California as the jurisdiction in which to file their workers' compensation claims, even if he had never played a game for a California home-team due to the belief that when it comes to Workers' Compensation Claims, California has plaintiff favored policies when it comes to work injuries that result from playing professional sports. This strategy was employed  much to the chagrin of the players' out-of-state employer who think that their players (employees) should be required to file their workers' compensation claims in the employers' home-state and have begun including contract provisions that preclude the players from bringing such injury related claims under California law.

However, even though this is an emerging and important issue within professional sports, the NFLPA and Owners punted on this issue, and decided to ratify the CBA and commence the football season  with this issue unresolved.  Nonetheless, both sides agreed to continue to negotiate in good faith regarding these emerging workers' compensation issues.  CBA Article 41 § (5)-(6) states that a joint committee will be formed to negotiate a possible California Workers' Compensation Alternative Dispute Resolution program on a trial basis.  This was agreed to with the big caveat that both sides retain their respective positions with respect to all current pending litigation. An example of such pending litigation was the case of the Chicago Bears versus three of their former players in The Chicago Bears Football Club Inc., et al. v. Michael Haynes, et al. No. 11 C 2668.  In her decision, U.S.  District Judge Elaine Bucklo affirmed an arbitrator's decision that the former Bears players were required to file their workers' compensation claims with the Illinois Workers' Compensation Commission instead of in California because their player contracts' required them to.

But why would a Chicago Bear  file his workers' compensation claim in California anyways?  For that answer, allow me to turn over the floor to Attorney Greg Grinberg; a Northern California Workers' Compensation Attorney who writes the blog wcdefenseca, a blog dedicated to California Workers' Compensation issues. 

What exactly is in the new NFL CBA?

Lost in the excitement of the fact that football is back and the preseason games are in full swing is the fact there is a new 10-year collective bargaining agreement that is chock full of new and modified rules and provisions. With the second and third stringers seeing a majority of snaps, now is a better time to dig deeper into what exactly is in the new NFL CBA and the type of impact it will have on the NFL labor market as well as the ongoing and future CBA discussions in the NBA, MLB and NHL. The NFL CBA can be found here if you want to follow along at home.

Because the majority of the news reporters already covered the salary cap/revenue sharing deal points that seemed to take up a majority of the NFL lockout coverage, I will focus this discussion on more of the nuanced provisions such as: (1) the prevalence of binding arbitration as way to settle most disputes, including player contract holdouts; (2) new performance enhancing drug (HGH) testing; worker's compensation rules; (3) worker's compensation filing rules; and (4) the Commissioner's power to discipline players for off the field conduct, among others. Up first, we will discuss the rise of alternative dispute resolution, specifically the rise in the use of arbitration and whether it can be used to settle contract holdouts. Stay tuned!

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.

Are you ready for some football?!?!?! For realz!

It's over, it's over. The 136 day lockout is finito! Once again, it holds true that football does not really start until end of July! However, just as I predicted it was one hell of a roller-coaster ride to get to this point, from the Owners' vote last Thursday (gratuitous link due to this very bLawg getting cited) to today, but I do not think it is premature to say that the lockout is over and there should be football in the near future!

Players Stuff the Rush

Just as I imagined, NFL players are not moving so fast on a vote on the NFL Owner's ratified agreement, with many stating that the owners may have tried to sneak in some non-agreed to terms. Also, as I mentioned, the players are not so quick to recertify their union and they are not happy that the Owner ratified agreement would interfere with their decision to reform as a union. NFL Network Reporter Albert Breer Tweeted:

Just filed a story on a second email from NFLPA to player reps, breaking down issues with deal and, in particular, recertification timeline. Email says NFL's rough timeline violates fed labor law: "Those laws prohibit employers from coercing their employees into forming a union."

The players may not be unfounded with this claim, as Section 7 of the National Labor Relations Act provides that “[e]mployees shall have the right to self-organization, . . . to bargain collectively through representatives of their own choosing, . . . and shall also have the right to refrain from any or all of such activities..." The players may be able to make a successful claim that the deadline to re-certify violates Section 7 of the NLRA.

More to come...

Are you ready for some Football?!?!??-Owners' Approve...now in the players hands

According to many sources, the NFL Owners have approved a new collective bargaining agreement. The players will have a conference call at 8:00 PM EST to vote on whether to accept the agreement as well. The more interesting issue is that theoretically speaking, in order to accept the deal, the players would likely have to recertify as a union first and there are reports stating that a coalition amongst the ranks is against doing so. My opinion is that the owners likely would not accept a ratified CBA that is entered into via the Players' "Trade Association" because they would then lose their anti-trust exemption when it comes to player restraints. Usually a Union protects the interests of an average player to the detriment on superstar players, so it will be interesting to see who is in the coalition against recertification. Either way, stay tuned for what could be a climatic ending to the NFL Lockout.

I apologize for my recent lack of posts as I have been doing "2-a-days" in anticipation for the CA bar next week. I plan to provide an analysis of the biggest changes in this new CBA that affect sports labor and employment practices and which could impact the NBA's and MLB's respective CBA negotiations. I also plan to analyze this Recertification issue in more detail when my life gets back to normal. Follow me on Twitter for mini updates and I apologize for the brief hiatus.

Good Luck to any fellow bar takers out there...

You can find the NFL players in an Iowa cornfield

Here is FunnyOrDie's humorous take on the NFL Lockout. James Earl Jones actually does a pretty good job explaining the legal issues.

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Field of Dreams 2: NFL Lockout with Taylor Lautner from Taylor Lautner

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[.]'

How did the Verbal Handshake almost turn Into a Symbolic F You?

While the NBA and the NBPA were descending into the lockout abyss, it looked as if the NFL and its player were ready to emerge in harmony from their lockout inferno. In fact, it was only Wednesday where Player Head DeMaurice Smith invited NFL Commissioner Roger Goodell to jointly address the NFLPA Rookies at the NFL Rookie Symposium in Sarasota, Florida.

However, that optimism soured when Smith and Goodel returned to the bargaining table yesterday,

Twas the Night Before The NBA Lockout...

And although NBA Commissioner Stern and the Player Rep. Billy Hunter did meet;
All they could agree upon was: any basketball that fans will hear about will only be via Shaq's Rec. League Tweets.

NBA Commissioner David Stern and NBA Player Association head met today in New York for three-hours as a last ditch effort of avoiding an inevitable work stoppage. The NBA will lockout the players effectively at 12:01 EST tonight when the current agreement expires. All league business including free agent signings, trades, and summer league will be halted during the lockout.

Although, in essence, the effect of the lockout will be similar to that of the NFL, it is quite likely that this one may me lengthier than the NFL's (reportedly, the NFL and its players may be close to an agreement, but more on that in a subsequent post). Tulane University Sports Law Professor Gabe Feldman wrote an excellent overview on the NBA lockout. The major themes that will be discussed over and over again is the fact that the NBA wants to move from a soft cap to a hard cap, reduce length of contracts and other related issues. How this differs though from the NFL is that the NBA will claim that by not playing under the terms of the current CBA, NBA teams and the League as a whole would lose money, since many of the individual franchises did not do well last year. This is in direct conflict with the NFL, where even though NFL Commissioner Roger Goodell would never admit it, close to every NFL franchise owner made money last season, and the NFL itself, was quite profitable. Right now, the basis of the NFL disagreement is how to share the profit. This is not so in the NBA.

So what happens next? It is quite possible that the NBA Players Association (NBAPA) will take a play right out of Tom Brady's playbook and decertify their union and file an anti-trust suit. However, the NBAPA is probably waiting to see how it works out for Tom Brady and co. as their lawsuit is pending in the U.S. Court of Appeals for the 8th Circuit. However, if the NFL and NFLPA come to an agreement prior to the 8th Circuit decision, or even if the 8th Circuit rules against the NFLPA, the NBAPA could possibly decertify and bring suit in a employee/union friendly jurisdiction.

If you're a basketball fan, things could get ugly fast. However, if you are a sports law nerd like me, this ride should be an enthralling and prolonged soap opera. So who do you think will try another sport or pick up a new activity a la Chad Ochocinco? How about we send Omri Casspi, Jordan Farmar and Ron Artest to bring some "Metta World Peace" to the Middle East. I wouldn't mind watching Sir Charles Barkley taking hacks on the PGA tour. Maybe Lebron will try out his acting chops and star in Space Jam 2; it seems like the only way he can win a meaningful game is if it's written in a Hollywood script...Stay tuned.

Happy Lockoutx2 Day! And an introduction...

So here I am sitting in Bar Review class, listening to a lecture on how to write an essay on criminal law and criminal procedure. I am about ready to eat the poisoned fruit from the poisonous tree and call it quits. I have not taken a criminal law class or other related class in law school since 1L year. All of my chosen classes were related to sports and entertainment law; intellectual property, and dispute resolution. Unfortunately for me, none of the classes are tested on the California Bar. To maintain my interest in these subject areas I decided to start this blog to discuss the legal intricacies and going-on in this trying time of labor uncertainty in professional sports! Thus, welcome to Lockout Lowdown--a blog dedicated to contemporary labor law issues in professional sports leagues.