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March Madness

Decertification has not diminished chances of deal

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Posted March 11, 2011 @ 9:11 p.m. ET
By Eric Edholm

In a day that long will be not forgotten in NFL history, the players' union decided to decertify and apparently take its chances in court in its case against the league's owners over the expired Collective Bargaining Agreement with the following statement:

"The NFL Players Association announced today it has informed the NFL, NFL clubs and other necessary parties that it has renounced its status as the exclusive collective bargaining representative of the players of the National Football League. The NFLPA will move forward as a professional trade association with the mission of supporting the interests and rights of current and former professional football players."

Those are the words that made it official. What happens next will dictate whether we have football in 2011 — partly, in full or, God forbid, not at all.

What's left of the union clearly believes it has a great chance of winning any antitrust battle with the NFL, with federal judge David S. Doty, who has jurisdiction over league labor matters, presiding. Consistently, the legal system has ruled in favor of the players — and not just Doty; it includes the Supreme Court of the United States in the American Needle case — in antitrust suits. Not in every case, but in the majority of them. That's why the players feel empowered in their chances in a court ruling, even if U.S. District judge Patrick Schiltz — and not Doty — will see the case first.

The players fired their big guns Friday. The owners fired back with words. Action in the form of a lockout could be next. But there's something to keep in context here: The formal collectively bargained sessions might have ended, but the posturing has not stopped. Nor will the talking between the two sides if our sources are right.

"No one is happy with where we are," NFL lead negotiator Jeff Pash said. "This is part of the process, but this is not the end of the process."

Even NFLPA outside counsel Jim Quinn calling Pash a liar mere minutes after Pash finished speaking was pure posturing. Who, exactly, is Quinn, you ask, considering he has been a relatively faceless entity until Friday evening? He's a lawyer the union threw out there to take a shot at the NFL's lawyer. In the grand scheme, these men's words will add up to very little.

By no means has this fight gotten prettier or less messy over the past 48 hours, but by no means is it over, either. The assumption is that the battle now sits in the hands of the legal justice system.

But that's not entirely true. Not yet, anyway.

The NFL likely will seek to lock the players out at some point after midnight ET Friday and seek to claim the union's decertification is a sham. And you know what? Of course it is. Don't you think they'd go ahead and re-form as a union with the onset of a new CBA? Naturally.

People have routinely asked throughout this process: Why would the union decertify? Answer: To open the door for the individual players, collectively, to file suit against the NFL in antitrust court.

That's the legal answer. The reality is that the players' union no more wants an ugly court battle than the NFL does. The real reason the players are going through this course of action — decertifying, filing an injunction to prevent a lockout and begin the antitrust process — has been executed to gain leverage in the negotiations.

Seriously.

It doesn't seem like this today, but Friday was not Doomsday. If things turn even more for the worse, and revisionist historians might want to paint it as such, that's fine. They'll just likely be wrong. Memorable? Yes. End of the world as we know it? Doubt it.

Friday's activities — a head-spinning whirlwind of hearsay and rumors followed by determined, strategic action — should not make fans feel all warm and fuzzy. But neither should they assume that games will be lost next season. We're not there yet.

The way it can be saved sooner rather than later is by conciliation. Oh, that word seems pretty flimsy if you've watched any of the back-and-forth Twitter-bomb lobbing following by actual real-world verbal shots between the two sides.

But we have this: The NFL says it wants to keep talking. Asked whether he expected to continue communicating with the union, or trade association or social club, or whatever the union now calls itself, Pash said: "I certainly hope so. I would expect so, yes."

And later, in an open letter to the fans he desperately hopes to keep, commissioner Roger Goodell wrote on NFL.com: "We remain committed to collective bargaining and the federal mediation process until an agreement is reached, and call on the union to return to negotiations immediately. NFL players, clubs, and fans want an agreement. The only place it can be reached is at the bargaining table."

He's right. Are the owners afraid of the courts? No question they are. Everything they have done since Doty ruled that they couldn't have their TV money suggests this. The odds say they lose if it gets to that point in court again. And the NFL doesn't want to pay players if league business, in essence, is not in full operation, so a lockout is entirely possible and plausible.

But right now the NFL is being about as transparent as it ever has been. It's on the defensive. Hours after the union dissolved, the NFL sent out two detailed outlines to the media of the NFL's proposal to the union. It included the latest offers on revenue splits, a rookie salary cap, injury-money guarantees, player health and safety adjustments, reduced offseason workout plans, a commitment to a 16-game season for the next two years, extended benefits for former players, health coverage, third-party arbitration on the drug policy, and an increased spending floor based on projected cap numbers.

For a business that almost always shrouds its highest back-channel transactions in mystery, this is a revelation.

This fight never has been about labor law. Perhaps I am dumbing it down too much, but that's just the canvas on which this battle is being waged. DeMaurice Smith might now be considered simply an advisor in the no-longer union, but make no mistake: He's still the top dog here. The showdown now centers even more between Smith and Goodell, with each having the power to pull the plug on a legal siege.

They can continue to talk, and the hope is that they will. Interestingly, Smith appeared testy and tired on Friday; Goodell looked calm, sedate, if not frustrated by what had happened. The threat of decertification was a bluff called by the owners, and we're at this point. Not out of the woods by any means, but not in great peril either. Not yet.

It's March. The two sides have wasted hours and days and weeks banging their heads against the walls for little gain, but believe it or not, it serves a purpose. Like great billiards or chess players, sometimes you have to take a step back (or several) to make big strides forward.

The leadership of Smith and Goodell has been questioned by fans. Their relationship perhaps has its share of flaws. But they are the men who can solve this tug of war. The lawyers will be out of the room. The defiant, headstrong owners and the tough-talking players will be gone, too. Ninety percent of the legwork can be handled between these two men, and this whole court mess mostly can be avoided.

In the end, the owners will go to great lengths to avoid having their precious financial statements completely open. They don't want that can of worms opened. On the other hand, the players know they have to back up the words they've been screaming all throughout while beating their chests: "Let us play!"

That's why Smith and Goodell have a chance to make this thing happen. And that's why football in 2011 has a very, very good chance to go on. A different landscape, yes; they can't undo what the past two years have done. But none of that will matter if the games are preserved. We haven't lost that yet.

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