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Radical measures might be only way out of labor mess

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Hub Arkush
Publisher and editor

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Posted May 31, 2011 @ 8:59 p.m. ET
By Hub Arkush

For months now, I have relied on the premise that no matter how ugly or surreal the current labor impasse between the NFL owners and players gets, it will somehow be settled in late July, or certainly no later than August. Neither side can be greedy, arrogant or dumb enough to leave the $9.5 billion that the playing of a full 2011 NFL season represents on the table, or encourage the damage that will be done to the brand and future revenues if, in fact, something resembling a real 2011 season isn't salvaged, can they?

Unfortunately, I've realized recently that the coming season is already well beyond simple jeopardy, and it may already be too late to save it, based on the ridiculous corners the warring factions have backed themselves into. Permanent damage may have already been done.

Regardless of what either side would like us to believe, the problem here has little or nothing to do with what's going on in the courts, or whether or not it needs to be settled through collective bargaining. This is about the end games the two sides are trying to achieve, with neither having a clear path to where it's trying to go, and that the leadership on both sides stinks.

The last thing in the world NFL owners want is compromise, or a deal that both sides can feel good about. The owners believe the players got the best of them in '06, when the last Collective Bargaining Agreement was negotiated, and they've been plotting to even the score since they opted out of the deal three years ago. Do your homework on what we've heard from the likes of the Cowboys' Jerry Jones, the Panthers' Jerry Richardson and others, and it's clear the owners want payback and a pound of flesh to go with it.

On the players' side, they don't appear to have a clue what they want other than the deal the owners opted out of, and they're not getting anything resembling that deal back without at least a little blood on the moon.

We've heard a lot about the last three offers the owners have made and how much they want the players to give back. But is there anyone out there who can offer me one single point the players have made, asked for or negotiated?

We know the players are unwilling to give anything back to the owners without proof as to why the owners need or deserve those givebacks, a position I understand and completely support. And we know the owners have steadfastly refused to offer any real evidence or proof that the players should give anything back. But the players haven't offered a single proposal or plan to get them what they want. The sum total of their negotiating stance appears to be: "The owners are bad guys, and they're trying to screw us!"

While that is most likely true, it is not a negotiating position, and it makes progress impossible.

Part of the problem in interpreting all this from the owners' perspective is not knowing where the balance of leadership power will rest when it finally comes time to make a deal. Right now, we know the owners are being driven by a group of hawks that includes Richardson, Jones, Robert Kraft, Daniel Snyder, Jeffrey Lurie and a few others who I believe truly are prepared to lock out an entire season to get what they want.

Packers president Mark Murphy and Giants co-owner John Mara have been very visible, but whether or not they and others will eventually represent voices of reason remains to be seen.

What does seem clear from the ownership side is that the commissioner's role has become a joke. I have no doubt whatsoever that when Roger Goodell talks about player safety, benefits for current and retired players, competitive balance and other issues important to the game, he is completely genuine and very effective.

But when it comes to collective bargaining and his ability to use the broad powers of the office to protect the game — owners, players and fans alike — his efforts in the role that Goodell's predecessor, Paul Tagliabue, filled so admirably and effectively are a farce. The reason both the Federal Mediation Service and the court-appointed mediator have been so ineffective is because the guy who's supposed to do that job, Goodell, has taken a pass and made himself a ridiculous puppet for the owners' position — players and fans be dammed.

In the last issue of PFW, I took an unfair shot at players association executive director DeMaurice Smith, writing out of outrage without thinking my point through to the end. I accused Smith of ulterior motives for refusing to respond to Goodell's ludicrous assertion in an op-ed piece in the Wall Street Journal that the players would not agree to a draft, salary cap and some restrictions on free agency. Mara has also recently offered quotes about the anarchy the players' demands would cause.

The fact is, Smith has been smarter than I was and apparently has conveyed his message to the players. The only reason Goodell, Mara and others have made those ridiculous comments is to try and get the players to refute their disdain for such clear violations of the antitrust laws. You see, the owners have no valid defense to the players' antitrust suit, unless they can get the players to agree with them on the record that antitrust violations are necessary for the welfare of the game — violations the owners can only be protected from by a union and a new CBA.

Good for Smith.

But what has he done to get his players a new deal and protect them from being between the rock and the hard place he's put them in? To date, he's been little more than a pompous blowhard who hurls firebombs at the owners with nothing to back them up. Where is his proposal for a new CBA, or settlement to the players' antitrust suit (whichever forum you prefer) that offers any hope at all of bailing the players association out of the crater he's created? How does Smith get his players back to work without a ruling from Judge David Doty that the owners cannot use any of the lockout funds he's already ruled they negotiated illegally from the TV networks, or the awarding of all or part of the $700 million in damages the players have asked for, or a ruling from the appellate court that the lockout must be lifted?

Smith is not the only labor lawyer in this fight, and recent decisions suggest he's nowhere near the best, either. Smith appears to have charged into a battle for which he has no clear exit strategy or path to victory, and now we're all stuck in court.

Where are the courts going to take us? As Americans, our entire belief system is based on the principle that we are all entitled to equal protection under the law. We would like to believe that the purpose of the executive, legislative and judicial branches of our government is to safeguard those principles and protections.

Some of us may believe that decisions handed down by Doty, Susan Nelson and Kermit Bye, which have appeared to favor the players, and decisions by Steven Colloton and Duane Benton, which have appeared to favor the owners, have been driven more by ideology than these judges' sworn oaths to rule strictly by the letter of the law. We are each entitled to our own opinions, and I know many of us have them, but I am not here to offer mine.

What we all can agree on is that the existing lockout is hurting everyone who has any connection to the game, with the exception of the lawyers on both sides, who are getting rich off it, and the owners. There is absolutely no way that fans or NFL players can ever benefit from it. Only the 32 NFL owners and the lawyers can profit in the end as long as the lockout stays in place.

So why have two members of the three-judge panel from the Eighth Circuit Court of Appeals chosen to leave the lockout in place? The owners have claimed the lockout is legal because the players are not entitled to forego protections they have previously enjoyed under the collective bargaining of their union to pursue the freedoms they are entitled to in the courts. The judges appear to be relying on the Norris-LaGuardia Act of 1932 and a Supreme Court ruling in 1938 in the case of New Negro Alliance vs. Sanitary Grocery Co. to support the owners' contention.

Of interest here is the Norris-LaGuardia Act states that the federal courts may not become involved in non-violent legal disputes, and the law was written to protect organized labor from exactly the kind of union-busting activities the NFL owners are using the law to engage in. Even more curious is the fact that New Negro Alliance vs. Sanitary Grocery Co. did not involve a labor dispute or lockout. But we should think the best of these judges — unless and until we are given clear cause to think less.

Perhaps even more importantly, only those of us with law degrees and comprehensive knowledge of labor law are actually qualified to comment on the literal interpretation of these laws, which I know leaves me from doing so.

But there are a couple of questions we all should be asking. In permanently staying the injunction Judge Nelson issued that ordered the NFL owners to lift their lockout, Judges Collotton and Benton reasoned that the owners would suffer irreparable harm if they were forced to operate without a CBA and the antitrust suit still pending against them.

Exactly what harm do they face other than damages if they fail to comply with the antitrust laws? By allowing the lockout to stay in place for now and striking down Judge Nelson's injunction, isn't the Eighth Circuit Court of Appeals granting the owners the protections or exemptions from the antitrust laws that the Supreme Court  concluded — by a vote of 9-0 in May 2010 in the American Needle case —  the owners were not entitled to?

Again, I'm no lawyer, but ...

Here are some facts you don't need a law degree to grasp. If the courts rule the owners can continue their lockout indefinitely, a huge chunk, if not all, of the '11 season is going to be lost, unless the owners have a dramatic change of heart and lift the lockout themselves.

Regardless of what the owners would like us and the courts to believe, the players did decertify their union, and there is nobody to negotiate a new CBA with right now.

If Smith were to cave in and call for the players to suddenly recertify the union to strike a deal now, one that can't possibly be anything near what he promised them, how many players would immediately line up to follow him?

There are only two ways this season can be saved. The first is for the owners to give the players something significant to work with — and they have to do it right now. I have no idea how likely that is to happen.

The second way is far more radical, but at least it paints a clear picture of what's been wrong with this mess from the beginning. The players are the product. Perhaps you could replace 50, 100, maybe even 150 of them, but that's it. Without the 1,800-plus members of the NFL Players Trade Association, we wouldn't care whether or not there was football on Sunday anyway.

What do the owners bring to the game? Other than Al Davis and Dan Rooney, name one current owner who's actually given something to the NFL besides money or made a real contribution to the good of the game. Maybe you can throw in Ralph Wilson and Bud Adams as the other remaining AFL pioneers, but really?

I can list a bunch of current owners who have damaged or brought harm to the NFL, but which ones do we really need? Every year, only one of the 32 truly succeed. The other 31 all eventually lose, and they are the ones who are trying right now to do the impossible: kill the golden goose.

The fact is, there are hundreds of billionaires who would quickly line up to own one of these teams, and it's quite likely there are more than 32 who are better businessmen than the 32 current owners. Since Smith has led his players down a blind alley that may very well be a dead end, is it possible that his only shot at redemption is to go out and find 32 new billionaires and start NFL 2?

We certainly wouldn't stand for a court system that would deny the players the right to work for another team if their current team was locking them out and refusing to pay them, would we? Where would they play? You don't think Snyder, Kraft, Jones and the rest would be forced to lease them their buildings in order to pay the mortgage if they no longer had teams and games of their own to play there?

It's really not my first choice, but hey, we didn't ask for this mess, did we? That was the current owners' decision, and they and Smith have messed this thing up so badly, it may be the quickest and best way out.

It's not as far-fetched as you think. It would be a lot more entertaining than watching "Celebrity Apprentice" or "Dancing with the Stars who have never actually been Stars at Anything," and as long as we've got the same players, how would it be any worse than the NFL we long for now?

C'mon De, go find a few rich guys and give Tagliabue a call to see if retirement has gotten boring.

Maybe "Tags" can help save us one more time. Lord knows Smith and these current owners don't have a clue.

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