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NFL files legal brief

NFL attorneys filed a legal brief today that lays out its reasons for why the current lockout should continue despite a lawsuit filed by Patriots quarterback Tom Brady and nine other players that asks a U.S. District Court judge to grant an injunction against the league in a bid to resume playing. 

The NFL argues that the NFL Players Association illegally decertified as a union and is therefore in violation of federal labor law. 

"Plaintiffs seek an injunction under the Sherman Act prohibiting the NFL’s member clubs from imposing a lockout that is unquestionably lawful and permitted by federal labor law," the NFL's brief began in its introduction. "Plaintiffs contend that their union’s purported disclaimer of interest in collective bargaining - undertaken literally during a collective bargaining session at the offices of the Federal Mediation and Conciliation Service - converts into an antitrust violation that may be enjoined by this Court the clubs’ exercise of their labor law right to lock out their player-employees.

"The law is not so easily manipulated," the document continued. "One party to a collective bargaining relationship cannot, through its own tactical and unilateral conduct, instantaneously oust federal labor law or extinguish another party’s labor law rights. A union cannot, by a tactical declaration akin to the flip of a switch, transform a multi-employer bargaining unit’s lawful use of economic tools afforded it under the labor laws into an antitrust violation giving rise to treble damages and injunctive relief.
The Court may not grant the requested injunction for three independent reasons, the first two of which are jurisdictional." 

Among the reasons the NFL cites for why the lockout should be upheld: 

* The National Labor Relations Board is now considering whether the union has decertified to gain a bargaining advantage. If the NLRB rules against the NFLPA, it would issue an order requiring the union to return to the negotiating table.  League attorneys argue that under the "primary jurisdiction doctrine," the Court must stay this case pending the outcome of the Board proceedings.

* The question whether the NFLPA remains a collective-bargaining representative is fundamental to determining numerous rights and responsibilities of the parties under the labor laws. It is therefore a core labor-law question that demands uniform resolution by the expert agency. If this Court were to enter an injunction reflecting its view that the Union has validly disclaimed, but the NLRB were to determine otherwise and issue an order compelling the Union to return to the collective bargaining table as the players’ representative, all parties to this controversy would find themselves in an untenable position.

• Under the [National Labor Relations Act], a union’s disclaimer of interest in collective bargaining is effective only if it was “unequivocal” and “made in good faith.” Disclaimers are made in bad faith—and are therefore ineffectual and invalid—when they are done as a “tactical maneuver,” or when the disclaimer was “obviously employed only as a measure of momentary expedience, or strategy in bargaining."

* In short, the National Labor Relations Board will likely conclude that the NFLPA has not engaged in the good faith, unequivocal renunciation that the NLRA requires, and it likely will issue an order requiring the Union to resume collective bargaining negotiations with the NFL member clubs.

• Plaintiffs cannot show a likelihood of success on the merits because, notwithstanding the NFLPA’s purported disclaimer, the challenged lockout is protected from antitrust scrutiny by the nonstatutory labor exemption.

• The Court should be especially wary of finding that this situation is “sufficiently distant in time and in circumstances” that the exemption no longer applies, given this Union’s previous history of disclaimer followed by bargaining, and the multiple recent statements of its leadership confirming that its purported disclaimer was an interim step, undertaken for tactical reasons, in anticipation of reaching another collective bargaining agreement.

• Under plaintiffs’ theory, the NFL is subject to antitrust liability if it ceases or refuses to continue football operations, and it is subject to antitrust liability if it does not. This “heads I win, tails you lose” approach is not and cannot be the law.

• Enjoining one side in a labor dispute from using the economic tools available to it under the labor laws would contravene the policy underlying the Norris-LaGuardia Act, the primary jurisdiction of the NLRB, and federal labor law generally, by replacing bilateral negotiation with a unilateral ability to place a judicial injunctive thumb on the collective bargaining scale.

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