Commentary

NFL antitrust hearing Q&A

Updated: April 5, 2011, 5:48 PM ET
By Lester Munson | ESPN.com

On Wednesday morning in a hearing in a federal court in Minneapolis, attorneys for NFL players will ask for an injunction that will stop the lockout imposed by team owners on March 12. The players will argue that the owners are violating America's antitrust laws. The owners will respond that the players are violating America's labor laws. U.S. District Court Judge Susan Nelson will decide who is right and who is wrong. The hearing and its outcome raise legal questions that could affect the NFL's 2011 season. Here are some of the questions and their answers:

Question: How important is the court session on Wednesday?

Answer: It's extremely important. It is a critical turning point in a battle between NFL players and owners that began shortly after the two sides agreed to a four-year extension of their labor agreement in 2006. Within weeks after that agreement was signed, the owners decided that they had given too much of the league's income to the players. They resolved to recapture a large chunk of the money for themselves. They've been preparing for hard bargaining and a lockout ever since, seeking what the players call a "massive reduction" in player salaries.

[+] EnlargeJerry Richardson
Rob Carr/Getty ImagesThe argument of owners such as Jerry Richardson is that the NFL is not a monopoly, and that this is a labor, not antitrust issue.

Responding to the owners' obvious preparations for the lockout, the players decided they would decertify their union and attack the lockout as a violation of antitrust laws.

In this court hearing, the two strategies collide head-on. If Judge Nelson issues the injunction and stops the lockout, it will be a major triumph for the players and a humiliating defeat for the owners. If she refuses to grant the injunction, owners will enjoy significant leverage over the players as they continue to negotiate in an effort to save the 2011 season.

Q: What do the players and their lawyers mean when they say the owners' lockout is a violation of antitrust laws?

A: Antitrust laws are designed to protect Americans against monopoly businesses that use their power for their own benefit at the expense of producers and/or consumers. If, for example, all of the milk bottlers in the U.S. ended their competition with each other and conspired together to halve the price they offered farmers or to double the price of milk in the store, either would be a violation of these laws. Any farmer or consumer could go to court and obtain an injunction that would end the conspiracy. NFL players say, quite reasonably, that the NFL is a monopoly, the only possible market where these elite athletes can sell their services as football players.

The NFL and its lawyers have argued unsuccessfully for decades that the NFL is not a monopoly, and the lawyers continue to make the claim. But the 32 owners are operating an obvious monopoly and their lockout decision is similar to the milk bottling conspiracy. In antitrust parlance, the lockout is a "group boycott," a conspiracy to refuse to hire players who seek to sell their services to the owners and to ignore them until the players reduce their prices.

Q: How do the owners respond to the players' claim that the owners are violating antitrust laws?

A: The owners have two responses. The first is their denial that they have monopoly power over pro football. Is there any normal person anywhere who would suggest that the NFL does not control pro football? The league's lawyers will make the claim again on Wednesday, and they'll try to look totally serious as they make the suggestion. They've tried this argument in numerous cases for nearly 40 years, and various judges in various courts have rejected the owners' claim again and again.

Recognizing the flaws in their claim that they are not a monopoly, the owners boldly tried to change the law on their monopoly in a case before the U.S. Supreme Court but lost 9-0. The NFL is an obvious monopoly.

The owners' more important assertion is that the argument with the players is a labor dispute and is exempt from antitrust laws. It's a serious argument and could cause problems for the players and their lawyers. The NFL will say that it's all a matter of collective bargaining, a series of questions on wages and working conditions. It's the same, the league lawyers will argue, as any other labor situation. They will tell Judge Nelson that the decertification of the players union is a "sham," that the NFLPA acts like a union, sounds like a union, and is a union. They've made this claim in a complaint to the National Labor Relations Board and will tell Judge Nelson to do nothing and to let the NLRB decide whether the decertification is legitimate.

Q: What makes the players think that their decertification of their union and their antitrust lawsuit might work?

A: They think it will work because it has worked in the past. After a disastrous strike attempt in 1987, the NFLPA decertified and initiated a series of antitrust lawsuits that resulted in a highly beneficial agreement with the owners. All of the issues that will be argued in the hearing on Wednesday were argued then in the same courthouse.

[+] EnlargeNFLPA Lawyers
AP Photo/Jacquelyn MartinJeffrey Kessler, left, and other lawyers have been through these arguments before.

Then, the players said they were no longer members of a union. The owners said it was a sham. The players said the NFL was a monopoly that was using its power to harm them. The owners claimed they were not a monopoly and that, if they were a monopoly, it was a labor issue that belonged in the NLRB. Some of the same lawyers were involved then: Jim Quinn and Jeff Kessler for the players and Jeffrey Pash for the owners. Judge David Doty and a jury of six women rejected the owners' contentions, leading to benefits for the players that had been otherwise impossible.

Q: Is there anything that could stop the players from succeeding again on Wednesday?

A: Yes. There are two things that could cause Judge Nelson to refuse to grant the players the injunction that would end the lockout. The first is the possible intervention of the NLRB. It has the power and the authority to become a part of the litigation and to tell Judge Nelson that it's a labor dispute that belongs only in the NLRB's jurisdiction. Although the NLRB has this power, it is unlikely to use it. Instead of intervening, the NLRB will follow its own process and, working at its usual glacial pace, will reject the owners' claim that decertification is a sham. Since the NLRB is likely to approve the decertification, it would be pointless for the NLRB to intervene.

The second and more serious problem for the players is the legal requirement known as "irreparable harm." Under this rule, the players must show that as the result of the lockout, they are in peril of "irreparable harm." They must convince Judge Nelson that there would be no way for them to make up for the loss of a season. The owners will respond that any harm caused by the lockout is easily repaired. They will argue that an award of money damages (tripled under antitrust rules) would be enough to compensate the players for any losses they may suffer. It's a convenient argument for the owners.

If the players' claims were limited to money damages, they would be forced to wait more than a year for a jury trial that would determine the amount of their compensation, a process that would eliminate the leverage the players sought when they filed their antitrust lawsuit. The "irreparable harm" requirement will be the players' most serious challenge on Wednesday. They'll argue that their careers are short (less than four years on average) and that a season-long lockout will be a career-bending disaster.

Q: Will Judge Nelson issue the injunction and end the lockout?

A: Yes. There are two reasons to expect her to issue the injunction even though it is the most drastic remedy that is offered in American jurisprudence. Injunctions are granted only in compelling circumstances, and they are extremely rare in antitrust cases. But, even in a court system that is reluctant to issue injunctions, the players have a powerful and persuasive argument. There is little doubt that the NFL is using its monopoly power to extract concessions from the players. There is little doubt that the decertification is real and will be upheld. And there is little doubt that the loss of an entire season is a serious and irreparable harm to the NFL's 1,700 players.

The specter of a lost season will be a factor in Judge Nelson's decisions, and she will know that the injunction will level the negotiating field and lead to a new agreement between the players and the owners.

Second, although Judge Nelson may be in her rookie year as a federal district judge, she understands the players' situation. As a lawyer, she represented plaintiffs in class actions. The players are plaintiffs in a class action. And, as a lawyer, she stood up to powerful corporate interests, including the tobacco industry. In a battle between players and the powerful corporate interests of the NFL, she is likely to take the side of the players.

Q: Will the losing side appeal Judge Nelson's ruling?

A: Yes. There are two things that are absolutely certain about Wednesday's hearing. The losing side will appeal, and the appeal will be a time-consuming process, prolonging the agony of fans worried about the 2011 season.

The appeal will go to the U.S. Court of Appeal for the 8th Circuit in Denver. It is a conservative court. What would a panel of three relatively conservative jurists do with the NFLPA's decertification? At a time when conservative politicians are attacking union membership and collective bargaining in Wisconsin, Indiana, Ohio and elsewhere, would conservative judges on the high court force football players back into a union that they have voluntarily abandoned?

Maybe, maybe not.

A decision on any appeal would come in the early summer.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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