Yesterday a court in Minnesota issued an injunction ordering the NFL to end its 6 week old lockout of NFL players. Here is the decision for those of you interested in reading it directly from the horse’s mouth. The decision opens with a very clear (albeit 20 page) description of the history of disputes between the NFL and the players’ union. Here is a New York Times story on the decision.
I noted back in March that the NFLPA, the players’ union, was planning on “decertifying” the union as a bargaining tactic. It did that. The purpose of doing that was to change the status of the players from “unionized” to “nonunion”. Why would the players (and their union) want to decertify? Because anti-trust (anti-competition) laws apply to nonunion businesses in ways that they do not apply to unionized businesses.
In the U.S., as in Canada, it is illegal for businesses to agree among themselves to fix prices or to fix limits on the ability of others to do business as they like. So for example if a bunch of employers come together and agree that they will only spend a fix agreed amount on salaries, or that they will pay some employees (like “rookies”) less than others, this would be an unlawful restraint on trade.
However, anti-trust statutes usually exempt arrangements reached through collective bargaining. So, for example, the Canadian Competition Act (in Section 4) provides that the Act does not apply “in respect of combinations or activities of workmen or employees for their own reasonable protection as employees. The American statute has similar language. This “labor exemption” from competition law is what permits the pro sports leagues and their franchises to come together and agree to conditions under which they compete for players, such as salary caps, free agency restrictions, rules about trades, et cetera.
By decertifying, the NFLPA and the players took the situation outside of the “labor exemption” clause in the competition legislation. This meant too that the “lockout” was illegal. A nonunion employer cannot “lockout” employees. Lockouts are governed by labour legislation, and once the NFLPA decertified, the American labor legislation no longer governed the relationship between the NFL, the teams, and the players.
One of the NFL’s central claims was that the decertification was just a bargaining ploy and that a union should not be able to just “flip the switch” whenever it likes to gain an edge in bargaining. The judge disagrees, and finds that the motive for the decertification is irrelevant (p. 47):
The League objects, arguing that the Players cannot just flip the “light-switch” and disclaim the Union. But again, employees have the right not to be a union as much as they have the right to be or organize as a union. Moreover, if negotiating as a union has proven unsuccessful, such organized employees also have the right to terminate the union.
There is nothing inherently unfair or inequitable about a disclaimer effecting an immediate termination of the framework of labor law. Such an 34 election cannot be viewed as mere gamesmanship, because it only comes with serious consequences to the Players making the election. The Players no longer derive the negotiating benefit of collective bargaining or any of the other rights they had enjoyed while they were unionized.
The players won an injunction ending the lockout, since they proved they have a decent chance of winning the case if it makes it to trial, and they are suffering “irreparable harm” as a result of the lockout. Since a players’ career is short and their skills can diminish quickly without play, the lockout threatens the career earnings of the players and this can not be easily compensated after the lockout is over.
The big question now is what happens next. In theory, the lockout is now over and players should be reporting to camp today. In practice, the NFL is trying to delay this until after an appeal. So we will watch. More interesting for Canadians is what would happen if a pro league like the NHL, NBA, or MLB were to lockout players and the players union adopts a similar tactic. We might find out. The NBA is talking about a lockout this summer, and the NBA players union is talking about decertifying. That scenario would now involve a Toronto franchise, so that Canadian law would apply. Can the Raptors lock out the Raptors’ players if the NBA players’ union has decertified? Would something different need to happen in Toronto to account for changes in Canadian laws? Stay tuned…