New Orleans Saints Vote To Approve Decertification of NFLPA; Pure Collective Bargaining Strategy

Liz Mullen of the SportsBusiness Journal reports that the players on the New Orleans Saints have voted unanimously to support decertification of the NFL Players Association. The strategy in play would be to subject the NFL owners under antitrust laws if the owners acted together to lock the players out prior to the 2011 NFL season. Unlike the National Labor Relations Act, federal antitrust laws allow for the imposition of treble damages for violations.

As Mullen’s piece explains:

If the NFLPA were to decertify, it would, in effect, operate as a trade organization but cease to be a union. If the league then tried to lock out players, the NFLPA could sue the NFL under U.S. antitrust laws and contend the league was conducting a group boycott, which is illegal. It could not sue the NFL if it remained a union with collective-bargaining authority for its members, under the labor exemption to antitrust laws.

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The letter [recently distributed to all players] says decertification “does two things for us: First, it gives a very firm deadline to the NFL to reach a new CBA with us before the current one expires, and before we end our status as a union. Second, it allows us to file an antitrust challenge against the lockout they are likely to impose the day after expiration.”

The letter does not present decertification as a fait accompli, but rather as giving the union the option to use that leverage if the need arises.

The players employed this strategy in 1989, and it is viewed as having been an element of the leverage that helped them to establish free agency in 1993. The players then recertified the NFLPA as their exclusive representative. While that history provides the precedent for the strategy, it may also provide owners with the argument that the decertification itself is a “sham.”

Former player agent and NFL Executive, and current publisher of the National Football Post, Andrew Brandt makes these astute observations:

The union breathed a heavy sigh of relief in May when the American Needle decision from the United States Supreme Court did not award a sweeping antitrust exemption for the league, a decision that would have wiped out the decertification option for the union.

Would the NFLPA decertify again? Certainly players will vote for the option, as a procedural matter that the Saints kicked off, if only to have that piece of ammunition available. As to whether new leader DeMaurice Smith and the union will use it, I doubt it. Like everything else going on now, it is simply a bullet in the gun in the arsenal that the union has available, although a bullet that the union really does not want to use.

As with everything going on with the stagnant labor negotiations that will be front and center over the coming months, it’s all about negotiations, both towards a new CBA and towards winning the hearts and minds of the fans and media.

More information and commentary:

• "Saints Vote to Authorize Decertification" — Workplace Prof Blog
• American Needle, Inc. v. National Football League et al., 08-661 (S. Ct., May 24, 2010)
• American Needle Inc. v. NFL — ScotusWiki
• "An Old Lawsuit the NFL Would Rather Forget" — Dave Pear’s Blog