WEEI>On Demand>>Michael McCann, SI.com Legal Expert with Mustard and Johnson

Michael McCann, SI.com Legal Expert with Mustard and Johnson

Mar 12, 2011|

Micheal McCann, SI.com joins Mustard and Johnson to explain union decertification and the NFL lockout. He helps clear up the points of view from both sides and gives us some insight to what the future holds for the NFL.

Transcript - will not be 100% accurate

Where do we go from here while we are not lawyers we don't play them on television the radio so. We're gonna go to lawyer who does know what is happening -- -- this labor unrest he's Michael McCain and he writes a peace on SI dot com called sports law he's a professor. At the Vermont Law School and I'm Michael since you've got degrees from Georgetown. Virginia and Harvard. I'm gonna like you unravel this whole thing for Roscoe is we can't make -- -- tell what's too hot right now are incorrect key you -- I'm good at the rate. So you are especially. Insightful on the set things you have certainly a weighed in and a variety of legal issues over the years. We're getting the proverbial. Popsicle headache trying to figure out exactly we know what happened yesterday but what's gonna happen in the immediate future and beyond for the national football. Sure so there're couple things going on in terms of the NFL that helped create that the legal issues one. Is that the NFL PA is to certify it as a result it means they're no longer able to represent -- FL players in collective bargaining in the big. A lot of ruled that the NFL has including. This salary cap including restraints on. Trade in terms -- -- ability to move to different teams including the NFL draft itself. Those are arguably in violation of federal antitrust law because their teams. They're competing teams that are getting together to limit competition and limit salaries obviously a player. Could make more money if they were called -- efforts to make more money. If there is no draft could he get multiple fitting form and those are generally deemed illegal under federal trust but but they're exempt from antitrust law. Because of the collective bargaining relationship between the union and the owners. Now that relationship is gone. And as a result the players are gonna argue and we could see college players targeted to that these restraints on trade are illegal under federal antitrust law. And this of the tawdry lawsuit that was that was filed earlier this morning and that's one avenue the other avenues is that the NFL trying to. The union from the certifying -- -- with the unions really doing here. If they're trying to get antitrust law into the equation and that they've been negotiating in bad faith and and -- -- gonna -- the -- relate sort. Decide whether or not that's -- -- so that we have a court hearing we also have a hearings for the national labor relations or. And they're gonna have to work themselves out and see what happens. The things that is I've been watching this whole thing really since 1982 we've seen. The to the -- slash strikes of the 1982. And 87. -- anti trust has always been an issue why give the National Football League owners always have had that antitrust exemption where. The other owners in the other sports don't seem to have that. Well. Is -- that the Supreme Court has has granted -- include in the NFL. Some rights to bargain and you know part of the issue is that. The whole idea of the labor exemption which takes any -- off the table is that it's for it's prefer the traditional relationship between management and union. Here are sports leagues have used that -- to exempt themselves from any trust while because. Legal route to just unilaterally impose rules right in the NFL would love to just have a salary cap of you know teams can't -- more than fifty million or maybe even less. But they know that that's gonna violate federal antitrust law. Baseball actually have a slightly broader exemption. Because that because of historical announced that it has from from federal antitrust laws. But eight -- it's interesting that an area of law that was not designed for sports sleek. Including and it's definitely not designed for million dollar players is being used here. Absolutely. Good morning Michael Larry Johnson are. Michael going back to to the Sherman act the federal antitrust after from 1890s that limits monopolies and restriction on commerce. In layman's terms. What is the antitrust. Exemption. -- -- That the key goal of any -- ought to say when competitors join hands in limiting competition is irked consumers. Right you know is it Burger King MacDonald joined hands that we're not gonna we're not gonna compete with each other we're gonna set -- -- -- -- whatever competition they could raise prices. And in the context this sport the concern is that when competing teams the patriots and the -- join hands -- limit competition. That that is actually hurting players. -- the players of the labor and an indirectly hurt and you know -- when when we -- NFL apparel. We can argue it would be cheaper if the patriots and jets and all the other team didn't have one license for the one company. And instead they sold their own apparel but that's -- the NFL does that they -- -- help -- -- and sharing revenue it its its really an egalitarian. Network of teams. That that some have even describe the socialist means temperatures characterization. But but in terms of the exemption the idea there is to say what we wanna give an incentive to owners to negotiate with with labor. Could we don't want to unilaterally imposing rules we rules and we also believe. That labor is better off if they negotiate together. That instead of having employees and is it negotiate their own contracts. If they all join -- to get together they're gonna have a lot more leverage because they're going to be able to go on strike. And rules won't be thrust down so that's the idea that we're gonna give. Management a break if they negotiate -- labor. Now did the union have to decertified because labor laws. Prohibit a union from suing an employer. Yet at that that's right -- so and then there's another issue there is that. The collective bargaining agreement stipulated that the players association that didn't is certified before the deadline that it would have to wait six months to do so. So it is clear -- -- clearance center for the union to to certified but that's right if they if the union doesn't to -- and the players tempering any trust -- Now the other point is to the owners have any leverage. By saying that in nineteen that an 81989. The year NFL players association decertified. So that they wouldn't have to bargain in good faith and then they reestablished the union in 1993. Do they have any leverage going to the court twit that saying that even this last decertification. Is a is a -- that is a way for the NFL players associate to to not have to bargain in good faith. Well I I think there's an argument to be -- they're gonna raise that to for the National Labor Relations Board and I think the players are gonna say we have bargain over the last. Two years really. And particularly over the last month that we've made every effort they're gonna argue we don't wanna be locked out of pocket for players. In now the the owners are locked out players the players are challenging that in court but if the lockout goes through the players don't get paid players also don't get their health care. Players also will only get about 60000 dollars for for the year from the players' association and walked out on. 60000 dollars it was a good amount of money but. For players making what they're used to making it certainly going to be a change of lifestyle and also as the as the players association's went out. Players because their health care and they're able to continue through cobra the federal -- -- -- people can keep health -- after losing their portable they have to hit it out of pocket. And a lot of that's 60000 dollars is gonna go to think health care particularly their families so I think the best leverage for the owners is to say you can't survive on. In I didn't like in basketball where basketball player to go play in Europe. During the lockout which some would -- I suspect Kobe Bryant has talked about doing so. Players here big democratic me eligible to go to the Canadian Football -- percent over the average salary is 50000 dollars. Because the Canadian Football League -- -- -- sank the NFL players suspended tickled when you felt so in the owners you're still have a lot of electric. Although all it would be -- to see what would happen if as two more Smith and you would like to see happen. The owners. Against all -- actually opened up the books and revealed. Their profit margins over the last ten years as the union has requested is there any chance at all that that could happen. Well I think you could -- but I think the owners the owners have of the pointer of their owners of that we have followed the collective bargaining agreement in terms of the documents that we provided. That what you're asking for your players association is above and beyond what were obligated to provide we're not legally compelled to do so now you could argue in good faith they would do so. Help. Placate the concerns that the players Sissy players' association have about the the veracity of these numbers but the unity -- owners does that look you know we're only obligated to provide world where we're providing. We have no legal obligation to do. Now in a quarter of glory as you know. Did you always trying find a precedent you're trying finding out a case that you can bring before the court. And say well in such and such case that the they were allowed to do this. -- other any precedents out -- that we're corporations are companies have had to open the books. To justify their their claims. And some in some management and labor cases there have been situations in which there -- ambiguity in the collective bargaining agreement. Where one side that you're not really following this the CPA the other side said no we are and basically they're both interpreting vague language and the -- -- papers themselves. And they are arson cases that each side could -- should get to that point but I I think they'll be able to reconcile that issue at some point I think. There's the transparency issued in the best interest of both parties to be. For each side will assist that they're they're playing their game. On yours on the SI site you have well laid out a potential scenario. Now that the players association has decided to decertify you say here's a roadmap of what might. Happened. Could you give us the capsule summary of what you think is going to happen here in the next several months. I think Craig there's a good shot that. Judge Dodi who has jurisdiction in which federal dugout in Minnesota for disputes between the owners and the players union itself. And very pro players' association over the years going back to the eighties. That's right you -- and the owners feel as if he shouldn't have a role here it in the order to argue that -- -- -- has. Jurisdiction because the -- has expired and he doesn't have you know say anymore but I but I think what he will do is is issue a temporary injunction. That prevents the -- And that get the parties negotiating again and I think he'll hear. -- -- -- -- substantive argument by each side as to whether or not the lockout is legal. And I think I would in the next month that's like particularly well and today. Part of what you gonna do -- I think there's a decent shot he's gonna try to give them work on the bargain and during that time. -- go on in terms of business they prepare for the draft they are free agents nothing changes. And I think at apple is gonna have to review the argument I think and I felt pretty good argument to say that the -- is legal. And if in -- Lockett is deemed legal before they can negotiated deal different are able to reach any kind of agreement then we could give very long -- very very very long dispute and week I think that 2011 season would be angry -- While with the courts allow them if we're talking about the antitrust exemptions like you said in and I think people are jumping up and down and for the most putt there in favor of the players but. If you're a sports fan in your involvement to street that is fighting over a nine billion dollar -- right. We can argue the merits over how unfair or fear free agency overdraft is but. If the court's command end and and kind of break down a pot -- of everybody can be like free agents and operate that way is that really good for the sport. Well Larry I I agree I I think there's some concern that some benefits haven't ruled the play that we don't want a system in which. They're who will look we see in baseball Mitt benefits thus says -- has Red Sox fan but it isn't arguably helped me have a situation which -- -- can stand. Wait more than others I think the NFL's want to avoid -- By having these restraints on trade and and also share between 8090% of revenue equally. That's that the goal there is is to create that system in which merits. Trumps money. And I think the NFL is the the irony that in the NFL probably the best system. Well let's see that's the interesting point seems like they've put in all these safety nets over the years which spans. Up and still may be the last couple weeks have approved -- the salary cap. Revenue sharing non guaranteed contracts all of that has set up the owners to be in very fine. Financial shape then of course every time there's a game it's the highest rating game not only in the history of the sport in the history of television last two Super Bowls every AFC championship game sets a new record. Ratings -- through the -- television contracts. Are in the billions of dollars. Yet these owners are claiming that there profit margins shrinking it's becoming increasingly more difficult. I think for the average for any use to side with the owners this time around I think as Larry said the league is moving will be more toward the players. Yeah and I think especially when -- owners haven't been able to -- police to the players satisfaction one team that has lost money. That the that the CPA it would it was certified back in 2006 just if things are so bad light and they're one loser among the among the team. Michael if Bill Gates owned. The entire national football -- a numb to it quit he still be a subject to Intertrust laws. -- -- just think they got or he would be -- but there at that point there would be one owner. And the teams would be but -- units one ownership group Major League soccer actually tried to do that to some extent they got a group of owners don't all the teams. And they had a little bit of a comedy each each group including the cracker at some autonomy. In terms of running -- -- they argued that they were exempt me truckload but that argument failed I think if you want centralized owner he's still or she would. He or she would still be subject to -- to determine that. Which regulated monopoly but section one would would likely know off the table. So we get one more time for some really sick here with us with the this anti trust exemption. So it really is in place. So that no and our corporation our our unit -- not have a monopoly. To take advantage of of a group of people working for them. -- is -- that's right in the other aspect of that is that and particularly this section one of the Sherman -- it doesn't want competitors joining hands in ways that are anti competitive. And free and in limits on whether players can change teams in particularly the NFL draft itself that is the classic restrain of trade. The college players. Would love him -- with any team and have multiple teams -- for their services. We think about it you're you're drafted by -- you can only find that one team you have no choice as to which you can sign with. Beat the NFL it's one it also would like to become. A scrutinized by a court having -- -- that you have to be three years removed from high school even if you're the best. College sophomore in the -- he can -- -- and a -- those are very vulnerable antitrust scrutiny and I have a feeling. Wouldn't shock -- if we -- college player. -- the NFL in addition of openers. What didn't were you involved with a college player a couple years ago Michael. I looked great I was one of the lawyers from -- -- in the antitrust case against the NFL over the age limit. Definitely not a fan of the unilateral restraints on trade in terms I I believe players should be able to. And relieved when they're good enough rather than having a bright line rule that categorically denies them. I agree without you certainly see that in the individual sports where the young tennis and golf players the NFL. Certainly does not want. To engage in high school players or 1819 year olds and I know they have the H one at the NBA has. I come back a little bit after allowing seniors into -- now have to. Play one year in and college -- before they can enter the professional ranks but. I totally agree with -- you'll that's a side issue that probably will not be settled this camera. There you know the only thing I'm laughing at Michael the only thing I'm laughing at is if there were an hour drafting players to just go where they wanted to -- and certainly the Green Bay Packers -- not -- -- -- this year. That's exactly right. Because who wouldn't want to go to Green Bay Reggie White -- go to Green Bay because it's completely the money down this guy was there so who Oprah Demi beacon helped them forget the south. So the last my last question on this is. That it is so you don't feel though that business will still go on as far as reagents and in people being drafted that you feel this will still take place. Why I think given -- dodi's history Larry given intensive care for the players. And given that. If you can the latest schedule if you will give the parties more time -- to talk. I think that would argue the I think that's healthy response to giving them more time to try to settle their differences. And if that happened that he does grant an injunction they'll mean that the existing CB -- wanna just expired at midnight. The rules state of -- at least in the -- so this for the same salary cap the same. I think free agency ruled -- -- level status payment and I think for the players that would be a victory because they're okay with the system that is. The owners would be but I think the owners have a decent shot -- argument eventually but the -- is legal so it may be a short term victory for the players. Did the only as though kick comes up I'm -- they hurt themselves from the very beginning when that TV. Contract was revealed that the that the owners have negotiated a couple of years ago because they were planning on a lock out so that they kind of cover themselves or they try to with this for me billion dollar. Protective -- they were going to be able to divide up. Larry -- and get a what is and it is is completely all my questions that are coming from a ignorance that -- as you. But. Why is why is the district court always in Minnesota why why is always there is that designated for labor disputes the -- critical hours. It deep deep owners and players have agreed that back 1993 they -- The Judge -- would have jurisdiction. -- yum I'm sure they don't really right now that we -- careers like Eisenhower appointed Earl Warren as Chief Justice in 1952 -- Michael just a personal and the question on the side if you were advising your clients. Would you advise them to open -- -- Two part question -- because I think. The my gut instinct is yes I think transparency is often the best way of reaching a resolution on both sides feel of this. Each is being honest with each other I think they're much more likely to broker a deal. I understand though the NFL argument that if they're already complying with -- obligated them. Why should they be more than that and maybe they would be revealing confidential information that they don't want out maybe they have concerns about whether it would be divulged. Could be could be personal information about owners that could be in their target now so I I understand the owners concerned they're but I think generally transparency at the right way to go vote and some. They're probably fearful that they have uncles and -- Sons and relatives on the payroll for you know custodial duties making 100000 a year. Well I have you have you do look at some of the the hierarchies. Of all of them now said the mask -- there they go they're a lot of familiar names that. A top a lot of -- repetitive dreams Solomon Solomon Solomon. Yeah exactly. Well Michael you certainly have become the most important person I know around these bouts. And SI dot com and I hope you keep us informed and just keep in mind that at least the two people sitting in here if it's in layman's terms in May be will be able to grasp what is going on. Well Larry appreciate have me are correct yeah okay good good good afternoon hopefully this will get settled that -- there's still a chance they can they can bridge the gap and I know. It seemed dire now but my hope is that. They'll cooler heads will prevail and I can't imagine that either side would be well off if if there's no 2011 season just. It just doesn't make sense this didn't seem to be working pretty well it may not be perfect for either. But it seems a lot better than in Italy and it seems to be as we talked about earlier -- with the ratings that you mentioned mr. pretty successful. I only say I can't give you nine billion reasons why they need to resolve that capsule are well -- professor recant from the Vermont Law School graduate of Harvard and you VA in Georgetown and a frequent contributor and a whole bunch of places I think it into law today you join the mustered Yasser Arafat -- I don't wanna got a -- contract -- -- -- hopefully we can -- on your again as we progress through this any time thank you. Thanks Mike Michael can't from sports analyst. Writes a a sports law. -- war SI dot com and as you can certainly see after it was certainly here after listening to. My rundown of his resonate. A very impressive round of a lab that appeared on -- in -- always gonna be on.

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