Gabe Feldman, an associate professor of law and director of the sports law program at Tulane University Law School, joined NFL Network on Friday to share his thoughts after the NFL Players Association announced that it had decertified and prior to the NFL imposing a lockout at midnight ET Friday, which the league confirmed in a statement Saturday morning.
Is an antitrust lawsuit necessary to resolve the differences between owners and players?
"We don't have to go to a full antitrust lawsuit to get this resolved. We don't have to go through August or September. This can still get done in a week or two. The NFLPA has taken the first big step to try to get the owners to cave in a little bit, and that might work. It might not take the full lawsuit. The owners might say, 'You know what? It's not worth the full risk of this antitrust lawsuit. We could be not only turning over our books, but be responsible for three times the damages for any rules we implement.' That might be enough for them to say, "All right, you win. We'll give in $200 million. We'll make some more concessions.' So this could still get done in a couple of weeks. It doesn't have to be a three-, four- or six-month litigation process."
What is the most important next step in the process?
"The spark would be, I think, whoever wins the initial battle. Remember, the players are going to try to get the decertification of the disclaimer of interests recognized by Judge David Doty. Then, they'll try to get Judge Doty to prevent the owners from locking them out. If all of that works in favor of the players, the owners are in a tough position, because the owners have lost their strongest weapon, which is a lockout. Then the owners have to decide what to do. Do they still try to not pay them or play them and subject themselves to (an) antitrust lawsuit, or do they just try to implement rules about free agency and franchise tags to allow player movement to begin, to allow the offseason to continue? If the owners win the initial battle, though, and Judge Doty says the Players Association still exists and their decertification is a sham and owners can lock them out, then the (NFLPA) has lost their big weapon. Whoever wins that initial fight gets a lot more leverage to bring back to bargaining."
If the NFLPA is allowed to decertify, who is the NFL negotiating with?
"It would have to be part of settlement talks, not as part of collective bargaining, because collective bargaining no longer exists. So it would be maybe Jeff Kessler, maybe De(Maurice) Smith, sitting down with Commissioner Roger Goodell and his lawyers to say, 'Let's make this antitrust lawsuit go away. Let's make this litigation go away. As part of that, we'll continue bargaining.'"
How possible is it that the union's decertification will be viewed as a sham by Judge Doty?
"It certainly is (possible). It's anyone's guess as to how Judge Doty will rule. Obviously, the owners feel that Judge Doty will rule in favor of the players, as he has done often before. But it doesn't stop with Judge Doty. He hasn't ruled against the owners every time. ... Also, even if Judge Doty rules against (the owners), then they go to the court of appeals. The owners could win on that claim. If the players can't decertify, then the owners will lock them out, and collective bargaining will continue. That's good news, bad news. The good news is collective bargaining will continue. The bad news is there will be a lockout."
Can there be movement between the sides with litigation?
"Right now, there is no reason for either side to give in. They can dig in their heels, because neither side has any leverage. One side can gain leverage through the courts, and that's why Judge Doty is going to play such a key role in this. Whoever he rules in favor of first is going to have the upper hand. Whatever that decision is -- whether it's the players being able to decertify and block a lockout, or it's the owners being able to block decertification and lock the players out -- that's the key fight. Whoever wins that fight can go back to a negotiation table or one-on-one negotiations and will claim the upper hand."
