My Attempt to Explain the NFL Labor Dispute

In this post, I'm going to do my best to chronicle and explain the tangled mess that is the 2011 NFL labor dispute.  I'll try to clarify some of the legal jargon being thrown around, but, as always, I'm not giving definitive legal advice.  With that, off we go...

Way back in 1956, the NFL players formed a union known as the National Football League Players Association (NFLPA).  Once a union is formed, the employer can no longer bargain individually with his employees.  Rather, the union becomes the exclusive bargaining representative for all the employees (even those who didn't want to unionize). This is known as "collective bargaining."  When the employer and the union finally come to terms on wages, hours, working conditions, etc., the resulting contract is known as a "collective bargaining agreement" (CBA).

At this point, you may be wondering, "wait, if the Owners bargain with the union, how come we hear all this talk about players negotiating contracts for themselves?"  Great question.  The union is entitled to eliminate all individual bargaining, but the union may also (and typically does) bargain with the employer to permit an individual to negotiate whatever extra compensation the market will bear.  While this strategy wouldn't make much sense to an autoworkers union, it works very well for athletes (and actors).

So, now let's jump ahead to 2006.  The Owners and the NFLPA reached an agreement that, among other things, agreed to a deal whereby the Owners would take the first $1b in league revenue (much of which would fund new stadiums) and, of the remaining revenue (approximately $7b), the players would receive approximately 60% and the owners would take 40%.  Each side had the opportunity in 2008 to opt out of the CBA, which would cause the CBA to expire after the 2010 season.  The Owners unanimously chose to exercise this opt-out clause.  In simple terms, they believed that the NFLPA had ripped 'em off (which, of course, the NFLPA has every right to do).

So, on March 11, 2011, the collective bargaining agreement officially expired.  (It was originally scheduled to expire on March 3 but the sides extended it for a week to give themselves more time to bargain.)  At this point, the NFLPA had a choice to make.

The players had to decide whether to strike or not.  Striking is simply a collective refusal to work by the employees in hopes that holding out from working will force the employer to make concessions.  (Typically, a CBA includes a "no-strike" clause where the union gives up its right to strike while the CBA is in effect; that's why the players would have to wait until the CBA expired to decide whether to strike, I presume.)  Would it make sense for the players to strike in March?  Nope.  Why not?  Because the strike wouldn't have much of an effect.  You strike when doing so hurts your employer--in the NFLPA's case, it would only make sense to strike during the regular season or playoffs, when a strike would cause the Owners to lose gobs and gobs of money.  Also, striking is typically bad publicity, and there's no reason for the NFLPA to wear the black hat yet.

[There's a bunch of law concerning the rights that employees and employers have once a strike takes place.  Can an employer hire replacements?  Can the employer fire employees for striking?  These questions are tempting but are outside this entry's scope.]

The Owners similarly had a choice once the CBA expired.  They could decide to lock out the players or do nothing.  Had they done nothing, the CBA would have continued on, as labor law dictates.  The Owners certainly didn't want that, so they instead decided to lock out the players.  A lockout prevents the employees from working and essentially shuts down the league.  Thus, the Owners don't have to play the players.

In anticipation of the lockout, the NFLPA voted to decertify just before the Owners locked out the players.  Decertification simply means that the union dissolved itself.  (The Owners, btw, have filed a grievance with the National Labor Relations Board, claiming that by decertifying, the NFLPA isn't bargaining in good faith.)  Now, why on earth would the NFLPA voluntarily dissolve itself?  I'm glad you asked...

Our country has antitrust laws and labor laws.  Antitrust laws prohibit (some types of) anticompetitive conduct, and labor laws protect certain forms of anticompetitive conduct.  A group of workers getting together and agreeing to fix the prices of their product is anticompetitive, whether that product is a shirt, a car, or--in the case of a union--labor.  Yet, the NLRA and other federal labor laws explicitly protect the right to unionize. Clearly, we have a conflict between the two areas.  Which one wins out?  Well, I'll spare you the boring case law and get right to the answer: labor law trumps.  In fact, there's an explicit statutory exemption to the antitrust laws for labor.

The fact that labor law trumps antitrust law sounds like bad news for the Owners, but it's actually a good thing.  You see, the NFL does some things that are quite anticompetitive.  For example, think about the upcoming NFL Draft.  By the end of Thursday night, one team, and one team only, is going to have the right to sign Cam Newton.  Don't you think Cam could make more money if he stayed in college if he had 32 potential suitors?  Don't you think you'd get a bigger salary if you had 32 law firms, or elementary schools, or software companies chasing after you instead of only one?  (Cam may not be the best example because the high draft picks get paid a ton of money, but keep in mind that most picks don't.)  So, if the NFL is violating the antitrust laws, how come no one has sued 'em?

Well, there have been lawsuits, of course, but here's the thing: there's a labor exemption to antitrust law.  The NFL and the NFLPA bargained for the current draft system, and since the draft arose from a CBA, it's exempt from antitrust litigation.  The Owners love that the NFLPA exists, because without it, they'd be subject to antitrust litigation; losing an antitrust suit would probably force the Owners to alter the way it does business and pay damages to the injured plaintiffs.  (Also, losing in antitrust law sucks because the winning party's damages get tripled.  If it's found that the plaintiff suffered $1m in damages, the defendant has to pay $3m.)

Now you're beginning to understand why the NFLPA decertified.  By doing so, NFL players can sue the Owners in antitrust law--and wouldn't you know it, some already have.  According to the L.A. Times, "[t]he players allege that the NFL conspired to deny their ability to market their services."  This is typical antitrust language--the players are contending that the NFL's policies (regarding free agency and the like) have prevented the players from getting paid their fair market value.  If true, this is obviously anticompetitive (you can't get together with fellow employers for the purpose of holding down salaries) and likely in violation of the antitrust laws.

In addition, the players asked for an injunction that would stop the lockout.  An injunction is a court order that forces a party to do--or refrain from doing--something.  In this case, the NFL would be forced to refrain from continuing the lockout.  Yesterday, the federal district judge granted that request and ordered the lockout lifted.  In essence, the judge told the NFL to start its season.  The NFL has already appealed this order.  In the interim, it asked that same district judge to stay (to put off or delay) the injunction until the appeal has been heard.  Just this evening, the judge denied that request.  That means that we could be in for some interesting developments in the next few weeks, as the league will be operating without a collective bargaining agreement.

As you can see, the NFLPA has adopted a strategy of litigation, as opposed to bargaining.  It could have stuck together and continued to negotiate with the Owners until a CBA was reached.  Clearly, the NFLPA thought it could gain more by going to court instead.  Similarly, the Owners haven't hesitated to use their legal weapons.  They locked out the players and brought an Unfair Labor Practice claim to the NLRB.  The moral of the story?  In bigtime disputes like this, with lots of money on the table, the lawyers always win.

The labor dispute largely comes down to how to divvy up the revenue.  There are other issues as well--possibly lengthening the season, changing how much rookies get paid, etc.--but the revenue question is the main one.  As both sides are making tremendous amounts of money, it seems unlikely that they'll fail to reach an agreement before the regular season begins.  There's simply too much money to be had to justify killing off a season.  (The NBA, however, faces a similar battle only this time some of the Owners are losing money and will likely dig in and force major concessions from the players.  That's a post for another day, however.)

All in the Game

Phil Ivey is the consummate professional gambler.  He plays for money, not fame.  He understands that in poker, the best player is the one who makes the most money.  Bracelets, "world championships," and all those other titles mean very little to him--at least when you compare him with many of his peers.  Ivey simply goes about his business and gets his money in good, whether he's playing poker or prop-betting.*

Ivey is very good friends with a lot of the people he plays poker against, even though they all battle each other for tens of thousands of dollars on a daily basis.  I never really understood how this could be.  I mean, I realize that theoretically it's possible not to take losses personally.  After all, we all play basketball or tennis against our buddies and remain friends afterwards.  But, in tennis, a house or two isn't at stake.  Moreover, you and I are not nearly as competitive as someone like Ivey, who clearly has something in him that drove him to the top of the poker mountain. As a result, we can probably stomach a loss more easily than Ivey.

Obligatory picture of Ivey chilling with maybe $10k in cash at his feet.

* * * * *

I'm enrolled in a clinic (real-world work for course credit) this semester, and I'm getting a lot of great experience representing clients.  The place where I work has a lot of client turnover, so I'm in front of a judge and across the aisle from an opposing lawyer frequently.  I'm typically in court on the same day each week, which means that I'm often in front of the same judge (and matched up against the same lawyer or two) every time.

My job as a lawyer is to advocate for my client zealously (within the ethical constraints promulgated by the ABA, of course).  This is theoretically quite simple: prepare diligently beforehand, make all your tenable arguments to the judge, fight hard for your client, etc.  I've found, however, that there's a tendency to pull punches when you're dealing with the same players over and over.  Why waste the court's time with a weak argument when you know the judge has almost certainly already made up her mind?  Why grill a probation officer in cross-examination when you know you'll have to deal with him next week?  Wouldn't you be better served preserving some good will for your next client, whose case's outcome is still up in the air?  In my limited experience, I think it's a virtual certainty that you would indeed be better served by "saving your ammunition" for those battles that could go either way.  This will keep you on good terms with the other attorney, who will maybe be more willing to agree to a favorable settlement in the future.

Of course, any reputed attorney will quickly point out that it's not a lawyer's job to serve himself.  He must serve his client, and it's clearly unethical to sacrifice Client A in order to help Client B.  Pulling punches will likely help a lawyer in the long run--if we understand "help" to mean "allow him to achieve a desired outcome as often as possible"--but doing so hurts the client, and that's what really matters.


If Ivey (the role model for poker players) can play poker against his best friends--doing everything in his power to cut their throats, take their money, and leave them talking to themselves**--then surely an attorney can similarly advocate zealously for his clients without worrying about the effect his fight will have on his relationships with judges, attorneys, and other repeat players.




*Favorite lines from that article, just in case you didn't click on the link: "From the 'something only a multi-millionaire could say' file, Ivey casually asked how much the first-place prize paid out moments after the win, genuinely unaware of how much he had earned."  Also, "[T]here's no telling how much Ivey will net from prop bets as a result of his bracelet win.  'It was over twenty dollars,' he said in typical understated fashion."

**paraphrasing a Stu Ungar quote (cite)

How to Fly, part 2

Okay, so you've made it through that obnoxious body-scanner without trouble.  Now, what? Read on...

10. Head straight to your gate to ensure that you have the right information, then go straight to the bar or restaurant of your choice.  Passengers act like in order to be admitted onto the plane, they need to anchor themselves to a chair in that uncomfortable vestibule.  Insider's tip: it's the ticket that gets you aboard, not how long you spent watching CNN Headline News!

11.  Use the bathroom right before you get on the plane, so that you likely won't have to go mid-flight.  That just saves everyone some trouble.  Make sure to wash your hands.  Why?  Cuz if you don't, it's gross--what kind of question is that?

12. Get back to the gate five to ten minutes after you're supposed to begin boarding; that way, you don't have to wait with the rest of the cattle.  Trust me, you'll see them plenty once you're in the air.

13. Assuming you couldn't find someone to gamble with at the kiosk, you're stuck in coach.  No big deal.  First, put your suitcase in the earliest available overhead storage bin.  Show me the amendment to the U.S. Constitution that requires your bag to be directly over your seat.  You can't!  You just can't.  The closer to the front your bag is, the less you have to carry it.  Boom.

14. Find your seat.  If your neighbor has already arrived, size him/her up.  Assign a number 1-10 to both his/her conversation skills and looks.  (If your neighbor is of a sex to which you're not attracted, the maximum rating for looks is a 3.)  Add the two numbers: if the sum is more than 10, make small talk with your neighbor and jump to Step 16.  Else, feign an inability to speak English and proceed to Step 15.

15. Still got that hoodie?  Nice.  Put the hood up, lean against the window, and snake your mp3 player underneath your sweatshirt so that you can listen to music while the plane is taking off.  Yes, it's illegal and probably violates federal law, but this is America and no one's gonna tell me when I can't listen to music!  That's censorship!

16. Don't lean your seat back.  (I'm talking to you, KK.)  The .02 units of utility you gain don't justify the 10 units of disutility you've just imposed on the guy behind you.*  In the unlikely event that the person in the seat in front of you doesn't read this blog, put your knees firmly into his seat when you see him moving for the button.  Hopefully, he'll feel the bump and realize that you're not the typical tractable traveler.  If he presses the button anyways, use your knees to resist his lean.  That's the best you can do short of threatening him, unfortunately.

17. Threaten him.

18. Do your best to sleep on the plane, but don't plan on it.  If you can't, grab the in-flight magazine and attend to the crossword/Sudoku.  Celebrate loudly upon completion, to signal to the plane that you're their intellectual superior.  (Never too early to begin angling for the role of "Jack" should your plane crash onto a mysterious island.)  If that doesn't pass enough time, head to the Mensa quiz and, only as a last resort, peruse the magazine's articles.  Memorize the "Top 5 Plastic Surgeons in ," in case you ever decide to pull the trigger on those calf implants.

19. When it's time for beverage service, make sure you ask for a can of whatever soda you're choosing.  That way, they don't stiff you and you get the full twelve ounces.  If you feigned English earlier, stammer, "un can of Dr. Pepper, por favor."  Try to throw a bit of an accent on it, too.  You'll likely get a suspicious glance from your unattractive/uninteresting seat-mate, but pay him no mind: it's your world; he's just living in it.

20. By now, you should be descending.  Clutch your armrests, look frantically around the cabin, and scream, "we're going dowwwwn!"  It's technically true, so you can't go to prison or anything.

21. All right, we've made it! We touched down, and the pilot just turned off the seatbelt light.  Resist the urge to pop out of your seat--you ain't going anywhere, and odds are you'll have to hunch over to stand.  When the traffic in front of you finally clears up, stroll comfortably to your carry-on bag, which should be somewhere near the first-class section, and snatch it without breaking stride.  Throw a peace sign to the stewardesses, compliment (or criticize) the pilot on the smoothness of his landing, and continue into the terminal, thus ending your journey.

Thanks for reading--I know you had a choice in blogs, and I'm happy that you chose this one.

*ugh, did I just support my argument with utilitarianism?  Aniuta would kill me.  RIP, Aniuta...gone but not forgotten.

How to Fly

Being 1100 miles from home has its advantages.  For one, I've pretty much mastered the art of air travel.  (Unfortunately, much of my mastery has come from trial and error, but no matter.)  Here's my foolproof method for making the most out of an airplane flight:

1. Learn how to flip a coin such that you can tell in advance which side it'll land on.  Trust me, this is doable.

2. Use kayak.com to find a flight.  It compares the fares of multiple airlines (though it omits some, like Southwest), and there aren't any fees to use it.  Plus, it has a handy matrix feature that's available once you register (again, for free) that lets you see various prices within a seven-day window.

You take the blue pill, the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill, you stay in Wonderland, and I show you how deep the rabbit hole goes.

3. Make sure you have the correct dates.  I once booked a flight home for Thanksgiving, only to discover that Thanksgiving was actually a week after I'd be headed back to the Chi.  Embarrassing and costly, yes.  Surprising, no.

4. Go online and choose your seat.  Sit as close to the front as possible.  It's 10x better to be one of the first ones off the plane than one of the first ones on the plane.  I'll leave the "window vs. aisle" question up to you, as it's been discussed many times before.  I prefer the window because (1) I don't mind asking the person next to me to stand up when I have to use the bathroom, and (2) it's tough for me to sleep in an aisle seat because I have a constant fear of getting my knee bashed by the drink cart.

5. Pack everything into a carry-on.  You get one legitimate suitcase and one backpack/purse to put under your seat.  If you can't get fit your stuff into these two items, stay home and hold a fucking garage sale.

Make sure to bring food for the plane--and don't be the guy who buys a malodorous sandwich at the airport and carries it on with him.  Have some respect for the people around you.  Similarly, avoid foods that can cause a mess or spill easily.  You may enjoy a bowl of soup, but while you're eating it, your neighbor will alternate between staring daggers at you and praying that the plane doesn't hit any turbulence.  Insider's tip: if you're that unfortunate person seated next to a man who decided to pack a three-course meal, a few well-placed sneezes will deter him from continuing with his dinner.

6. Don't check in beforehand.

7. If it's cold--or if it will be cold in the city you're visiting--wear a hooded sweatshirt to the airport.  Planes are often much colder than you'd expect.  Make sure to wear one of those surgical masks, as well.  That way, people will know how lame and un-American you are.

This guy definitely got all the girls in high school.

7. Get to the airport forty-five minutes before boarding time, more or less.  You have at least ten minutes from the start of boarding to make it to your flight, so you're giving yourself almost an hour to make it to the gate.  If it's gonna take you more than an hour to navigate security, it's not worth flying.  Just eat the airfare, text the person expecting your arrival that you won't be making it after all, and be happy that you didn't waste more than an hour at the airport.

8. When you get to the airport, check in there.  Use a self-help kiosk.  (General rule: avoid human contact whenever possible.)  It shouldn't take more than 5 minutes, and by checking in at the airport, you give yourself an opportunity to switch your seat even closer to the front of the plane.  Try your best to snare an exit-row seat.  If the kiosk asks you whether you'd like to upgrade to first class, turn to the nearest person and size him up.  If he looks like the gambling type *cough Asian cough*, ask him if he wants to flip a coin for upgrades--whereby if you lose, you pay for both upgrades and if he loses, first class is on him.  He'll agree, and here's where you work your coin magic.  Have him call it before you flip it, then obviously flip it in a way that is beneficial to you.  If he reneges, wave over TSA and tell 'em you heard he mentioned something about a bomb or a hijacking.  That way, at least he'll miss his flight.  (You'll likely miss yours, too, but it's part of the Gambler's Code to punish welshers.)

9. While in line to go through security, take the following items off or out of your pockets and put them into your backpack/purse: wallet, keys, cell phone, belt, jacket/sweater.  Empty your pockets completely so that you don't have loose items going on the conveyor belt.  (You'll need your ID, so extract that from your wallet beforehand but put it back in there immediately after getting the check-off from the post-man.)  Put the shoes on the belt directly, unless instructed otherwise, but keep them on until it's time to be x-rayed.  Why walk across the floor in your socks when you don't have to?

If you're traveling with a laptop, take it out of your backpack and put it in a tray by itself.  If you're without a notebook computer, you're likely going to be asked by TSA whether you have one, anyways--apparently, people forget to remove them from their bags all the time.  This is your time to shine.  After TSA asks you, "sir/ma'am, do you have a laptop?" say something like, "no, thanks, I'm not really in the market for one right now."  Make sure you say it loudly enough for everyone to hear, as this retort is sure to draw a chuckle and an approving smile from every passenger and security agent within earshot.  If you don't get the desired reaction, repeat your line word for word because they must not have heard you.  If you hit the jackpot and get asked, "sir/ma'am, do you have a P.C.," scoff and respond as condescendingly as possible, "no, I have a Mac....and it's at home."


Hurray, you've made it through security!  Part II to follow...