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Last-minute NFL settlement still a possibility

Chance of losing big could make either side compromise before things really get ugly. And 'antitrust' is a scary word to a business.

March 19, 2011|Sam Farmer
  • A banner with Chargers quarterback Philip Rivers sits outside Qualcomm Stadium in San Diego during the NFL lockout and labor problems.
A banner with Chargers quarterback Philip Rivers sits outside Qualcomm… (Mike Blake / Reuters )

Reporting from New Orleans

Pro football has become a game of toxic tennis — NFL management versus players — with each side accusing the other of lying, hiding its true intentions, and greedily making a grab for more of the league's $9 billion in annual revenue.

As the whole mess careens toward federal court, where there's a hearing scheduled for April 6 in the court of U.S. District Judge Susan Richard Nelson in Minnesota to determine whether the league is breaking antitrust laws by locking out the players, team owners will convene in New Orleans on Monday and Tuesday for their annual meetings.

Those owners made what seemed to be a monumental decision at their meetings a year ago, tweaking the overtime rules for the playoffs. All that seems blissfully insignificant now, as the nasty accusations fly and the public grows more unsympathetic by the day.

A quick review: The owners have locked out the players in hopes of pressuring them into a new CBA. The players have dissolved their union, and if that move holds up (the owners are challenging it), they cannot be locked out.

So can this mess be cleaned up before things really get ugly? Borrowing the analogy of the league's top lawyer, can Thelma and Louise be stopped before they drive off the cliff?

It's possible. Just as the last collective bargaining agreement was reached as the result of a legal settlement, so could this one. Even though the parties cannot collectively bargain now — there's no players' union for the NFL to bargain with — there's nothing stopping the sides from sitting down as plaintiff (players) and defendant (NFL) and trying to negotiate a settlement before the case gets to court.

"This could wind up being a settlement on the courthouse steps," said Jerome Stanley, an attorney and longtime sports agent. "It's what most cases do. There's something about the imminence of a decision that can go against you that motivates people to try to maintain control of their dispute."

The mere hint of violating antitrust laws — and the tripled damages that come with that — sends a Lambeau-cold chill down the spine of anyone running a business.

An antitrust claim is "very powerful bargaining leverage," said Steven Bradbury, a partner at Dechert LLP, who represented players in the last Supreme Court decision addressing application of the labor exemption to the NFL.

"It really puts a kink in what the teams can get together and agree among themselves to do," he said. "They're now in jeopardy of violating the antitrust laws. So it hobbles the league very definitely."

Now, will a settlement come before the April 6 hearing? Don't bet on it. First of all, if there were anything else either side was going to put on the table, there's no reason they wouldn't have done so before talks broke down and the sides resorted to extreme measures — the players decertifying and the owners locking out.

All that's going to get one side or the other to move is a change of circumstances, a change in leverage. What could prompt that most likely would be something that happens in court, and the most obvious scale-tipper is the outcome of the April 6 hearing.

If Judge Nelson says the owners are not allowed to lock the players out, the owners will have to restart football operations. Because there's no union, the owners cannot collectively bargain what those rules of operation will be. The owners would probably opt to keep in place the rules they played under in 2010. They would have to be mindful of not violating antitrust laws, and by using the latest rules they would at least have the argument that the players, while they were calling themselves a union, negotiated and agreed to those rules.

In that case, the antitrust suit could bump along in the background for years, but at least football would continue uninterrupted.

If the owners win, and the court says it's not going to block them from locking out the players, it would be a test of wills for the players to see how long they could hold together while missing paychecks. There eventually would be a settlement, but it might not come until a regular-season game or two were missed.

In the meantime, the rhetoric, finger-pointing and posturing continues, each side accusing the other of being too stubbornly dug in to budge.

This is, after all, an antitrust case in the truest sense.

No one trusts anyone.

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