By Sally Jenkins, Tuesday, April 26, 10:30 PM
Federal judge Susan Richard Nelson essentially said to the NFL owners in her ringing 89-page ruling: Cut your losses, fellas. You’re in the wrong. Understand the extraordinary privilege you have enjoyed all these years, and don’t push it. Stow your hubris, and end the labor dispute, or risk losing everything.
The owners don’t get it, and haven’t from the beginning. But they better get it fast, or the entire structure of the league may come down around their ears. On Tuesday, it suddenly became clear what a doomsday scenario they put into play when they picked a financial fight with their players, and locked them out. It was a profound mistake, committed out of arrogance. While they were calculating revenue, studying profit-loss statements and betting on how many unplayed games it would take the players to fold, they should have taken a crucial fact into account: They are in the legal wrong.
They had no right to lock out the players, they are in violation of antitrust law, and what’s more they are repeat, recidivist offenders. They are guilty as charged, and this is the trouble with their hope for relief on appeal.
The best way to think about the old NFL collective bargaining agreement is as a beautiful magic cloak. It allowed the owners a kind of charmed invisibility when it came to collusion, to artificially controlling competition, to inhibiting player movement, to making their costs certain, and generally suppressing every free market principle. The fact that they had the consent of players via collective bargaining created a non-statutory labor exemption — it gave the owners legal cover for the socialistic anti-competitive way they operate. It also helped them maintain the goodwill of the paying public. Take away that magic cloak, and they look like pirates.
The owners, almost incomprehensibly, voluntarily stripped off their magic cloak and ripped it to shreds, when they opted out of the CBA and demanded $1 billion in concessions from players. They tore up their cloak because, they said, their share of $9.4 billion in revenue wasn’t enough to support them in the style to which they’ve become accustomed.
Why would they do such a thing? Profit motive is one answer, and an exaggerated self-regard is another. This is not to say that there aren’t some good owners — there are some wonderful ones, and Roger Goodell has been a strong and sensible commissioner on just about every other issue. But as a group they are used to getting their way, and bending people to their will. The owners seem to genuinely believe that they could not lose in court — or possibly be wrong. Even now, they are convinced that Judge Nelson’s court order to end the lockout will be overturned.
It doesn’t seem to occur to NFL owners that Nelson merely held the obvious about their conduct: that it was illegal.
Rather than admit wrongdoing or a mistake, the owners are crying that Nelson exceeded her authority, and are bucking her order while they appeal, with games like letting players into their facilities for a cup of coffee but not allowing them to work out. They claim to be confident they will win an appeal, and get a different answer from the U.S. Court of Appeals for the Eighth Circuit, because 13 of the 16 judges were nominated by Republican presidents, and therefore might be conservative and pro-business.
Once again, they have miscalculated. The fact is, getting Nelson overturned will be as difficult as getting a call on the field overturned by instant replay — there has to be incontrovertible evidence the ruling was wrong. But that’s not their only problem. What makes the owners think that they are in a position to appeal to conservative, pro-business instincts?
The fact is, the owners have now placed themselves in the ludicrous legal position of arguing strenuously against free market principles before conservative judges. On Tuesday, Goodell wrote an extraordinary op-ed article in the Wall Street Journal in which he all but begged for a return to the collective bargaining status quo, the “carefully constructed rules proven to generate competitive balance.” Interestingly enough, Goodell did not offer a single legal defense for the way the league does business. He simply argued that the system has made it “one of the most popular and successful sports leagues in history.” So judges like Nelson should leave it alone.
The plain fact is that the owners are the ones who opened the Pandora’s box — and what popped out is a very big monster. Instead of concessions and pay cuts from players, what they may get from them is an Armageddon. Instead of controlled costs, the owners could be looking at the end of the salary cap, the draft, free agency and the union, with every player an independent contractor free to get the best deal for himself.
The owners’ best hope to settle this dispute and maintain the current structure of the league is clear: make a fairly generous offer to the players that treats them as what they are, essential partners without whom there would be no game on the field. But first they will have to admit to themselves that they made a mistake and were wrong. Good luck with that one.
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