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Monday, March 21, 2011
Status of trade association a major hurdle

By John Clayton

NEW ORLEANS -- Separating the litigators from the negotiators is the story here during a very unusual NFL owners meeting.

During the weekend, NFL players -- now under the direction of a trade association -- reached out to NFL owners and negotiators and extended an invitation to get back to the table to try to pound out a collective bargaining agreement. DeMaurice Smith, who used to have the title of executive director of the NFL Players Association, went even further Monday, sending a letter to Gregg Levy, one of the lead attorneys for the NFL.

Talks could resume as early as next Monday, and it wouldn’t be out of the question for a deal to be struck within five days of the start of meetings.

But the NFL, according to NFL sources, will meet with the trade association executive board only if the board says it’s a union bargaining for its players.

It looks like the players and owners aren’t getting together, which is horrible news for NFL fans.

Welcome to the new NFL, which stands for Now For Litigation.

The recently expired collective bargaining agreement between both sides was forged in a courtroom, in the Reggie White case. Gene Upshaw, the late head of the NFLPA, used the union decertification tool in the late 1980s to get the NFL to court and make it vulnerable to antitrust law violations.

At that time, the NFL didn’t file a complaint with the National Labor Relations Board challenging the ploy or the ability of a trade association to negotiate a deal with the owners while the league was exposed to possible antitrust damages.

That isn’t the case this time. The NFL has a dream team of attorneys, including Levy, David Boies and Paul Clement. Boies became nationally known in the Bush vs. Gore case following the presidential election in 2000.

He has now gone from hanging chads to locking out Chad Ochocinco.

On Monday, Boies, Levy and the dream team filed a response to the players’ antitrust lawsuit in a federal court in St. Paul, Minn. The NFL challenges the players’ strategy of decertifying as a tactical strategy. League attorneys contend the new trade association is still acting like a union after its most recent decertification.

“Show me a body and I’ll show you the suicide,” one league source said.

Unless the NFL and the players find a way to get around this identification dilemma, they are heading to court, not free agency.

Where do both sides stand if they could find a way to negotiate?

The players’ detailed response to the owners’ last offer tips off that they would be willing to make a counter offer once several items and questions are cleared up. According to multiple sources, the players aren’t sure if they would resume talks in the federal mediation office of George Cohen, but they would resume talks if decision-making owners are involved.

Commissioner Roger Goodell and owners want to get a deal done as badly as the players. What they need to do is find a way around the status of the trade association. But on Monday, the day was for the litigators.