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Friday, March 11, 2011
NFL labor glossary and Who's Who

By Lester Munson
ESPN.com

The NFL Players Association decertified Friday, and the collective bargaining agreement with the owners expired at the end of the day. Now the maneuvering begins.

Among the widely expected actions could be a lockout by the owners with team facilities closing their doors and players being left to their own devices across the country. The ongoing legal procedures can be confusing. It takes a special kind of language, after all, to wade through the permutations of what's really going on. So to help fans understand the labor situation as 2011 advances toward football season, here is a glossary of terms and a Who's Who of the principals.

Bob Batterman
Bob Batterman's success with the NHL led to his NFL gig.

Antitrust Litigation: It's complicated and it can be boring, but here is everything you need to know about it: It's good for the players and bad for the owners. Whenever you hear or read these words, you can expect that something positive is about to happen for the players and something negative is about to befall the owners.

Bigger Boat: The players and the owners are enjoying breathtaking prosperity. But it is not enough for the 32 owners, although each franchise, according to Forbes magazine, is worth at least $1 billion. The owners already have a nice boat, so what do they want? They want a bigger boat.

Binding Arbitration: During most labor disputes, someone will suggest that both sides agree to binding arbitration that will impose a solution on both sides. It might be suggested in this dispute, too, but it will not happen. Both sides believe they are able to bargain, are able to survive and are able to achieve their goals without it. But this phrase could become important as the disagreement continues. If one side suggests it, it is a sign of weakness. If either the owners or the players want binding arbitration, it means they are worried about what is happening to them.

Bob Batterman: He is a lawyer who became a favorite of team owners in all sports when he led the NHL through a season-long lockout. Under his leadership, the hockey owners obtained a salary cap that left the players union in total disarray. When the NFL owners hired him, it was a dramatic signal that they were serious about a lockout.

Brilliant: This is the adjective that best describes the lawyers for the owners and the players. Unlike many lawyers, these attorneys really are as brilliant as they think they are. The lawyers for the NFL -- Jeffrey Pash, Gregg Levy and Shepard Goldfein -- can put together arguments that magically transform owners' greed into concern for fans. You can almost believe what they say. Meanwhile, the lawyers for the players -- Dick Berthelsen, Jeffrey Kessler and David Feher -- are equally articulate and have a proven track record of success in the most challenging form of litigation: antitrust attacks on owners who will spend whatever it takes to win. Together, these guys may be too brilliant. They manage to make indefensible positions look reasonable, thereby prolonging the dispute.

Clubs: This is what billionaire NFL team owners and their commissioner like to call their enterprises. It is a word that sounds warm and even a bit fuzzy. When they are talking about their "clubs," watch out. They're about to increase ticket prices or do something else -- say, a lockout -- that will make them some money. These organizations are not clubs. They are corporations or limited partnerships. They are business enterprises and their purposes are to make as large an annual profit as possible and do whatever it takes to increase their value.

Collective Bargaining: The owners like to say they are in favor of collective bargaining. They don't like antitrust litigation, in which they face the possibility of triple damages and other unpleasantries. They insist that collective bargaining is the answer to the current dilemma. But it was collective bargaining, in its purest form, that produced the 2006 agreement that the owners now want to revise. They didn't like the outcome of their last attempt at collective bargaining, but they say they want more of it now. This is one of the reasons it is difficult to make sense of the current situation.

David Doty: This federal judge in Minneapolis is the fans' best hope for an agreement that will save the 2011 season. He has presided over NFL disputes for more than 20 years. He is fair and equitable. However, the owners don't like him because he has ruled against them several times. But despite the owners claims to the contrary, he has not ruled against them because he is biased toward the players. He ruled against the owners because they were wrong. The facts and the law were against the owners. Doty led players and the owners to an agreement in 1993, and he could do it again, even though at 83 years old he is semi-retired.

Dumb: That's how some fans might feel when they hear terms such as "lockout," "decertification" and "antitrust litigation," and they're to be excused if that's the case. Those words sound complicated, but they aren't really as complex as it might seem. In fact, the quarterback rating system is probably more complicated. If a fan uses this glossary and pays attention, it will be clear that this is simply a dispute about money.

Eight-Game Schedule: No, not an 18-game schedule, which was one of the bargaining issues. (The NFL wants it; the union doesn't.) This is an eight-game schedule, and the league has prepared it for this fall. So if the lockout continues into the season, the owners are ready. The last eight-game season was in 1982, after the players staged a successful strike that resulted in winning them a share of the league's gross revenues.

Monopsony: This high-falutin' term is included in the glossary only for fans who want to show off and irritate everyone else in a sports conversation. It is the flip side of the word "monopoly." From one legal perspective, the NFL is a cartel that controls the entire market for pro football. But it is not a monopoly in the sense that the league is the only seller of a product and so can unilaterally raise the price of that product. If there were only one corporation selling gas in the U.S., the corporation would be a monopoly, and if it raised the price of gas to $5 per gallon the action would violate antitrust laws. The NFL is different. It is the only buyer of football services. As the only buyer, it is a monopsony, but also subject to antitrust liabilities.

National Labor Relations Board (NLRB): This is a federal agency that governs unions and collective bargaining. The owners have already filed a complaint about the players with this board. As the impasse continues, the players will file their own complaint. Neither of the complaints will make any difference. The NLRB is ponderous in its decision-making. Its rulings usually come long after the two sides have resolved their dispute. Its only real importance is that it makes each side's complaints about the other side sound more official.

Revenues: This is the most important word in any agreement that the owners and the players make. How do they define "revenues?" They use adjectives like "total" and "designated" to try to increase or decrease the amount of money they will share. When they finally make an agreement, the definition of "revenue" will be eight or nine pages of single-spaced impenetrable language. It will take a labor expert two or three days to determine which side came out ahead in the sharing of league revenues.

Saepissime Mendosus Sed Haud Dubitans: This Latin phrase describes most of the statements that we will hear from the lawyers for the players and the owners. It's a good thing to remember as you listen to each side's explanation of the situation. Here's what it means: "Frequently wrong but never in doubt."

Strike: This is something that will not happen in this dispute. The players' attempt to obtain benefits with a strike in 1987 was a disaster. The owners were ready for it and managed to sign replacement players (known as "scabs" to union members) who actually played some games. It was one of the low points in the history of professional sports competition, and it destroyed the players strike. The careers of NFL players are notoriously short (less than four years on average), which is one of the reasons it is not possible to keep 1,700 players in a facsimile of solidarity during a strike. The players' only hope for protecting what they have is antitrust litigation.

Unfair Labor Practice: You will hear this term throughout any lockout. Each side will use it to describe what the other side is doing. It is ordinarily not an important phrase. When the players or the owners use it, you can ignore them. However, if a judge or the NLRB uses the phrase to describe something, it is important. A ruling that one side has been guilty of an unfair labor practice could be a major factor in the outcome of the labor battle. The players and the owners know the rules, though. They may push those rules to the limit, but they will not go over the line.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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