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Rethinking the Role of Decertification in Sports Labor Disputes

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

One aspect of the recent decertification by the NFL Players? Association that I believe has (understandably) been somewhat overlooked is what the NFLPA?s decision tells us about the role that the threat of decertification plays in labor disputes between sports leagues and players? unions generally. Up until now, the general scholarly consensus has been that players? unions are quite hesitant to decertify during a labor dispute given the potential rights they risk losing (such as previously negotiated insurance and pension benefits), and as a result decertification is only a weapon of last resort.

In the current NFL labor dispute, however, that wasn?t the case. If anything, it appears that the union may actually have been eager to decertify, recognizing that decertification would place additional pressure on the NFL owners by allowing the players to assert a variety of antitrust claims against the league. Admittedly, some of the motivation for the NFLPA to decertify sooner rather than later may have come from a provision in the most recent collective bargaining agreement providing that if the union waited to decertify until after the CBA formally expired, then it could not file an antitrust suit against the league for a period of 6 months. Nevertheless, the speed with which the NFLPA was willing to decertify in this case runs counter to the conventional wisdom on such matters.

As a result, we may have to reconsider the role that the threat of decertification plays in labor disputes in the other sports leagues as well. For example, the NFLPA?s recent decertification provides a possible roadmap for the upcoming CBA negotiations in the NBA, given that like the NFLPA, the NBPA is also represented by antitrust attorney Jeffrey Kessler.

Meanwhile, with respect to MLB, the NFLPA?s decertification calls into question the general consensus regarding the significance of the Curt Flood Act of 1998, the legislation that partially repealed baseball?s historic antitrust exemption in order to allow current MLB players to file antitrust suits against the league (for prior Sports Law Blog discussion of the Curt Flood Act, click here). At the time the Curt Flood Act was passed, most scholarly commentators wrote it off as largely irrelevant, given that after the Supreme Court?s decision in Brown v. Pro-Football, Inc., MLB players must decertify their union before exercising their right to file an antitrust suit. However, as I?ve previously noted, MLB has had two remarkably amicable CBA negotiations following the passage of the CFA, in stark contrast to the league?s previous 30 years of contentious labor disputes. Given the relative ease with which the NFLPA decided to decertify, one can argue that the threat of decertification by the MLBPA following the CFA may actually have had a much greater effect on baseball?s labor relations than was widely expected at the time it was enacted.

Full post as published by Sports Law Blog on March 14, 2011 (boomark / email).