On March 21 the NFL filed its legal brief. In seeking to convince the Court to deny the players' request to block the lockout, the NFL argued
(1) that the Union's decertification was nothing more than a sham, and
(2) that the Court should wait on ruling whether to lift the lockout until the National Labor Relations Board has made its ruling as to whether decertification is in fact a "sham" (that means the NFL is requesting that the Court stay these proceedings pending resolution of the Board's decision). Here's the NFL's amended labor claim before the Board.
If the Board doesn't like the decertification (or technically disclaiming interest), it could order the Union back to the negotiation table.
Here are some highlights from the brief:
On decertification being a sham:
The law is not so easily manipulated. One party to a collective bargaining relationship cannot, through its own tactical and unilateral conduct, instantaneously oust federal labor law or extinguish another party’s labor law rights. A union cannot, by a tactical declaration akin to the flip of a switch, transform a multiemployer bargaining unit’s lawful use of economic tools afforded it under the labor laws into an antitrust violation giving rise to treble damages and injunctive relief.
The NFL also wrote the NFL lockout “is unquestionably lawful and permitted by federal labor law” and that a "union cannot, by a tactical declaration akin to the flip of a switch, transform a multiemployer bargaining unit’s lawful use of economic tools afforded it under the labor laws into an antitrust violation giving rise to treble damages and injunctive relief".
On the sham issue, the NFL has argued that decertification violated the Union's obligation to bargain in good faith:
Under the NLRA, a union’s disclaimer of interest in collective bargaining is effective only if it was "unequivocal" and "made in good faith... Disclaimers are made in bad faith—and are therefore ineffectual and invalid—when they are done as a "tactical maneuver," ... or when the disclaimer was "obviously employed only as a measure of momentary expedience, or strategy in bargaining,"
On the request for a stay, the NFL wrote
The NLRB is now considering whether the union has purported to disclaim in order to gain a tactical bargaining advantage, rather than disclaiming unequivocally and in good faith, as the federal labor laws require. If the Board finds such a violation, it will issue an order requiring the union to return to the collective bargaining table. Under the primary jurisdiction doctrine, the Court must stay this case pending the outcome of the Board proceedings.
The Players will file their brief on March 28.