Tuesday, May 10, 2011

NHL Chimes in on NFL Appeals Case

Yesterday, the NHL filed a friend of the court brief on behalf of the NFL at the 8th Circuit Court of Appeals, arguing that Judge Nelson's lower Court decision to lift the lockout would impair collective bargaining by allowing unions to decertify at the drop of a hat and sue for antitrust violations.

What is this brief? It's referred to as an amicus brief and is filed by a person with strong interest on the subject matter of an action, but not a party to the action. The brief is designed to raise awareness on certain issues before the Court. The briefs are commonly filed in appeals concerning matters of a broad public interest, such as civil rights cases. The Court doesn't have to consider it.

Here's an excerpt, which basically says that by allowing decertification as a negotiation tactic the traditional weapons of strikes and lockouts are removed. All along the NFL has argued that decertification (read primer on decertification here) is a "sham":
The NHL has a direct interest in ensuring that the determination of terms and conditions of employment for NHL players is the product of a bona fide labor process rather than the "lever" of potential antitrust liability. This is especially true in the context of the stable and mature collective bargaining relationship that the NHL and the National Hockey League Players' Association ("NHLPA") have had for nearly 45 years. Yet, under the district court's decision and rationale, a group of employees can, at any time and for any reason, insinuate the antitrust laws into the dynamics pursuant to which new terms and conditions of employment are negotiated and determined. All a union has to do is have its members "disclaim" union representation, simultaneously reconstitute itself as an employee "association," and then ask the court to immediately enjoin any joint labor activity of the employers (e.g., including the implementation of a lawful lockout) by filing a treble damages antitrust complaint and a motion for preliminary injunction. The NHL respectfully submits that this cannot be the state of the law.
Left to stand, the district court's ruling creates a perverse incentive for unions – during the collective bargaining process and in the midst of negotiations – to divert their efforts to antitrust litigation tactics rather than complying with their obligations under federal labor law to bargain in good faith. The net effect is that traditional economic weapons contemplated and made available in the labor process – employee strikes and employer lockouts – are removed as options. In turn, the labor process is necessarily subjugated to antitrust law and related litigation tactics. Indeed, under the district court's ruling, union disclaimer and simultaneous antitrust suits are likely to be the chosen path any time employeeplayers (or other unions or associations of employees for that matter) believe that these tactics are the most viable method of obtaining the terms and conditions of employment they desire, but might not achieve through the traditional collective bargaining process.

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