What is the Norris-LaGuardia Act? The legal issue at the core of Brady v. NFL

The U.S. Court of Appeals for the Eighth Circuit has now dedicated a page to all of the filings in Brady v NFL, et al, so I’ve caught up on the reading. The gist of the case, legally at least, is as follows. The NFL owners and the NFL Players Union fought and negotiated as part of the labor process, until negotiations broke down. In response, the NFL “locked out” players, meaning that they weren’t allowed in the building to use facilities and would not be paid, and the players, in a unique move, “decertified” their union, professing to become not a union but simply a collection of individual players, represented as a “class” in this lawsuit (i.e. you have plaintiffs who are similar to other potential plaintiffs in order to limit everyone needing to file their own lawsuit) and by a “players association” rather than a true-blue union. The obvious and stated purpose of decertifying was that it lets the players sue, and with a decent argument: Although, in the intersection between the labor laws and the anti-trust laws, there is an exemption for certain acts in the labor context that would be illegal if labor law didn’t apply, the NFLPA felt that by decertifying they could essentially force antitrust scrutiny of the owners’ behavior. Exhibit A of a case where otherwise illegal anti-trust conduct was exempted because of the intersection between labor law and antitrust was Maurice Clarett v. NFL, decided by the U.S. Court of Appeals for the Second Circuit (New York) and written by then-Judge (now Supreme Court Justice) Sotomayor. Clarett sued the NFL, arguing that the NFL’s rule that you had to be out of college for three years before you could declare for the draft was an unlawful restraint of trade. The district court agreed, but the Second Circuit reversed holding, among other things, that the fact that the NFL had a collective bargaining relationship with a union (even if Clarett wasn’t part of it) shielded the NFL from anti-trust scrutiny even if it could not impose such a rule in the non-union context.

Felix Frankfurter, who drafted the Norris-LaGuardia Act, left us with a final enigma: When will we get some football?

Hence the decertifiation of the NFLPA and the players’ core argument of this case: you can’t lock out non-union employees. There is stuff in the NFL’s response about a “sham decertification” (really a separate issue, though it is important background for the judges), the NFL’s primary response is different, and more technical. The argument is that, whatever the merits of this case — whoever is right or wrong — the Norris-LaGuardia Act says that federal courts simply cannot issue an injunction in this case. In other words, the NFL’s argument is that even if the players were right, a federal court cannot order the remedy they want. This sounds technical and boring, but it’s surprisingly interesting and there is an awful lot of history packed into the few words.

The key language in the Norris-LaGuardia Act prohibits federal courts from issuing injunctions “in a case involving or growing out of a labor dispute.” The Act defines a “labor dispute” to include “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.” That is broad language, and that is essentially the NFL’s argument: This case certainly “involves” or “grows out of” a “controversy concerning” the “negotiat[ion]” or “arrang[ment]” of “terms or conditions of employment”; the two sides were fighting about wages, salaries, and benefits — the way that giant economic pie called the NFL is divided — and so no injunction can issue. End of case.

There is slightly more nuance to that to be found in the NFL’s brief (written, in chief, by the excellent former Solicitor General Paul Clement), but that is the upshot and it was, essentially, accepted by a majority of the Eighth Circuit:

“The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union. We have considerable doubt about this interpretation of the Act. . . . The Act does not specify that the employees must be members of a union for the case to involve or grow out of a labor dispute.”

The Eighth Circuit only had to determine a “likelihood of success on the merits,” and will not render a final judgment until after oral arguments in June, but everyone — including the players in their brief — recognize that a majority of the Eighth Circuit is inclined to read the language of the Act broadly and in the NFL’s favor.

But the player’s contrary argument, whether or not ultimately successful, is fascinating, and highlights the unique role and changing nature that laws play in society.

(more…)

Smart Links – 5/22/2011

What the heck: Titans offensive coordinator Chris Palmer watching more Jake Locker film now than before the draft. Uh, shouldn’t that have been done ahead of time?

The Solid Verbal interviews Herb Hand, and it is a must listen. So go do that.

Purdue waiting around to name Rob Henry the starting quarterback, primarily because maybe Robert Marve will be healthy and great (post-ACL tear), or won’t be. Considering that Marve looked terrible last year, if he beats out Henry (who is young and athletic — he led Purdue in rushing last year despite playing in only about half of the games — but has lots to learn in the passing game) then Purdue is in for another dismal season (which they may be anyway). My advice to Henry? Five words: seven-on-seven, every day.

Why don’t the Wall Street Journal and New York Times combine paywalls?

Big Ten to pay more to its athletes. Just a little side change.

Eliminating a quarterback’s indecision in option football.

Throw-back-back-back uniforms.

Red Bull’s billionaire maniac.

Bad Vlad: Thanks for the Super Bowl Ring

An old story I recently stumbled across:

Interception in Russia. At a conclave of global business leaders in St. Petersburg, an incident occurred that has the world, well, scratching its collective head. Executives of American companies . . . were at Konstantinovsky Palace near the north Russian metropolis on Saturday, as Russian President Vladimir Putin did his best to convince them that his country is still a safe, stable place for investors. That’s when New England Patriots owner Robert Kraft, in a pique of international brotherhood, decided to show Putin a prized possession: his 2005 Super Bowl XXXIX ring. Suddenly the bridge between West and East, between those who use Roman and Cyrillic alphabets, was rent. Putin tried on the diamond-encrusted ring; he pocketed it; and left the conference. Did Kraft really intend it as a gift? Even in the interests of world peace and prosperity, that seems unlikely: This was the Pats winning the Bowl, after all. In a statement oddly reminiscent of traditional Kremlin idiom, Patriots spokesman Stacey James told The Associated Press that Kraft was traveling and he hadn’t spoken to him in four or five days, despite e-mails and calls: “He’s still overseas, I can’t even tell you where. …He’s not due back until next week.” James added, “It’s an incredible story. I just haven’t been able to talk to Robert Kraft to confirm the story.” However, a Kremlin official–who spoke anonymously, fearful of compromising his position, according to the AP–maintained the ring was a gift. “Such a present was made,” the official said. He said Putin donated the ring to the Kremlin library, where other foreign gifts are kept. James said the ring’s worth was “substantially more” than $15,000, as the value had been reported.

Whoops.

“The throwin’ game is like a disease”

People forget that, at one time, Bobby Bowden was about as cutting edge as it got; his offenses in the 1970s and 1980s (and taken up in the early 1990s at Florida State by his assistants) had a huge impact on the game. More:

Jim Carlen, who succeeded Corum [at West Virginia] in 1966, had a limited knowledge of the passing game, but when he was running Georgia Tech’s defense he used to sit in Bobby Dodd’s office and listen to Dodd and Alabama coach Bear Bryant talk about how difficult it was for teams to defend the passing game.

“They would talk about throwing like it was a disease,” recalled Carlen. “Well, I knew the game was going to change a little bit if they could ever get to where they could let the offensive line block like they are letting them do now – tackle them – and I said, ‘We’re going to have a throwing attack of some kind.’

“When I was defensive coordinator at Georgia Tech we only played run,” Carlen added. “Throwing was like a foreign element.”

Carlen had met Bobby Bowden a few times when the Georgia Tech and Florida State coaches would get together during the summertime for clinics, and he immediately realized that Bowden was a bright, innovative coach who understood the passing game.

“What I knew about Bobby was I knew he knew the throwin’ game and I knew he was kind of a fool-‘em coach; he ran trick plays and stuff,” said Carlen. “My whole system was run the veer and the wishbone and run the ball all the time. I had just never been around the throwing game.”
(more…)

Smart Notes – run and shoot, film study, best and worst, oversigning – 5/16/2011

Film study, courtesy of Brophy. Auburn’s offense versus Oregon’s defense:

Check it all out, including TCU versus Wisconsin, here.

Shoot it. Al Black tape on installing the run and shoot, specifically the “choice” and “go” packages.

I appreciate your (in)consistency. Good stuff from Football Study Hall:

Biggest Difference Between Best and Worst Single-Season Performance, 1986-2010
1. Boise State (0.973 difference — 1.000 max, 0.027 min)
2. Kansas State (0.972 — 0.991 max, 0.019 min)
3. Louisville (0.946 — 0.975 max, 0.029 min)
4. Washington State (0.936 — 0.944 max, 0.008 min)
5. Houston (0.925 — 0.943 max, 0.019 min)
6. TCU (0.921 — 0.983 max, 0.063 min)
7. Washington (0.907 — 0.991 max, 0.083 min)
8. Rutgers (0.907 — 0.924 max, 0.017 min)
9. North Carolina (0.888 — 0.964 max, 0.075 min)
10. Miami-Ohio (0.869 — 0.897 max, 0.028 min)
. . .

And while we’re at it … here’s a much more entertaining list…

Smallest Difference Between Best and Worst Single-Season Performances, 1986-2010*
1. UL-Monroe (0.241 — 0.250 max, 0.009 min)
2. Florida (0.311 — 1.000 max, 0.689 min)
3. Buffalo (0.317 — 0.328 max, 0.008 min)
4. Kent State (0.348 — 0.357 max, 0.009 min)
5. New Mexico State (0.367 — 0.375 max, 0.008 min)
6. Penn State (0.395 — 0.981 max, 0.586 min)
7. Florida State (0.400 — 1.000 max, 0.600 min)
8. Tennessee (0.407 — 0.982 max, 0.575 min)
9. UL-Lafayette (0.425 — 0.434 max, 0.009 min)
10. Akron (0.425 — 0.453 max, 0.028 min)

So … I guess this means UL-Monroe is the Florida of losing? Or is Florida the UL-Monroe of winning?

– What does Mark Richt know about oversigning that we don’t? From GTP:

(more…)

Smart Notes – Auburn offense, Rashard Mendenhall, UFL, Coase Theorem – 5/4/2011

Auburn cut-ups. Always good for the offseason:

Doc Sat shows how recruits “grow”. J.J. Watt and Nate Solder each gained 65 pounds.

Rashard Mendenhall gets himself in hot water by saying he doesn’t (necessarily) believe that Bin Laden was responsible for 9/11. This isn’t the space for a long exegesis, but it very much reminds me of when Mos Def (an intelligent guy) went on the Bill Maher show (video here) and told Christopher Hitchens and Salman Rushdie (who once had a fatwa issued against his life) basically the same thing as what Mendenhall said (and Hitchens destroys him). Ta-Nehisi Coates said everything there is to say on that subject better than I could, noting that while there’s a tradition of distrust and skepticism (good things), there must be limits; Bin Laden was not exactly bashful about taking credit for 9/11 or any of his other exploits.

How Drew Brees is working out during the lockout. Hat tip Drew Brees.

(more…)

Smart Links – 5/2/2011

The all undrafted team. A couple are quite surprising. The sad part is with the lockout these are guys who have to sit on their thumbs and wait.

– Peter Bean goes all in on Jim Tressel, here and here.

– Someone unknowingly live tweeted the Bin Laden attack. I have to say among the many big winners last night, Twitter was among them. See this for the team that performed the strike.

Creative bookshelves.

More on “run fits,” an area of the game fans poorly understand.

Adults are betting on Pop Warner football. Just bizarre.

– How “dead money” haunts baseball teams.

– Airraid attack with a play-action twist? West Virginia had its spring game, and, oh, you know, Holgorsen’s offense scored 83 points (with some kind of strange scoring system he even claimed to not understand). Regardless, starting quarterback Geno Smith went 26 37 for 388 yards four touchdowns and no interceptions. But what jumped out to me from the video below were all the big plays off play-action. Video and more after the jump.
(more…)

Sometimes coaches know things we don’t (Nick Saban on James Carpenter)

It’s not always true that they know more than we do, but after watching this clip one has to wonder what was going through Nick Saban’s mind when his former player, offensive lineman James Carpenter, was drafted by the Seattle Seahawks in the first round:

He clearly says, incredulously, “James Carpenter went in the first round?” (In a different clip you can see Mark Ingram say, “Did they call James? I’m happy for him.”) Maybe Saban was just surprised as Carpenter was projected to go in the second round, but there’s something in his look that indicates he almost finds it funny, like he’s just marveling at the absurd, Dadaist moment he’s just witnessed.

Graph of the day – NFL draft edition

Advanced NFL Stats asks, “What happened to the first-round runningback?

In the five-year period between 1970 through 1974, running backs made up 20% of all first round NFL draft picks. That’s one out of every five. As recently as the 1985-1989 period, RBs made up 19% of first rounders. But by the most recent decade, from 2000 through 2010, RB selection was cut in half–down to about 10%. Last night, only 1 of the 32 players chosen (about 3%) was a RB, and he was chosen 28th, near the bottom of the round.

The graph below illustrates the trends in how teams favor each position over the past 41 years. Most positions are fairly stable.

draft

Fascinating graph. First, I’m completely not shocked that defensive line is at the top. It really is the most important position in football, particularly at the NFL level. Second, and more importantly, I wonder how much of the movement in the graph over time is driven by strategic trends with respect to personnel versus increased demand or rule changes. For example, in the ’70s and ’80s, most teams used “21 personnel,” i.e. the “Pro set” with either an I-formation or splitbacks. Nowadays almost all teams base from a one-back set, with the fullback having being replaced by either a third receiver, a second tight-end, or an “H-back” hybrid guy, depending on the scheme and talent.

The tight-end line on the graph is interesting in this respect. It declined in the 90s but had a slight uptick in the early part of the 2000s (almost hitting the old historic high), as teams moved to more two-tight end sets. Similarly, who was the last true “fullback” to be selected in the first-round? (Mike Alstott (a) was a true runner and (b) was a second-round pick.)

I suppose the way to control for this effect — the numbers versus importance point — would be to simply take a look at the proportion given positions have occupied over time as a percentage of the 53-man NFL roster. I.e., have teams gone from three wide receivers and four or five defensive backs to five wide receivers and seven defensive backs, thus making the uptick in those players being drafted more in the first-round simply a reflection of their increased numbers? No one doubts quarterbacks are effective, but teams only carry two or three — and there is generally less turnover there as well — so it remains low on the above graph as a percentage of all first-rounders. I’m curious if folks have any thoughts on how best to understand this.

Paragraph of the day

Spencer Hall imagines what would happen if Grantland Rice were to submit his most famous article to a certain future ESPN site.

To: GrantRice@aol.com
From: [REDACTED]@espn.com

Thank you for the submission, but we unfortunately will not be able to use your work on our new website. We are looking for voices who echo a tradition of innovative, moving sportswriting that is at once young but timeless, emotionally moving but with a eye towards clinical critique, and infused with a creativity that never ceases in its quest to expand the parameters of sportswriting.

To expand on this, I’d like to just offer a few pointers for you in order to help you in your future work.

Outlined against a blue-gray(1) October sky, the Four Horsemen rode again.(2)

1. Hyphenates are a no-no. Just say “sky.” Shorter is always better. This is always true. Trust. Me.

2. Wrestling references are a little low in the class department. This one is dated, too. When you write for us, think: “Would Malcolm Gladwell know who this is?” If not, don’t include it.

Read the whole thing. This piece echoes something I wrote awhile back about Rice’s work in comparison to popular “sports journalism” and the weirder backwaters found on the internet:

I bring all this out to show the parallels between sort of post-modern (for lack of a better term) sports writing on the internet, twitter, blogs, and the like, and the greatest sports writing ever, which has very little to do with the alternatively obsequious or bellicose 800 word columns and maddening boilerplate recaps we have become accustomed to.

“The Four Horsemen” would not have been published by a reputable institution anytime in the last fifty-years. By modern standards, it is not a very good sports story. It is merely the greatest sports story of all time.