That’s why this injunction may not matter that much. Let’s say the court holds that Norris-LaGuardia prohibits the injunction. Well, that only removes the injunction against the lockout; it does not mean that the NFL won’t ultimately be liable for antitrust violations. In fact, Judge Benton seemed to indicate that antitrust damages would continue to accrue even if the lockout could not be enjoined under the NLA. Or, let’s say that the injunction is lifted because the nonstatutory labor exemption still applies. Well, even Clement admitted it can’t apply forever — so how long? Clement seemed to be pushing for at least a year, but Benton seemed comfortable with six months — which would be, according to his calculations, September 11. Would the antitrust violations and the injunction kick back in then?
So the hearing ultimately convinced me that (a) the players took a truly radical move by disclaiming and (b) this problem is not going away, even after the Eighth Circuit rules on the injunction. I had thought that the longer the lockout lasts, the more it favors the owners — players need paychecks after all. But what if the longer it lasts, the more antitrust damages that pile up against the league?
It’s one thing for players to resist a deal in the hopes that the league will cave before they do. That’s a hard one to win, and I think the NBPA showed how disastrous such a strategy can be in the late 1990s. But what if the players resist a deal in the hopes that one day soon, it will be all free agency all the time. No draft, no salary cap, no restrictions whatsoever. Could you hold on for a few more months in the hope that there’s no salary cap — hard, soft, or otherwise? Seems like a lot more to fight for.
So for those of you — like me — who thought that the disclaimer was just a clever, but ultimately discardable, negotiating tactic, think again. When the news went out that (former) NFLPA president De Smith was calling for “war,” I now understand those ramifications. I believe the league brought this upon itself by a series of moves: characterizing the last deal as way too player-friendly, hiring Bob Batterman, opting out of the deal early, and enforcing a lockout. They opened the can of worms. But this could get away from the players, too — do all players really want a world with no collective bargaining agreements?
In his argument, Clement said that the lockout would be “a self-inflicted wound” and “suicide” if it were not intended to ultimately bring about a settlement of the labor dispute. He’s right. And I think the league now, far more than the players, needs to settle that dispute to save itself.