The Celtics swept New York. The Bruins have won 3 straight, 2 in overtime (one double OT), the Blackhawks have come back for 0-3 to force a game 7, and the Red Sox have won 9 of their last 10.
I just don't care about football, and THAT should concern the football heads, a lot. On Apr 25, 9:21 pm, MJ <[email protected]> wrote: > Behind the Lockout, Part IVApril 25, 2011 byS.M. Oliva > A few hours ago, US District Judge Susan Richard Nelsongranted a preliminary > injunctioninBrady v. National Football League,apparently halting the > “lockout” announced by NFL franchise operators over a month ago. It’s not > immediately clear what happens next. Nelson did not stay her motion pending > the NFL’s inevitable appeal to the US 8th Circuit Court of Appeals, and > unless such a stay issues from Nelson or the appellate court, the league > will, in effect, be compelled to re-open for business while the underlying > antitrust lawsuit is litigated. > Nelson’s decision is an 89-page orgy of case law and jurisdictional analysis. > The NFL, advised by the finest legal minds, never bothered to argue that its > “lockout” wasn’t an illegal “group boycott” under the Sherman Act. Instead > the league complained, over and over again, that the players were wrong -- > WRONG -- to decertify their union and file an antitrust lawsuit instead. As > long as the union existed as a union, that is, not a “trade association” > antitrust action was off-limits, because government labor regulation trumps > government antitrust regulation. > This is an important conceptual argument. We commonly heard, from the left, > that big business is anti-union. Yet here we have a big business desperate to > reanimate a dead union. The league wants the National Labor Relations Board > toforcethe players to reform as a union and deal with the league under the > terms of federal labor regulation. As Judge Nelson correctly noted today, > however, if players have the right to form and participate in a union, they > have an equal right to dissolve and not participate in one. Accordingly, > Nelson rejected the league’s demand that she defer to the NLRB, which is > holding the league’s charge of “unfair labor practices” against the former > union in bureaucratic purgatory. > Now, the merits of Nelson’s injunction are troublesome, at least from a > libertarian standpoint. From a non-libertarian, > football-dependent-mainstream-media standpoint, all that matters is the > result: Nelson is a hero to every football writer and NFL sycophant in the > country. > One of the more bizarre reactions I read came fromMike Freemanof CBS Sports: > “When you read Judge Nelson’s opinion she makes [one] thing clear: she cares > about the fans. She makes that abundantly clear.” Now I went back and > re-skimmed Judge Nelson’s ruling just to be crystal clear on this the “fans” > are not a party to this lawsuit. Their interests shouldn’t count for anything. > Actually, Freeman may have oversold Judge Nelson’s love for “the fans.” She > only refers to them in a single paragraph near the end of her decision, in a > brief discussion of whether the “public interest” favors an injunction of the > lockout:[B]ecause the Union’s [decertification] is valid and effective, the > labor law policies of collective bargaining must give way to the antitrust > policies in favor of competition. On an economic level, the public has an > interest in the enforcement of the Sherman Act, which, by seeking to ensure > healthy competition in the market, has a broad impact beyond the immediate > parties to this dispute. Moreover, the public ramifications of this dispute > exceed the abstract principles of the antitrust laws, as professional > football involves many layers of tangible economic impact, ranging from > broadcast revenues down to concessions sales. And, of course, the public > interest represented by the fans of professional football who have a strong > investment in the 2011 season is an intangible interest that weighs against > the lockout. In short, this particular employment dispute is far from a > purely private argument over compensation.Speaking as a member of the public, > I neither have an interest in seeing the antitrust laws enforced nor do I > particular care whether this lockout continues. Speaking objectively, the > mere fact that third parties might have some economic or “intangible” > interest in the outcome of the case does not alter the nature of the dispute. > This is, in fact, a “purely private argument over compensation” -- even if > there are dozens of reporters covering it like a presidential election. > And the average football fan doesn’t care about enforcing the goals of the > Sherman Act either. Indeed, I suspect many fans would be disconcerted to > learn the specifics of the players’ antitrust complaint -- such as their > claims that the NFL Draft and restricted free agency are antitrust > violations. If the court ultimately declares these policies null and void, > some fans will be shocked to learn that their poorly performing team won’t > have exclusive rights to next year’s top college player, or their > championship-caliber team will lose a player they would’ve otherwise retained > through some “restricted” free agency rule. Fans don’t care about maximizing > competition for player services; they only care about having football on > Sundays in some shape or form. > But I digress. The “public interest” analysis was slightly more than a > footnote to Judge Nelson’s decision. The substance is her finding that the > “lockout” was already causing “irreparable harm” to the plaintiff players. > Her argument can be summed up thusly: NFL players have short careers, any > time lost to this lockout is time they can never get back, ergo there’s > irreparable harm. I don’t buy it. There’s no natural right to an NFL career > -- of any length -- and if the league voluntarily suspends operations, that > by itself does not deprive the players of their property or liberty. It may > be unfair, but it’s not inherently unjust. > The antitrust logic here is players are somehow being deprived of the > opportunity to maximize their potential economic value. The lockout > “restrains” what would otherwise be robust competition for player services. > But again, this presupposes a right to an NFL career in the first place. The > injunction is forcing an employer to engage in business against its better > judgment. By itself this is most un-libertarian. > But there is a mitigating factor here, which is largely unaddressed by Judge > Nelson. While there are several hundred players who are not under contract to > any NFL team -- and thus have no real “rights” to speak of -- several hundred > more are under individual contract to a club. I reviewed the model player > contract. It does not provide for termination or suspension in the event of a > “lockout.” Thus, the league and its clubs are in breach of those contracts. > The league claims it has a right to breach those contracts under federal > labor law -- which, again, assumes there’s a government-recognized union in > place. As Judge Nelson conclusively argued, there is no such union anymore. > There’s nothing to “lockout” in that sense. So from a libertarian standpoint, > it is just to enjoin the lockout with respect to the players currently under > contract. > The takeaway from all this is that Judge Nelson hasn’t actually solved the > underlying problem. Even assuming her injunction is affirmed by the 8th > Circuit, the league and its players are no closer to a resolution of their > “argument over compensation.” The league will go forward in 2011 under > yet-to-be-determined rules that may or may not be legal under the Sherman > Act. The league will also likely continue pressing for the union to revive > itself. The players may or not pursue their antitrust claims to a jury trial, > which will open up a whole new can of worms. And just as has been the case > since the early 1990s, when the players first hid behind antitrust law to > avoid the Big Meanie that is labor law, they will remain dependent on the > charity of a federal district judge. It’s hard to see how either the players > or the league benefit from any of this. Of course, their lawyers aren’t > complaining. > Related posts:Behind the Lockout, Part IIILockout MadnessCertified > InsanityWill the FTC Move from Eye Doctors to Running Backs?Fantasy Property > RightsBehind the Lockout, Part I -- Thanks for being part of "PoliticalForum" at Google Groups. For options & help see http://groups.google.com/group/PoliticalForum * Visit our other community at http://www.PoliticalForum.com/ * It's active and moderated. Register and vote in our polls. * Read the latest breaking news, and more.
