Those Who Can, Can. Those Who Can’t, Join a Union.

Despite what you see to the left – the NFL logo with a rusted lock and chain to signify the NFL lockout – this post is going to be about unions. The case study of “Unions Gone Wild” is going to be the NFL Player’s Association. (The union that doesn’t exist except for the fact the union head is in charge of negotiating for the player’s non-union. More on that in a minute.) It is also going to be a post on forum shopping, and the power of the government to strip people of one of the most cherished rights: the right of people to own property and to control the direction and dispensation of that property.

For those who have been hibernating and have only now come out of their caves since Easter, the NFL as a company and the owners have been involved in a labor dispute with NFL players bargaining under the union known as the NFL Players Association. Under the terms of the Collective Bargaining Agreement between the union and the owners, the owners announced that they were legally going to opt out of the CBA and wanted to negotiate a new agreement. This was announce several years ago. When the actual dissolution of the CBA occurred neither party was surprised. The owners had negotiated agreements with other other providers of services (namely the television networks) to have a war chest with which to sustain what might be a lengthy negotiation. The union started a fund to help players to weather the labor impasse as well as offering financial advice to players.

As the deadline to the announced dissolving of the CBA came closer, a federal mediator was brought in to try and reach a negotiated compromise between the union and the NFL. When that failed, the owners legally declared the end to the CBA and told the players they were not going to play football.

After some further negotiations, the two parties went to court.

Like any party to a court case, the union went forum shopping. They didn’t have to think too hard as to where to go as they had enjoyed success in the past with the Federal Court for the District of Minnesota. That particular district had never met a NFLPA argument that they didn’t like. Even though some rulings had been later reversed, the union knew that particular district was friendly to them. This time, not only did the Union file in a friendly district, but they managed to get Obama appointed Judge Susan Nelson Richardson, whose resume is comprised of lawsuits against companies, including the big one – the tobacco product liability case. (If you aren’t familiar with the case, basically the case boiled down to the idea that the use of a legal and regulated product – cigarettes – was not a choice by individuals, but forced down the throat of consumers by heartless tobacco companies.) Nelson-Richardson’s bias is clear and would become even clearer with the case of the NFL and the NFLPA.

It is important to note that this is not a case where any of the participants are starving. To own an NFL franchise requires a great deal of money. To play in the NFL means that you will receive a minimum of $325,000 per year. No one is a pauper in this dispute. So the ol’ canard of “evil companies keeping people from making a living wage” doesn’t apply here.

(Gee, I wonder why President Obama hasn’t eviscerated the players for making too much money? Isn’t the president’s mantra that anyone that makes over $250,000 $200,000 evil?)

The first ruling that went against the NFL owners was when the NFLPA sued over the negotiated television deal that contained a clause that if the season was not played, the NFL would still receive some money from the networks.

Nelson-Richardson ruled the contract invalid and declared the fund the owners had established to be illegal.

Under the CBA, the players were guaranteed a percentage of the television revenues if games were played. If the games were not played, the players were not guaranteed anything from the television contract. Despite agreeing to that provision in the CBA, the players suit contended the contract between the NFL and television network wasn’t fair. Nelson-Richardson agreed.

The bias here is clear. Nelson-Richardson had no jurisdiction over a contract between two parties that were not appearing before her. The contract was between the NFL and the networks. The players were not a party to that contract and should have no standing to ask that the contract be voided. The fact that they agreed to the contract in the CBA further vacates any claim the union has to control the NFL television contract. Yet Nelson-Richardson did just that. She found that the contract established what would be a fund to sustain the NFL throughout a contract dispute. In her world, that was unconscionable. It didn’t matter to her that the union had been collecting money for a fund to sustain itself throughout the dispute. What the union was doing was fine and dandy to her. The NFL was not allowed to financially prepare for the dispute while the NFLPA was.

After some further negotiations, the union “decertified” itself. The NFLPA would no longer exist. After the desertification, NFL players went to court to sue the NFL to lift the lockout.

This past Monday, Nelson-Richardson issued a ruling in favor of the players.

I, for one, was not surprised.

But as I read the ruling, (all 89 mind numbing pages of it) I was struck by the lack of consistency in Nelson-Richardson’s thinking.

Her ruling hinges on several issues.

First is the issue of jurisdiction. The NFL argued the issue of whether the lockout was legal or not should be decided by a Federal agency set up to have expertise in the area in question. Specifically, the NFL wanted the case to be heard by the National Labor Relations Board – the NLRB. There is, in fact, a law that covers this. The law says that when a department of the government has more experience in deciding issues than the court, the court should acquiesce to the federal agency. Nelson-Richardson makes several astounding claims. First, she claims that she has had the same level or close to the same level of experience as the NLRB. This is laughable as her experience is not with deciding labor issues, but rather suing companies. Any normal person would see the bias, but not Nelson-Richardson. Secondly, Nelson-Richardson noted that the law in question had had many exceptions that were carved out by upper courts. She therefore found no issue with carving out another exception allowing her to keep the case. In doing so she went from a lack of critical thinking to hubris in thinking that her court was on the same judicial “level” as Federal Circuit Courts and the US Supreme Court.

Note to Nelson-Richardson: you aren’t on the Supreme Court. Get over it.

Secondly is the issue of “irreparable harm.” Labor laws include a provision that if a party would suffer “irreparable harm” (namely in the form of economic compensation) by protracted labor negotiations, a court can order the opposing party to give a remedy to offset the “irreparable harm.” In a case in the early 70’s, a ruling from the same district court went against the NFL as it was felt that player’s careers are short due to games, practices and training. Because of that, if the NFL limits the ability of a player to be paid while others are being paid, the player has suffered “irreparable harm.”

Now we won’t even get into the idea that “irreparable harm” is a one way street. Apparently the NFL owners, nor any owner of any company, can suffer “irreparable harm.” This means that if a union strikes, shutting down a plant, that is legal even though the company is suffering irreparable harm because they cannot get orders out.

But when it comes to the NFL, there is another side that shows how flawed Nelson-Richardson’s thingking is. The early 1870’s case cited “irreparable harm” because of the shortness of a player’s career due to games, practices, and training. In lifting the lockout, Nelson-Richardson is allowing the resumption of practices and training – the very thing that “irreparable harm” is decided upon. In essence, Nelson-Richardson has said that whether the players are practicing, training and playing games or whether they are not practicing, training and playing games, there is irreparable harm being done. Her ruling means that there is no course of action for the owners to take that will not be ruled illegal by her.

Instead of remaining neutral as is her responsibility and oath, Nelson-Richardson has tilted the playing field so far over to the (decertified) Union that it clearly creates an arena in which the owners and the NFL cannot get a fair hearing.

Sadly, there is more. The NFL contends that the decertification of the union was merely a legal tactic, and not a actual decertification. According to Nelson-Richardson’s decision, such a tactic is illegal. She then describes how the (decertified) NFLPA’s decertification was an actual decertification, as opposed to a legal tactic. She says that the Union filed the correct paperwork with the NLRB and the IRS. She notes that lawsuit filed was on behalf of individual players and not union members. Therefore, in her mind, the union was decertified.

There are a few problems with that way of thinking. First is that the lawyers arguing the labor side in her court are the same union lawyers that argued before her when the union was still a union. They are being paid from the union fund. At the negotiating table, the head of the (decertified) NFLPA is still the head negotiator and not individual players. In fact, Union player representatives are at the same negotiating table. Furthermore, remember that slush fund the union established? It is still there. If the union did not exist, the fund should be disbursed to players but that has not been done. Union money in the bank. Union lawyers being paid by union funds. The head of the union and team’s union representatives at the negotiating table.

The Union’s claim that the union does not exist doesn’t pass the smell test. However, the stench that permeates the air is Nelson-Richardson’s ruling that says the union doesn’t exist anymore.

Nelson-Richardson’s court is so biased that there is no wonder the NFL wanted to go to the pro-union NLRB. At least at the NLRB there is a minute chance to get a neutral arbitrator. Of course, neutrality is the last thing the Nelson-Richardson and the NFLPA want. They are happy with the bias of her court.

As with any labor negotiation this dispute is about money. There is a boatload of money in the NFL, and as we stated earlier, no one is a pauper. One of the key sticking points in the negotiations is the Union’s demand to see the accounting books of the NFL and the teams. They claim they want their “fair share” of the revenues generated by the NFL.

The problem is that they are entitled to a share of the revenues as part of being compensated for work. They are not entitled to what they, or anyone else, feels is their “fair share.” Quite the contrary. The players are entitled to the amount they agreed to in their contract. Not one penny more. To illustrate the point, assume that the hot water heater in your home broke. You called a plumber (a union plumber no less) to fix the water heater. He arrives, looks at the job and then says “can I see your tax returns including your W-2 forms from last year?” When you ask why, he says that he wants to make sure that he is getting a “fair share” of your income for working for you.

There is not person reading this that would stand for that. Not a one. Yet that is exactly what the union wants. They want to see the books in order to determine what level of compensation they feel is their “fair share.”

This is a typical argument from most labor unions. They want to see the books – the amount of profit – a company makes. They are never concerned with the losses of a company. They only are concerned with the profits. We have seen the disastrous results of that way of thinking in Detroit, Pittsburgh, Baltimore and the rest of the “rust belt” where unions were once quite strong.

The bottom line is that unions are willing to take a share of the profit, but are not willing to put their savings and their money on the line to form companies. In the case of the NFL, very few players have ever been even partial owners of a team, and even then their attitude about “seeing the books” changes.

Until unions put their money where their mouth is and help create jobs instead of destroying them, they have no more right to see the books of any company than I have to see Tom Brady’s expenditures to see how much he and his wife Gisele Bundchen spend on lingerie and bikinis.

Nelson-Richardson’s rulings in this case continue a long line of decisions that erode the right of any individual to own a property – namely a company – and determine the path of that company. Unions, Nelson-Richardson and people of her ilk believe that a company isn’t property that belongs to an individual. They believe it belongs to a group of people who are not responsible for its success or failure. In the case of Nelson-Richardson, she believes she has the right to void legally binding contracts and agreements. She believes that she has the right to tilt the playing field.

In essence, she believes that she can run companies without ever having to put anything at risk.

She is no better, and perhaps a bit worse, than the typical union member.

After all, those who can run a company successfully, can. Those who cannot, join a union.

UPDATE: The NFL had asked for a stay of Nelson-Riuchardson’s order lifting the lockout while they appealed to the 8th Circuit Court. Such a stay is common as there is no rush in this issue other than Nelson-Richardson’s ridiculous logic that the players are suffering “irreparable harm” due to the lack of practice, training and playing games because their careers are short. So she lifts the lockout allowing practice and training to take place. The very things she says shorten a career and lead to “irreparable harm” she now says must be allowed. The circular logic is mind boggling.

Nelson-Richardson denied the request for the stay.

I am not surprised at all given her animus towards companies.

One Response to “Those Who Can, Can. Those Who Can’t, Join a Union.”

  1. Jerry says:

    If the NFL players want to receive part of the profits from the NFL or one of the NFL teams they should become investors.