NEW ORLEANS - Joe Banner and DeMaurice Smith both are very, very smart men. Yet their perception of the NFL owners' last contract offer to the players 11 days ago before all hell broke loose and Smith and the rest of the NFL Players Association contingent stomped out of the federal mediator's office and sued the league is, well, quite different.
Banner, the Eagles' president and a member of the league's negotiating team, told the Daily News last week that he thought the two sides were "damn close to a deal" before the union bolted.
Smith, the executive director of the NFLPA, said in an interview on Pro Football Talk Live yesterday that if the players had accepted the owners' March 11 proposal, "it'd be the worst deal in the history of sports."
You say tomoto, I say tomato.
If you were hoping both sides in this labor spat were going to come to their senses and try and hammer out a new collective bargaining agreement before their April 6 court date in Minneapolis when U.S District Judge Susan Richard Nelson will hear arguments on the players' request for an injunction to lift the owners' lockout, forget about it.
They aren't talking and they can't even agree on what they would call the talks if they talked. The league says it would love to negotiate with the players, but not until they abandon this whole decertification plan and admit they're a union.
The players say they can't negotiate because, ya know, they're not a union, but they'd love to get together for settlement talks regarding Brady vs. NFL, the antitrust suit they filed moments after the league imposed the lockout.
"Our commitment is to negotiate," NFL executive vice president of labor Jeff Pash said yesterday during a news conference at the league meetings at the Roosevelt Hotel. "We are not going to solve this in litigation. All that is going to do is delay a solution. I thought we made some real progress in the course of the mediation. Obviously, we didn't conclude an agreement. But we certainly got closer on a number of issues."
They won't be getting any closer until after Nelson rules on the players' injunction. If she grants it, the league would have to reopen for business and put in place a set of operating rules regarding free agency, a salary cap, et al. If she doesn't, the lockout would remain in place, and you'd start getting a little more excited about the Philadelphia Soul.
Regardless of how she rules, the loser almost certainly will appeal, a process that could drag this thing on for weeks, even months.
There's also the matter of the complaint the league filed against the union with the National Labor Relations Board. The league claims the union's March 11 decertification was done strictly for the purpose of enabling the players to file an antitrust suit against the league. If the owners win that, the players would be ordered back to the bargaining table. But the loser there could also appeal, which would lessen the chance the season would start on time.
The league filed its brief with Judge Nelson yesterday. It is contesting the injunction request on four main points: 1) the union's decertification was a sham, which means it's still a union, which means it can't take the league to court; 2) the NLRB has jurisdiction over the matter, not the federal courts; 3) the Norris-La Guardia Act, a federal statute adopted by Congress in 1932, bars injunctions in anything that grows out of a labor dispute; and 4) if the court lifts the lockout, it would leave the league open to antitrust violation claims.
"There's an incongruity in terms of saying, under antitrust laws, you must end the lockout, but under antitrust laws, you may be subject to antitrust violations if you continue to operate as a league," an NFL official said. "That's what the court is going to have to sort out.
"I don't think it's an easy injunction. If the court simply said we're going to order you to end the lockout, one of the things we'd be saying to the court is you can't do that without telling us that if we end the lockout, we're not going to be subject to antitrust violations for doing business.
"Basically, the court is being asked in a labor dispute to force employers to end a lockout in a context which plaintiffs [the players] are alleging that ending a lockout and continuing business would itself be an antitrust violation."
What exactly happened in federal mediator George Cohen's office on March 11 before the Players Association took a hike and got us to this point depends on who you talked to. Pash, Banner and the owners say they made an offer they thought was good enough to at least convince the union to agree to another short extension while they continued to talk. The players say the offer was a take-it-or-leave-it one, and they left it.
"We never used the words 'take it or leave' or 'all or nothing' or anything remotely close to that," insisted Pash.
"Instead of walking out of the room and claiming to give up its bargaining rights, they should've said, 'We think we're this far apart and let's talk about it.' But they didn't do that. When you're in a hurry to get out of the room and file a lawsuit, it's understandable why there wasn't a lot of conversation."
Before the talks blew up, the two sides had been discussing a dramatically different salary-cap concept than the one that had been in place since 1993. Instead of a cap that would give the players a specific percentage of each year's total revenue, they had talked about a pegged cap, in which the cap would be a set number based on growth projections.
The players actually had proposed the pegged-cap concept a year ago. The owners' last proposal included a pegged cap, but the players felt the numbers were too low, with the owners' share of revenue increasing disproportionately to the players over the next 4 years.
Said Pash: "We don't see anything that would show that kind of decrease, but that would've been a conversation that would've been good to have across the negotiating table."
Yeah, it would've. Instead they are going to have settle for having it across a Minneapolis courtroom in 2 weeks.
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