Mad, Maaad Men
Season 5 of Mad Men is coming to fans late. It is not slated to start until March 2012, a whole seventeen months after the Season 4 finale. The New York Times and Hollywood muckraking vixen Nikki Finke reported that contract disputes between Matthew Weiner (creator/executive producer) and AMC/Lionsgate caused the delay. AMC wants to shorten each episode by two minutes to allow for extra commercial time; wants to cut the cast budget and to eliminate two recurrent characters (which two?!); and is pushing for more product placement.
Season 92 of the NFL might also be coming to fans late. Exactly one month ago today, the collective bargaining agreement between the NFL and NFLPA expired, and the mad men of that bargaining table could not agree on renewal terms. So the NFL issued a lockout, and the NFLPA, the players’ union, “decertified,” meaning that the union renounced its status as a union in order to pursue antitrust remedies.
In antitrust, the players are first challenging the lockout, which they now call a “group boycott,” relinquishing the labor law terminology. They argue, among other things, that they cannot be stopped from all of their customary pre-season and season activities because the league action is conspiracy in restraint of “competitive market freedom.” If courts recognize the NFLPA decertification as legitimate, the NFL will have to answer to countless other antitrust allegations. The draft, rules on free agency, the season’s schedule—really almost anything in which the league or team owners set league standards—would all be up for litigation grabs.
But sorry, Tom Brady, I think you lose—again. Just as your formulaic and finessed offense could not quite cut it in your Superbowl run this year, your suit in antirust (though crafty) probably won’t cut it either. Under Supreme Court precedent in Brown v. Pro Football, Inc., antitrust claims made post-decertification must be “sufficiently distant in time and circumstances from the collective bargaining process.” Brown v. Pro Football, Inc., 518 U.S. 231, 250 (1996).
Right now, I think, is not that time. At this point, courts will likely hold that the NFL players can utilize either (1) the labor law arsenal, and all that they might bargain for by virtue of their status as a union, or, at some point in the sufficiently distant future, (2) the antitrust law arsenal, and all potential legal remedies consistent with the Sherman Act and “rule of reason” antitrust jurisprudence.
I enjoy watching all Tom Brady set-backs (especially Jets sacks), but defeat here might actually appeal even to Brady devotees. All NFL fans can probably agree that they do not want to wait for the distant-in-time-and-circumstances future land of Brown-type Brady litigation. A wise woman, Judge Susan Nelson of the US District Court for the District of Minnesota, ruled last week that she is sending these Dons back to mediation.
I am tempted to write that Mad Men matters a whole lot more than pro football, but having finished Season 4 of Weiner’s show, I’m now deep into FNL Season 2 and I totally gets it. I get it, I get it. Now get your junk together, NFL.
Whether or not the players have a valid claim under antitrust, and whether or not the owners are correct in asserting that players simply can’t grasp the financial realities of running a business, both sides would benefit from some mutual Pete Campbell-style groveling. The NFL is a hugely profitable business that sustains not only players/owners but groundskeepers/trainers/etc. Both sides need to internalize the fact that a business can only be profitable when it is actually running and, as such, there needs to be concessions on both sides. Here is hoping for a quick resolution because if the NFL lockout continues, and if the NBA shuts down in July as many expect it to when the NBA’s CBA expires, there is only one true winner: the NHL.
Despite the potential validity of the NFLPA claims, history and precedent has shown that the courts are very unlikely to rule against the NFL. Moreover, the legislature has carved out special laws exempting sports leagues from traditional antitrust laws (ex: Sports Broadcast Act of 1961). The reality is that sports leagues, especially the NFL that generates over $7 BILLION in revenue per year, have a strong hold on both the courts and the laws….
While I agree that the courts have generally been trending toward a more pro-NFL position in terms of when exactly antitrust liability will quick in, I still think it’s largely unknown what will happen. First, no one really knows what “sufficiently distant in time and circumstance” means. By the time the case makes its way up to the 8th Circuit or perhaps even The Supreme Court (probably just before the start of the 2011 season), will we then be sufficiently distant in time and circumstance from the bargaining table? How about this additional court-supervised mediation, or the NFL’s pending NLRB surface bargaining charge against the NFLPA? No one is sure how this will all fold in, because we are in completely uncharted territory.
The NLRB charge, often overlooked in this mess, could have some interesting ramifications. If Judge Nelson decides to wait for the NLRB to file a complaint or dismiss the charge, then we are talking about a significant delay depending on what the NLRB decides to do. If a complaint is issued, we are looking at an administrative trial, a definite appeal to the Board, and then a decision in a minimum of 3-4 months — just on the surface bargaining charge. An adverse ruling to the NFLPA could potentially force them back to the bargaining table, and would bring back the labor exemption — effectively killing the antitrust suit. If on the other hand, the Board dismisses the charge (which would go to show that the NFLPA was bargaining in good faith until the contract expired), it would go to show that an impasse had been reached between the two parties, which in turn would actually bolster the NFLPA’s position that their collective bargaining relationship with the NFL no longer exists.
So there are a ton of questions still out there, not to mention The Supreme Court’s anti-NFL ruling in American Needle this past winter.