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.