I still expect that there will be a full 2011 season. The owners are rightfully reviled in the court of public opinion, but they have a very strong position in the court where it counts — which, at the moment, is the 8th Circuit Court of Appeals. The players must know that. The owners have the law on their side, as well as time and resources. The players’ diminishing leverage is the 2011 season. If it is lost, they have nothing — so I believe they’ll cut a deal, probably soon.
The main thing to understand here is that the dispute is not about the 2011 season. The owners’ bean-counters are telling them that there are enormous revenue streams to be exploited from emerging communication technologies — perhaps doubling the already astronomical $9 billion annual take. The bottom line is: they don’t want to share those billions with the players — and certainly not on the current split that favors the players by 58 to 42 percent. I’ve seen some analyses (see, e.g., here) contending that the owners are seeking a 14 percent shift in their favor (something closer to a 52/48 shift), and I wouldn’t be at all surprised if that’s going on. But I think it’s a bluff — the owners clearly want some adjustment on the present one-sided arrangement, but I think they’d settle on terms reasonably close to what they have now if they could protect future revenue streams.
In the meantime, I don’t see the lock-out being lifted by the court. The players’ gambit of decertifying the union was transparently a ploy to seek advantage under the labor laws. Specifically, the Norris-LaGuardia Act forbids federal courts from issuing injunctions in labor disputes. The players argue that because they’ve purportedly dissolved their union, the controversy no longer involves organized labor and is thus not a labor dispute. Nice try, but the courts — consistent with the act’s plain language — have held that Norris-LaGuardia applies to any case either “involving” or “growing out of” a labor dispute. That clearly fits this controversy whether the union continues to exist or not.
Moreover, you need to be able to show irreparable harm to get an injunction, and the players cannot show that they are irreparably harmed any more than the owners are. Like it or not, the owners are entitled to the negotiating leverage they can get from locking out the players (just as the players are entitled to the leverage they can get from striking). Taking that away from the owners would be every bit as much an unquantifiable harm as the continuing lock-out is from the players’ standpoint — and a court has no jurisdiction to do it under the governing statute. If legally actionable harm of some kind has been done to players, they can prove it and be compensated with money damages. There’s no legal basis to enjoin the lock-out, much as we fans hate it.
That’s why the Eighth Circuit reversed the pro-union district judge. I don’t think that reasoning will be disturbed — the three-judge panel is currently considering the case yet again.
Here is why I think we will have a season — a full season. Most of the owners and most of the players want to settle, and the makings of a deal are there. The owners want to have the 2011 season, but they lose much less than the players do if the season is canceled. They can more easily bear the financial losses and outrage from the fans — after all, the fans don’t much like the owners in the best of times; their passion is about the players. So the owners might as well drive as hard a bargain as they can if this season is lost. By contrast, the players have a short window for making the kind of money they make (just ask Plaxico Burress, released from prison after 20 months today). If this season is lost, there’s no guarantee there will be a 2012 season either — if the owners’ position hardens, careers will be ended prematurely (see, e.g., Plaxico, supra), opportunities for off-field earnings will be slashed … and the owners have much more wherewithal to stick out protracted litigation over these matters than do the players.
The players of today make lots of money from the pot of gold as it exists now, and they don’t need to worry about future income streams — most will not be around anymore by the time those kick in. They will want to preserve as much as they can of what they have now. The settlement premium they can get from the owners lies in making a deal that saves this season — the owners will almost surely be happy to pay something extra for that, as long as it happens soon. The premium diminishes as weeks of the season start being canceled.
Football is a rough game, and that’s before you even get on the field. Canceling the 2011 season would wound the owners, but it would kill a lot of the players. That’s why it won’t happen. Of course, I have to hope I am analyzing this with my head … I’ve been as guilty as anyone of seeing it through my heart — and I never believed it would get this far.