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Enjoy the Basketball While You Can

For reasons I do not totally understand, after four days of wall-to-wall college basketball my NCAA brackets place me in the 96th percentile. While this is not quite in President Obama’s league — he is at 99.9th percentile — it is a “personal best” – at least so far. The games, for the most part, have been awesome, and there are two great weeks of hoops ahead.
The delight of the annual college basketball festival has almost made me forget the NFL lockout, now in a two-week hiatus before the federal judge in Minneapolis holds a hearing on the request of former members of the Union for an injunction. The April 6th hearing obviously will be important for the NFL and the new trade association of football players, but also it will be vital for sports law in general.
The court will have to decide in the first instance whether, in fact, the Union decertification was valid. As far as I can tell, this is what lawyers like to call “a case of first impression.” Although the NFL Players Association decertified once before in 1989 and then was resurrected in 1993, a court never formally ruled on whether the Union’s decertification was valid. In fact, in order to reach the new collective bargaining agreement back then, the trade association had to do some union-like things, like negotiate with the NFL owners.
Should the decertification be considered legally valid? There is no question the Union sought and obtained authorization from its members to terminate its status as the exclusive bargaining representative. That should be sufficient. The NFL will argue that this was just a ploy in order to give the Union more economic power at the bargaining table. That was true, but that bargaining power did not result in an agreement the Union found acceptable.
How can you tell when a union is no longer a union? In the first instance, it can no longer do union-like things. It can’t be sucked back to the bargaining table because it has no legal power to represent the football players. Commissioner Goodell’s letter to the players urging them to encourage their “union” to return to the table was, for the most part, met with disdain by the players.

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