The NFL, Antitrust Exemptions, and "...it's probably something both sides aren't going to like"

Judge Kermit Bye threw down the gauntlet with the NFL, and the former NFLPA earlier this month when he told them that, "We will keep with our business, and if that ends up with a decision, it's probably something both sides aren't going to like, but it will at least be a decision."  Although that sounds quite ominous, what could he possibly mean?  Without additional information, or the ability to enter the mind of an Appeals Court Justice, it is, of course, impossible to know.  The most frightening thing about the statement is that it could mean the unthinkable - destruction of the NFL as it is now known, and constituted.

I know that sounds alarmist, but what the conventional media coverage has generally omitted from its discussion of the NFL lockout battle is that there is only one professional sports league in the United States who enjoys a full antitrust exemption.  That league isn't the NFL - it is Major League Baseball.  The NFL previously was able to employ all of the anti-competitive measures it did in order to keep the Jacksonville Jaguars, and Cincinnati Bengals in relative parity with the remainder of the league only because these tools were collectively bargained for with the NFLPA.  Without the NFLPA, the salary cap, free agency rules, and barriers to entry for new teams are all called into question.

The NFL's decision to lock out the players could come back to haunt it with more vengeance than ANY commentator I could find has proposed.  There are myriad possibilities to what Judge Bye could have meant.  My concern is that he might have meant that the NFL, and NFLPA "should be careful what you wish for because you just might get it."

In the context of a lockout without an NFLPA to bargain with, the NFL would be unable to reach an agreement on a salary cap, or any other expense-restricting measure as a group.  Such actions would constitute an antitrust violation in the same way that United, Delta, and American Airlines constructing a salary cap for their pilots would be problematic.  If players exercised sufficient sophistication, there is no reason that they could not form a competing football league within a short space of time.  Imagine the Chicago Beers playing the Green Bay Pickers - still with Urlacher, and Matthews, but without a salary cap to contend with.  Remember, these are millionaire athletes who have the financial tools to make this happen.  As it seems that the players lack the wherewithal, or initiative to undertake such a venture, however, this seems an unlikely endgame.

A second possibility is that the NFL could carry on without its parity - creation measures.  The issue with this outcome is that there is no way to stop Mark Cuban, or any other personality with desire, and dollars from starting up a competing franchise, and demanding that they be permitted to compete.  The most likely variation of this possibility is the formation of an AFL-type situation that competes internally initially, but ultimately merges with what is now known as the NFL.

Copyright - David Weck - 2011 - All Rights Reserved

The First

As the author of this blog, I thought it would be a good idea to get some basic info out into the world so that others can know a little bit about me. Criminal attorneys make many important contributions to society, but one of our greatest contributions is being able to stand in the middle of what the public perceives the world to be, and what it actually is.  I am constantly amazed that my friends, and colleagues who are not involved in the criminal justice process have very little idea of what goes on around us.

The world is a dangerous place, but I don't think it is usually perceived that way.  It is only in circumstances like those of the past few weeks, with flash mobs attacking foreign doctors in Streeterville (allegedly), that members of the community stop to take note of the violence around them.  Typically, the criminal justice process shields the larger community from the knowledge of what is happening.  Please don't mistake this as a negative critique, though.  The economy of the United States depends on this shielding effect, and concurrently depends on those who provide that screen.  When the veil is torn down, those who enjoy perpetrating evil feel they have the ability to do even more harm.  Productive members of the community, frightened by what they have seen, turn inward - producing, and consuming less.

The criminal justice process is beautiful in that its design keeps the public at large from seeing its actions while affording the public every appearance of access.  In Chicago, the main criminal courthouse is located at the intersection of 26th and California Streets.  Have you been there if you have never committed a criminal offense - probably not.  The courtrooms are open.  The security is much less intrusive than before a domestic airline flight.  Why haven't you gone to see what is happening in that large stone building?  It is o.k.  You don't have to go.  We'll take care of the justice.