Not sure if this is mentioned in another thread, but someone I know who has been digging through the verdict has found something that may kill the NFL’s chances at appeal.
Specifically, they found where the NFLPA recertified in 1993, at the insistence of the NFL over Gene Upshaw’s objections, and that an agreement was made between the league and the NFLPA that the NFL couldn’t claim the NFLPA had done a sham decertification at any point in the future.
“Since 1993, the Players and the League have operated under the SSA. Among the
negotiated terms of the SSA, the Players, who had de-certified their union in order to
bring antitrust claims, acceded to the NFL’s demand that they re-certify their union within
30 days. As an apparent form of quid pro quo for that accession, the NFL agreed to
waive any right in the future to assert the non-statutory labor exemption, after the
expiration of the CBA, on the ground that the Players’ disclaimer was a sham or
otherwise ineffective to end the labor exemption. (See Doc. No. 43-1 (Declaration of
Barbara P. Berens, Ex. A (Amended SSA)) Art. XVIII § 5(b).)
In fact, Eugene Upshaw,who had served as the Executive Director of the NFLPA since 1983, has stated that the “only reason” he “agreed to recommend that the NFLPA be converted from a trade 11CASE 0:11-cv-00639-SRN-JJG Document 99 Filed 04/25/11 Page 11 of 89
association back into a union” was “because the owners demanded that as a condition for
the Settlement Agreement,” but only in exchange for the owners’ agreement that they
would not challenge any subsequent election to again decertify the NFLPA as their
collective bargaining representative. (Doc. No. 7-1 (Declaration of Richard A.
Berthelsen), ¶ 8 (emphasis in original).)”
Punitive damages for the NFLPA from the NFL, here we come.
