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NFL Lockout: Will It Take A Decision From The Court To Move The Ball?

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During World War II, Kilroy made the rounds. Legend has it that Kilroy was actually an American shipyard inspector named J. J. Kilroy. As he inspected the construction of ships, he used chalk to mark (by writing Kilroy was here) where one riveter had stopped on the previous shift and another had begun on a new shift. Riveters were paid by the rivet, so accurate counts were necessary in order to pay those workers properly.

What gave this process a life of it's own was where the phrase wound up being seen by thousands of service men who worked on or rode in those ships. The war effort required speed and most ships were finished without painting internal areas because it just wasnt necessary. "Kilroy was here" was never painted over so those service men knew without a doubt that Kilroy had been there before them and because of that, things just might be ok. The phrase became a long standing, nearly iconic mantra that those service men took to Europe. Kilroy was seen scattered wantonly on walls and windows throughout Europe and beyond. Every American service man knew that if he saw Kilroy, he wasn't the first one that had been there. I am sure it gave comfort to some, knowing that others had been there before.

What does this have to do with the Lockout? Well, it occured to me that we fans are like those servicemen and women in that seeing "Kilroy Was Here" would reassure us that this labor dispute hasn't yet reached a def-con level above any it has been to before. We are looking for some assurance that we won't be watching grass grow and paint dry come 9/11/2011, instead of our favorite teams taking the field to do battle in our honor.

Has DeMaurice Smith met that standard? The answer at this point, is a resounding "I haven't a clue". When the owners opted out of the CBA that was signed in 2006, Kilroy was there. When the two sides met in order to 'negotiate' in the window between the end of the 2010 season and the expiration of the current CBA, Kilroy was once again there. He was still there, when the NFLPA decertified, the league locked out the players and nuclear winter began. Kilroy was also there last week, when Judge Boylan ordered the two sides into a clandestine meeting in Chicago.

So far, the only place that Kilroy really hasn't been (euphemistically) was in court last Friday in St. Louis. Oh he was in the room, but he was not in the proceedings. Finally we find somewhere where Kilroy has not been. The two warring factions are now on untested ground. Def-con 4 has arrived. We have no comfort in seeing Kilroy now because when this thing went in front of the Eighth circuit, Kilroy went from the point (to steal a military term that means taking the lead in dangerous territory), to being in the 'rear with the gear' (a position of safety). We had not one but two previous solicitor generals at the podium making an argument over (among other things) whether or not the lockout should be allowed to stand. Kilroy was there spectating just like the players he is supposed to be leading.

So, have the eloquent legal arguments given any clarity to us fans concerning whether or not we'll get to see football in a few months? Well, let's let the folks involved in the quarrel tell us what they think. Osi Umenyiora, whose name appears on the anti-trust case filed against the league recently had this to say about the lockout:

"It's our right to decertify," Umenyiora said. "That was something our predecessors have put out there in order for us to do. We exercised our right. Obviously, the NFL is arguing against that. That's their right to do so, but at the end of the day it's something that we have to do."

Asked if he agreed with Olson's statement in court that players would prefer not to be in a union while operating under antitrust protection, Umenyiora said, "I think so.

"At the end of the day, we deal with each of our teams, each of our employers individually. No matter, as a union or whatever, you can still accomplish some things by dealing with teams individually. Obviously, a union helps get benefits that a union is able to argue for. But it doesn't hurt us individually to not be in a union."

It doesn't hurt them individually to not be a union? This thing just stands years of labor relations on it's head. Many of the things that the players have fought for have been achieved because of their union. Retirement benefits come to mind. It's only when the talk turns to the root of all evil that the compass loses true north. When it comes to money, anything goes. Including the ploy of decertifying the union and suing the league for anti-trust violations.

Look, I understand that conventional wisdom on this is that it's supposed to be about gaining leverage to force the other side to give in to demands in a new CBA. Funny thing is though, We just keep seeing these statements from players and their representatives (Kilroy) that being part of a union going forward is not necessarily what the players are looking for. At what point (monetarily at least) does this beast gain a life of it's own and leverage no longer matters? When do the players get more money by not recertifying and not playing football? Just like Kilroy, the players have been here before. Unlike Kilroy, they have launched the boat into uncharted waters and who's to say they don't 'damn the torpedoes' and go full steam ahead?

Many took Judge Boylan's cancellation of this week's court ordered mediation as a sign that progress was being made in 'settlement' talks. It is just as likely that the Judge saw two sides that were going to do NOTHING until the Eighth Circuit issues a ruling. Mabe he had better things to do than ride herd over two obstinate children who will force smiles at each other when the teacher is looking only to poke out their collective tongues when that same teacher looks away.

To add fuel to that fire, we have a Judge (the honorable Kermit Bye) that ends the most recent court proceedings with an ominous promise that neither side will like the outcome if the court actually lays down a decision.

"We won't, I might also say, be all that hurt … if you should go out and settle the case," said Bye. " … But we will keep with our business, and if this ends up with a decision, it's probably something both sides are not going to like but at least will be a decision."

I submit that if this statement is interpreted by the combatants as nothing will change, then there is absolutely no reason to negotiate until they find out what it is so they can decide what the next step is. Judge Bye's harbinger may cut off the court's nose to spite it's face. Speculation is rampant about what those words could mean.

Most likely what it will mean is that in the short run, nothing changes and both sides are allowed to follow their current paths. If that happens, we are back to waiting for the 'next decision', and then the next and the next. Ultimately, the season is lost. When this thing went to the court system, it was hopelessly destined to go beyond the farthest outpost that Kilroy had ever touched. The decision of the Eighth circuit is now monumental in this case because both sides are apparently waiting to see what the court will say before 'getting serious' about negotiating a new deal. What if the decision becomes more important than making a deal?

What would happen, for instance, if the Eighth Circuit allows both the lockout andthe anti-trust suit to continue? A Stalemate awaiting a decision from Judge Nelson in the anti-trust suit? Per Mike Florio of PFT:

... the Eighth Circuit would rule that the non-statutory antitrust exemption lasts for only six months after expiration of the CBA, given the specific term in the expired labor deal requiring the players to wait six months before filing an antitrust lawsuit. Given the Norris-LaGuardia Act, this wouldn’t end the lockout as of September 11, the day on which the first slate of Sunday games are due to be played. However, it would expose the NFL to treble damages beginning with Week One of the regular season, if the lockout ultimately is determined to be an antitrust violation as of September 11.

Thus, the owners would be able to lock the players out for all of the 2011 season, but the owners would ultimately be responsible for the full player payroll in 2011, times three. That’s an amount that easily would exceed $10 billion.

10 BILLION dollars? How many players do you think would be willing to wait out a season to get their share of that? Even if the lawyers took half, that leaves $5 Billion split 1800 ways. That's about $2.7 million per player. With an NFL minimum of around $325k, how many players would be looking at $2.7 mil as more than 4 years salary? The players are reportedly asking for a salary cap per team of $151 million. That equates to $4.8 billion. That's only half of what these players would be awarded in a treble damage settlement like the one Mike Florio mentions. Is it worth waiting for a decision to get a paid year off?

George Will of the Washington post puts forward a telling statement about where this standoff is, and more importantly, why it could end up in a stalemate.

The owners, by decrying the current system, desperately want the union resurrected so they can bargain with it to preserve most of the system. Currently, the owners propose a salary cap of $141 million per team, meaning $4.51 billion in league-wide compensation. The players want $151 million, meaning $4.83 billion. It is ludicrous to risk even part of a season over so little, and both sides probably would, if they could, erase the past three months of staking out improvident positions and agree to extend the current system.

Any labor dispute is a test of the two sides’ pain thresholds. The owners think the players’ serious pain will begin when they miss the first of their 17 paychecks. The owners may, however, be forgetting a pertinent fact: NFL players — pain is part of their job description — are NFL players because they are intensely competitive and hate to lose at anything. After decades in which economic sectors much larger and more essential than the NFL — e.g., the steel and automotive industries — were laid low by mismanaged labor relations and as the role and rights of organized labor are being hotly debated, the NFL’s current crackup suggests that both sides are slow learners.

Just how slow? I don't know. Don't you find it interesting that we heard nothing about the possibility of an 8 game schedule until after the secret meetings and Eighth circuit court dates had passed? Suddenly, the NFL sees fit to make public their scenario of an eight game season? Coincidence? Hardly.

Even the Tuna weighed in on how this work stoppage was different from the disputes back in '82 and '87. Here's what Parcells had to say in a recent interview about the lockout:

"What makes this one a little bit different is it seems to be a little bit more hostility than normal." "I think there's a little more animus on the side of the owners, and I think quite apparently the players -- from learned behavior and past experience in these negotiations -- is that if they stick to their guns they usually wind up better off. That's been the case.

"But it looks like there could be a little blood in both corners before this is over."

Somewhere out there is a room with tables, chairs, paper, pens and probably even an old sparsely used overhead projector where "Kilroy Was Here" is written indelibly on the wall. The speed with which these participants return to that room to negotiate will tell you how slow they are to learn. Frankly, having spent more than three years and millions of dollars trying to have someone else solve their problems for them would indicate to me that they are on a pretty steep learning curve.

Fortunately (at least potentially), we have news that another secret meeting took place yesterday in that room and is expected to continue for 'several' days. The players and owners are said to be at "a critical stage" in the settlement negotiations. In addition, the owners yesterday, filed a motion to dismiss the players anti-trust suit in Judge Nelson's court. She has scheduled a hearing on this motion to take place on Sept. 12th--one day after the scheduled first Sunday of NFL football in 2011. This effectively puts off a decision in that case long enough for a settlement agreement to be reached. If the season starts on time, the other suit goes away. Let's call this a reason to be guardedly optimistic.

Saving face is now more important than making a deal. Kilroy's pictures only show half a face. Maybe Kilroy knew it all along. If you never stick your tongue out, you don't have to worry about some guy taking a poke at yer mug. Let us hope that we hear some positive news soon about the owners and the players having more success in these lawyerless meetings. Time is the only ally that the fans have left, and it runs increasingly short.