Benjamin Estes

Much of the nation’s attention over the past month has been focused on the government shutdown, a turbulent saga that finally came to an end on January 25 when President Trump signed a bill to temporarily reopen the government for three weeks. It appears that organized labor had a hand in helping end the impasse. Hours before Congress passed its shutdown-ending bill, amidst reports of significant disruptions at airports due to unpaid federal air traffic controllers calling in sick, the national flight attendants’ union (the Association of Flight Attendants-CWA) announced that it was “mobilizing immediately,” indicating that it could be prepared to strike in support of its federal-worker colleagues. The threat of a flight attendant strike, and the complete halt of U.S. commercial air travel that that would cause, likely played a role in the President’s decision to agree to a short-term solution that didn’t include funding for his desired border wall.

Unions have seen an erosion in their power relative to businesses over the past several generations, with the latest blow dealt last year in Janus v. AFSCME, 138 S.Ct. 2448. There, the Supreme Court held on First Amendment speech grounds that public sector unions cannot require non-member public employees to pay a mandatory fee, raising questions about the continued vitality of public sector unions and the labor movement generally. The flight attendants’ recent action, however, reveals that organized labor, at least in certain sectors, can still hold significant sway. Meanwhile, there is another labor dispute on the horizon that could put this proposition to the test.

Last month, ESPN reported that recently negotiated National Football League (“NFL”) coaching contracts contained language accounting for the possibility of a work stoppage in 2021 when the current labor agreement between the NFL and the National Football League Player’s Association (“NFLPA”) expires. A work stoppage would entail the cessation of the NFL’s operations, either through a players’ strike or a team owners’ lockout, until the two sides reach a new labor agreement. The inclusion of such contract language is a strong indication that a work stoppage is likely to occur, and given recent developments surrounding the NFL, its team owners, and its players, a stoppage would come as little surprise. To wit, the most recent occasion of the expiration of the league’s collective bargaining agreement (“CBA”), in 2011, resulted in an owners’ lockout, and the two sides did not reach an agreement until several weeks before the 2011 regular season began. There has been considerable tension between the players and the owners on multiple issues over the past decade. Players have long been unhappy at the lack of guaranteed contracts in the league, which allows teams to release players without paying them the salary owed on their contracts. The NFL has also been criticized for not taking player safety seriously enough, particularly concussions and other head injuries. This issue has seen significant litigation against the league, including a major settlement in a suit related to the NFL’s handling of concussions and an ongoing, nearly five-year-old suit related to the NFL’s use of painkillers and opioids, which was reinstated last September by the U.S. Court of Appeals for the Ninth Circuit. Most recently, there has been controversy over the NFL’s national anthem policy, with players upset at owners’ attemptsto halt protests against police treatment of African-Americans initiated by quarterback Colin Kaepernick in 2016.

The most contentious issue, however, has been the NFL’s extremely broad authority, specifically that of league commissioner Roger Goodell, to punish players under the league’s disciplinary policy, as laid out in the current CBA. This has led to criticism over perceived excessive punishments, as well as notable legal battles. For example, in 2015, the NFL suspended New England Patriots star quarterback Tom Brady four games (one-fourth of a regular season) for his alleged involvement in a scheme to deflate footballs in a playoff game earlier that year. (The deflation supposedly provided a competitive advantage for Brady.) The CBA-prescribed arbitration process then resulted in the suspension being upheld. Brady, backed by scientific evidence and the NFLPA, strongly maintained his innocence and sued to overturn his suspension. In September 2015, the District Court for the Southern District of New York (“SDNY”) ruled for Brady in Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 125 F. Supp. 3d 449. Judge Richard Berman found that the NFL was fundamentally unfair and violated the Federal Arbitration Act in its failure to produce files related to the league’s investigation of the alleged deflation incident and its failure to compel testimony from a lead investigator. However, on appeal, the U.S. Court of Appeals for the Second Circuit, 820 F.3d 527, reversed the District Court’s decision and reinstated Brady’s suspension. The court held that the commissioner’s actions did not violate fundamental fairness and that the disciplinary action was within his authority under the CBA. In effect, the court confirmed that because of what the NFLPA agreed to in the CBA, the union and its players had little ability to challenge any NFL disciplinary actions.

The Ezekiel Elliott case unfolded in similar fashion. The NFL suspended Elliott, a star running back for the Dallas Cowboys, for six games in 2017 over domestic violence allegations that his ex-girlfriend made against him. Elliott, who was not charged with a crime for the relevant incident, also challenged his suspension in court. After Elliott initially prevailed in the District Court for the Eastern District of Texas, receiving a preliminary injunction against the imposition of his suspension, upon the litigation’s transfer to the Second Circuit, the NFL again came out ahead. SDNY denied Elliott’s motion for a preliminary injunction on October 30, and the Second Circuit Court of Appeals affirmedin early November, again finding that fundamental fairness was not violated through the NFL’s disciplinary process given the broad powers that the NFL enjoyed under the CBA. With his next possible court date scheduled after his suspension’s expiration, Elliott had little choice but to end his legal battle, leaving the NFLPA frustrated once more at the scope of the commissioner’s disciplinary authority.

The above reveals that latitude over player disciplinary actions is likely to be a central issue in a potential NFL work stoppage in 2021. The NFLPA is sure to fight for greater procedural and substantive power in this area when the current CBA expires. But if the NFL is not willing to give in, it remains unclear whether the NFLPA will be able to emerge victorious in a possible dispute. The previous lockout in 2011 is instructive. On that occasion, the players used an antitrust strategy by decertifying their union and then suing the NFL for an injunction to stop the lockout. But this did not succeed. The U.S. Court of Appeals for the Eighth Circuit held in Brady v. National Football League, 644 F.3d 661, that the anti-injunction provision of the Norris LaGuardia Act applied to non-unionized employees as well as unionized employees, meaning the players were not entitled to an injunction against the lockout under the Act. The players’ attempt at lodging a complaint with the National Labor Relations Board also failed, as did federal mediation. Given these developments, the NFLPA will likely have to devise new legal strategies for the next work stoppage, and the NFL is sure to be prepared to defend against any novel legal avenue that the players use. As such, their best recourse may be to simply let a stoppage drag on, hoping that the combination of public opinion (potentially) being on their side and lost revenue from any cancelled regular season games convinces the NFL and its team owners to agree to concessions. Of course, this scenario would entail significant risk, since the players would face the prospect of losing income for a long period of time.

No matter how a possible stoppage plays out, considering the billions of dollars that are at stake, the situation certainly is one that bears watching for both sides of the business/labor dynamic. As rare as it is today for a business to face a major organized labor dispute, the NFL seems set to present a fascinating case study over the next several years.