Play Fantasy Use your Fantasy skills to win Cash Prizes. Join or start a league today. Play Now
Blog Entry

Appeal ruling boils down to recognition of union

Posted on: May 21, 2011 1:41 pm
Edited on: May 21, 2011 3:50 pm
Posted by Will Brinson

The NFLPA filed their brief in the 8th Circuit Court of Appeals case just before midnight Friday, and led with a strong statement: "The NFL is a cartel."

But for as many zingers and strong language that exists in the brief, the argument that the panel of judges in St. Louis are really considering is this: "Are the players still a union?"

In their brief, the players argue that the NFL has not actually proven that the nonunionized players are arguing their case in the wrong place.

"The NFL does not cite any case that has ever held that disputes between employers and individualized nonunionized employees fall under the [Norris LaGuardia Act]," the players' attorneys wrote.

See, the Norris LaGuardia Act (NLGA) basically says that if there's a dispute between a employer and a group of employees in a union, that such a dispute needs to be resolved by the NLRB, and not by the court system.

So this -- "Are the players still a union?" -- is the dispute, legally speaking, that will decide whether or not we continue to have a lockout. If the Appeals Court believes/rules that the NFLPA truly disbanded, they'll lift the lockout. If they don't believe that, they'll leave the lockout in place, because, in their eyes, no court has jurisdiction over such a labor-related matter.

Here's the biggest problem, for those hoping the lockout will end: if the Appeals Court rules that the NFLPA broke up in good faith and is truly no longer a union (versus simply disbanding for legal leverage), they will establish a nightmarish precedent for themselves.
NFL Labor

Here's an example that may or may not simply be for the purpose of referencing The Wire, which is all the rage these days: If the Baltimore Union of the International Brotherhood of Stevedores decides it's being treated unfairly and wants to pursue litigation against its employer, Hypothetical Widget Shipping, Inc., it cannot dissolve the union, file a lawsuit and re-unionize later. At least not right now.

But it could -- potentially anyway -- do such a thing should the Appeals Court rule in favor of the players. (Edit: There is a difference between the status of sports leagues and other places of employ re: anti-trust status. But the point remains that the court would open itself up to a different interpretation of the law. Also, a better example could be: the NBA.)

This is problematic for the courts because it completely flips the jurisdiction of all labor disputes, if a union is willing to disband.

Remember, the Court of Appeals is pro-business; they're not "pro Roger Goodell." They don't care about this case in the sense of "How can we keep the players from winning?" They care about this case in the sense of "How does this effect future legal proceedings?"

Which is why it seems quite unlikely that the 8th Circuit will favor the players, regardless of how strong their arguments are.

Are there more issues? Yes. Are some of them stupidly complex? Absolutely.

But if you're going to boil the legal battle of the lockout down to one singular thing, it's whether or not a group of judges want to believe that the NFLPA has deunionized. Because of what they'd be setting themselves up for in the future, it's highly unlikely they'll rule that way.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.

Since: Jul 9, 2009
Posted on: May 23, 2011 3:49 pm

Appeal ruling boils down to recognition of union

Antz and CYHawk: I don't think the case, at least in its present stage, is going to be determined on the basis of whether the players are or are not independent contractors (as opposed to mere employees), and as far as I know the courts aren't even addressing that issue at present.  So I'm not worrying too much about the IRS or their definitions.  Whether the players are employees or contractors, they did have a collective bargainng agreement and did have (and perhaps still have) a union, and the league may or may not be guilty of an antitrust violation; those apparently are the issues--first to determine whether the case should be in the courts or rather before the NLRB, and then to determine who'se right on the underlying issues.

Since: Jul 9, 2009
Posted on: May 23, 2011 3:38 pm

Appeal ruling boils down to recognition of union

Eric (2:28), it doesn't look like Judge Nelson's reasoning cut much with the Court of Appeals panel--i.e., the higher court.  That being the case, on what basis are you not worrying about a different interpretation of the law than Judge Nelson's?  Are you that confident that the panel will reverse itself?  Or that the full court of appeals will rule differently?  (Well, there was one dissent amongst the panel members, but . . .)  Or that a Supreme Court with five conservative members will reverse them? Unless you have some good reason to believe that any of those will happen that you haven't disclosed, be very worried. 

Anyway, the question apparently isn't whether the decertification was "legal"; it's apparently whether there is a labor dispute.  That may be more complicated than you think. 

Since: Aug 21, 2006
Posted on: May 23, 2011 3:12 pm

Appeal ruling boils down to recognition of union

@antz....i disagree with you that the players are independent contractors v employees.  The IRS looks at three factors when determining if someone is an employee or actually an independent contractor.   This material below comes directly from the IRS website.

Common Law Rules

Facts that provide evidence of the degree of control and independence fall into three categories:

  1. : Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. : Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. : Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.

Behavioral Control

 Behavioral control refers to facts that show whether there is a right to direct or control how the worker does the work. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work.

The behavioral control factors fall into the categories of:

  • Type of instructions given
  • Degree of instruction
  • Evaluation systems
  • Training

Types of Instructions Given

An employee is generally subject to the business’s instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work.

  • When and where to do the work.
  • What tools or equipment to use.
  • What workers to hire or to assist with the work.
  • Where to purchase supplies and services.
  • What work must be performed by a specified individual.
  • What order or sequence to follow when performing the work.

Degree of Instruction

Degree of Instruction means that the more detailed the instructions, the more control the business exercises over the worker. More detailed instructions indicate that the worker is an employee.  Less contractor.

Note: The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker's performance or instead has given up that right.

Evaluation System

If an evaluation system measures the details of how the work is performed, then these factors would point to an employee.

If the evaluation system measures just the end result, then this can point to either an independent contractor or an employee.


If the business provides the worker with training on how to do the job, this indicates that the business wants the job done in a particular way.  This is strong evidence that the worker is an employee. Periodic or on-going training about procedures and methods is even stronger evidence of an employer-employee relationship. However, independent contractors ordinarily use their own methods.

Financial Control

 Financial control refers to facts that show whether or not the business has the right to control the economic aspects of the worker’s job.

The financial control factors fall into the categories of:

  • Significant investment
  • Unreimbursed expenses
  • Opportunityfor profit or loss
  • Services available to the market
  • Method of payment

Significant investment

An independent contractor often has a significant investment in the equipment he or she uses in working for someone else.  However, in many occupations, such as construction, workers spend thousands of dollars on the tools and equipment they use and are still considered to be employees. There are no precise dollar limits that must be met in order to have a significant investment.  Furthermore, a significant investment is not necessary for independent contractor status as some types of work simply do not require large expenditures.

Unreimbursed expenses

Independent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. However, employees may also incur unreimbursed expenses in connection with the services that they perform for their business.

Opportunityfor profit or loss

The opportunity to make a profit or loss is another important factor.  If a worker has a significant investment in the tools and equipment used and if the worker has unreimbursed expenses, the worker has a greater opportunity to lose money (i.e., their expenses will exceed their income from the work).  Having the possibility of incurring a loss indicates that the worker is an independent contractor.

Services available to the market

An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.

Method of payment

An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.

Type of Relaitionship

Type of relationship refers to facts that show how the worker and business perceive their relationship to each other.

The factors, for the type of relationship between two parties, generally fall into the categories of:

  • Written contracts
  • Employee benefits
  • Permanency of the relationship
  • Services provided as key activity of the business

Written Contracts

Although a contract may state that the worker is an employee or an independent contractor, this is not sufficient to determine the worker’s status.  The IRS is not required to follow a contract stating that the worker is an independent contractor, responsible for paying his or her own self employment tax.  How the parties work together determines whether the worker is an employee or an independent contractor.

Employee Benefits

Employee benefits include things like insurance, pension plans, paid vacation, sick days, and disability insurance.  Businesses generally do not grant these benefits to independent contractors.  However, the lack of these types of benefits does not necessarily mean the worker is an independent contractor.

Permanency of the Relationship

If you hire a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.

Services Provided as Key Activity of the Business

If a worker provides services that are a key aspect of the business, it is more likely that the business will have the right to direct and control his or her activities.  For example, if a law firm hires an attorney, it is likely that it will present the attorney’s work as its own and would have the right to control or direct that work.  This would indicate an employer-employee relationship.

Since: Jan 26, 2010
Posted on: May 23, 2011 2:28 pm

Appeal ruling boils down to recognition of union

Hey Will Brinson,

The NFLPA has decertified in the past and become a trade association and that has been found to be legal.  Go check out information about the White v NFL litigation that led to free agency or better yet go read Judge Nelson's ruling from last month, it has a great explanation of the history of the labor dispute between the players and the owners.

I don't think your worry about "a different interpretation of the law" is a problem.

Since: Dec 7, 2009
Posted on: May 23, 2011 12:47 pm

Appeal ruling boils down to recognition of union

It's hard to take sides at all in a fight between millionaires and billionaires over who has more rights to the contents of our wallets, especially when both sides have tried to leverage legal technicalities and procedural rules to their advantage.

Since: Nov 22, 2006
Posted on: May 23, 2011 2:02 am

Appeal ruling boils down to recognition of union

Have another cup of KoolAid.

Since: Oct 2, 2006
Posted on: May 22, 2011 11:48 pm

Appeal ruling boils down to recognition of union

"Remember, the Court of Appeals is pro-business": there's the key.  Today's courts, packed by right-wing presidents, are simply stooges of corporate power.  Legal issues in themselves aren't the point anymore; intellectual acumen isn't key, nor is judicial honesty.  What matters is business power; all rulings are anti-worker, and that's how it's going to stay for a long, long, long, long, long time. 

Since: Jul 28, 2008
Posted on: May 22, 2011 9:46 pm

Appeal ruling boils down to recognition of union

Dawd, the service business model is appropriate and the labor costs are accurate at north of 60%.  Product companies (software) often are much lower but take larger risks in development so their profit margins are higher in order to cover the risk.

Obviously I am arguing for the players but at the same time, I don't begrudge the owners making money given the risks they take (limited as they may be).  My position is however very simple, they originally agreed to a share revenues with the players in a certain framework and now want to change the deal.  Thats fine of course but given that they are in a symbiotic relationship, they do not get to dictate terms.  My going to my private owner and requesting data on the profitability of the business I work for is 100% subject to the leverage I have with said owner. The players in this case have leverage as the owners literally have no product without them.

And I have to disagree that the players are taking no risks.  Its a different risk and unlike what us normal working stiffs experience.  They have limited opportunity to maximize the value of their capabilities in a system that is structured to cap what they can make.  It is anti competitive which is why the lawsuit exists (Brady v NFL).  The owners can't have it both ways.  Dictate terms AND reduce salaries.  If the players salaries are rising faster than revenues, who is to blame?

My last point here is something else I believe in ardently.  Prior to free agency (1975ish), a disproportionate percentage of the profits remained with the owners.  Sandy Koufax held out in 1966 and the resulting salary was $130k.  If his salary were adjusted for inflation, he was making roughly the equivalent of $860k (CPI calculator) in todays dollars. Given that baseball is a $6B industry today and he was the best pitcher of his time, AND assuming the percentage of overall discretionary spending has remained largely the same over the years, you can get a sense of just how disproportionately the revenue was distributed.  I simply do not have a problem with players unions creating leverage with ownership to get a larger percentage of the profits they help to generate...

Maybe none of this matters but finding that equitable middle ground will be an interesting process...

Since: May 11, 2007
Posted on: May 22, 2011 7:02 pm

Appeal ruling boils down to recognition of union

I didn`t think there was such an organization known as the NFLPA. I thought the members of that union voted to decertify

Since: Feb 27, 2007
Posted on: May 22, 2011 6:11 pm

Appeal ruling boils down to recognition of union

You are straight up ignorant and delusional if you believe this.  The players risk their health and lively hoods every game where there is the equivalent of about a hunderd or two car wrecks involving 22 guys in light padding.  And they aren't employees dumb ass..they are contract labor and there is a huge difference between the two.
First off, dont call me names dikhead.

Second off, Einstein, plaese enlighten all of us with your higher intelligence.

You seem to have the answers.....we are all waiting......,. 

The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or