Evidence continues to mount that there will in fact be a lockout in 2011. Numerous news outlets are reporting that recent negotiations are going nowhere between representatives for the National Football League and the NFL Players Association. What began with optimism has now been replaced with increasing pessimism.

In a letter to NFL player reps, Union Executive Director DeMaurice Smith put forth a multitude of reasons that point toward the NFL being intent on locking the players out.

The biggest signs that point to a lockout are: (1) the hiring of Bob Batterman, (2) the fact that the NFL is accumulating a war chest in preparation for a lockout and most significantly, (3) the NFL is dragging out negotiations until after the Supreme Court hears an antitrust case that could exempt the NFL from being subject to antitrust laws.

The NFL Hiring “hockey's lockout guru” Bob Batterman to oversee the NFL’s lockout strategy:

It is certainly true that the NFLPA should be alarmed by the NFL’s hiring of Batterman as outside counsel. As Smith alluded to in his email, Batterman was instrumental in designing and implementing the NHL’s lockout strategy. It seems the NFL is now duplicating this strategy as it waits for the current CBA to expire before it will engage the union in any real discussions.

Securing guaranteed TV money [Direct TV, NBC and others] to fund the lockouts

The NFL can afford to wait for the expiration of the CBA partially because of the significant contracts it signed with various sponsors and partners. For instance, the NFL recently signed a deal with DirecTV that pays the league $1 Billion regardless of whether football is played in 2011. This type of deal provides the NFL with plenty of leverage in dealing with the union. Owners can afford to sit around during a lockout and wait to break the players’ collective spirit.

Remember, the average career of an NFL player is 3 years; if a lockout persists for a year, that means that 1/3 of that player’s career is gone. Thus time is of the essence and time is not on the sides of the players. The union understands this fact. The playing field is tilted away from the players.

The American Needle Case: a win in U.S. Supreme Court eliminates player decertification

Smith and his union are in danger of losing even more leverage at the bargaining table. The United States Supreme Court is set to hear oral arguments later this month on an antitrust case involving the NFL called American Needle. Basically, the NFL will be arguing that the league is a single entity that as a whole competes against all other forms of entertainment. The only time the NFL is competing against itself is on the football field. All other activities, such as licensing of intellectual property, are done collectively. Thus the NFL should be exempt from antitrust law.

The stakes are very high with American Needle. If the NFL wins the union will be not able to decertify like it did in the late 1980s to challenge a stronger NFL through the courts. This would severely limit Smith’s leverage at the bargaining table.

Because of American Needle’s magnitude, Smith predicts that the NFL is not going to engage in serious bargaining with the union until after the Supreme Court rules. Although the league opted out of the current CBA because of alleged fundamental problems with its financial structure, the NFL has yet to furnish the union with any sort of financial information. This fact almost proves Smith’s point that the league will not negotiate until after American Needle.

For now, it seems that the parties are going to play the waiting game until after the American Needle ruling. However, if the league receives a favorable ruling, Smith’s bargaining position will be severely limited. It is up to Smith to make sure that this does not happen. At this point in negotiations his union is losing on an almost daily basis in a negotiation where the odds seem increasingly stacked against the union.

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Jeff Levine is a staff member of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is a sports attorney, and the Executive Director of One Sports and Entertainment, International.

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