Plaintiffs argue that Article LVII, Section 3(b) of the CBA (and the SSA counterpart, Article XVIII, Section 5(b)) waives the NFLs ability to oppose their motion. That Section reads:
[A]fter the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL ... waive[s] any rights š®š¹ may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.
(emphases added) (Ex. O.)
By its own plain and unambiguous terms, the provision purports to apply only when the players decision to end the collective bargaining status of the NFLPA is made at or any time [ ]after the express term of the CBA. But here, it is undisputed that the Unions (purported) disclaimer occurred
before the CBA expired; the premise of plaintiffs claim is that the NFLPAs collective bargaining status had already ended at expiration. (Compl. 24, 54-61; Pls. Mem. 9 1-2.) Accordingly, the predicate for Section 3(b) is not met; the provision cannot apply.
Plaintiffs know this; their Union told its membership that it needed to disclaim interest
before expiration of the CBA to avoid application of the companion Section 3(a)an obvious
quid pro quo to the waiver provision of Section 3(b)which provides that if the NFLPA is in existence as a union [
following expiration of the CBA], the Parties agree that no ... player represented by the NFLPA shall be able to commence an action, or assert a claim under the antirust laws for at least six months.
As the Union told its members, it was not willing to wait six months to initiate its sponsored lawsuit. Having made the tactical election to avoid the six-month waiting period imposed by Section 3(a), neither the Union nor the plaintiffs can attempt to invoke the companion waiver provision in Section 3(b).
Even if the predicate for Section 3(b) were met, the provision itself is void as against the established public policy, recognized by the Supreme Courts 1996 decision in Brown, that the labor laws, not the antitrust laws, apply to the collective bargaining process. The waiver provisionwhich purports to condone deliberate misrepresentation by the NFLPA and to let an antitrust suit proceed even when the disclaimer is invalidcannot be enforced without contravening public policy. The waiver provision is therefore void. See, e.g., Resolution Trust Corp. v. Home Sav. of Am., 946 F.2d 93, 97 (8th Cir. 1991);
Restatement (Second) of Contracts 178(1) (1981); id. 196 cmt. a, illus. 1.
In any event, Section 3(b) has no application to the NFLs unfair labor practice charge against the Union at the NLRB, which has to be resolved first. (Any effort by the Union to limit the NFLs rights before the Board would be ineffective.
See, e.g., Conoco, Inc., 287 NLRB 548, 559 (1987) (waiver of right to seek redress with Board or courts is
per se illegal and unenforceable as contrary to public policy).)
And even if the waiver did preclude the NFL from arguing to the Court the obviousthat the Unions disclaimer is a shamit would not limit the NFLs ability to argue that the nonstatutory labor exemption continues to apply because the parties are not at a point sufficiently distant in time and in circumstances such that the exemption would no longer be applicable.
Brown, 518 U.S. at 250.