Update, 9/27/2012, 6 a.m. EDT: The National Football League announced late Wednesday night that it had indeed reached agreement on a new collective bargaining pact with its referees, who were expected to be back at work as of Thursday’s game between Cleveland and Baltimore.
As the simmering controversy over the botched call that marred Monday’s Packers-Seahawks game appeared to be moving National Football League management and the referees’ union toward a new collective bargaining agreement, the head of the NFL players union said Wednesday that his members would consider pursuing legal action against the league over what he called the “health and safety issues” the replacement refs are creating on the field.
During a Wednesday appearance on CBS This Morning, NFL Players Association executive director DeMaurice Smith, a former partner at Latham & Watkins and Patton Boggs said that the importance of referees can not be overstated because they are “the first responders for the health and safety for a group of players where we know that virtually every player in the NFL is going to be injured at work.” Smith added that the NFLPA would take “every legal action that we can and that we need” in order to ensure the NFL honored its obligation to keep the players’ workplace safe. (Smith did not immediately respond to a request for comment.)
Under the collective bargaining agreement signed by the league and the players union in July 2011 following a four-month lockout, the players’ legal options are limited, according to one lawyer knowledgeable about the pact who asked to remain anonymous because he did not have clearance to discuss the issue publicly. ”As a result of the [referee] lockout, players may end up with serious injuries,” the lawyer said. “The union or an individual player could file a claim against the league for not providing a safe work environment. The league could be found liable to any individual who’s injured because of what can be shown as referee negligence.”
According to the CBA’s arbitration clause, any such claim would ultimately be decided by a permanent arbitrator, Northeastern University sports and labor law professor Roger Abrams told The Am Law Daily during an interview Wednesday. A second possibility—one Abrams characterized as a long shot—would be for striking referees to picket outside NFL stadiums on game days. The players union would then have to decide whether to cross or honor those picket lines. Choosing the latter would at the very least delay scheduled games.
While the CBA does contains a no-strike provision, the players, as a practical matter, could engage in some form of individual protest, according to the lawyer familiar with the CBA. As an example, he cited the “sick out” demonstration by American Airlines pilots who have been citing illness while staying away from work en masse to protest new salary and work rules the company imposed unilaterally as part of its bankruptcy proceedings.
Ultimately, it appears unlikely the players will be forced to enter the fray. Multiple media outlets reported Wednesday that the NFL and the National Football League Referees Association were closing in on a new labor agreement that would end the lockout that began in June and has stretched into the first three weeks of the current season. Among the issues that led to the impasse were the league’s push to eliminate the referees’ pensions and replace them with 401(k)s and to gain more power over dumping officials it deems to be substandard during the season.
As The Am Law Daily has previously reported, Proskauer Rose partner L. Robert Batterman is representing the league in its talks with NFLRA, along with NFL general counsel Jeffrey Pash and league in-house counsel T. David Gardi. The referees, meanwhile, have turned to Michael Arnold, a name partner at Arnold, Newbold, Winter & Jackson, based in Kansas City, Missouri. Neither Batterman nor Arnold immediately returned requests for comment.
One of the striking referees, Edward Hochuli, is a lawyer at Phoenix-based litigation boutique Jones, Skelton & Hochuli. Contacted by email Wednesday, Hochuli declined to comment, saying he was concerned that doing so might “hinder the progress.”
Though there were numerous complaints about the fill-in refs from various quarters during the first two weeks of the season, the situation gained fresh urgency—and spilled into the political arena—on heels of the Monday night game. President Barack Obama tweeted that NFL fans everywhere wanted the lockout settled, while Republican vice presidential nominee Paul Ryan told supporters in Cincinnati that “it is time to get the real refs [back].”