That's the question the NFL Players Association hopes to answer in the next year.
The NFLPA climbed the first of three hurdles in its four-year legal fight for baseball-style free agency yesterday, when a federal judge in Minneapolis, David Doty, ruled the association is not a union.
If the decision is upheld by the 8th Circuit Court of Appeals, it then would be up to a jury in Minneapolis to decide if the NFL's restrictions on free agency violate antitrust laws. The jury trial is scheduled to start Feb. 17.
A victory for the NFLPA on that level would free every player to negotiate with any team when his contract expired.
If this case does go to trial next year, it also could delay the league's expansion timetable of two teams for 1994. The league announced last week that it could delay the naming of the two teams in fall 1992 if "labor-management issues constitute an impediment to such expansion timetable."
A league spokesman said yesterday that that decision would be made in fall 1992, and the league would move ahead with its expansion plans. But if the league faces losing its free-agency system next year, a delay wouldn't be a surprise.
Jim Quinn, the New York attorney for the eight players who filed suit in spring 1990 in this case, said, "I don't want to be overconfident, but I think we're going to win."
Quinn said he still expects a tough fight from the NFL, and said he didn't expect the league to attempt to settle the case out of court.
"They haven't been known to panic in the past, and I'm not expecting them to now," he said.
Quinn predicted that the players denied true free agency the past two years -- those whose contracts expired but who were placed on teams' protected lists -- will win millions of dollars in triple damages under antitrust laws.
In a statement, the league said: "We believe the 8th Circuit Court of Appeals will recognize that these issues are collective bargaining matters and will again overturn the lower court's ruling."
If the case were decided in 1992, Marino -- who averages $1.5 million per season in his current contract -- could be the first TC big-name player affected. Marino's contract expires at the end of the 1991 season. He's been negotiating a new deal with the Miami Dolphins, but now seems unlikely to sign until he finds out if he'll be free next year.
The NFLPA began its fight for free agency with a strike in September 1987 that collapsed when the owners put on three weeks of strike games. The NFLPA then went to court in October 1987 in an attempt to gain free agency.
Doty ruled in the NFLPA's favor in that first lawsuit, but the 8th Circuit overturned it on the grounds that the NFL's restrictive free-agency rules were legal because the league received a labor exemption from the NFLPA. The U.S. Supreme Court refused to hear the case.
In reaction to the appellate court's ruling, the union announced it had decertified in November 1989 and was no longer a bargaining agent for the players.
The NFL contends the NFLPA is still a union, but Doty sided with the players in the lawsuit named for running back Freeman McNeil of the New York Jets.
Quinn contends the appellate court isn't likely to overturn Doty this time, because the NFLPA decertified as a result of the earlier ruling by that court.
The NFLPA, which compares itself to a trade association, technically isn't a plaintiff in the lawsuit, but is supporting it.
Doug Allen, the assistant executive director of the NFLPA, said: "We're very pleased, but I can't say we're surprised. We knew we weren't a collective bargaining agent."
Quinn and Allen said this means there'll never be a collective bargaining agreement in the NFL, although commissioner Paul Tagliabue has held out hope that the owners still can get one.
The owners have filed a suit charging the NFLPA -- if it's not a union -- has violated antitrust laws by doing such things as sharing salary information, but Quinn dismissed that suit as a ploy by the owners "to scare the agents."
Plan B system
How the NFL's free-agent system, known as Plan B, works:
* Each team can protect 37 players on its roster.
* The rest of a team's players are free to negotiate with anyone.
* The 37 protected players whose contracts have expired can receive offer sheets from other teams. A team can keep a player by matching the offer. If the team declines to match the offer, it receives draft choices in compensation. (In the past decade under this system, one player has changed teams: Wilber Marshall from the Chicago Bears to the Washington Redskins. The Bears got two first-round draft picks.)