ANALYSIS : NFL Loses Battle, but Don’t Expect Surrender in War : Jurisprudence: The owners would rather pay the legal fees in defeat than compete with each other to sign free agents.

Hall of Famer John Mackey was an All-Pro tight end 20 years ago when he sued the NFL for antitrust violations and won a $15.8-million settlement for himself and other players.

He won because the trial court ruled that the NFL’s conduct was a violation of the Sherman Antitrust Act.

So as a player, Mackey was richer afterward. But as a 1970s president of the NFL Players Assn., he didn’t really win at all, he conceded the other day.

“NFL club owners never lose,” Mackey said. “You can’t beat those people. They lose a round (in court) now and then, but they just regroup and fight again.”

Nothing much has changed in pro football since the Mackey decision, he noted. And he predicted that “nothing much will change in the wake of” Thursday’s federal court finding in Minneapolis that the league is still in violation of antitrust laws.

The strangest thing about the trial is that although it seemed another obvious big victory for the players, it didn’t deeply injure the owners, regardless of what happens on appeal.

“The owners lose every battle and win every war,” Mackey said.

The entire history of pro football substantiates that view.

For 73 years, the NFL’s owners have held some of the world’s finest athletes on a tight leash, telling them exactly where they can and cannot play football.

That is unconstitutional, the courts keep ruling. The league’s club owners have lost 20 federal antitrust actions in the last 20 years. They have never won on antitrust issues.

But they have never lost their grip on their players.

How do they do it?

“Simply, the owners don’t give up,” George Burman said from Syracuse, N.Y., where he is the dean of the university’s business school. “When (defeated), as they were in Minneapolis, they merely design another rule, and give it another try.”

This strategy is costly. Over the years, the owners have paid millions of dollars in antitrust damages and to defray court expenses. As consistent antitrust losers, they are always ordered to pay the bills for both sides. Attorneys’ fees alone in Minneapolis this summer are costing the NFL’s owners more than $10 million.

Why don’t they give up and work out a new collective bargaining agreement?

“I think the owners have decided that it’s cheaper to lose lawsuits than to settle,” said a law professor at Los Angeles’ Southwestern University Law School, Chris Cameron.

“They don’t mind fighting until they’ve exhausted all their appeals. Then they move on. The (NFLPA) estimates that other pro players could win up to $210 million based on the (Minneapolis findings). That’s a lot to you and me, but not to 28 multimillionaires.”

Rodney D. Fort, an economics professor at Washington State, agrees.

“The owners would rather maintain their share of the profit pie than settle,” he said. “They make more money this way.”

Thus they have vetoed every recent plan for a new player-owner bargaining agreement. The last contract, signed 10 years ago, lapsed five years ago. In the new one, the players want free agency after four or five NFL seasons.

“I think the sticking point is the (owners’) fear of the unknown,” Burman said from Syracuse. “Much of the explanation is financial, of course, but deep down, the explanation is fear of change.

“An NFL owner doesn’t mind drafting a top college player and trying to sign him, even if it costs him millions. But he doesn’t want to go into the free-agent market and compete with 27 other owners for the NFL’s best players.”

At Southwestern Law School, Cameron asked: “What the owners want to know is, why should they voluntarily give up what they have now?”

So there will be no player-owner agreements before the owners convene Thursday in Dallas to consider their next game plan.

Even though they clearly lost in Minneapolis, they weren’t destroyed.

Frank Rothman of Los Angeles, the NFL’s lead attorney, made sure of that, persuading the jury that in order to maintain competitive balance, the NFL needs some restrictions on player movement.

That was the first time a jury ever so ruled, and it stands as Rothman’s greatest accomplishment as an NFL lawyer.

“(Rothman) worked the jury masterfully,” NFL Vice President Joe Browne said.

From the University of Illinois, law professor Stephen Ross said: “The NFL system doesn’t promote competitive balance. It reduces it. Look at the standings. The same teams are near the top and near the bottom every year.

“Look at baseball and you’ll see that free agency is what it takes to promote competitive balance.

“Or, the NFL could do other things. It could give the bottom teams extra draft choices. It could temporarily ban top teams from trading. The truth is that its present rules don’t help competitive balance.”

From Syracuse, Burman said: “There isn’t any evidence that the NFL’s rules make pro clubs more competitive. There is a certain logic to the notion that good players won’t play in, say, Green Bay--and much of the press and public accepts that as true--but all the evidence contradicts the idea.”

Said Gene Upshaw, NFLPA executive director: “By restrictions, the jury means there shouldn’t be total free agency, and we agree. We’ve always said that players should (earn) free agency with (about four years in the league).”

To Rothman, however, the jury’s mention of restrictions means something else entirely.

It means a new rule to keep the players in line.

“We’ll have to replace Plan B free agency with a new system,” the NFL attorney said. “The players may or may not like it, and if they don’t, we’re at it again.”

That’s the way it always has been in the NFL.