Now I understand. For a long time, I was perplexed why pro football players would elect a lawyer, DeMaurice Smith, to replace Hall of Fame player Gene Upshaw as executive director of the NFL Player’s Association.
Former player Troy Vincent and others ran for the post upon Upshaw’s death in August 2008. Smith had no association with the NFL. He got his chops as a U.S. Attorney and as a litigator for big-time DC law firm Patton-Boggs.
Events of the past two weeks make clear that the battleground for a Collective Bargaining Agreement extension is more legal than anything. The players got their man in Smith who leads the strategy around decertification as such.
Throwing the owners for a loss
The owners built a head of steam with new broadcast revenue with FOX, CBS and NBC that would pay the $4 billion in 2011 even in the event of a lockout.
Smith torpedoed that strategy in U.S. District Court before Judge David Doty by arguing that the NFL negotiated in bad faith. Smith made the case that the owners were using revenue that should flow to the players to tide the owner’s over in a lockout.
Judge Doty looked that the NFL documents and ruled that the league was doing precisely that in violation of the CBA. Sixty percent of that revenue should go to the players who are willing to work. But wait, there’s more.
By offering concessions to the broadcasters in return for guaranteed flow of payments, the league failed to protect the player’s interest, also a violation of the labor deal.
I imagine Judge Doty would have no problem with those terms if it were written as a contingency against a player’s strike. It would be the players who were risking their portion of the TV revenue through their own decision. Owners cannot both lock out players and deny them their part of the revenue.
So the owners don’t have a treasure chest to sustain them in the event of a work stoppage. They are also subject to punitive damages that will only get worse if they do not bargain in good faith from here onward.
The ruling reminded the owners that they do not fare well before 81-year old Judge Doty, who brokered a settlement in the Reggie White vs. the NFL case in 1993 that opened the floodgates to football free agency and the salary cap. Judge Doty retains jurisdiction in such matters, as when the Atlanta Falcons sought to recover the roster bonus paid to Michael Vick because, you know, Vick wasn’t available to play in 2008. Can’t do it, ruled Doty. Atlanta was only entitled under the terms of the CBA to the return of the $3.75 million signing bonus.
Half-time adjustment of owners and the union’s next move
It seems that only now are owners and players, after Doty’s ruling, in serious negotiations to extend the CBA. Smith’s and the union’s next lever is decertification. Um, what?
To explain the decertification strategy, allow me to introduce the following term: Conspiracy in Restraint of Trade.
Restraint of trade is an unfair and illegal obstacle to free market dealings between businesses usually practiced by monopolies, highly frowned upon in America. Thus, it is illegal for teams to collude to write employment terms for players. Yet, it’s unhealthy to have a league where a few wealthy teams acquire all the best players. Such collusion can only happen when industry employers negotiate with a union of employees. Then there is a rough parity on both sides of the table.
Unions worked for a long time in America, until they weren’t needed anymore. Businesses eventually figured out the only companies that were unionized were ones that deserved to be unionized. Everybody else treated workers decently and offered a near match to what they might earn if a union were involved.
If the players follow through to decertify the NFLPA as their bargaining agent, any player could approach any individual team for a contract. This is Dan Snyder’s dream! If Snyder, working in concert with the other owners, refuses to consider the individual, he risks the charge of restraint of trade. A conspiracy in restraint of trade lands Snyder and every other owner in federal court, Judge Doty. That’s precisely what the players want and what the owners want to avoid.
How did it come to this?
The NFL is in this mess because the owners and players punted the issues in 2006. The union, particularly Gene Upshaw, and commissioners, particularly Paul Tagliabue (another DC lawyer), “got it” that growing the pie and divvying it up worked for all. It was a textbook case for union movement. One wonders if things would have gone so far if Upshaw and Tags were still at the table.
The owners make the case, poorly, that the current deal with 60 percent of broadcast revenue going to players harms the league. These are smart guys and they may have a point. But they haven’t shared the details by opening the books to the players. The players are naturally suspicious.
Gene Upshaw understood that a healthy league with every team healthy opened more opportunities for players. Tagliabue understood that the players were partners in revenue growth, stadium construction and player discipline (more a concern of fans than players, I think). With new actors on both sides, some of that collaborative spirit has been lost. Smith and NFL Commissioner Roger Goodell are finding their way in this deal.
I enjoy these offseason maneuverings as much as games themselves. However, eyes of most football fans glaze over when it comes to this stuff. If you’ve read this far, I know you are interested. If you are, check out Maury Brown’s (no relation) post at The Biz of Football that goes through all the legal options each side might take in the event of decertification. It’s worth the read.
Go take a look. We’ll be here when you get back.
UPDATE: NFL, Union agree to 7 day extension of labor talks
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