All is still trending towards the NFL labor pains leading to delivery of a baby soon. And while we still expect a smooth landing, some last-minute turbulence has manifested itself in the recent settlement requests of the named Brady plaintiffs.
Jackson will not hold up a deal.
The horse-trading I mentioned previously has taken shape. Vincent Jackson and Logan Mankins, casualties of the 2010 uncapped rules, were reported to not be going quietly into a settlement. Both were designated with franchise tags prior to the NFL locking out in March and said to have requested/demanded full free agency and/or a lump-sum payment to compensate them for their restriction.
If true, these requests were neither new nor out of left field. I am told these requests have been swirling for some time, with the player agents and outside counsel pressing DeMaurice Smith to present them as important issues towards settlement. As to precedent, in 1993, all named plaintiffs in the Reggie White v. NFL case were exempted from receiving franchise tag designation for the rest of their careers.
These were minor speed bumps, though, as updated reports – and a tweet from Jackson – suggest there is no longer an issue. Thus, with optimism towards resolution in mind, let's look at the steps by which a new CBA would come to fruition.
The road to a CBA
This morning, a completed draft is being readied for the NFLPA Executive Committee and the NFL's Labor Committee. The NFLPA Executive Committee and all 32 player representatives are set to meet today in Washington to peruse, and hopefully approve, a proposed settlement. A full vote by all 1900 players would then take place. Players would recommend that the Brady named plaintiffs sign off on the deal. Upon approval by the named plaintiffs, the ball would change possession into the Owners' hands.
On Thursday, the Owners are meeting Atlanta, with two or more executives from each team attending. If at least 24 of 32 owners ratify the proposed CBA, peace will be born after four months of grueling labor pains. The NFL would then spend Thursday and Friday briefing team executives on the intricacies of the new CBA.
The pending litigation and related matters – Brady v. NFL, the television contract case under Judge Doty, the NFL's unfair labor practice charge with the NLRB, the NFLPA collusion grievance from last year, etc. – are expected to be rolled up into one all-encompassing "global settlement" between the parties.
Without a union, the labor exemption – shielding the NFL from antitrust liability – does not attach. As part of the new CBA, the NFL insists that the NFLPA return to its previous role as the exclusive union of NFL Players.
If recertification mirrors the 1993 post-White recertification, there must be:
• A majority vote (50% + 1) of NFL players – by signed authorization cards – designating the NFLPA as the exclusive collective bargaining representative of all present and future players
• The NFL voluntarily recognizing the NFLPA
• The NFLPA filing a notice with the U.S. Department of Labor and an application with the IRS (to reclassify for tax purposes from a trade association to a labor organization)
Although it sounds like a lot, in today's electronic age, preparations have likely been made for this to be done electronically, via the Internet, saving some much-needed time.
Judge Nelson's blessing
Beyond the Player and Owner votes, there is the matter of the still-pending Brady v. NFL and presenting their settlement agreement to Judge Susan Nelson, the presiding judge who has been apprised of all the negotiations from mediator Arthur Boylan.
Nelson would ensure notice was given to all 1900 NFL Players and potentially hold a hearing where Players unsatisfied with the proposed settlement are afforded the opportunity to object (Judge Doty held the same in 1993 with only a handful of players objecting). Nelson would have ultimate authority to approve the ten-year settlement and end Brady.
This process – more of a formality, especially once the NFLPA recertifies – is not expected to delay the resumption of NFL football.
A not so simple issue
One issue all sides will be watching is what will happen with decertification. The Owners will try to foreclose the NFLPA's ability to decertify in the future; the Players will resist mightily. To deny decertification as an option will be a major blow to future union leaders in all major sports leagues.
With a ten-year agreement, decertification is not something that will concern the NFL for a long time, but it is in the interest of both parties to find a mutually agreeable solution, and incorporate it into an explicit and unambiguous clause in the next CBA.
The 1993 CBA – as a result of the White settlement – carried oversight from the Minnesota District Court. That oversight has represented a pebble in the shoe of the NFL, with Judge David Doty's rulings – for Michael Vick and others – costing Owners tens of millions.
The Owners are insistent in not having similar oversight in the coming agreement, and I sense they will not.
Upon expected approval by the full NFL ownership tomorrow in Atlanta, there is a seminar scheduled for team negotiators to review the new rules to play under in the business of football.
As we expected, there will likely be a three-day period of interaction between teams and their own players – players under contract, rookies, pending free agents. That period will be full of tampering, as players and agents will want to know what is behind Door Number Two before agreeing with their own team.
Following that time, the bell will ring on the 2011 League Year, setting off the building of rosters and talent in as compressed a time period as the modern NFL has known. Teams and agents are bracing themselves, but fans are ecstatic.
The labor pains are ending, the baby will be here soon.
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