Two internal meetings took place this week. The NFLPA held a conference call with 30 of the top player agents to give an update on collective bargaining. The message was short on specifics but presented a pessimistic outlook on negotiations, suggesting the NFL's proposal reflected a share of revenues not seen in two decades. DeMaurice Smith was having agents prepare for the worst, but that was to be expected.
And in Dallas today, NFL owners gather to assess their strategies going into a critical period for negotiation of a deal that ends in 75 days.
Today, our countdown of the most important issues in these CBA negotiations continues with issues #8 and #7 – bonus recovery and drug testing.
8. Bonus Recovery
Nothing frustrates team personnel more than not being able to recover previously paid bonus money for players exhibiting bad behavior. Grievance and arbitration decisions have continued to rule on the player side, including those involving Ashley Lelie (option bonus not recoverable) and MIchael Vick and Plaxico Burress (signing bonus not recoverable).
Further, a recent Special Master ruling nullified signing bonus forfeiture clauses for two Miami Dolphin players who retired after receiving small signing bonuses early last year. The Dolphins, as other teams, drafted broad forfeiture language, which was disallowed, and the ruling further weakens team recovery rights to players who behave badly or just walk away from their team.
Now the Raiders are trying to recover money from old friend JaMarcus Russell, although their theory involves a contract drafting issue, not a behavioral issue.
Speaking from experience, I and many team negotiators spent a disproportionate amount of their time trying to draft language to protect the team in case of negative behavior, even knowing much of it will not pass muster in front of an arbitrator.
Some positive news came a year ago in a grievance by the Chiefs against Larry Johnson that ruled future guaranteed salaries could be invalidated due to negative behavior, although the bonus issue is paramount to management.
Forecast: The union will not fight this issue beyond a token effort and allow for broader recovery rights for signing and option bonus recovery. This is a relatively easy and necessary “give” for the NFLPA. It does not want to have the continued specter of players keeping their bonuses despite willful bad behavior.
7. Drug Testing
It has been an embarrassing year for the NFL on this issue. Pat and Kevin Williams — and other players by deduction — continue to play despite 2008 suspensions for a banned substance. Brian Cushing played himself into the Pro Bowl and Rookie of the Year last season despite a pending steroid suspension hanging in the balance while under appeal. And storm clouds are gathering about Dr. Anthony Galea, who provided platelet-rich injections to injured NFL players and allegedly more injections of Human Growth Hormone (HGH).
DeMaurice Smith and the union have supported uniform and collectively-bargained drug testing rules to trump any lawyering done in state courts as happened in Minnesota.
However, with the United States Supreme Court recently refusing to get involved in the Williams dispute, the fight now plays out first in the Minnesota state court of appeals and then in Congress going forward. The problem for both sides is that their joint feeling that the CBA trumps state law seems in peril.
Forecast: The NFLPA supports the NFL position on a collectively bargained drug policy, for both illicit substances and steroids and allows the policy great latitude in trying to keep the issue from the courts, although it is not certain that it can. In exchange, the league relents on pushing for HGH testing.
The NFLPA is also going to be making a big issue of having an independent arbitrator — instead of the Commissioner — hear appeals on both conduct and drug testing. On the conduct issue, to be discussed in a coming column, the Commissioner will not give up the right to legislate morality in the best interests of the game.
On drug testing issue, however, the NFL will compromise and allow for an independent body to hear appeals. In fact, the league is willing to turn the whole issue of testing – especially for steroids and performance-enhancing drugs – to a group such as the World Anti-Doping Agency (WADA). My sense is the NFLPA would resist that, as the tolerance of a group like WADA is far stricter than that of the NFL.
Coming next: the “enhanced” (18-game) season.
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