Today marks the two-year anniversary of the election of DeMaurice Smith as NFLPA Executive Director. Little did we know that two years from his election he would be leading a trade association rather than a union.
I remember when Smith was elected as a surprise candidate. While finalists such as Trace Armstrong and Troy Vincent — who has now switched to the other side in working for the NFL — played on the “former player” angle, Smith used an impressive Powerpoint presentation to detail his connections in Washington on Capitol Hill and otherwise and campaigned as someone who was not going to be “chummy” with the Commissioner or owners. He has lived up to that billing.
As we enter our first week of Courtroom football, here are some initial developments and what you need to know about them.
Judge not named Doty
Brady v. NFL was assigned to Judge Susan Nelson in the U.S. District Court in Minnesota. She recently presided over Dryer v. NFL, a case dealing with compensation owed to former players for unauthorized use of their identities.
In theory, the plaintiffs (players) could file a motion for a change from Nelson to Judge David Doty, the longtime pebble in the shoe of NFL owners. However, the fact that briefs are scheduled to be filed in late March and a hearing set for early April demonstrates that Nelson is in and Doty is out. The NFL exhales.
First court date
Nelson has scheduled the hearing for a Preliminary Injunction (PI) for April 6th. This is the motion by the players to have the NFL lockout lifted. As to the timing, although football fans wonder why the delay, lawyers and judges comment that this is an accelerated time frame to schedule a PI hearing so soon.
Standard of proof
The key to the PI hearing is for the players to show “immediate and irreparable harm” if the lockout is not lifted. The players’ lawyers will argue that every chance to meet with coaches, train and rehabilitate injuries at team facilities, study film at the team offices, etc. is a lost opportunity for them to advance their short career in the NFL. They will also argue that a potential 500 free agents need to sign with teams as soon as possible to continue their careers.
Certainly the players can show that there may be irreparable harm by not having the business of football open to them. A bigger question to me is whether the harm is “immediate” in early April. The decision by Nelson as to whether the lockout is lifted should come within a week or two after the April 6th hearing. The winner of that decision will be in control of this negotiation/settlement discussion.
NLRB “union still alive” claim
Along another track, the NFL has amended and updated its unfair labor practice charge with the National Labor Relations Board (NLRB) from February 14th. They claim that the NFLPA decertification was not legitimate.
The NLRB simply investigates, and if it agrees with the NFL's position, an Administrative Law Judge will then hear the matter. That decision is appealable then back to the NLRB Board, followed by an appeal to the United States Court of Appeals. And, as we know, the NFL will not shy away from appeals.
ICONMawae led a conference call Monday.
The NFLPA conference call
On Monday I joined a conference call with the executive committee of the NFLPA – the brand new trade association – as it communicates its message and defends against what they see as mistruths by the NFL.
The call was another echo of the bitterness from the negotiation. The players felt disrespected in the mediation process and were left waiting alone numerous times.
I asked whether negotiations might continue in advance of the April 6th hearing, the players said that it was in the hands of the lawyers, but noted that if the NFL wanted to forward its complete financials from the past ten years, that would advance a discussion.
Both the NFL and NFLPA have been spinning messages since Friday about what did or didn’t happen that led from negotiation to litigation. Both sides are mad and frustrated. We get it, let's move on.
The NFLPA Draft suggestion
The NFLPA “suggesting” that top picks not attend the NFL’s invitation to the Draft has received quite a reaction.
The NFLPA is trying to discourage players from adding value to an NFL event. They are searching for every wedge with the league that they can find, hoping it may form a bit of leverage for them.
Beyond all the contrary arguments that I have heard, mostly about letting the players have their “moment in the sun”, I have a different take on NFLPA’s position.
The premise of their argument is not to join the festivities of the NFL. But although we have not been in a lockout situation before, the NFL has always been the adversary of the NFLPA, especially on the issue or paying these very players, the top picks in the Draft.
In the negotiation, both the NFL and the NFLPA proposed reductions from the existing system of rewarding top picks. The NFL and veteran NFL players have complained about top pick contracts for years.
The NFLPA has never advised top rookies against shaking the hand of Commissioner Goodell, who has called their contracts “ridiculous”.
Under one scenario discussed by the NFLPA, top picks would be greeted not by the Commissioner upon their name being called but by a veteran player from their new team. However, many veteran players have taken the position that these specific players should make far less than they have. In truth, neither the NFL nor the veteran leadership of the NFLPA have been a friend to incoming top picks. Their best friends have been the teams taking them, paying them outrageous sums sometimes at the expense of paying veteran players.
Beyond all of this, the April 6th hearing on whether the lockout should be lifted may be decided by that time. If the preliminary injunction to block the lockout is lifted, perhaps there is a different dynamic. Ther is a lot left to play out on this issue.
Stay tuned here for that and all other parts of this brave new world.
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