by Andrew Brandt
March 01, 02011
The ruling by Judge David Doty tonight against the NFL provides the NFLPA a leverage shift they have been looking for in their negotiations towards a new CBA. While the NFLPA celebrates this triumph, it is important to not gloat and focus on the end game: finding common ground with the NFL towards an agreement.
To review, the NFL negotiated television contracts in recent years that provided payment to the league in spite of games lost due to a 2011 lockout. Although all of these contracts – except for that of DirecTV – have setoffs in future years against payments made in a locked-out 2011, the money served as leverage for the owners to have a $4 billion war chest in the event of a work stoppage.
The NFLPA argued that the NFL breached its duty to its major partner – the players – to exploit revenues in its broadcast contracts. The NFL, the union argued, chose to negotiate “lockout insurance” at the expense of getting the most possible revenue from the deals, revenue shared by the players. After an earlier ruling allowed the NFL access to those funds, tonight’s ruling reversed that decision. The next step will be a hearing to determine the remedy to the players: financial damages (that will add to the NFLPA’s war chest) and/or an injunction preventing the NFL entry into that vault of money during a lockout.
Both sides have acted predictably to news of the ruling. The NFLPA is celebrating a victory towards shifting the leverage from an NFL ownership that they feel has stonewalled them in bargaining. The union has also declared victory in their assertion that the NFL has been in lockout preparations for years.
The NFL will naturally appeal, as they will take their chances at the appellate level. The league has also stated that negotiations would proceed with no variation: “Today’s ruling will have no effect on our efforts to negotiate a new, balanced labor agreement.”
Doty the players’ best friend
The NFL cannot be rid of Judge Doty’s oversight of the CBA fast enough. Having governed the CBA since its inception with the Reggie White settlement in 1993, Doty has been extremely player-friendly in his rulings. Doty’s ruling against the Atlanta Falcons last year that Michael Vick could keep his $20 million bonus despite his dog fighting activities was especially galling to management. The wrath of Doty persists.
The NFL would dearly like to end Doty’s involvement in its matters, whether through agreement with the union or by letting the CBA expire Friday towards a new method of oversight.
We will see.
Where are we now?
I have always chosen not to believe the doom and gloom about an inevitable work stoppage, knowing that this long-running drama is simply a negotiation: nothing more and nothing less. As with any negotiation, no side will show its hand until it absolutely has to. Will this decision force the NFL to show its hand sooner or with more transparency? We will know soon.
This negotiation still comes down to Thursday in Washington with two meetings only miles apart from each other. There has been lots of talk, posturing and preening over the last two years of sporadic and inconsistent negotiations. Now it is time for each side to put a stake in the ground.
ICONGoodell must make tough decisions.
The NFLPA threat
Will DeMaurice Smith stand up in front of his union leadership and look them in the eye with confidence about the legal strategy of Decertification? Smith has sold himself since his election as Executive Director on his years of legal experience and connections on Capitol Hill. Can he say with confidence to his membership that his strategy – seen as innovative by Gene Upshaw twenty years but perhaps seen as simply tactical now – will work? What if the NLRB rules their decertification to be a sham? What if the NFL locks them out anyway and Smith can’t achieve an injunction?
The NFL threat
Will Roger Goodell stand up in front of his membership and look them in the eye with confidence about a lockout? Goodell has been empowered by ownership to do what is necessary to forge a new economic system in the NFL. Will 24 owners agree to shut down the business of football to do so? What about all the coaches and football operations personnel around the league taking reduced pay and furloughs? What if the union is able to decertify and enjoin the lockout? What if antitrust lawsuits start flying from players? Is the league prepared to shut down the sport?
The talk in the last two years about these options is one thing; jumping in head first is another.
The two options above are only on the table if the sides do not come to a deal. While few have had hope, I still think there are moves to be made towards that end, even at this late hour. The fact that negotiations under the watchful eye of the mediator continue is encouraging, meaning that the two sides did not entrench themselves further apart over the weekend break.
Hope still floats, nudged along a bit by today’s ruling.
More to come…
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