Did the NFLPA overplay its hand?

I really don’t care which side “wins” this battle between the NFL owners and the players. Both sides have a ridiculous amount of cash-flow to split, and it’s tough to understand that in these difficult times that they can’t play nice and come to an agreement.

Also, the owners started the fight and got smacked down by a federal judge for improperly negotiating to receive $4 billion in income from television networks even if a work stoppage canceled games in the 2011 season. They were looking for an edge, and they got caught.

With this backdrop, the owners moved considerably with the offer they put on the table last week in an attempt to keep the negotiations going. They backed off the 18-game schedule, and moved a great deal on many of the financial terms. Sure, it was a last-minute offer, and they only made it after losing the court decision, but it deserved serious consideration by the NFLPA. They should have presented it to their players. The NFL was willing to go with another short-term extension of the bargaining session.

Instead, the union responded by demanding 10 years of audited financial statements from the teams. Anyone who knows anything about business will tell you that there’s no way the owners would ever give this much financial information, and this suggests that the NFLPA had predetermined to go to court and try to gain leverage rather than agreeing to a deal. If they were serious about negotiating, they could have insisted on more financial information without demanding 10 years of audited statements.

It was a high-risk strategy, and it suggests that the lawyers for the NFLPA, along with DeMaurice Smith, had hijacked the process on behalf of the players. I suspect that many players were dumbfounded when they heard the last offer from the owners and that the union had still decided to decertify instead of continuing to negotiate.

Now we have the response from the attorneys for the NFL in the lawsuit filed by the players, and it takes direct aim and the decertification decision, arguing that this was simply a “bargaining tactic” by the NFLPA. After listing numerous examples of players and union officials acknowledging that this was a tactic to be used to gain leverage as opposed to a serious and permanent move, the NFL put forward this argument:

In light of the mountain of evidence demonstrating that the NFLPA had long been planning a tactical disclaimer, not one that is unequivocal and in good faith, the NFL filed a charge with the NLRB on February 14, 2011, asserting that the NFLPA had violated its statutory obligation imposed by the National Labor Relations Act (“NLRA”) to bargain in good faith. (Ex. K.) The NFL has amended the charge to assert that the Union’s purported “disclaimer” is invalid because it violates the NLRA. (Ex. L.) Proceedings before the Board are ongoing.

Basically, the NFL is arguing that this move by the NFLPA is a sham, and that the court has no jurisdiction here while this is being argued before the National Labor Relations Board. I’m not an expert in labor law, but as a lawyer I was impressed by the arguments put forward by the NFL in their brief. The idea that the union could flip a switch and go from collective bargaining to claiming anti-trust violations for items that had been bargained in the past simply by decertifying seems grossly unfair.

Now John Clayton is reporting that the NFLPA recently reached out to the NFL to resume negotiations, but that everything is complicated by the fact that the union has decertified.

During the weekend, NFL players — now under the direction of a trade association — reached out to NFL owners and negotiators and extended an invitation to get back to the table to try to pound out a collective bargaining agreement. DeMaurice Smith, who used to have the title of executive director of the NFL Players Association, went even further Monday, sending a letter to Gregg Levy, one of the lead attorneys for the NFL.

Talks could resume as early as next Monday, and it wouldn’t be out of the question for a deal to be struck within five days of the start of meetings.

But the NFL, according to NFL sources, will meet with the trade association executive board only if the board says it’s a union bargaining for its players.

The player representatives never would have offered to resume negotiations had they not gotten an earful from various players. Also, the union is in a real bind if they lose in court, and the NFL seems to have a strong argument regarding the decertification ploy. Also, this move to negotiate also supports the NFL argument that the entire decertification scenario was a sham.

The best result for everyone involved, including the fans, may be the court siding with the owners in the next round. The sooner they get this out of the hands of the lawyers, the sooner this dispute will be resolved.

Photo by Bill Moore

Follow the Scores Report editors on Twitter @clevelandteams and @bullzeyedotcom.

Related Posts