Tuesday, November 16, 2010

How DeMaurice Smith Can Wreck Havoc on the NFL and House GOPers and the Washington Media


By Evan Weiner

National Football League fans probably aren’t paying too much attention to what might happen once the Super Bowl rolls around. Some teams and their fans are gearing up for a December playoff run but in Washington, DeMaurice Smith is plotting strategy as National Football League owners and officials of the National Football League Players Association are about ready to face off in a much bigger game than the Super Bowl.

The league’s collective bargaining agreement with the players nearly ends after the NFL Pro Bowl in Hawaii in February. The old CBA expires on March 3 but the real lockout for NFL customers and fans, if the owners and players don’t reach an agreement, could start in April with no mini camps and by July, there could be no training camps, It is unclear whether the league can even conduct a draft if there is no CBA in place.

The dispute is all about money. NFL players take about 59 percent of league-generated revenues and the NFL want to scale that back to 41 percent.

If there is a lockout, NFL players and perhaps NFL retired players will be impacted as the owners do not intend to fund the NFL pension plan or pay for life insurance. The league no longer has to put money aside for that under the terms of the expiring labor agreement. The league will use that money for an owners lockout fund.

Present and former players need to find out how the defunding of those programs will impact their lives.

DeMaurice Smith, the political operative who served on President Barack Obama’s transitional committee, could spring into action and shake up not only the football industry, but members of Congress and the zombie Washington, DC/national media by going on a public relations tour which should include the most unlikely of places.

A visit to that noted football fan’s radio show, Rush Limbaugh and other carnival barkers.

Smith should bring with him a number of discarded football players who are suffering from brain damage or other physical ailments and start talking about the loss of benefits for these players and what happens if the NFL players actually lose their health benefits in the course of the lockout. He should also talk about the number of players in assisted living facilities and who might be paying for their care.

Smith, the political insider, should appear before the GOP controlled House of Representatives and tell presumed House leader John Boehner of Ohio and Virginia’s Eric Cantor that you figure out what to do with my players if they lose their health benefits. After all, Smith should say, you want to repeal the new health care law and one of the provisions you would eliminate is that insurance companies could say no to my clients because of pre-existing conditions and all players have pre-existing conditions.

Who will pay for their care?

Smith would put a face to all of those with pre-existing conditions and put Congressmen Boehner, Cantor and all the others who want to repeal the health care law in a box. He would also force the Washington media, most of whom are probably planning the 2011 White House Correspondence Dinner, to examine the health care issue in a different light because the gladiators of Sunday—the players of the most popular sport in America---would been seen as advocates for health care as they do have pre-existing conditions.

The only people reporting on discarded football players come from the sports media at this point.

The Washington media would have to report on something other than polls and conservative right wing talk show hosts like Limbaugh, who have to actually face someone who is more articulate than they are, will be forced to have an honest, two-way conversation about health care. Smith should also hit the so-called cable TV news channels including FOX and MSNBC and get into a real dialogue instead of the usual in your face food fights that passes for news in these environments. He should appear on the Sunday talk shows and the network morning fares. He should engage in a full media blitz and take with him the “discarded” players.

More than a handful of former players are collecting social security and using Medicare assistance to take care of their health needs because the NFL is not paying for medical insurance down the road for former players. Smith needs to point this out to Boehner, Cantor, Kentucky Senator Mitch McConnell and all the other members of the Senate and the House. It is a story that needs to be told and probably explained to the football crazy Washington insiders who appear at Washington Redskins home games because that is a place to be seen.

Smith should start his tour during the NFL playoffs. If Smith reached out to the retired and discarded players, they would jump on the opportunity to educate the Boeheners, Cantors, McConnells and the Washington media on issues that effect “real Americans” like the ones politicians always talk about and the media always reports on.

Smith can use some political leverage too. Elections have consequences that are often not reported by national or local media. With Barack Obama’s election in 2008, the National Labor Relations Board changed and because there is a Democrat in the White House, there is a good chance that Smith can eventually use the National Labor Relations Board to his advantage.

Democrats are seen as pro workers while Republicans are seen as pro business and the NLRB reflects that.

Smith might decide that the National Football League Players Association should decertify—although he runs the risk that another group of players might want to form a new association----and file a complaint with the NRLB about the negotiations and see whether or not the NFL owners are engaging in fair collective bargaining negotiations.

During the Bill Clinton presidency, the Major League Baseball Players Associations appealed to the National Labor Relations Board in 1995. The baseball players filed for injunctive relief under Section 10(j) of the National Labor Relations Act. Under the provisions of Section 10(j), the players sought a ruling from the National Labor Relations Board for injunctive relief and so they could go to a federal district court and ask for an injunction if a party is found to be negotiating in bad faith to preserve the status quo.

The Major League Baseball Players Association got the NLRB to agree with them and the case ended up in the courtroom of the youngest justice sitting on the bench of the Southern District of New York. A judge by the name of Sonia Sotomayer was assigned the case.

The 40-year-old Judge Sonia Sotomayer on a cold spring day in a packed courtroom at Foley Square in lower Manhattan back on March 30, 1995 issued an injunction against the owners and restored free agency and arbitration and ruled that the owners negotiated in bad faith.

One of those Major League Baseball owners was George W. Bush. Sotomayer eventually was nominated to the United States Supreme Court by Barack Obama in 2009 and was confirmed by the Senate.

In 2004, Judge Sotomayer upheld the NFL’s college draft rule that requires a player to serve three years in a college football program before being eligible for the league’s draft.

In 2008, the minor-league Central Hockey League asked for injunctive relief under the Section 10(j) provision of the National Labor Relations Act in a dispute between Central Hockey League owners and CHL players. The CHL strike ended two days after the request on October 5. The players went back to work. It was the only time during the Bush years that a sports players association looked to the NRLB for help.

Whether the Obama NRLB would take up Smith’s case, if an action was filed, is not known. But, during the Bush’ years between 2001 and 2009 there was only one “major league” sport job action. The National Hockey League owners locked out the NHL players in 2004-05 but the National Hockey League Players Association never sough out the National Labor Relations Board, possibly because the leadership knew that Bush’s NLRB was going to be less friendly to them than Clinton’s NLRB.

Smith and the players are in a high stakes negotiation that is filled with politics. Smith is taking on 31 of the most powerful people in the world (Green Bay is community owned) with powerful political connections. Jets owner Woody Johnson is a major Republican fundraiser as is San Diego’s Alex Spanos. The guys on the other side of the table generally get their way and have powerful allies. Smith also has some leverage and if he was smart would use it for to his advantage on behalf of his players and education the “American people” and the Washington media on contract negotiations, health care and political leverage.

Evan Weiner, the winner of the United States Sports Academy's 2010 Ronald Reagan Media Award, is an author, radio-TV commentator and speaker on "The Politics of Sports Business." His book, "The Business and Politics of Sports, Second Edition is available at www.bickley.com or amazonkindle. He can be reached at evanjweiner@yahoo.com

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