Tuesday, April 5, 2011

NFL's big game against the players starts this week in Minneapolis
TUESDAY, 05 APRIL 2011 11:46

Portions of this column are by Evan Weiner and Heather Rascher from ''A Business History of Professional Football,'' unpublished manuscript (2005).

The biggest game on the NFL season starts on April 6 when National Football League owners and the remnants of the now defunct National Football League Players Association face off in a Minneapolis courtroom. In a script that looks like a sequel to the days after the National Football League Players Association imploded in October 1987 when the NFLPA decided to sue NFL owners for free agency, the NFLPA is back in a Minneapolis courthouse and suing NFL owners. Ten players, including one college player who was not even a part of the defunct NFLPA, Von Miller, are suing the league in an antitrust action hoping the court will lift the owners lockout.
Miller's name is on the suit but he is planning to attend the National Football League Draft, an act that restrictions the freedom of college players in finding jobs. The only reason the draft is legal is through collective bargaining. The owners and players have agreed to a draft. Miller plans to be in the courtroom while New Orleans quarterback Drew Brees, one of the 10 plaintiffs, will not attend the opening day festivities. Brees will be at a golf fundraiser.
Brees last week was sounded a conciliatory note to retired and discarded players after being blasted by Sam Huff for criticizing former players who are down and out because of football related injuries. Brees apparently learned well from the late Gene Upshaw (who was the NFLPA Executive Director) who once said that the association could not worry about every problem. While the NFL and the NFLPA duke it out in Minneapolis, the former NFLPA may be involved in another action as former New Orleans and Miami defensive back Gene Atkins is suing the NFL's retirement board after being denied additional health benefits by the group which included the late Dave Duerson. The former defensive back, Duerson, was on the board which said no to Atkins football degenerative claim in 2006. Duerson's suicide in February 2011 raises questions according to the brief filed about Duerson's competence in light of statements that came out after the suicide that he had memory loss and difficulties spelling words.
The NFL and the NFLPA have had more than a half century of issues.
The NFLPA formed in 1956 with help from Creighton Miller, the first General Manager of the Cleveland Browns. Unhappy players in Cleveland and Green Bay assembled a network of "player reps" on each team. The players included Don Shula (Colts), Frank Gifford (Giants), and Norm Van Brocklin (Rams) to represent their teams. The Chicago Bears players did not have a representative. The players first meeting was held in New York in the fall of 1956, after the owners ignored the players' attempts to discuss their requests. The players asked for minimum salaries of $5,000 per season, injury pay, uniform per diems, and for teams to supply their own equipment.
Nothing happened but the players got a big break in 1957 when, the first lawsuit involving professional football and antitrust was filed, Radovich v. NFL, which significantly altered player rights within the league. The case involved a player/coach, George Radovich, who sued the league because the NFL effectively prevented him from attaining employment in the NFL or affiliated leagues, such as the Pacific Coast League, which was in existence at the time. The case was dismissed on the grounds that the NFL was exempted from the antitrust laws, and was appealed to the Supreme Court, which reversed the decision of the trial court, holding professional football subject to the antitrust laws.
The Supreme Court decision changed life for NFL owners. The players could now sue the league on antitrust grounds which they threatened to do. The owners and players settled with the players receiving minimum salaries of $5,000, $50 payment for preseason games, medical coverage for injuries, and a pension.
But the players didn't get what they agreed to and spend the 1958 season chasing the owners to live up to the agreement. The deal was finally signed in 1959.
The players did catch another break when Lamar Hunt started the American Football league and for some college players, they were able to play the NFL off against the AFL in getting some leverage for their initial contract. The AFL-NFL war over established players began in earnest when Pete Gogolak, a kicker on the Buffalo Bills signed a deal with the New York Giants in 1966. What was good for Gogolak and two NFL quarterbacks John Brodie and Roman Gabriel along with Mike Ditka who were been pursued by AFL Commissioner Al Davis to sign with his league was not good for the owners of either league. Brodie, Gabriel and Ditka got raises from their NFL teams. The AFL and NFL announced their intent to merge on June 8, 1966.
The National Football League Players Association wanted to fight the merger but didn't have the funding to do so.
The NFLPA has always been weak and the owners have always known that. The two leagues may have merged, but the player associations did not, as the players on the 16 NFL teams were NFLPA members and the players on the 10 AFL teams were American Football League Players Association members. This caused a major problem in subsequent negotiations as the NFLPA would come to a tentative agreement with the owners on certain collective bargaining issues (such as minimum salaries, retirement age) then the owners would bargain with the AFLPA, who accepted lower terms, which wasn't good for NFLPA members.
There was a brief lockout and a 20-day strike in 1970 that ended just before the 1970 All Star game and which did not result in the cancellation of regular or post-season games, the NFL and NFLPA signed a four-year contract, the first collective bargaining agreement in the history of the NFL, which raised player salary minimums to $12,500 for rookies and $13,000 for veterans, added dental insurance, improved the pension, gave players the right to have agents, gave players representation on the Retirement Board, and provided for impartial arbitration of injury grievances.
(Retired players from that era are still battling the NFL and the NFLPA and the retirement board over injury grievances and the complaining have caught the attention of Congress)
In 1974, the previous CBA was coming to an end. Players were demanding the elimination of the Rozelle Rule and the option clause which kept a player tied to his team in perpetuity unless another team was willing to give up number one draft picks or players to sign a free agent among other things. On July 1, the players went on strike, and were prepared to sit out until a new bargaining agreement was hammered out. The sit-out led to the cancellation of the New York Jets game at New Haven, the first game ever canceled due to a labor impasse. However, by the early part of August, about a quarter of the NFLPA crossed the picket lines, breaking down union solidarity. On August 11, Garvey sent his players back to work after a federal mediator suggested a 14-day cooling off period, instead pursuing the issue through the John Mackey case. The 42-day strike ended that day with nothing gained.
The NFLPA won the Mackey vs. NFL antitrust lawsuit in 1977, but players received only limited free agency with compensation under a new CBA.
On September 21, 1982, NFL players went on strike. It was the longest strike in professional sports in the U.S. at the time and lasted until November 17. The owners responded by locking the players out at the commencement of the strike. During the strike, only 126 of the 224 scheduled regular-season games were played, forcing the league to change the format of post-season play to include 16 teams instead of the usual 10 teams. The players held two "All-Star" games to raise some funding for players without a paycheck. The players got more money but two goals were not met, a form of free agency and more pension money.

The owners were not going to let that happen in 1987.
The players decided to strike after the second week of the season and the NFL reverted to its 1974 tactic of bringing in rookies and free agents and play replacement games. The league canceled the third week's schedule and resumed with the week four match ups.
In 2000, Hollywood made a movie about the 1987 strike called "Replacements," which was based on the Washington Redskins.
Some teams scouted the best available talent and tried to put together a strong replacement team. Other teams took chunks of local semipro teams, like the New York Giants, and hoped for the best. Others like Philadelphia Eagles Coach Buddy Ryan didn't take the replacement games too seriously and wanted for the players to return.
Like in 1974, veterans crossed the picket lines and by October 25, the NFL was able to claim victory. The players reverted to their old standby; plan B that was court action and that set off years of litigation.
"It was a great time and a lot of fun," said Charley Casserly who was part of the Redskins front office at that time. "Really, the interesting thing was we put together a time, the whole organization and Joe Gibbs did a great job coaching them. Nobody crossed the picket line and we beat two teams, St. Louis and Dallas on that climatic Monday Night that had about 10-12 players cross the picket line. The Dallas team had (Tony) Dorsett, Randy White, Danny White, Too Tall Jones. It was quite a time."
The NFL teams who did compete for players for Schramm's replacement league look anyway for players. Casserly found four players in a Richmond, Virginia halfway house who were playing for a minor league team including Tony Robinson who was the quarterback of the replacement team that beat Dallas.
"We did have a little philosophy on it," Casserly continued. "We wanted players that knew the system. We had to put together a team in 10 days to go play a game. Football unlike all other sports is really a team sport. So we wanted guys who knew the Joe Gibbs system. So we started with players who had been in our camp that year and been in our camp the year before and had been in camps with the Gibbs/(Don) Coryell system. We got players from everywhere.
"Obviously NFL cuts, but we got players from Canada, players who were cut in Canada. We wanted players in camp who were healthy and ready to go."
The players crumbled quickly in 1987 but years later Dave Jennings, who was a New York Jets punter at the time, thinks the showdown with the owners was worth it.
"The players were not that interested in a long term strike, they were looking at the next paycheck," said Jennings. "It's tough to get players to strike and stay together. In 1987, it was a shorter strike and we had the court cases working and eventually it worked out for us.
"We got nothing from the 1987 strike, we didn't get anything directly, but indirectly we got free agency and you see what happened. Free agency works."
The players did not get much though in post career benefits. They got their "Money Now" and didn't worry about the long term affect that football would have on their health.
After the conclusion of the 1987 players’ strike, the NFLPA filed an antitrust suit against the owners on October 15, 1987, seeking an injunction against the continuation of the NFL’s player reservation system, and asking for free agency. In (Marvin) Powell (v NFL), filed in the same jurisdiction that heard the Mackey case a decade earlier, the NFLPA claimed that, absent a new agreement, the NFL could not rely upon any “labor exemption” to immunize its player choice and movement restrictions from antitrust laws. Essentially the case considered whether the non statutory labor exemption would continue to protect the RFR system after the expiration of the CBA, and for how long the protection would be extended. In the first phase of the Powell I trial, the NFL argued for exemption based on the theory that the RFR system was entitled to absolute immunity as the subject of mandatory bargaining affecting only parties to the employment relationship. Additionally, the league conversely argued that the survival doctrine, which suggested that the non statutory labor exemption in effect during the term of a CBA survives the expiration of such CBA providing that the conduct at issue was protected during the term of the agreement, protecting the system from antitrust laws indefinitely following the expiration of the CBA.
The absolute immunity theory was rejected by the District Court of Minnesota, which spent more time focusing on the survival doctrine theory, using the Mackey test to determine whether the 1982 CBA qualified for the non statutory labor exemption. Despite the claims of the players that the 1982 CBA was not the product of arm’s length bargaining, the court found that the contrary to be true, and considered whether the CBA then “survived” its expiration due to the fact that it was reached through collective, arm’s length bargaining. The court determined that the CBA would in fact survive the exemption, but still had to determine the length of time such an exemption remains effective.
In January 1988, the district court ruled that the exemption survives the expiration of a CBA, but terminates when the employer and the union reach a bargaining impasse on an issue. Judge David Doty’s decision analyzed the positions of the parties and rejected both arguments, ruling that the “labor exemption related to a mandatory bargaining subject survived expiration of the collective bargaining agreement until the parties reach impasse as to that issue.” Doty indicated an unwillingness to apply the non statutory exemption fully, and ruled that he would not extend “blanket protection to union-employer agreements merely because the challenged activity arises within the context of mandatory collective bargaining.” The decision ultimately favored the owners, allowing them to implement new or different employment terms reasonably contemplated within the scope of the parties’ bargaining history. In Powell I, however, the court could not determine whether the parties had in fact reached an impasse, as it was awaiting an NLRB ruling on NFL charges that the players’ union was not bargaining in good faith.
The NLRB ruled in April 1988, dismissing the owner’s charges of bad faith bargaining, and finding the NFLPA was not required to continue to meet and bargain with the NFL because the parties had reached an impasse in negotiations. In June of 1988, after hearing the motions, the court rendered its decision that the parties had in fact reached an impasse over the free agency issue and that the system of restraints on player movement was now subject to antitrust laws.
The NFLPA decertified in 1989. It no longer represented NFL players and would never do so in the future. (The 2011 NFL complaint to the National Labor Relations Board pointed out that the present NFLPA had decertification as a tool in their toolkit and planned to use it all along in bargaining with the owners and would blow up collective bargaining talks and run to court.)
The players sought an injunction against the use of the RFR system in Powell II, and the owner’s contested the injunction and the court’s earlier ruling. The court ruled that the non statutory labor exemption no longer protected the RFR system from antitrust review, but agreed with the owners that it had no legal authority by which to grant an injunction. Thus the first two phases of Powell set the stage for Powell III, to determine whether the RFR system did in fact violate antitrust laws.
In the final phase of Powell, the NFL filed an interlocutory appeal in the 8th Circuit seeking an order reviving the exemption, reiterating its earlier argument that the labor law should prevail. The players argued that an agreement with the League would in essence overturn the court’s earlier decision in Mackey. The court determined that both parties have a continuing obligation to bargain with one another in furtherance of the collective bargaining process and to maintain a peaceful labor relationship. Further, upon impasse, the courts ruled that the League may exercise its discretion in implementing new or different employment terms within the scope of the parties’ pre-impasse proposals. Finally, the court disagreed with the ruling in Powell II, and ruled to allow the players to unilaterally generate an impasse in order to subvert the non statutory labor exemption and to pursue an antitrust suit for damages. The court then determined that the exemption would survive until a collective bargaining relationship no longer existed, forcing the players back into a bargaining process in which they historically operated at a disadvantage. The court instead suggested that the players resolve a dispute by 1) collective bargaining, 2) using economic force, or 3) reporting their claims to the NLRB.
The NFL appealed and Doty’s finding was overruled. In November 1989, the Appeals court reversed the earlier court’s ruling stating that as long as the players had a union that they could not sue under the antitrust laws (according to rulings involving the dual approach of collective bargaining and antitrust laws). The 8th Circuit Court of Appeals found that, since bargaining was continuing, the labor exemption was still in effect, and overturned Doty’s view and found the restraints in Powell were “exempted from antitrust scrutiny as the exemption survived impasse.” The court ruled that these practices remained within the non statutory labor exemption as long as the NFL and NFLPA maintained an “ongoing collective bargaining relationship”, and that the players could not pursue antitrust claims during collective bargaining. A federal jury subsequently awarded damages and unrestricted free agency to four plaintiffs. Thus, in the aftermath of Powell, the NFLPA decertified, and challenged the NFL’s restraints on antitrust grounds, setting the stage for further litigation.
In 1988, the Washington Redskins signed Wilbur Marshall, paying a steep price ($6 million for 5 years) for his contract, and having to give up their first-round draft choices in 1988 and 1999 as compensation to the Chicago Bears — a penalty that discouraged future deals. In effect, the player’s old team maintains the right of first refusal whereby it can match any offer made to the player by another club, and any team which ultimately signs the player must compensate the old team with draft choices, costing teams at least two first round draft choices to sign most top level free agents, such as what occurred with Wilbur Marshall.
McNeil v. National Football League with Freeman McNeil of Jets as lead plaintiff, involved free agency and related antitrust claims. Prior to the trial in June 1992, the parties filed a number of pretrial motions, the most important of which was the players’ motion for partial summary judgment to strike the owners’ labor exemption defense. The players argued that because the union had officially been decertified, the non statutory labor exemption no longer barred an antitrust challenge to Plan B, thus allowing the jury to consider the case under the Sherman Act. Further, the players’ argued that by abandoning the union they had been placed at a significant bargaining disadvantage, as the owners had used the player association’s non-union status to strip the players of insurance benefits and to extend the playing season. In its defense, the NFL relied on competitive balance arguments saying that the restrictions on free agency were necessary. The League also claimed that the NFLPA continued to function as the official bargaining representative for the players despite decertification, and, regardless of the union’s status as certified or decertified, the non statutory labor exemption still remained in effect.
In the Powell case, the court provided no guidance as to a specific time or event that would eliminate the exemption, and that the court rejected the owners’ contention that the exemption should extend indefinitely. Moreover, the court rejected the owner’s claims that the NFLPA and the players’ union separation via decertification was not valid considering that the NLRB did not decertify the NFLPA. Both parties moved for summary judgment on several fronts. The NFL denied that it could act as a monopoly and violate the Sherman Act, as it was simply a conglomeration of co-owners that were engaged in the common business of producing and marketing professional football for entertainment; the court rejected this claim. Moreover, the NFL claimed that Plan B did not violate antitrust laws, and even if it did the players were not entitled to any damages. The court denied the owners’ motion, holding the owners liable for “antitrust damages from the date the collective bargaining relationship between the union and the league was terminated, but agreeing with the owners that the League was not itself a monopoly. The court did, however, deny the players’ motion for summary judgment concerning the application of the per se rule.

The sides even argued over the jury selection, which was comprised of eight women, none of whom watched professional football. The NFL realized that the odds were not in their favor, and continued to try to convince the jury that under Plan B all parties flourished and that unrestricted free agency would financially ruin many teams in the league. In September 1992, the jury verdict in the McNeil case found that the NFL owners’ restrictions in Plan B were unreasonable restraints of trade in violation of the Sherman Act. The jury also ruled that Plan B resulted in many players being under compensated, and that competitive balance could be preserved with a more liberal system. The jury awarded damages to four of the eight plaintiffs (not McNeil) totaling $543,000 (which was trebled to $1.63 million as per antitrust laws). While damages to the players were minimal, the case opened the door for free agency in football. However, total free agency was not approved by the courts, which ruled that some restrictions were necessary to maintain competitive balance.
The jury’s verdict effectively destroyed Plan B, sending the parties back to the bargaining table. Settlement talks began because both sides had leverage and something to lose. Both sides were victorious, in that the players were freed from Plan B, but did not get unrestricted free agency. The NFL had a few choices: implement another plan that was sufficiently different than Plan B (because only Plan B was enjoined), or it could hope for a reversal on appeal of the McNeil case and continue with Plan B.
Although both parties returned to the bargaining table, they were soon engaged in further legal disputes involving the noncompetitive effects of the League on its players. Aware that it would take time for the McNeil ruling to take effect, the players involved in the dispute remained unsigned at the time of the verdict (September 1992). These players subsequently filed suit, Jackson v. NFL, attempting to be freed from operating under the Plan B system and seeking damages for financial injuries suffered due to the restrictive nature of the system. The case was lead by Keith Jackson of the Philadelphia Eagles, and the remaining nine players involved in the suit included D.J. Dozier, Thomas Everett, Louis Lipps, Stephone Paige, Joseph Phillips, Webster Slaughter, Natu Tuatagoloa, Garin Veris, and Leon White. Before the court could rule on the case, six of the ten players were either released or traded, leaving only four players restricted by Plan B. The court allowed the players five days to sign contracts with other clubs, all of which did, and, because there were no other players that were unsigned or were restricted by Plan B. As such, the case was dismissed by Judge Doty, and left the league with the sense that the courts were now behind the players.
Following the McNeil verdict, a new antitrust lawsuit was filed on behalf of all NFL players – White v. NFL challenging the continued implementation of these or similar unreasonable restraints on competition for player services. The White case was lead by Reggie White, a tight end for the Philadelphia Eagles, who filed the case on behalf of himself and any other player who would play or played in the NFL. The case sought to permanently enjoin the future enforcement of Plan B or any other system, the draft, preseason pay, and the NFL owners’ refusal of negotiating individual benefit packages. In January 1993, the NFL owners agreed to a global settlement of the White class action and other player suits, which granted NFL players, for the first time, the opportunity to be unrestricted free agents, with substantial increases in compensation in a now competitive market. These settlements resulted in payments of $195 million in damages. In exchange for these substantial benefits, the NFL players’ class agreed to a salary cap system.
There was a poison pill in the settlement that kept labor peace for 18 years.
The owners had a salary cap and the players would become free agents after four years of work instead of six seasons. The final year of the collective bargaining agreement, if either side pulled out of the pact, would see players free agency start at six years while the owners would cede the salary cap. That clause was important because neither side wanted to give up a significant piece of leverage as the most players never even get to four years service and the owners could control players costs.
The owners blew up the contract in May 2008 after a number of extensions. The owners no longer wanted to share nearly 60 percent of the industry's revenues with the players.
The post 1993 era players would enjoy far better post career pension and health benefits than those who were in the league before the 1993 season if they got vested. But former players are not getting too much help from the NFL and the NFLPA (or whatever form that the association is claiming today — this was a group who swore in the 1990s that it would never again represent NFL players and yet reformed) — Are all NFL players going to get real post retirement health benefits and if a player is physically disabled because of an injury or injuries suffered on the field, will the players association take care of medical bills or will the disability board turn down the former player forcing that player to seek government programs to pay for medical bills when the owners and players finally get a new agreement--which will happen eventually.
Will the NFL retirement and disability board take care of them? In the case of Johnny Unitas and many other players, they answer was no. Apparently players had a choice, retirement benefits or disability benefits. In Unitas' case, the retirement checks stopped when he took disability payments.
What happens if an NFL career lasts just a year before benefits really kick in? Who takes care of that player if in that one year of NFL play something happens that won't kick up until years after the career is done but can be traced back to football?
Will the United States Government be responsible for football related injuries? The answer to that question is yes and it doesn't matter if you are for health care or against it or you want social security or are looking to gut the system. That's why Congress is taking a closer look at the violent world of football.
One former player is claiming that owners don't want to pay medical and disability payments to former players and that the players association has gone along with the owners and not helped disabled players.
Another question. Is the Department of Labor's assertion that the NFL Retirement and Disability Board paying more attention to hiring lawyers and spending money there instead on former players with disabilities true?
The players should be looking into that.
The National Football League Players Association has put out some information saying it has spent $13 million or so to help out disabled players. A little while ago, the former Interim Director of the NFLPA Richard Berthelsen who was the association's general counsel for years took issue with the comment that the former Executive Director, the late Gene Upshaw, did very little to help out former players like John Mackey in times of need. Berthelsen said nobody did more for Mackey than Upshaw. The league and the players have a program, Plan 88 (Mackey's old number with the Baltimore Colts) that was added to the Collective Bargaining Agreement in 2007 providing eligible retired players with up to $88,000 per year for medical and custodial care resulting from dementia or Alzheimer's.

Mackey, the former President of the National Football League Players Association, is suffering from front temporal dementia. The NFL Players Association initially refused to pay a disability income due because some doctors have concluded there is no proven link between brain injury and playing football.
The battle between former players and the football industry over whether playing football causes brain injuries continues.
The "Big Game" in Minneapolis is just a part of the clash between owners, players and retired players in the major ongoing football battles.
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 bickley.com, Barnes and Noble or amazonkindle.

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