BETHESDA, Md. – Back in March of 2009, when he was elected to succeed the late Gene Upshaw as the NFL Players Association's executive director, DeMaurice Smith considered himself the ultimate union man.
Two years later, when Smith announced that the NFLPA would decertify and become a trade association after negotiations with league owners on a new collective bargaining agreement broke down, most people assumed that this was a temporary tactical maneuver designed to allow players to seek leverage through the legal system. The NFL has enunciated this argument in a complaint with the National Labor Relations Board, charging that the NFLPA's move to decertify and become a trade association was a sham.
Smith, however, insists that he has embraced decertification as an enduring state of existence, much in the same way that Upshaw did in the early '90s before – at the NFL's insistence – he agreed to re-form the union. In an interview with Y! Sports earlier this month, Smith revealed that he envisions navigating the NFLPA through a union-free future, even after a possible settlement of the Brady et al antitrust lawsuit and a new contractual agreement between players and owners.
"I've come full circle," Smith said as he sat in a downtown Bethesda plaza, a few miles from the NFLPA's Washington D.C. headquarters, on a sunny spring morning. "When I went into this, my attitude was that the only way you have power is collectively, and I believed in unions as vehicles for employees asserting their rights. But looking back on what Gene experienced and understanding this particular situation, I've now come to appreciate the value of decertification in our particular circumstance. And I don't see why we'd want to go back to being a union."
If Smith's comments seem shocking, consider that he is touching upon a pressure point that dates back more than 20 years. Certainly, the owners would strongly resist any post-settlement arrangement in which the players weren't unionized, just as they did in 1990, when the league sued the NFLPA to try to force it to represent the players in labor negotiations.
Absent a union, players would be free to assert their legal rights under the Sherman Antitrust Act, and accepted institutions such as the NFL draft and rules governing free agency would be vulnerable to courtroom challenges. It's also possible that a non-unionized workforce could gain legal protection from a lockout, as the players did in April in successfully obtaining an injunction from U.S. District Court Judge Susan Nelson.
Only with maximum leverage could the players attempt to force the owners to accept such a post-union reality. For example, if the Eighth Circuit fails to overturn Nelson's order (which it stayed pending appeal) in a June 3 appellate hearing initiated by the owners, the players could return to work while seemingly headed toward a decisive victory in the Brady et al antitrust suit – and would likely be emboldened to resist any efforts to recertify.
This is precisely where Upshaw found himself 22 years ago when, after a failed players strike two years earlier, he filed decertification papers with the U.S. Department of Labor and set in motion a series of antitrust lawsuits which led to the historic 1993 collective bargaining agreement ushering in the modern era of unrestricted free agency. The CBA was technically a settlement of the pending litigation, and Upshaw had no desire to re-unionize, believing the players' antitrust protections could eventually be eroded if they were to resume such an arrangement.
Smith, who has studied many of Upshaw's old documents, including letters and journal entries, said he has come to a similar conclusion.
"I think we might be better off staying a trade association and getting the antitrust protections that the law affords," Smith said. "That's where Gene was back in 1993. He had decided it would be better not to recertify. It was the last impediment to the settlement, because the owners insisted on it."
At that point, according to Smith, then and current NFLPA attorneys Jeffrey Kessler and Jim Quinn "met with Gene for five hours and tried to talk it through with him, but he wouldn't budge. So they went back to the owners and told them: 'Gene won't do it.' That's when they came up with the idea of writing up the affidavit that was included in that CBA [and all future CBAs] saying that if he ever wanted to decertify again they wouldn't challenge it. That was the only way they could get Gene to agree to recertify.
"So given that history, and where we are now, let me ask you a question: What could they possibly tell me that could get me to agree that recertifying is a good idea?"
Lest people doubt Smith's portrayal of his predecessor's views, Upshaw, who died in August of 2008, enunciated them in a variety of forms at the time. In a November 1990 interview with San Francisco Chronicle columnist Glenn Dickey, Upshaw insisted that "the players are better off without the union," citing a significant increase in player salaries since decertification.
Later that month, Upshaw wrote a three-page letter to former Miami Dolphins safety and ex-NFLPA president Dick Anderson in response to public charges by Anderson that the leaders of the decertified NFLPA were "just pulling the wool over the players' eyes."
In the letter, a copy of which was obtained on Thursday by Y! Sports, Upshaw made his position clear: "The players have a right to have a union [and] they also have the right not to be represented by a union. The Eighth Circuit essentially made the players choose between collective bargaining and pursuing their legal right to free agency. That choice has been made and it is final. The NFLPA is no longer a union or a bargaining representative for the players of the NFL."
Upshaw also informed Anderson that "the players changed the constitution and bylaws which now [prohibit] anyone from representing them in collective bargaining" on Dec. 5, 1989.
"Finally," Upshaw concluded, "the players are much better off without a union and collective bargaining, and each and every player only has to look at his game check to realize that simple fact." He told Anderson that "… it is the NFL screaming for a union because it is in their best interests to have one."
Ultimately, the owners were able to persuade Upshaw to abandon his position by including the provision in the CBA which read: "The Parties agree that, after the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred."
Eighteen years later, as Smith pointed out, the owners are now arguing that the union's decertification was unlawful, claiming that the NFLPA technically acted hours before the expiration of the CBA, rather than "on or after expiration." It's unclear which side will prevail on this pivotal point, but the owners' actions were enough to convince Smith that only a permanent state of decertification can prevent the process from playing out indefinitely.
"We'd have to set up something separate to handle the grievances, and another entity to administer the pensions," he said. "But yes, we could absolutely continue to function as a trade association."
Even if the players were to possess enough leverage to compel the owners to accept such an arrangement, its implementation would be far from cut-and-dried. Could the two sides enter into a contractual agreement in which the players remained a non-unionized workforce?
"That's an interesting question, and it seems to me the answer would be very messy," says Georgetown law professor Jim Oldham, an expert in alternative dispute resolution, contracts and labor and employment law. "Being the most generous as I can be, this is a creative idea."
Oldham explains that such an agreement would essentially be a private contract between players and their employers governed by the contract laws of the respective states in which their teams were headquartered, rather than by the National Labor Relations Act.
"You have to keep in mind that a collective bargaining agreement is not governed by other contract principles," Oldham says. "It's almost like a treaty. If you try to mimic it, it gets highly complicated."
In theory, Oldham says, "the league or its individual teams can enter into any kind of contract with players that they wanted to. You could do that, but what would the terms of the contract be? Would it designate the trade association as the exclusive bargaining agent of the players and try to mimic the prior situation? That would be problematic because these individuals are then third parties who could try to enforce the contract through the courts.
"Could the trade association say that private individuals are precluded from making private deals with the league or the teams on their own? Perhaps you'd need a separate rider for each player stating, 'I agree to be represented by the trade association, and in exchange I am indemnifying the trade-association from third-party claims I could make as an individual.' It would be something like a copy of what was authorized by a federal statute.
"Then the question is, what about things that are guaranteed by federal law but for which there's no counterpart in state contract law – for example, a quid pro quo agreement not to strike and the possible remedies associated with this, such as the ability to get an injunction? As you can see, it gets very messy."
Oldham, who served as a grievance arbitrator for disputes between the NHL owners and the players association during the 2004 lockout, believes that NFL owners would be exceptionally resistant to such a scenario. "Undoubtedly," he says. "I would think it's a non-starter."
Smith, however, is convinced the players are better off without operating as a unionized workforce – a conclusion his predecessor reached more than two decades ago, and one Upshaw viewed as reflective of the wishes of his constituents. As the late NFLPA executive director wrote in the letter to Anderson: "The undisputed fact is that no one can make you be a union if the members don't want you to be."
As for the current labor dispute, if and when the conflict moves closer to a resolution and settlement talks become more serious, will Smith fight to achieve the post-union future that Upshaw abandoned in the name of labor peace?
It's a question the owners may have to ponder, for if they lose their appeal before the Eighth Circuit, Smith's vision of a permanent state of decertification will seem like anything but a sham.
LIES, LIES, LIES
1. Caught off guard by Tom Benson's insistence upon showing him his Super Bowl ring in St. Peter's Square earlier this month, Pope Benedict XVI whispered to the Saints owner, "I have a sin I must confess – it was I who defiled your cars."
2. After witnessing Beyonce's riveting rendition of her new song, "One Plus One," on the otherwise snooze-worthy American Idol finale Wednesday night, Taylor Swift texted Kanye West, "U no what, u were right bro."
3. In response to being dissed last week by Wisconsin Rep. Paul Ryan, Bears quarterback Jay Cutler(notes) drove to Madison, barged into the statehouse, fired a football into Ryan's groin and yelled, "Better go get yourself checked out at Planned Parenthood."
YAHOO! SEARCH WORDS OF THE WEEK
LET'S DO SOME DON JULIO SILVER SHOTS FOR …
The Davis High School JV girls' soccer team, which completed its third consecutive undefeated season – and its first with a roster than included my freshman daughter – with a 3-0 victory over University High of San Francisco earlier this month. The Blue Devils (19-0-2) outscored opponents 113-7, fought back from deficits on four separate occasions and stretched the field with precision, speed and power, which is a testament to the coaching of the steady and sage-like Bob Smith and his hyperkinetic assistant, Tim Gbedema. Given the ridiculously deep pool of soccer talent at the school and the fact that a DHS varsity team which held the nation's top ranking for much of the season (and finished No. 3 nationally after a thrilling victory in its sectional final) was made up almost exclusively of juniors and seniors, I'm going to shamelessly proclaim that Davis was as good as or better than any JV soccer team in America – and I'm curious to see whether any competition-seeking coaches might read this and be bold enough to challenge Smith to a game next spring. In the meantime, I'm lining up grenadine-filled shot glasses for all the ballers who contributed to an exciting and entertaining 2011 campaign: Asia, Brooke, CC, Clara, Della, Ellarie, Emily B., Emily G., Emma, Gaby, Gretchen, Gwen, Jenna, Ju-a, Kalani, Kylie, Lauren, Makenzie, Margaret, Meaghan, Megan, Natalie H., Natalie S., Nelly and Sophie.
THIS WEEK'S PROOF THAT CAL IS THE CENTER OF THE UNIVERSE
If you thought that last item was obnoxious, you might want to take some Dramamine before reading this one. That's because there's a whole lot of awesome going on at my alma mater right now, beginning with the fact that for the first time since the glory days of the Cal Softball Item of the Week, I'm ready to declare that Diane Ninemire's Bears are back. Armed with a fast, versatile and well-rounded lineup – and the best pitcher in the country in sophomore Jolene Henderson – the seventh-seeded Golden Bears ripped through the Louisville Regional last weekend and will battle Kentucky on Saturday and Sunday (with all the action televised by ESPNU and ESPN) in a best-of-three Super Regional. If Cal prevails Ninemire's team will return to Oklahoma City for the first time since 2005, when the Bears made their seventh consecutive Women's College World Series appearance, a run that included a national title in 2002 and consecutive runner-up finishes. I plan to break out the requisite Tecates bright and early this weekend and, if all goes well, soak up the atmosphere in OKC with the Reid twins, Jace Williams, injured superstar Valerie Arioto and my other favorite Golden Bears. And before I get off of softball, I must congratulate my fabulous niece, Gabby Goyette, who just completed a freshman season at Pacific that included the school's first Big West championship.
Yes, there's more: A little more than three months after his impassioned efforts led to the reinstatement of Cal rugby, Jack Clark – the greatest coach on earth – won his 22nd national championship as the Bears ground out a 21-14 victory over BYU in Salt Lake City last Saturday night. It was the latest triumph in a sensational spring that has featured so much good news on the campus of God's University, from the unprecedented reinstatement of five sports to Jeff Tedford's naming of Zach Maynard as his starting quarterback for 2011 to a stunning run of dominance in aquatics (NCAA titles in women's and men's swimming followed by a program-best second-place finish by the women's water polo team, matching the standing of their male counterparts last fall). And I'm ecstatic about the hiring of my fantasy-football buddy, Lindsay Gottlieb, as Cal's women's basketball coach, a capacity in which the budding rock star absolutely will not require my advice.
Oh, and this: The University of California just earned a No. 4 academic ranking in the world, down two spots from last year.
For those of you who haven't yet reached for a nearby bucket, here's a double-dose of extra Cal propaganda from yours truly, first from a podcast with BearTerritory.net publisher Ryan Gorcey at our rivals.com page and secondly from the prolific catalog of californiagoldenblogs.com.
LYRIC-ALTERED SONG DEDICATION OF THE WEEK
When we checked in with Roger Goodell earlier this month, the commish was coming off a rough week in which he assumed the role of public punching bag. Then the Eighth Circuit issued its stay ruling of the lockout, and legions of sports journalists and pro-management fans dutifully turned their ire toward Goodell's counterpart, NFLPA executive director DeMaurice Smith. Though the owners indisputably initiated the lockout and appear willing to cancel the entire 2011 season if the players don't accept a significantly less favorable deal than the one they had under the previous collective bargaining agreement, it's Smith who routinely gets De-monized these days, something which has to make Goodell and the owners even more hardened in their position. Here's how I imagine Goodell belting out his satisfaction in private, with a touch of dubstep pulsating behind his raspy vocals, to the tune of the aptly named AWOLNATION's indie-rock hit "Sail":
Even though we locked them out
People know what we're about
They blame the whole damn thing on De baby
This is how we run our sport
Still we get public support
Blame the whole damn thing on De baby
Draft day I needed a hug
Then the judges pulled the plug
Blame the whole damn thing on De baby
Players thought they made a stand
Told them to talk to the hand
Then blame the whole damn thing on De baby
- Gene Upshaw
- collective bargaining