Seven key issues linger for NFL’s new CBA
After more than four months of labor strife that essentially knocked out the 2011 offseason, NFL players and owners are finally in lockstep on the most important issue: They’re planning to strike a deal on a new collective bargaining agreement that would end the lockout by the conclusion of this week.
The negotiating teams for the respective sides have a common destination. How they get to the end of the road, however, remains a tricky and potentially combustible conundrum.
Though the players and owners have compromised on a formula to split the league’s annual multi-billion dollar revenue stream, there are numerous issues that must be resolved on Tuesday and Wednesday in order to get a deal done in timely fashion. Over the next two days, negotiations will continue even as the NFL Players Association conducts internal meetings designed to lead to the ratification of a new CBA, beginning with Tuesday’s executive-committee discussions and continuing with Wednesday sessions that include the player representatives for each of the league’s 32 teams. Presumably, a vote by the full membership (via email or telephone) on the proposed CBA could occur as early as the end of the day or Wednesday night.
The owners will meet in Atlanta on Thursday, and key executives for each team reportedly will join them for a seminar on Thursday and Friday to explain the new salary cap rules. Ideally, the owners’ CBA vote will come on Thursday. If they approve the deal, to the delight of football fans, normalcy will return shortly thereafter.
On Monday profootballtalk.com reported that Packers officials are telling players the lockout will be lifted Friday and that they should be prepared to report Saturday for a team meeting.
Despite the understandable optimism on both sides, anyone operating under the assumption that this is a done deal should be flagged for premature celebration. According to several sources familiar with the sensitive state of negotiations, here are the seven potential pitfalls that must be overcome:
• Lost benefits: When the owners opted out of the previous CBA, triggering an uncapped year in 2010, it allowed them to avoid paying $320 million in benefits. Now that peace is at hand, the players are pushing to recover that money. Owners will argue that they merely exercised an option available to them under the terms of the deal the two sides previously negotiated. Players will contend that it’s a matter of principle that the benefits be restored and that the owners, says one NFLPA source, “should do the right thing.”
• Lockout insurance damages: U.S. District Court Judge David Doty ruled that the owners, in an effort to create a potential lockout fund, breached their contract with the players in negotiating below-market contract extensions with several television networks that served their own interests. He has yet to rule on damages, and owners will almost certainly insist upon settling the suit as a condition of agreeing to the new CBA. If so, this gives the players a potential lever to try to recoup some or all of the aforementioned $320 million in lost benefits.
• Judicial oversight: Speaking of Doty, the owners no longer want him (or any other federal judge) in charge of deciding CBA disputes, a role he held for the previous 18 years following the 1993 settlement of player-initiated antitrust suits that ushered in the current era of unrestricted free agency. Expect language in the new CBA to include a stipulation that gives jurisdiction of such matters to an arbitration panel, likely made up of retired judges. The players are likely to give in on this issue because of their belief that if the league egregiously violates federal labor law, taking a specific matter to court will remain a viable option, and a judge’s ruling would supersede the panel’s authority.
• Workers’ compensation: The owners are trying to end the common practice of players filing claims in California, which has an employee-friendly system, if they’ve played even a single game in the state during their careers. Under the owners’ proposal, players would be required to file in the state in which their team was based when they incurred the injury in question. Expect the players to put up staunch resistance on this issue, which realistically affects retirees far more than it does people currently in the league, and fight to retain the status quo.
“That is really our only means of protection in terms of taking care of ourselves after football,” said one player active in NFLPA matters. “I’m sure the [owners of] California teams feel like they bear an unfair burden, so maybe there’s a way they can average it out among the teams and share the cost. But we’re pretty dug in on that issue.”
• Right of first refusal rules: Players are pushing for a clause that will prohibit teams from applying the franchise tag to a player more than once during that player’s time with the organization. Owners, predictably, will fight against that limitation.
• Settling the Brady et al antitrust lawsuit: As my colleague Jason Cole reported on Monday, at least two of the lawsuit’s 10 named plaintiffs, Chargers wideout Vincent Jackson(notes) and Patriots guard Logan Mankins(notes), are pushing for unrestricted free agency or separate $10 million payoffs as part of a settlement. Team owners Dean Spanos and Robert Kraft, respectively, will almost certainly say “No way” and dig in; it’s possible the amount could be negotiated downward and paid by the league as a whole. It’s unclear how hard NFLPA executive director DeMaurice Smith will fight for the plaintiffs’ personal interests and whether either player would be swayed by immense peer pressure not to hold up a deal.
• Union recertification: As I reported in late May, Smith believes the players’ interests are best served by the NFLPA remaining a trade association and thus retaining their ability to assert their legal rights under the Sherman Antitrust Act in future labor clashes. Sources say union recertification has yet to come up in negotiations, but it’s likely the owners would strongly resist agreeing to new a CBA without the union reforming. The alternative would be an agreement that the NFLPA would recertify in exchange for the inclusion of specific language – in stronger form than that which existed in the previous CBA – allowing the union the option to decertify in the future without it being challenged by the owners as a “sham” designed to give them negotiating leverage.
Throw in the fact that many of the 32 player reps, along with numerous owners, aren’t yet familiar with many of the specifics of the negotiations, and this all seems very daunting. However, despite the remaining issues, key negotiators on both sides remain optimistic that the gaps will be bridged in time for ratification this week – and, in turn, for a full preseason schedule and training camp regimen.
As for the reported desire to have Packers players show up on Saturday, that may be a tad ambitious. Indeed, as they hash out the final points of the agreement on Tuesday and Wednesday, players may push for a less hectic timeline. They could well get their way. While it might not please their coaches and general managers, owners are less likely to insist upon such a rapid transition.
“The human element comes into play,” said the player active in NFLPA matters. “There’s a lot that goes into relocating your family across the country, having your car shipped and your belongings sent and preparing for a full season. Here we’ve been in limbo all these months, and now they want to snap their fingers and have us back on almost no notice? I think we’ll fight that.
“Things are looking good, but there’s still so much uncertainty. One thing’s for sure: It’s going to be a weird couple of days.”
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