Sides allergic to verbal communication

Jason Cole

NEW ORLEANS – Before we go too far down the road of trying to explain what five lawyers hired by the NFL had to say on Monday, let's make it clear that a solution to this labor dispute isn't that far away.

Even if it seems that this could go on for years.

In fact, it's so close that it's almost criminal that the owners and the players are spending more time talking about legal filings than free-agent signings.

Last week, both NFL vice president and lead counsel Jeff Pash and Philadelphia Eagles president Joe Banner said the league's final proposal that was made March 11 would have paid the players upwards of $20 billion over the next four years.

The players turned that down, almost out of hand.

By contrast, there was a point earlier in negotiations when the NFL Players Association offered to settle all of this by splitting all gross revenue 50-50 – after the $1 billion the owners get off the top. Based on the projections of yearly growth by the NFL (projections Pash confirmed Monday) over the next four years, the league will conservatively gross $40.6 billion over the next four years.

That means the players would have gotten $20.3 billion over the next four years, a pretty minimal difference.

The owners turned it down.


Of course, there's a reason. There are those on the players' side who believe the owners were trying to play a bait-and-switch game in negotiations, offering something decent on paper for a system that would have made tons of money for the owners on the backside of the deal, as executive director DeMaurice Smith of the decertified NFLPA indicated last week.

For example, if the league were to gross $44 billion over the next four years, the players worry that they won't get much, if any, of the revenue that exceeded projections. That is a reasonable concern for the players and an issue the owners need to resolve. Since 1993, the players' share has been determined by a percentage. They have no intention of giving that up.

Still, we're talking about a $300 million difference right now. Even Pash admitted Monday that the basics of this fight seem ludicrous.

"If you are telling me that the Union is prepared to do a deal with us, and that the difference is $300 million over four seasons, you are telling me something that the Union did not bother to say to us," Pash said at the league meetings. "The point you are making is exactly what collective bargaining is all about. What the Union should have done is instead of walking out of the room and claiming to give up its bargaining rights and filing a lawsuit, they should have said 'Hey, we think over these four seasons we are about $300 million apart, because we think the revenues are $40.6 billion, and we think we should get 50 percent, or $20.3 billion, so we think we are about $300 million apart based on your estimate – let's talk about that.' "

But they did not do that. That is the problem.

"That is the kind of conversation, meaning no disrespect to anyone here, we ought not to be having it in a news conference, we ought to be having it in a bargaining session, particularly since, to Mike Vrabel's(notes) point, we had the whole [NFL management council executive committee) there. They could talk to Jerry Richardson, they could talk to Jerry Jones, and they could talk to Clark Hunt and John Mara and Art Rooney. They did not have to talk to Pash, [attorney Bob] Batterman and [NFL Commissioner Roger] Goodell. They could talk to the owners. They had all of the players there. But no one said that. Instead, they said 'We have a 5 o'clock deadline,' walked out of the room, and filed their lawsuit."

In doing so, the players have put further talks in a problematic state. Right now, the owners and players each would like to dance, they just can't decide if it's going to be in a ballroom or a disco.

Sadly, the lawyers and the legal system are getting in the way of finding the right location.

On Monday, the players' association sent a letter to attorney Gregg Levy, an outside attorney for the league, that the plaintiffs in the Brady v. NFL case are willing to sit down for settlement talks, a proceeding that would be overseen by the courts.

In return, a league official reiterated that the owners are more than happy to go back to collective bargaining with the players' association at the Federal Mediation and Conciliation Service in Washington. That came after the NFL filed a somewhat persuasive brief in Minnesota District federal court arguing that the players should not be granted an injunction against the lockout.

That brief is convincing enough that the owners might have a real chance of maintaining the lockout and getting leverage on the players. Considering that, the players might want to reconsider coming back to the table for talks just in case.

So what's the problem with getting together? It's all about nuance. After more than 20 years of having the federal courts oversee the NFL, the owners don't want that anymore. They loathe it. On the flipside, the players, who are hoping the tactical move to decertify as a union will keep them in court, don't want to acknowledge that, in what could be the view of the government and the courts, they are still a union.

That means that both sides could see an answer and not have a way to actually discuss it.

"This thing is going to have to play out over the next few weeks in the courts," Batterman said. "That's all that's going to happen."

Considering the alternatives, that's enormously frustrating.