De Smith Stays. Will Anything Change?

Monday March 16th, 2015

College basketball was not the only sport having Selection Sunday yesterday. The NFL Players Association went through a two-day election process to choose its executive director at its annual meeting of player representatives. The process included 40-minute presentations on Saturday and breakout sessions and question/answer periods in smaller groups on Sunday, followed by closing arguments before a vote in the early evening. After two days of listening to and questioning the incumbent DeMaurice Smith and a field of eight challengers, the reps re-elected Smith on the first ballot—a simple majority of 16 votes was required (Buffalo did not have rep in attendance)—for what will be his third three-year term.

In discussing the NFLPA executive director position, I must give a quick disclosure. In recent months, I was asked—from a couple of different angles—to consider running for the position. While I was flattered and considered it briefly, I declined. I did so for a variety of reasons, a primary one being that I very much like the life I have and did not want to mess with a good thing. 

As for those who did run… 

The fact that there was such a crowded field was seen by some as an indictment of Smith, with each of the eight challengers having received the necessary endorsements from at least three player reps (who could endorse more than one candidate). In contrast, however, I sensed it would play into the incumbent’s hands—many of the voices would drown each other out with predictable criticism of Smith and the CBA he negotiated in 2011. The quantity, and in some cases, quality of challengers turned into an advantage for the polished Smith. 

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The most vocal and aggressive challenger to Smith was former player Sean Gilbert, who portrayed Smith as a litigator poorly suited for the role and taken advantage of by Roger Goodell and his deputies. Gilbert pressed a platform of re-opening collective bargaining negotiations—although the CBA has several years remaining— based on a collusion claim that, he says, has the backing of major law firms. Of concern to players was that while Gilbert was criticizing the litigious Smith, he was proposing a collusion lawsuit that would be lengthy, expensive and perhaps fruitless.

Despite some attractive ideas, Gilbert premised much of his platform on granting owners an 18-game season. In doing so, however, he was (1) preaching to some in the audience for whom that argument was a non-starter, and (2) overestimating the importance of the 18-game season to owners, who, I am told, overstated its importance in negotiations and used it as false bargaining chip by conceding it to make important gains elsewhere.

The candidate who presented the biggest threat to Smith was one he had been working with inside the NFLPA offices for the past six years, Jason Belser. The NFLPA’s senior director of player affairs and development and a former player, Belser is well liked by players and seen as friendly, competent and hard-working. He faced a risky challenge in pursuing this palace revolt and trying to convince the audience that he could ascend to the top job. He did impress, although there were some concerns regarding his education. (I did discover that he was enrolled in an online Sports Business/Law course I have been teaching!)

Another candidate with significant institutional NFLPA knowledge was Art McAfee, staff counsel there from 1995 through 2012, a period that included Smith’s first term. McAfee was knowledgeable but ultimately not a serious challenger.

Other candidates were never a threat to Smith. Philadelphia attorney Andrew Smith emphasized a résumé of standing up to big corporations. Admiral John Stufflebeam advocated a more conciliatory tone with the NFL. Michigan attorney James Acho—unable to come to Hawaii due to a longstanding commitment and appearing on video instead—was quite feisty, bringing this comment from one person in the room: “He would be a great guy to take with you to a car dealership.”

In the end, though, it was Smith’s election to lose, and he did not lose it. In the question-and-answer periods on Sunday, candidates were grilled in pressure-packed sessions and several did not hold up. Smith is a skilled and practiced orator, experienced at defusing tough questions, and has an uncanny ability to speak in convincing sound bites, as if speaking to a jury as he once did so often. Although his manner annoys NFL counterparts and enemies who see more style than substance, it has worked well for him with his constituency.

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Although I have been critical—in writing, on television and in speaking engagements—of several CBA provisions negotiated by Smith, I know the context of those negotiations. NFL owners were intent on clawing back player gains from the previous agreement, one from which the owners unanimously opted out soon after the ink was dry. Smith originally campaigned on a decertification and litigation strategy that, for a time, appeared shrewd (the players’ won their initial challenge in court). However, once the NFL’s appeal to the 8th Circuit Court of Appeals allowed the lockout to continue indefinitely, Smith had to negotiate rather than litigate, and the NFL gained considerable economic ground in those harried sessions.

Smith was buttressed by recent victories over the NFL in the player conduct arena— from a former judge (Ray Rice appeal) and a current judge (Adrian Peterson appeal)—the timing of which certainly helped his cause. Despite the union’s being ignored by the NFL in its crafting of a new conduct policy, and the lingering concerns over player contracts, Smith could still plausibly claim some recent wins. Further, last week’s flashy free-agent contracts provided helpful optics.

As a practical matter, the present three-year term for Smith will not consist of much in the way of CBA negotiations, with the collective bargaining agreement not expiring until after the 2020 season (a term far too long). In this regard, Smith’s major ongoing role, at least until the next election in 2018, may be similar to what it has been: serving as a combative irritant to the NFL, pressing for change through legal challenges, and offering soapbox advocacy. Were we in a different time and place, with a CBA to negotiate, the players might well have moved toward a different type of leader.

Beyond all the rhetoric, however, Smith could use this recent endorsement to foster a more fruitful relationship with the other side (while still being a combative irritant at select times). I know he bristles at the “chummy” relationship that his predecessor, Gene Upshaw, had with commissioner Paul Tagliabue, but I am suggesting more a respectful affiliation rather than a friendship. Some deeper level of trust—there is zero now—could go a long way toward greasing desired initiatives. We will see.

Meet the new boss, same as the old boss.

Read Andrew Brandt’s Business of Football column every week at The MMQB.


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