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The NFL and NFLPA Are Both Posturing When They Could Just Start Negotiating the CBA

Both sides are firing shots, but the NFL and NFLPA don't need to wait for a deadline to truly negotiate the next CBA.

There will be more than 500 games featuring NFL players over the next two years, as members of the NFL labor force battle each other on the field in weekly competition. Beyond the games, though, will be a larger dispute between the collective group of players and the league about the business of football and the negotiation of the next Collective Bargaining Agreement. It is hard to believe, but the current CBA, negotiated in 2011, is now 80% complete, with eight seasons in the books on what was an extraordinary long 10-year deal, with no opt-outs for either side.

Lest anyone think differently, this game—between the NFL and NFLPA—has already begun, at least from a positioning standpoint. Opening salvos have come from each side that appear not only scripted but also replays of the posturing done eight years ago. Let’s examine…

Shot fired: NFLPA version

NFL Players Association chief DeMaurice Smith, now entering his second CBA negotiation, wrote to agents last month to advise players to be prepared for a year-long work stoppage. While it is certainly prudent advice for anyone to save as much as possible, my first reaction to the idea of the union not agreeing to a CBA for a year after the current one expires was: Good luck with that.

NFL owners will probably impose a lockout if the current CBA expires without a new one in place, a tactic they employed eight years ago to gain leverage in negotiations. It is much easier to negotiate with the NFLPA when players are not receiving paychecks compared to when they are.

Smith, a litigator by trade, responded to the 2011 lockout by decertifying (dissolving) the union and heading to court to challenge it, and was successful at the lower court level. However, the Court of Appeals ruled for the NFL and allowed the lockout to proceed. As to the bigger case, challenging the NFL’s system, Smith could have pursued that, but the case was potentially years from being fully litigated. Rather than continue the legal fight, the NFLPA hurriedly negotiated a new CBA and players quickly returned to team facilities to start training camp. Now, with legal precedent established on the legality of a lockout, the NFL may well use the same management tactic if the current deal expires, and a litigation battle may take years. Will players make that sacrifice with no guarantee of significant gains to be made from a judge or jury? As someone always rooting for NFL players to exert some influence, I wish there was a chance, but know this is a tough ask.

Having said that, I understand and admire Smith’s comment for its effect, if nothing else. Although there are certainly NFL owners (and NFL lawyers) who will roll their eyes at the idea of players collectively sitting out an entire year, there may be others who see it as a (somewhat) legitimate threat to disrupt the continuity that owners desperately need for them to continue to leverage massive media and sponsorship deals.

Shot fired: NFL version

It’s déjà vu all over again. As happened prior to the 2011 CBA negotiations, reports have surfaced about the NFL making a push for an 18 game regular season. And cue Commissioner Roger Goodell, who made statements last week about teams not needing four preseason games (Translation: teams should be playing more regular season games).

For the NFL, the bottom line is the bottom line: The ancillary revenue from two more weeks of top line product (the regular season), compared to two weeks of inferior product (the preseason), would be significant. But players strongly resisted in 2011 and have already shown signs of strong resistance once again.

Owners will privately, if not publicly, tell you that they do not even need the players’ consent to adjust the season. And they will take credit for not unilaterally implementing a longer regular season in 2011. That decision was calculated, however, as every collective NFL move is. The playbook was, and perhaps is, to (1) Float the 18-game season as a CBA bargaining priority; (2) Watch predictable revolt and pushback from players and media; and (3) Pull the issue back to prioritize others, looking reasonable and empathetic to the players in the process. We saw this movie in 2011; we’ll see if the sequel plays out the way the original did.

The priorities

In any multi-issue negotiation—as CBA negotiations are—the key for each side is to establish—and stick to—their priorities. In 2011, the owners’ priority was clear: changing the existing revenue split toward a better economic landscape (and it worked, as all metrics are up in NFL business).

The players’ priorities were less clear and more meandering, finally settling on health and safety (reduced offseason, limited contact in practice, etc.) as having utmost importance.

To be fair, DeMaurice Smith and the NFLPA had a tough job in the last negotiation, playing defense against NFL owners’ determined effort to claw back against the player-friendly CBA in place since 2006. One would hope the NFL would be more equitable this time around, but as any readers of this space should know, this bunch has never been known to be anything but relentless negotiators.

Beyond the usual CBA bargaining issues—overall revenue split, minimum team spending requirements, commissioner power and player discipline, franchise/transition tags, marijuana testing and discipline, etc.—there are two new key areas I am watching that were not part of the discussions in 2011. They involve the sharing and distribution of (1) new revenues from the gambling space, in light of last year’s Supreme Court decision allowing state legalization, and (2) players’ biometric and health data, specifically the issue of who owns the data and the price of sharing it. The negotiation over these two topics, ones not even contemplated in the 2011 negotiations, will be fascinating to watch.

Why wait?

As for the lack of negotiation, I just don’t get it. Whatever is going to be negotiated—or not—in the next CBA, can now be negotiated at any time and could have been negotiated at any time in recent years.

Both Goodell and Smith had their employment contracts extended well past the 2021 CBA expiration, making them effectively empowered by their constituencies to lead labor negotiations. To be fair, we have seen positive news about the formation of joint committees to discuss mental health and pain management. However, for whatever reason—strategy, personal enmity, waiting for a deadline to spur action, etc.—we continue to hear adversarial refrains about 18-game schedules and players’ preparing for a year-long work stoppage.

To me, any talk of CBA Armageddon involving long work stoppages is useless and counterproductive. The continued prosperity of the NFL for both sides depends on continuity and stability. There are two years left on an existing agreement with both leaders empowered to negotiate a new one. There will be labor pains again—there always are—but there is no need to wait two years or more to produce this new CBA.

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