Last month, the NFLPA ratified a new collective bargaining agreement with the NFL. The agreement will run through the 2030 season and provide players and owners’ labor peace during an uncertain time for the country. The players’ vote was close, with 1,019 (51.5%) in favor and 959 (48.5%) against. But a win is a win. A majority by one vote would have had the same impact as a unanimous vote in favor: The 456-page deal was passed.
But did the players vote on the right deal?
Free agent safety Eric Reid and his attorneys, Ben Meiselas and Ray Genco, contend there was a bait-and-switch on one of the CBA’s 69 articles. Reid maintains that Article 60, which concerns the NFL disability and neurocognitive benefit plan, was altered after the players voted in favor of the CBA.
The change concerned which players are subject to offsets for monthly disability payments. Offsets can come in many forms but here they reflect the amount of money a player receives from Social Security Disability Insurance. From the perspective of a player and his family, an offset is a negative. It reduces the benefit owed by the NFL because the player gains a benefit from another source.
The voted-on version of the CBA indicated that players who submitted disability applications on or after January 1, 2015 would be subject to offsets. In contrast, the version of the CBA that the NFLPA and NFL considered to be ratified indicated that eligibility would be for applications submitted prior to January 1, 2015. As worded, the ratified version would impact a larger population of disabled retired players—there are more applications prior to 2015 than after—and is thus “worse” overall for players.
In a response statement, the NFLPA dismisses the allegation as “completely false.” The NFLPA acknowledges that it needed to “fix a cross-reference in the final version of the CBA” and this error sparked confusion. Further, the statement recognizes that an “earlier version” of the CBA “inadvertently omitted” a paragraph that cross-referenced the disability and neurocognitive benefit plan. The final version, the NFLPA’s statement goes on to note, “corrected the omission” as part of a “good faith” obligation that the NFLPA and NFL rectify typographical errors and inaccurate cross-references.
In that same vein, the NFLPA insists that its fix “reflects no substantive difference whatsoever from what players were told about the proposed CBA and what the players voted to approve.” The union maintains it “never told players” that the offset would only apply to players who submitted applications after January 1, 2015. Instead, the NFLPA argues, the offset applies to all players, regardless of when they applied for disability.
To bolster this point, the NFLPA cites materials that it sent to players prior to the vote. These materials made no distinction with respect to eligibility. The NFLPA also contends that union representatives told members that about 400 former players would be impacted by the offsets, and at no time were eligibility dates referenced as a distinguishing factor.
If this narrative sounds a bit convoluted, that’s because it is. It’s clear that language was changed after the CBA vote, but the NFLPA insists the change didn’t alter what the players were led to believe before they voted. A distinction without a difference, you might call it. Reid and his attorneys vehemently disagree. They view altering the language as a form of bait-and-switch on a meaningful and substantive term. Given that the CBA passed with a slim majority, it’s possible that a new vote on the corrected CBA might yield a different outcome.
The next steps are important. Reid and his attorneys have made his case. Some players have expressed agreement. The NFLPA has responded through a statement in which the NFLPA depicts the change as one that merely corrected a drafting error and didn’t alter prior understandings. It doesn’t appear the NFLPA intends to take other steps. There will be no CBA re-vote, nor will the NFLPA request new bargaining with the NFL. The NFLPA seems to consider the matter resolved.
Reid could seek to compel a new CBA vote
So, what happens next?
One possibility is that the controversy simply goes away. Both sides have made their opposing views known. Not all controversies that could become legal actions do. Also, as the country grapples with a pandemic and its economic aftershocks, there might be less of an appetite among players and fans to see a court battle over the CBA.
Alternatively, Reid, who like other players has been critical of NFLPA executive director DeMaurice Smith’s leadership, could turn to the legal process. He could file an unfair labor practices charge against the NFLPA. Reid might argue that the NFLPA has violated Section 8(b)(3) of the National Labor Relations Act. This provision requires the NFLPA to bargain in good faith in regard to wages, hours and other working conditions. It is one of the provisions cited by Russell Okung in his recent charge against the NFLPA.
Reid could insist that modifications to disability benefits after a vote constitutes bad faith. While the NFLPA portrays the modification as correcting an error so that the agreement reflects the true understandings of both the NFL and NFLPA, Reid could maintain the change had more a more sinister purpose: mislead players on an important topic so they’d be more inclined to vote in favor. Reid could also cite Article VIII of the NFLPA constitution. It requires union officers to refrain from conduct that is not in the best interests of the NFLPA or its members. The correction, Reid could insist, noticeably favors the NFL.
The filing of an unfair labor practices charge would not provide immediate relief to Reid. It would instead kick off a multi-step and complex process that would take several months, and potentially much longer, to resolve.
A charge would first be investigated by National Labor Relations Board agents, who would in turn file a report with a regional director of the NLRB. The regional director would then assess if Reid had established probable merit of a violation. If Reid succeeded in that objective, the regional director would then issue a complaint that would, in turn, lead to a hearing before an NLRB administrative law judge. In addition, the regional director could petition a U.S. federal district court judge for a temporary injunction that would suspend the CBA until further steps by the administrative law judge. After a hearing, the administrative law judge would issue a ruling that the losing side could appeal to the NLRB in Washington, D.C. If Reid is the winner after this lengthy process, the NLRB could conceivably order that a new vote be held. Keep in mind, NLRB charges usually fail . There were 18,552 unfair labor practices charges in 2019. Only 916—5%—led to the issuance of complaints.
Given the challenging dynamics of pursuing an unfair labor practices charge, Reid might instead file a civil complaint in a court. He could argue, among other claims, breach of contract and fraudulent inducement. Reid could claim breach since the players voted for one set of terms but a different set of terms emerged. Fraudulent inducement would refer to players being led to believe the contract contained a certain set of terms only to later discover the real terms were different. As a remedy, Reid would seek a temporary restraining order that prevents the NFLPA and NFL from implementing the new CBA. If such an order were granted (and if it were upheld on appeal), the remedy would cast uncertainty over how the NFL and its teams should operate.
The NFLPA’s defenses
The NFLPA would be armed with a number of defenses, most of which are referenced above.
As a starting point, the union would insist that there was no fraud or bad faith. To that end, the union would cite its legal obligation to the NFL to correct errors in the document. It would also point out that the NFL could file charges against the NFLPA if it failed to correct mistakes.
In addition, the NFLPA would reference its pre-vote communications to players. As retold by the NFLPA, those communications made no distinction with respect to when players applied for disability payment. This point would help to debunk an accusation of fraud or trickery.
Further, the NFL could stress that it is not unprecedented for a CBA’s wording to be altered slightly, including for typos, after a vote. To that end, the NFLPA might insist that even if it erred, the error should be viewed within the totality of the CBA. The CBA, with appendixes, is 456 pages long and details thousands of policies. The NFLPA would depict unwinding a ratified CBA as an extraordinary measure. It would then assert that such a measure is unwarranted here, where the dispute is limited to a small portion of the CBA.
Of course, Reid would argue that perspective entirely misses the point. Players do vote on the totality of an agreement but for those on the fence, changing one term might yield a different vote—which is especially important in a closely contested election.
Lastly, the NFLPA would probably object to Reid filing a lawsuit as an attempt to circumvent the NLRB’s jurisdiction. The NLRB is charged with resolving most types of disputes between unions and its members.
We’ll keep you posted on key developments.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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