The NFL players association got hammered in its 24-day strike, but that defeat could contain the seeds of eventual victory in the only arena in which the NFL ever seems to lose—the courts. On Thursday, the day the players ended their walkout, only to be told that they would not be eligible for last weekend's games because they had not reported in by the owners' 1 p.m. Wednesday deadline, the union filed an antitrust suit against the league that challenges, among other things, the college draft and restraints on free agency for veterans. The NFLPA also filed charges of bad-faith bargaining with the National Labor Relations Board. A decision in the players' favor would give their antitrust suit more bite.
A key issue in any labor-management dispute is whether the sides bargained in good faith. If players and owners don't resume negotiations and then come to terms, and the NLRB and antitrust actions proceed, management may well regret some things it said and did before and during the strike—because in court it could lose a lot more than it ever would at the bargaining table. Both the NLRB and the courts could be impressed by the union's charges that the owners started assembling replacement, or scab, teams before the strike was declared, that management threatened players to get them to cross picket lines and that management refused to budge on the major issue, free agency. Remarks from the owners' side that were perhaps throwaway lines in the heat of battle might be viewed in a different light by the NLRB or a court.
"I was struck by the arrogance of some of those statements," says John Weistart, a Duke law professor who is coauthor of The Law of Sports. "Some of them were shocking. Management was surprisingly intransigent in its position on free agency, more so than in past contract talks. Their position was harsh in light of the fact that the increase in free agency hasn't led to the demise of baseball and basketball. It was tough economic posturing, a flat refusal to bargain, which is the definition of bad-faith bargaining. There was no evidence of give-and-take.
"Some of management's other practices were highly unusual, too, like getting an agreement on the length of contract—three years—and then at the last minute going back on it and trying to put in six years. It seems that every time management had a chance to stick it to the union, it did. Of course, we don't know all the facts in this. We don't know what sheaves of evidence will come out when management is called on the carpet before the NLRB."
The Mackey decision of 1976, a major victory for the players in the same U.S. district court in Minneapolis in which the NFLPA filed last week's antitrust suit, struck down the Rozelle Rule, which had given the commissioner the authority to determine what compensation a team signing a free agent owed the team for which the player had previously played. While the Eighth Circuit Court of Appeals affirmed that district court decision, it tempered the players' victory by holding that player compensation was not illegal as long as it was the product of good-faith bargaining.
The players say they have evidence this year that management has done everything but bargain in good faith. "We started the bargaining process on April 20 [more than four months before the collective-bargaining agreement expired on Aug. 31]," says Gene Upshaw, executive director of the Players Association, "and on April 23 the owners sent out a memo about getting a scab season ready. I have a copy of that memo."
In accusing management of preferring union busting to good-faith negotiations, Upshaw also cites the changing of the first roster-cut date, which each season triggers the collection of mandatory union dues and initiation fees through automatic payroll deductions. The first cut traditionally had followed right after the second preseason game. This year it came after the third round of exhibitions—or one day after the old contract expired. Without a contract, union dues are no longer mandatory, and management is no longer obliged to deduct them from paychecks.
According to the NFLPA, management also told players that their finances would suffer if they didn't cross the picket lines. In Dallas a number of Cowboys, including Tony Dorsett, Too Tall Jones, Doug Cosbie and Everson Walls, received letters from club president Tex Schramm advising them that they could forfeit annuity clauses in their contracts if they didn't report for work. Dorsett and Jones complied; Walls and Cosbie, Dallas's player rep, did not. "I won't go in," Cosbie said. "I've kissed that money goodbye."
"That's a highly questionable practice," says Weistart. "You can't use private contracts to burden a man's right to strike. The right to strike is protected by law, and it's a very dear law."
The players maintain that during negotiations they proposed at least half a dozen compromises to their original demand of unlimited free agency. One proposal that was discussed but never formally reached the table was the so-called West Coast Plan. Under it a player would be bound by the present system for seven years. In years eight through 10 an owner could match any other team's offer and keep the player. After 10 years, provided his contract was up, a player would be free. The plan, which would affect few players in a league in which the average career is 3.2 years, received a chilly reception from the owners, some observers believe, because it was reportedly suggested by the Raiders' Al Davis, who is still a pariah in many management circles.
"I introduced that proposal in the middle of August and then again last week," Upshaw says. "Tex Schramm told me, 'Never would a player have movement, not in five years, or 10, or 15. Never.' It won't be pleasant for them when that's raised in court."
Other statements that might come back to haunt management:
•Sept. 22, Jack Donlan, management's chief negotiator, responding to a union proposal for free agency after four years: "It's like a camel with his nose under the tent. You wonder what they'll want three years from now."
•Sept. 24, Schramm: "Our view is the same as it has been—we are not going to change our structure on free agency."
•Sept. 25, Donlan: "With the exception of free agency, we don't consider anything etched in stone."
•Oct. 4, Bucs owner Hugh Culverhouse: "If Gene needs something for dignity, we'll give it to him. But not free agency."
Good faith bargaining? It will be up to the courts and the NLRB to decide. The union has made some tough statements as well, and management may file charges of its own before the NLRB, claiming that the players have engaged in unfair labor practices. To wit: Management's only move toward any change in the free agency system—a downward adjustment in the compensation payments for a player changing clubs—was summarily rejected by the players as a "garbage proposal."
Throughout the strike the union did a terrible job of getting its ideas across to the press and to the public. Never, for instance, has the union driven home the point that in the decade since the current modified free agency system (in which compensation to a free agent's former team is based on his salary and length of service), only one player has changed teams. Also, the union has never effectively countered the owners' oft-cited $230,000 "average salary" figure for players, a serious failing in view of all the fans turned off by the union's high-paid pickets. The median salary—a truer barometer of what most players make—is closer to $170,000 a year.
There's a chance the owners, who lost an antitrust suit to Davis and his Raiders in 1982 and who suffered a technical loss and were declared a monopoly in the USFL suit that was decided in August 1986, will at last do some hard bargaining on free agency and reach a settlement before the case reaches a judge. How long would it take for such a suit to be adjudicated? The Mackey case dragged on for four years before the appeal was decided. "It wouldn't take as long this time," says Dick Berthelsen, the NFLPA's legal counsel. "The Mackey suit broke new ground. There was a lot of legalese to clear away. Now there's precedent to go on."
Spokesmen for the union insist that it's in strong financial shape, but that could change if membership falls off and the player representatives have trouble collecting dues. "Now everyone else will learn to live as we did," says Cosbie's wife, Sherry. "Texas is a right-to-work state. Doug and the alternate player rep, Jim Jeff coat, had to collect everything individually, and they did it. Say what you want about the Cowboy players, every one is a paid-up union member."
"I'm not going to sell out our union for dues checkoffs," says Upshaw. "I sit on the executive council of the AFL-CIO, and lots of brother unions have promised financial support. Don't worry about the union. It'll stay afloat."
Upshaw has heard the criticism of his performance during the strike, that he was a left guard going up against skilled, trained negotiators. "I'm always going to hear that," he says, "because I was a player. They figure players check their brains somewhere."
How about the players who now must line up beside guys who walked through picket lines? "It'll be tough," says New Orleans alternate player rep Brad Edelman. "Some things I'll try to forget in a few weeks. Some things I'll never forget, like the guys who had gone back in taunting us on the picket line, yelling stuff like, 'We're making the money, honey,' just rubbing our noses in it. A few of these guys figure we'll walk back in, and it'll be fun and games, like nothing happened. Well, you have to consider the mentality of those people.
"I don't know how much better the teams that stayed close during the strike, like the Redskins and the Bears, will be. Needless to say, when a Mike Singletary speaks, he speaks for the Bears, and that's valuable. A team that stuck together through thick and thin, regardless of how much money the players lost, will be better off."
"When you walk the picket line," says Raider tight end Todd Christensen, "you think, How can I get excited about being in the playoffs? Who cares? I hope that'll wear off. All my life I dreamed of making the Hall of Fame. Now my feeling is, Who wants to go to some place sanctioned by the Culverhouses and Schramms of this world?
"I talked to our coach, Tom Flores, the other day. I asked him, 'What happened here? What went wrong? This isn't the way adults deal with their differences.' He just shook his head."