As a federal prosecutor, DeMaurice Smith gained a reputation for never backing down from a challenge. Now the head of the NFL Players Association is proving to be a formidable force for the union in the labor dispute that threatens the game
It is mid-December in downtown Washington, and DeMaurice Smith is sitting on a black leather chair in his eighth-floor corner office at the NFL Players Association headquarters. Beyond the wall of windows behind his large desk, snow is falling. This has created a crisis on the streets below. No Eastern metropolis deals with snow more poorly than the nation's capital. When a storm hits, gridlock isn't limited to Congress.
Smith, 47, who is completing his second year as the union's executive director, looks neither harried nor hurried. He's wearing slacks and a V-neck sweater on this casual Friday as he leafs through files. Earlier in the day he spent 20 minutes on a conference call with four retired players who wanted details on the status of a new collective bargaining agreement, and now he's seeking specific information to support one of his talking points.
The owners, Smith keeps hearing, would be foolish to lock out the players if a new agreement isn't reached before March 4. The NFL generated $9.3 billion in revenue last year and set numerous television-ratings records. NBC's Sunday-night football telecast became the first sports series to win the fall TV season, with an average of 21.8 million viewers. Super Bowl XLV, between the Packers and the Steelers, was the most-watched broadcast in the history of American television, with an audience of 111 million.
February 21, 2011
Smith reaches into his papers and pulls out a program from a 1991 union meeting. Former executive director Gene Upshaw, preparing to speak to player reps, wrote some introductory remarks in cursive on the back of the program. Smith begins reading to himself, then stops halfway through and recites: The owners will always take short-term loss for long-term gain.
These 10 words have become Smith's compass and will guide him during the coming days, as the league and the players face the possibility of the first NFL work stoppage in 24 years. Whenever Smith is asked why the owners would close their doors when revenue and ratings are at alltime highs, his answer is always the same: because revenue and ratings are at an alltime high.
"The third-grade analysis of this labor situation is that no one wants to kill the golden goose," Smith says. "But look at it like this: The league is guaranteed $4 billion from the TV networks [in 2011] even if there's no football. So I keep coming back to Gene's view, which is: Of course they would shut it down! Even if there is short-term pain, the potential long-term gain would outweigh it."
So Smith pushes forward in what is sure to be his most challenging fight. After graduating from Virginia law school he spent nine years in the U.S. Attorney's office and one at the Department of Justice, handling issues ranging from national security to prison construction, and was a trial lawyer in the D.C. offices of Latham & Watkins and Patton Boggs, where he specialized in criminal defense and tort liability. During much of that time victory or defeat was often easy to identify: conviction or acquittal.
The line between winning and losing in this case will not be as clear. A deal will require compromise. How much is Smith willing to give? To look at his past is to see someone who knows what he wants and doesn't stop until he gets it, someone accustomed to combat, who sees little virtue in backing down. That's one reason his presence in these negotiations makes people in the league office, and even within union headquarters, uneasy. "I just don't walk away from fights," Smith says. "You either believe in your ability to get it done or you don't. Walking away from a tough fight where everybody thinks you might get your ass kicked—who's going to blame you for it? Staying and fighting when you know you might get your ass kicked, that's hard. I can't trick myself into taking the easy way out."
It is 1981. Smith, a freshman at Cedarville (Ohio) University, decides to run for class president. Soon one of the tires of his car is punctured, harassing calls are being left on his answering machine, and notes reading "Go home, NIGGER!" are left in his mailbox. It is not the first time he has been confronted with racism, and he must decide what to do.
He asks himself, Is it worth it? Should I just quit? But the more vicious the threats become, the more determined he is. He wins the election.
When Smith was voted into his job in March 2009, he was viewed as an outsider, unfamiliar with the ways of the NFL, a person whose only previous ties to the league were his family's Redskins season tickets. In contrast the NFL was comfortable with Upshaw, if only because he had been around for so long. A Hall of Fame guard with the Raiders, he led the union for 25 years before dying of pancreatic cancer in August 2008. The players made gains under Upshaw, securing free agency and seeing their salaries increase exponentially. But he governed behind a veil of secrecy, centralizing power and telling the players only what he felt they needed to know. His close relationship with former commissioner Paul Tagliabue in later years allowed them to escape to a private room at the 11th hour and hammer out collective bargaining extensions that ensured labor peace.
Smith doesn't believe in secrecy. Before his election he told players he wanted them to take more control of their careers and their futures, and that if they were unwilling to educate themselves and be more involved in the process, he wasn't the man to lead them. The other candidates included Troy Vincent and Trace Armstrong, two former players who'd served as union presidents, and a prominent lawyer, David Cornwell, who once worked in the league office. Smith was elected by a vote of 32--0.
The NFL owners had already decided to opt out of the existing CBA when it expired, so Smith had no time for a transition period. He brought in five colleagues from his previous jobs, all but one of them lawyers, because he knew they were talented and would support him. "In local D.C. politics, we always say when you come into office, you have to put some killers around you, people who think the way you think," says Michael Irving, a former Washington homicide detective who spent a decade working with Smith at the U.S. Attorney's office. "That's what he's got around him. Having the power and the muscle is one thing, but you've got to have the brains to go with it."
In a recent New York Times Magazine article Smith was quoted as shouting to a group of players in January, "We are at war!" Those words may not have been meant for public consumption, but they reflect Smith's approach. "A lot of the people coming through the U.S. Attorney's office, they want a perfect case," says Irving. "They're looking to build a name for themselves, and if they have 12 cases, they want to be able to say they were 12--0. De wasn't that way. He knew that even if he didn't have all the pieces, he had to do everything he could to hold people accountable. One thing I know—he hates to lose."
In this case Smith is fighting not only for better player salaries and improved safety today, but also for long-term health care and increased benefits tomorrow. And he openly admits he's playing catch-up. As Smith sees it, the league had a nine-month head start—the period between Upshaw's death and Smith's official first day in office—in preparing for the labor battle. Among the strategic moves he was confronted with early on were the NFL's hiring of outside counsel Bob Batterman, a labor lawyer who advised the NHL during the lockout that cost it the entire 2004--05 season; the extension of several TV contracts to guarantee the NFL its $4 billion in network money in 2011; and the hiring of Vincent as NFL vice president of player development. The league has also become more aggressive in its congressional lobbying efforts since Roger Goodell became commissioner in 2006; last year the NFL spent $1.45 million on lobbyists, nearly four times its 2006 outlay. Says Smith, "My guess is that if Gene were here and the league had made all these moves and told him it needed the players to take [a reduced share] of all revenue, his first reaction would not be, 'I've got to get along with the league.'"
So Smith pushes and prods. And plans. Sometime between Friday afternoon and Monday morning he spends two hours "war gaming"—assessing what strategic hits the union has suffered, how it might be attacked next and where he thinks the league is vulnerable. He calls it 3-D chess.
It is the summer before Smith's sophomore year in college. A sprinter on the track team, he shreds his knee and misses a semester of school because he cannot get around with a full-length cast on his leg. When he returns he's told he'll have to make the track team again to have a shot at a scholarship. Smith wonders how: He cries when the cast is removed and he sees his atrophied leg, looking no thicker than a walking stick. No one will question him for walking away, but doing so is not in his nature.
"He was really down," Jim Atkinson, a former college roommate, recalls. "He didn't know if he was ever going to get back to how it was. One thing about De, he's a hard worker. He would rehab at school in the morning, then work out at the pool after school. We would drive him there and stay while he worked out."
Not only does Smith win his scholarship—he also earns National Christian College Athletic Association All-America honors as a senior.
When people pat Smith on the back for his accomplishments, he thinks about the conditions his parents endured when they were children. His father, Arthur, was one of 14 siblings growing up near Danville, Va., in the Jim Crow South, the son of a sharecropper named Frederick Douglass Smith, who was a pastor on the weekends. Arthur's schooling was limited because he was required to work the fields, but his path changed when he joined the Marines and entered the Korean War. It was the first time he had his own bed, his own shoes and three square meals a day. After his discharge Arthur attended Virginia Union on the GI Bill and became an accountant with the federal government.
DeMaurice's mother, Mildred, grew up in Savannah and did not know her father for the first 15 years of her life. At 12, while living with her grandmother, she went outside on a chilly winter's night to start a small fire to keep the family dog warm. Her nightgown caught fire, and she suffered third-degree burns over 85% of her body. She had to relearn how to walk, and doctors later told her she most likely would never have children because of the scarring.
Mildred, 76, and Arthur, 81 and now retired, still live in the Glenarden, Md., home where DeMaurice grew up. Mildred has streaks of gray amid her black shoulder-length hair and moves in a manner as gentle as her spirit. "I'd like to tell you there was some hokey speeches about overcoming adversity and all those things in my parents' house growing up, but there weren't," says Smith. "It was a very quiet confidence that you could talk about anything, you could do anything, and regardless of what happens this family will stick together."
When DeMaurice was 14, Maryland's Prince George's County was splitting along racial lines over the trial of Terrence Johnson, a 16-year-old African-American accused of shooting and killing two white police officers. The county's school system had been integrated five years earlier by federal mandate; Johnson's trial reopened the wound.
Smith was struck not only by the polarization within the community but also by the lawyers' efforts to make their cases before the public. After watching them on television one day, he thought to himself: This, I can do. At that time he joined Common Cause, a grassroots community organizing and government watchdog group. Though surrounded by much older colleagues and working on issues of little interest to most teenagers, Smith did not feel out of place. "I remember walking in thinking, This is where you're supposed to be," he says.
It is 1998, and Smith is prosecuting a gang-related case for the U.S. Attorney's office, when he receives a death threat. Smith is placed under protection of U.S. marshals and continues with the prosecution, eventually securing a conviction. Later a Virginia prosecutor informs him that the defendant's associate, who was jailed for the threat against Smith, was being charged with putting out hits on two police officers who were shot but not killed.
As much as Smith relishes a fight, he also knows he'll have to make concessions to strike a deal. He has presented the league with a proposal for a rookie wage scale and made a counteroffer regarding the league's proposal to reduce the players' share of revenues. "De is a very intense guy, but he's also a realist," says All-Pro center Jeff Saturday, the Colts' player-representative. "He's not just a hype man. He's telling you there are going to be things we're going to have to compromise on, and here's why. You have to be up front and honest. Not everything is going to go the players' way. He's done a good job of balancing that, so the guys understand that we're in this to get this thing finished and to get a new agreement in place."
These negotiations mark the first time that Smith and NFL commissioner Roger Goodell are leading the talks. As with Upshaw and Tagliabue, the relationship between the current heads of the NFLPA and NFL did not get off to a good start. Observers on both sides describe the initial contacts as icy. Smith was stung by what he believes was a confidentiality breach by Goodell regarding their talks over an 18-game season, and Goodell was put off by Smith's failure to show more respect toward his office and the league in general.
One of the ways Smith tries to determine the power players in the league is by "poking the elephant" to see the reaction he'll get. He has filed multiple legal challenges, including a complaint that the NFL left money on the table in its TV contract extensions in exchange for guarantees that the owners would be paid in 2011. (The special master in the case ruled that the league would have to compensate the players but did not nullify the agreements; the NFLPA is appealing that decision.) Smith has also charged the owners with colluding to limit player movement and earnings during the 2010 free-agency period. (That complaint is pending.)
"The union has so many legal people who aren't business-oriented, in my opinion, that I hope it doesn't prevent us from being able to get a deal done before March 4," says Patriots owner Robert Kraft. "I've had some sense that De is a dealmaker. I understand there's a lot of posturing going on, but in the end I hope his strong business instincts come out. He seems professional, intelligent and personable. But we're all going to be judged on whether we get it done."
Smith's willingness to challenge the NFL publicly and keep the sides in litigation is considered a breach of protocol within league circles. But while some wonder if he's simply trying to make a name for himself on the way to political office—Smith says he has no such plans—others say he should not be taken lightly. Consider the collusion case. When the union leaked word that it would be filing suit, Smith received a call from Goodell urging him not to go forward. At that point Smith asked if the owners would make certain concessions during the lockout if he dropped the claim. Goodell asked for 30 days to consult the owners. Eventually he came back and said there would be no concessions. Those close to Smith say the endgame was not necessarily to get the concessions but to determine whether Goodell had the influence to get the owners to budge.
When Smith needs to reset his compass, he turns back to the files Upshaw left behind. On this December day Smith pulls out a newspaper clipping dated June 24, 1995. The headline reads: ABC, NBC TELL BASEBALL THEY'RE CANCELING PASTIME. The story outlines those networks' decision to forgo future deals with Major League Baseball, in part because of MLB's strike-shortened season in 1994. Above the headline is a handwritten note to Upshaw from Jerry Richardson, a former player who owns the Panthers and is one of the league's hardliners in the current labor impasse. "Gene," the note reads, "this is a great example of why we must have labor peace in the NFL."
Smith studies the message for a moment, smiles and stuffs the clipping back in its file. Then he closes it and chuckles. It's snowing outside. Time to get home for dinner. He'll be fighting traffic all the way.
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"WALKING AWAY FROM A TOUGH FIGHT, WHO'S GOING TO BLAME YOU FOR IT?" SMITH SAYS. "STAYING WHEN YOU KNOW YOU MIGHT GET YOUR ASS KICKED, THAT'S HARD."
"DE IS AN INTENSE GUY, BUT HE'S ALSO A REALIST," SAYS SATURDAY. "HE'S NOT JUST A HYPE MAN."
WHERE THEY STAND
As the expiration of the current bargaining agreement approaches—March 3 is D day—the two sides remain far apart on the major issues
At his State of the League address in Dallas before the Super Bowl, commissioner Roger Goodell said of the NFL's labor arrangement, "the status quo is unacceptable." In 2010 the $9.3 billion revenue pie was sliced like this: $1.3 billion to the league for expenses associated with growing the game (i.e., stadium construction, the NFL Network, overseas initiatives); $4.65 billion (or 57% of remaining revenues) to the players; and approximately $3.35 billion to the owners. In simple math: the owners received about $4.75 billion, the players $4.65 billion. These are the key issues in the negotiation.
Revenue distribution Owners say they want to balance financial risks and rewards by taking an additional $1 billion in expense credits out of the revenue pool. Players have proposed a straight 50-50 split of all monies; the union also want the owners to show the risks by opening their books, a concession owners have steadfastly refused.
18-game season To grow revenues, the league wants to eliminate two exhibition games and add two regular-season games. Players contend that 16 games is enough; if the season were longer, they'd want to address the added toll on their bodies by limiting hitting in off-season workouts and in-season practices and improving postcareer health care.
Rookie wage scale The sides agree on the idea of a new rookie pay system, but the union believes the owners' recent proposal, which includes lower minimum salaries and more years of service before filing for free agency, amounts to a veteran wage scale.
Forfeiture language If players violate the law or the personal-conduct policy, owners want to be able to recoup bonus monies more easily. The NFLPA contends that signing bonuses represent the players' only real guaranteed money, and therefore should be theirs to keep.
Both sides say the biggest loser in any work stoppage would be the fans, and that they will work feverishly to reach an agreement before the CBA expires. Yet at week's end, prospects for a deal seemed as dim as ever.