An Epic Mess

For a league that used to pride itself on being the model for every other professional sport, the NFL is sure a mess at the moment. By comparison, the NHL looks like a sea of absolute sanity.

With Judge Susan Richard Nelson issuing an injunction to prevent the NFL from locking out its players, confusion has become the operational imperative. Players have been showing up at team facilities, ostensibly to work out, only to be told that the weight room is closed. Meanwhile, DeMaurice Smith, the head of the trade association formerly known as the NFLPA, has been his usual smug self suggesting in interviews that the owners are breaking the law. Roger Goodell has been playing the Kevin Bacon role and asking everyone to remain calm. No one is really listening to either one.

The real work that is taking place is more legal maneuvering in the form of a motion that the owners filed to have the judge hold off enforcing her injunction until the owners’ appeal of her ruling has been decided. I doubt she’ll grant it. The owners also have filed that appeal, asking for an expedited review. They may get that.

As the dispute turns nasty, fans are wondering who exactly to blame for all of this. The simple answer is both sides. The full answer is the owners, first, and then the union.

To understand the roots of this dispute, you have to go back to the last collective bargaining agreement that was negotiated between Paul Tagliabue and Gene Upshaw. Those negotiations seem headed for an impasse and perhaps a strike until Tagliabue came in and finalized a deal that angered many of the owners. They thought that in an effort to keep the peace, Tagliabue had given away the store by allowing the players to keep too big a piece of the pie.

To the owners’ way of thinking, they take all the financial risk of the sport, have the most invested and thus should see the lion’s share of the profits. To them, giving the players the majority of the money was insane. However, the owners did approve that deal, although very reluctantly, but it isn't any coincidence that Tagliabue retired shortly after it was signed. He had lost their support.

Goodell, who worked for Tagliabue, was hired as commissioner knowing exactly why the owners were upset and he knew ultimately that this day was coming. The owners have been spoiling to reconfigure the last labor deal and that's why they opted out of the contract a year early, a right the contract gave them to exercise. So in that sense it was the owners that first set this up for labor Armageddon.

But that doesn’t absolve the union, not in the least. Just as Tagliabue was having problems with his constituents, so too was Upshaw. Retired players like Mike Ditka had openly questioned Upshaw’s apparent indifference to their financial plight. Active players, including former Browns and Ravens kicker Matt Stover, questioned whether Upshaw had grown too cozy with management and thus was no longer looking out for the players’ best interest.

The problem solved itself when Upshaw died in 2008 after a short illness. Eventually Smith was hired, as leaders like him tend to be, on a platform built around demonizing management. It didn’t seem to matter to players that Smith had absolutely no experience in collective bargaining of any sort. He sported the right attitude. So in that sense it was the players next that allowed themselves to be drawn into this position by hiring a neophyte whose sole calling card has been a bad mood and a pouty face.

Smith and his advisers have always understood that this day was coming. They never did construct a strategy around a negotiated settlement to head it off. They built their model around a legal fight that would lead to exactly where things are today. Smith, as a new leader, could never concede on any economic issue without undermining the platform on which he ran to get the job in the first place. That's why the negotiations have gone nowhere.

That may be all well and good for face saving and posturing, but while Smith preens the course he charted for the players who pay his salary is one that threatens the continued existence of the NFL as fans currently know it. Smith and the union seem completely comfortable with letting the league implode as a better alternative to giving in on the economics.

I simply don’t see a negotiated settlement to this mess on the horizon unless the owners are willing to capitulate on their fundamental plan to re-cut the league’s economic pie. That won’t happen in the short term because the worse things get the more hardened positions become.

What I do see happening is much more legal gymnastics. The appeal of Judge Nelson’s ruling is but the first step. Next up is the battle at the NLRB over whether or not the union’s decertification was a sham. That charge has been filed but the NLRB hasn’t ever been known as an agency that moves quickly. Even if it did in this case, whatever decision it makes will be appealed by a completely separate court of appeals, setting up further legal uncertainty.

That means that playing out in one court will be the issue of whether or not the union’s decertification was lawful. If it was, that further bolsters their anti-trust claims pending in Judge Nelson’s court. If it was not, then the players’ lawsuit is eviscerated. The lockout would be lawful and the only way the players would ever get back in is with a negotiated settlement. No judge would be permitted to issue an injunction to stop that lockout.

The main point to all of this is that nothing about this legal process gets resolved quickly. It’s not even a matter of weeks or months, but years if allowed to play out to its ultimate conclusion.

So where does that leave everything at the moment? Jumbled, that’s where. But remember this. The players can win every battle and still lose the war. If the parties continue down this path, then a new world order will emerge.

The scenario I see is rather simple and ultimately the only path forward if things continue as they are: if ultimately forced to end the lockout and play, the owners, contrary to popular belief, would be just as happy with letting every player in the league become a free agent. There won’t be salary caps, a draft or any other league wide rules. Each team will decide what it wants to spend on players and what benefits it wants to provide.

That may sound like major league baseball in one sense, but I don’t see the NFL ever becoming a league of haves and have nots. What I do see is every team cutting their payroll dramatically and offering various tiers of pay and benefits. Some teams may spend money on the top tier of players but every team’s rosters will be filled out with even cheaper talent then it is today. It will be a league with even greater payroll disparity between the best and the rest then exists today.

Eventually that cheap labor will get angry about their pay and benefits and someone will get the grand notion to reform a union for the greater good and work to strike a deal with the owners. The owners will then pounce and the deal they strike will undoubtedly be far better than what they can get from the union at the table right now anyway.

Is this likely to happen? Hard to say at the moment but things are surely headed in that direction. Before it does, though, I suspect you’ll see insurrection from the current players because at some point, sooner or later, enough of them will wake up and find that it was Smith and his lawyers all along and not the owners that were really taking them down the path to slaughter.