The Framework of an Agreement

If all the optimism filtering out of the discussions in Minnesota is accurate, the NFL owners and its players will have the framework in place for a new collective bargaining agreement within the next few days.

For all those who depend on the NFL for their livelihood, from the players to the front office staffs to every lowly employee in every ancillary industry tied into the NFL whose paycheck depends on games being played, that constitutes good news.

But until the parties jointly announce a resolution of their differences, nothing is final. And as is typical in any negotiations, they’re always some naysayer on one or both sides that will try to throw a turd in the punchbowl at the last second over this issue or that. Ultimately though all the minor concerns will fall away and some sort of agreement will get signed.

The question the average fan probably has is why will the settlement only constitute a “framework for a collective bargaining agreement” and not an actual agreement. The answer to that is tied up in all the unpleasantness that comes when one party, in this case the players, decides to head down a litigation path instead of staying at the bargaining table.

In simple terms, what’s getting resolved is the underlying litigation itself. The litigation ensued because the NFLPA, the union representing the players, filed a petition to decertify as the exclusive bargaining representative of the players. While the validity of that petition has never been ruled upon, that act in turn led to a group of players filing a class action lawsuit claiming that the owners committed a multitude of anti trust violations by, among other things, locking them out. The players also sought an injunction to prevent the lockout.

As we know, the district court issued an injunction against the lockout but that was quickly and forcefully overturned by the court of appeals. That little shift in circumstances is ultimately what forced the players to get serious and start addressing the issues the owners brought to the bargaining table. To that point, the union, led by an absolute neophyte in DeMaurice Smith, essentially refused to negotiate, saying no to every owners’ proposal while offering nothing in the form of a counterproposal.

But it’s the fact of this litigation coupled with the union’s decertification that complicates the ultimate resolution and the start of a new era of labor peace. First, the parties have to settle the lawsuit. They are doing this by creating the so-called framework for a new collective bargaining agreement.

Once that framework is established, the court will have to sign off on the agreement and give all potential class members a chance to object. That sounds ominous but will mostly be a formality. The players are lemmings and will trust whatever agreement has already been reached. Even if one or two thorns file an objection, it won’t matter anyway. The court can simply reject their opposition.

After the settlement is approved by the court, the players will then have to vote to re-certify the NFLPA as its exclusive bargaining rep. That, too, will be a formality but it will take some time to accomplish. Once that’s completed, the parties, meaning the NFL Management Committee and the NFLPA, can sign an actual collective bargaining agreement with all the handshakes and hugs you’d expect. Roger Goodell and DeMaurice Smith will give the perfunctory kudos to their negotiating teams and, in turn, to each other and all the acrimony that was present just a few months ago will suddenly and surely melt away for the next 5 or 10 years or for however long the next collective bargaining agreement is scheduled to last.

Getting through all of this procedural hoops is pretty complicated stuff designed by lawyers for lawyers. If you didn’t think they weren’t going to get some small piece of this multi-billion dollar pie then you don’t know lawyers very well.

If the owners wanted to be pricks and really force the players’ hands, they’d keep the lockout in place until all of the above administrative matters have been worked through. That would take weeks and cost games but it would give them the only real assurance that labor peace has been achieved.

But the owners have as much of a vested interest in getting the games played as the players do and so they’ll open camps once the settlement agreement to the litigation, which contains the framework for the new collective bargaining agreement, is signed by the class plaintiffs.

Meanwhile, while all of this works its way through there is a new piece of litigation that needs to be dealt with and that’s the complaint recently by retirees who aren’t too happy that they weren’t given a seat at the negotiating table.

Much has been made about their issues with former Browns offensive lineman Joe Delamielleure and former Bears player and coach Mike Ditka acting as the leaders of that charge. The sympathetic tug from Joe D and Ditka has been that the players now are realizing such riches that they ought to reserve some of that for those who went before them.

But it’s not like there isn’t another side to this story. The union hasn’t exactly ignored the calls but they haven’t been overly sympathetic to the retirees either. Drew Brees, in words he’ll probably end up regretting, pointed out that many of the former players have fallen on hard times because of bad financial and personal decisions they’ve made. Undoubtedly that’s true but he didn’t necessarily need to poke them in the eye about it.

The real problem for the retirees is that they have no legal right to be at the bargaining table. In a quirk of federal labor law, the union (which doesn’t even exist at the moment, allegedly) only represents active players. Once players retire, they are not active members of the union. There’s nothing preventing either the owners or the players from discussing benefits for the current retirees while at the bargaining table but nothing requiring it either. So it’s not a surprise that these retirees haven’t been brought into the discussions in any meaningful way.

That litigation too will get resolved in short order. The retirees don’t have any legal standing to pursue that kind of lawsuit anyway. That notwithstanding, there may be some token outreach to the retirees to address their concerns but in truth there probably isn’t an amount of money that the league could dedicate to their cause that would ever fully satisfy them anyway.

With a deal apparently imminent, all that really remains is for the parties to actually go back to the business of getting players into training camps. That’s easier said then done, especially here in Cleveland where the Browns don’t even a have a full team to get into camp. But then again, that’s been true for the last several years so perhaps nothing much has changed.