A Compelling and Complicated Man

The announcement barely earned a mention in the Plain Dealer last week but Scott Fajita, the former linebacker for the Cleveland Browns, has officially retired.  He signed a one-day contract with the New Orleans Saints so that he could officially retire from the franchise that wouldn’t pay him enough to keep from becoming a free agent and signing with the Browns.  He never much liked the Browns anyway, just their money.

Fujita, for reasons that extend well beyond anything he’s done on the field, has become one of football’s more compelling personalities.  Usually thoughtful, often combative, Fujita seems to be coming to the role of the passionate advocate as his on field career ends.  It started with his front and center role in the labor dispute between the owners and players.  It got its sea legs when he found himself engulfed in the maelstrom that surrounded the Saints’ bounty scandal.  It’s taken wing on a variety of social issues, from player safety to gay marriage.

Admittedly I’ve not been the biggest fan of Fujita owing to in my view the destructive role he took in helping prolong the NFL lockout.  Sucked into an ill-conceived strategy by NFLPA executive director DeMaurice Smith that it was better to litigate than negotiate, Fujita and players like former teammate Drew Brees helped sell the strategy to the rank and file that failed miserably.  By believing they could force the owners’ to withdraw their demands for various concessions by first decertifying and then suing under anti-trust laws, the union essentially refused to negotiate until it became clear that the courts would offer no relief or even negotiating leveerage.  While this helped lengthen the overall dispute significantly, when it failed it helped get a deal done that was there for the taking months prior.

Fujita was on the wrong side of that issue and the damage it did to fringe players who lost real money and opportunity has mostly gone unnoticed.  But it did occur and Fujita owns part of that legacy.

The other thing about Fujita is that I initially saw him to be mostly a phony when it came to issues about player safety.  What’s probably more accurate is that he’s sincerely conflicted on the subject and he’s let that conflict at times blunt the noble attempts of his efforts.  Fujita, like other players, want to lay the league’s sorry record on concussions at the feat of NFL Commissioner Roger Goodell and yet see no contradiction as they unceremoniously criticize Goodell every time he punishes someone like James Harrison for trying to tackle opponents with his head.

Then there’s what took place in New Orleans and how that impacts on Fujita's attempts to make the game safer..  Fujita essentially turned a willful blind eye to the actions of his own teammates who were running a bounty system designed to put players from other teams (or, as I like to call them, Fujita’s union brothers) out of commission.

It’s hard to square Fujita’s role as a team leader in New Orleans with the fact that he did nothing to stop the bounty program.  It's tough to claim the safety higher ground if you don’t try to stop deliberate head and knee hunting by your teammates.  Even if that atmosphere was fostered by the coaching staff, like Gregg Williams, and that does appear to be the case, Fujita didn't stand up to them either.  Would taking a stand have been difficult for Fujita under those circumstances?  Most certainly.  But that's what leaders do.

There’s also the inconvenient fact that Fujita brought the maelstrom he incurred over this issue on himself by admitting at the outset that while he would never participate in a “bounty” system, narrowly defined as a scheme to pay teammates who deliberately injured opponents so that they couldn’t play, he did admittedly contribute to a pool to pay teammates for good, clean hits.  Such a fine line, though even what Fujita was doing was in contravention of salary cap rules.

It bears mentioning too because it reflects on what makes Fujita both compelling and complicated is that his exoneration from the bounty scandal was similarly tortuous because of his own hardheadedness.  Fujita wouldn’t participate in the league’s appeal process because he didn’t feel it was fair.  It was the appeal process laid out in the collective bargaining agreement he helped ratify but when it applied to him he wanted no part of it.  After being placated but not accommodated Fujita eventually did participate, had the chance to tell his story and present his evidence and then was exonerated months later than he would otherwise have been.

These complications in his thinking aside, part of presenting the entire picture of Fujita is to not just acknowledge but praise his other more worthy contributions, especially to the ongoing dialogue that is earnestly trying to make the sport and society better.

Fujita, despite of or perhaps because of his past, has kept up the pressure, mostly in the right way, on player safety issues.  What Fujita now seems to recognize is that the day has long since passed when we stopped viewing hard-nose football and player safety as contradictory concepts.  I’d like to see Fujita be more even-handed in his approach or at least be as critical of his union as he has been of management.  It’s a shared responsibility and perhaps as a retiree Fujita’s views will even out. But he's doing the right things now.

Then there’s his advocacy on the part of gay athletes.  Jason Collins, late of the Washington Wizards, came out Monday as the highest profile male athlete to declare he’s gay.  Someone had to go first.  It won’t be long before others follow.

Fujita for his part has been a passionate advocate for the rights of gays, generally, and gay athletes in particular.  It is just this kind of leadership that’s needed so that the specter of discrimination can be eradicated on this front.

It is simply shameful that in 2013 this country, as a matter of policy, still allows for the overt discrimination of gays.  We allow those who claim a sincerely held religious belief over a decidedly unreligious topic to control the debate when all that debate is really doing is masking irrational homophobia.  If your First Amendment right to free association allows you to hang with a large group of intolerant religious zealots to express your views publicly then it stands to reason that that same amendment allows the other person to hang with a group of overly liberal gay atheists doing likewise.  But more to the point that same amendment dictates that as a society we must allow these two disparate groups to coexist.  Majority rule by either extreme has no place at the table.  I don’t have to like your friends or your ideas and you don’t have to like mine.  That’s why we live in this country.  The entire underpinning of freedom rests on the peaceful coexistence of disparate thought.

It’s just a matter of time before it’s no longer a story when a male athlete declares that he’s gay just like it’s just a matter of time before no one seriously questions the rights of gays to marry each other.  Our disgusting history as a country that has taken too long to right the wrongs borne from discrimination time and time again will eventually catch up with us when it comes to gays and when that finally happens the society and our sports will be the better for it. The economic performance of our country has likewise shown time and again that each time discrimination in some form is eradicated, the economy expands.  Why do you think sensible immigration reform is finally getting the serious bi-partisan discussion it deserves?

Fujita was one of several athletes to sign a friend of the court brief in the Supreme Court cases pending over the issue of gay marriage.  He supports it.  The only question is why everyone else hasn’t? Hopefully Fujita and the handful of others like him with a larger pulpit can push the issue even harder.

I’m going to continue to disagree with Fujita on the uneven nature in which he sometimes ham handedly goes about being an advocate for the rights of his fellow athletes but I won’t disagree with him on his intentions any longer.  He’s just a man struggling to stay on the right side of history and sometimes finding that path isn’t nearly as elegant as we’d like it to be.

Lingering Items--Eternal Souls Edition

There's nothing like a redemption story. It's a yarn older than the written word, more beloved then a tale of true love and continues unabated in every form of entertainment today. It's nice to believe in the power of redemption evens when it's mostly just a dramatic device contrived as an efficient if not accurate way to convey complexity either the writer, the reader or both can’t fully understand.

Witness, if you'll excuse the reference, the common theme of LeBron James' capturing of his long sought after NBA Championship. Nearly every sportswriter with a breathless thought has defined the Miami Heat's triumph as the personal triumph of James as if he were a member of the Lost Tribes of Israel who suffered long and hard and made it out of the desert alive.

Some suffering. James is one of the richest athletes on the planet. He lives a life of opulence and privilege borne of his outsized athletic skills. That was true before the playoffs started and remains true today and for the foreseeable future.

But attaining the championship he previously couldn't is more a result of attrition than redemption. It was just James' turn in the barrel. The Heat's path to the finals was clear and easy, relatively speaking. The Oklahoma City Thunder's was harder and longer and their fatigue and inexperience showed in the end.

James already lived his redemption story anyway when he signed his first pro contract. It was the real triumph of overcoming the very long odds of his upbringing. Having long since arrived he long since surrendered any candidacy in the redemption sweepstakes.

Let's all be honest with one another about this. James was always going to win an NBA title at some point. He's the best player on the planet, he still works hard at his craft, and he makes those around him better. It was always just a matter of time. Now or next year or whenever.

The other reason James' championship can never be a redemption story though is far more central to the ultimate narrative. For redemption to work the protagonist has to reclaim his soul. That hasn't happened here because James remains soulless having sold himself for his quest. He's no Jabez Stone and he doesn't have Daniel Webster on retainer even if he was. The devil drives a hard bargain and never renegotiates.

James is a forever man-child perpetually caught up in an adult world he doesn't fully understand. He commands an audience because of fame and fortune but he'll never fully have their respect because children are mostly seen and rarely really heard.

There is no real chance that James will ever fully gain the perspective one needs for real individual growth. Fame and fortune obscure. Look at Michael Jordan. It hasn't yet occurred to him that he is the worst owner/basketball executive in history not named Isiah Thomas. Fame and fortune obscure.

James will go on to win a few maybe several more titles and earn more and more individual accolades. But they will never change the essential nothingness of his being.

It's not really that James stiffed the Cavaliers and did so like a total putz. That was just the gating charge when he entered the land of souls departed. It's that James divested himself of the value system he so richly earned by avoiding all the crap that life threw at him early for the fast track to a phony Promised Land.

Pat Riley, the NBA's Gordon Gekko in looks and outlook, was certainly a far more attractive option then a muddling Danny Ferry. And while Ferry probably did lack the chops to put all the pieces together it's not as if James wasn't complicit in Ferry's difficulty. Let's never forget the long shadow James cast on the Cavs franchise and how his every twitch and quirk set off alarms inside the Q.

The irony is that James isn't lazy. He works on his game in the same way every truly great athlete does. Perfect, to his way of thinking, is never the enemy of good.

And yet James just couldn't abide things not happening for him quickly enough. So he sought a shortcut, a stack decked and if that cost him his soul, so be it.

In certain ways James is like Roger Clemens another rare talent for whom great was never great enough. Clemens used more nefarious means to cheat the system but he was seeking the same kind of edge as James did.

Indeed there are plenty of characters thought the history of sports that sought a similar path. It's as old, too, as a redemption story.

There's no reason to begrudge James his accomplishments because rare is the goal achieved without some compromise. But James will always have to live with the fact that his goals weren't nearly as earned as they could have been.

**

Speaking of redemption stories, the Penn State apologists can begin theirs in earnest now that Jerry Sandusky has been convicted on 45 of 48 counts of child abuse. There will come a point this season, maybe the next, when someone isn’t writing about Penn State’s resurgence as a respectable university after if put Sandusky and his sick exploits in the rear view mirror.

Frankly I’m not sure that Penn State can ever be redeemed. Shouldn’t it be scarred for life for its complicity in the long term abuse by one of its more trusted employees? Most certainly each of Sandusky’s victims will be forever scarred so why should Penn State ever get a pass?

For those who always rushed to protect Joe Paterno by claiming he had done what he could to stop Jerry Sandusky, how in anyway has that view been vindicated now that Sandusky is a convict? It hasn’t. If anything that view becomes even more discredited when you consider the mountains of evidence that were stacked against Sandusky and realize that because Paterno hardly lifted a finger to have it stopped, the abuse continued long after it could have been stopped.

In so many ways Paterno was a virtuous soul. He did place great emphasis on academics. He worked hard to build the stature of Penn State. For so many and for so long he supposedly stood for what was right about college athletics.

But Paterno was never the country bumpkin character that he liked to fashion for himself when it was convenient to do so. More than anyone else, Paterno was well aware that all his good non-athletic deeds for the university gave him almost unchecked power on that campus. And Paterno wasn’t afraid to utilize that power when he needed it to ultimately advance the cause of his beloved football team. It’s been thoroughly documented, for example, how Paterno kept his misbehaving players out of the scope of normal university discipline. His greater good was always far more narrow then he'd admit.

So when Paterno supposedly reported the Sandusky allegations up the chain, Paterno had every reason to believe nothing would come of it unless he specifically gave the word to make something of it. That word never came and Sandusky continued in his employ subject only to a whisper campaign while he quietly went about abusing more vulnerable boys.

Penn State doesn’t get another chance. Paterno was complicit and so was the rest of the university administration. If the new administrative crew really wanted to show its worthy of some level of forgiveness then it would start by proving how much more important institutional integrity really is by abolishing the football program completely and take whatever other steps were necessary to reduce the importance of any remaining sports. They’d wash Paterno off the books completely and take down whatever statutes they erected.

It’s nice that Paterno had a positive influence on so many young men. But this isn’t a balancing act. You don’t get to cite those figures as a counterbalance because the unthinkable, unimaginable horror that Sandusky’s crimes visited upon all those victims trumps all.

If you want to understand how sad, how truly pathetic this will all become, just wait until the university finds it completely appropriate to play the victim card for itself. It will pay out millions to settle lawsuits and then use that blood money as some sort of proof that the university community has suffered enough. It hasn’t and it never will because money will never give these victims back what they lost most and it will never erase the insidious way the university and its most important employees allowed such atrocities to continue for years.

**

As a follow up to my column last week about Scott Fujita, it’s been interesting that Fujita has gone back underground, perhaps realizing that his mouth is his own worst enemy.

The other interesting thing is to listen to union chief DeMaurice Smith call for a new investigation into the Saints’ bounty case. That makes him an even bigger hypocrite then Fujita, if that’s possible.

Smith didn’t participate in any aspect of the first investigation. In fact, he specifically refused to participate in the investigation and actively encouraged the players to likewise not participate in it. If there was only one side of the story that was heard, all the blame for that goes to Smith.

But Smith has sensed, wrongly but that’s another matter, that public opinion is such that the average fan doesn’t think there was enough evidence to suspend the various coaches, administrators and players. The average fan, I think, doesn’t much care either way. No one’s going to march on NFL headquarters in New York because Jon Vilma’s been suspended.

Smith gave decidedly wrong headed advice to his members on this issue and now is deflecting by trying to put the heat back on Roger Goodell.

The NFL has certainly put together a strong case that the Saints had in place a bounty system and that all that have been suspended deserved to be. There isn’t one particularly smoking gun so much as it’s the evidence’s cumulative weight that matters. That said, there were arguments to make in rebuttal that never got made because of another failed strategy by the union.

Goodell will rule this week and for the most part close the book on this latest NFL scandal. Smith can grouse about the decision because that’s what he’s paid to do but hopefully the players’ whose lives and paychecks were adversely affected will eventually come to realize that those adverse affects were due in some part to the bad advice they got from Smith.

**

Since we’re on a litigation theme, this week’s question to ponder: Even though he was acquitted of lying to Congress, does Roger Clemens’ silence since that verdict came down tell us more than a guilty verdict ever could?

Smearing the Wrong Person

Cleveland Browns linebacker Scott Fujita says he’s being punished over semantics. He may be, but when that punished is finalized he’ll have only himself to blame.

On the day his appeal of a four game suspension for allegedly participating in the New Orleans’ Saints bounty program, Cleveland Browns linebacker Scott Fujita and his cohorts traded that appeal process for the court of public opinion.

And in the court of public opinion they are expending great effort to display themselves as victims of a smear campaign while engaging in a little smear campaign of their own.

Let’s get a few things straight at the outset. Fujita isn’t a victim, he’s a perpetrator. Whether he’s complicit in fostering a bounty system that paid off for vicious hits on competitors may be a matter of semantics, mostly his. Fujita readily admitted early on that he did contribute money to an off-the-books bonus pool that paid teammates for good clean hard hits and other forms of in-game excellence.

If that all begs the question as to why otherwise well compensated athletes needed a special bonus pool that maybe gave them a few extra hundred dollars each week for doing what they already were paid handsomely to do, then you’re starting to understand what Fujita ignores—his story cum excuse walks an awfully fine line that most people can’t abide because of sheer illogic of it all.

What exactly is the difference between a good, clean hard hit and a good, clean hard hit that knocks a competitor out of the game? Not much to the recipient certainly. Irrespective, it is that difficult question that Fujita would have to actually answer in order to defend himself. Instead he turned tail and ran, again.

If you’re counting this makes it twice that Fujita has refused to actually participate in the process that could clear his name all while claiming that his good name is being smeared. He refused to answer any questions during the initial investigation, choosing a strategy of omerta when honesty would have been better. Now that he got a suspension he refused to participate in his own appeal.

Fujita played the victim card righteously plight during a noisy withdrawal from the appeal process by complaining about its abject unfairness, a red herring if ever there was one. This isn’t a criminal court. It’s an appeal process under a collective bargaining agreement that Fujita and these same cohorts ratified just a year ago.

We’ll all recall with some wincing the NFL labor wars of last season. There were accusations about this and that but mostly it was about how to divide up a shit load of money. There were plenty of other issues on the table, including player safety. Fujita was one of the most vocal about it, in fact.

Those labor wars, which involved court actions and expired contracts, were settled with a peace accord that included a brand new, long term collective bargaining agreement. Presumably the union and its members, members like Fujita for example, read it before they approved it.

Contained there in its own separate chapter is the ambiguously titled “Commissioner Discipline.” In very clear words it gives the NFL Commissioner, in this case Roger Goodell, the absolute authority to fine or suspend a player “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.”

In the same way, it gives the Commissioner the power to act as the hearing officer for any such discipline imposed for allegedly engaging in such conduct and to issue a final and binding decision after any such hearing. It’s all there in black and white. Nothing’s hidden.

In that light, Fujita’s complaint is merely that an agreement he signed last year doesn’t work for him this year. It’s the player mentality. When a player feels he’s outperformed his contract, he doesn’t much care that it binds him for another season or two. He’ll bitch and moan and sit out and suck his thumb or claim he’s got the miseries all in a way to get the other party to that contract to do something differently then what was already agreed to.

That’s Fujita’s problem here. Conditioned like most players to ignore contracts, he gets all indignant when the other side enforces it, which is exactly what the NFL is doing here. Recall that before Goodell held the grievance hearings on Monday, these same players tried an end around the process by claiming rather insincerely that because this conduct supposedly occurred before the new collective bargaining agreement was in effect, they couldn’t be disciplined by Goodell under it.

That argument was quickly shot down by two different arbitrators and so faced with the actual disciplinary hearing they were entitled to under the contract they fought for and signed and given the chance to clear their name, the players walked, like cowards and bullies they are.

Fujita can claim that Goodell and the NFL are running a kangaroo court but until he participates fully he loses the right to complain. He looks ridiculous and if he’s at all a victim here it’s either of bad public relations or legal advice and he should fire his advisors.

Let’s face it. Fujita isn’t really worried about some convenient sense of fairness that fits a narrative that he thinks will garner him sympathy. He’s worried about a far more inconvenient truth. Even if the pool he helped perpetuate wasn’t to act as bounty payments, it was still impermissible under the collective bargaining agreement for which he can and should be punished.

Fujita may think that the evidence against him for participating in a bounty pool is flimsy but much of it comes from his own mouth. In the legal business we call that direct evidence. Fujita isn’t participating in the process because it’s rigged. He isn’t participating in it because he’s guilty and recognizes the futility of going further.

The problem though is Fujita isn’t nearly that honest. He courts the reputation of a stand up guy always doing the right thing but he’s an abject phony. He’s a phony because he talks about player safety while secretly helping create a bonus pool that at the very least rewarded players for hitting competitors as hard as possible (since they were already paid plenty for hitting hard enough). If there’s one thing we know, players get hurt by hard hits, even clean hard hits.

Fujita’s a phony because he stood shoulder to shoulder with his fellow union advocates and ratified a new collective bargaining agreement but then decries its alleged unfairness when it happens to work against him personally. Finally Fujita is a phony because by not participating in the process and then publicly criticizing the Commissioner he’s doing exactly the thing he claims to detest the most—the smearing of a man’s good name.

Lingering Items--Battle Royale Edition

When it comes to the NFL, the only thing Cleveland Browns fans want to worry about is whether or not this team will ever win more than 5 games in a season again. But if you want a fun NFL-related distraction that is more competitive than the Browns have been in years, keep watch on the battle royale shaping up between NFL commissioner Roger Goodell and NFLPA executive director DeMaurice Smith.

Smith has made almost a cottage industry out of trying to reshape the image of Goodell from guardian of the game to a power hungry dictator more concerned with his stature then the welfare of the game or its players. Goodell for his part treats Smith like the pest that he is.

Smith's strategy was borne from the moment he ran for and won his current role following the death of the previous executive director, Gene Upshaw. Smith took a strident approach to his campaign by implying not all the subtly that Upshaw’s relationship with Paul Tagliabue was bad for the players, never mind that Upshaw and Tagliabue presided over the greatest expansion of wealth ever of their sport.

Smith took this approach because he knew that new commissioner Goodell has won his job by reflecting the desires of a strong and vocal group of owners who felt about Tagliabue like some players felt about Upshaw—that he was selling them out. When Tagliabue pushed a settlement of the previous collective bargaining agreement on the owners, there were many that felt he went to far in terms of the guarantees that went to players.

It was hardly a secret that the owners wanted to blow up the last agreement as soon as it was legally possible and reclaim their economic footing. The recession of 2008 helped their argument.

So it made sense for Smith to play to the fears of the players that Goodell was nothing more than a bag man for the likes of Jerry Jones in Dallas and that strong, strident, combative leadership was needed as a counterbalance.

Most players are about as vested in the inner workings of their union as you’d expect, meaning not much at all. In truth, most would prefer not to have their paychecks lightened by union dues. But they’ll go along to get along and so when Smith’s siren song found voice with the few who pay attention, his hiring was almost a foregone conclusion. I wonder, though, if anyone ever checked his resume. Smith had absolutely no labor experience when he got his job and then went about proving how disastrous that could be.

The owners weren’t exactly private about their intentions with respect to getting out of the last labor agreement and Smith wasn’t exactly private about what he was going to do in response. Relying on his training as a trial lawyer and his lack of experience as a labor lawyer, Smith turned to litigation to get his way. It didn't work.

Smith seemed to be under the impression that he could get the courts to stop the owners from not just exercising their legal right to get out of the contract, but also get them to force new terms and conditions on the owners that they wouldn’t want to accept. It was always going to fail.

Labor laws strike a decent balance between the workers and the owners in virtually all industries. Those laws certainly provide needed protections to workers who ban together to bargain collectively (as well as needed protections to help them ban together in the first place). But they also acknowledge that business owners are the ones at risk and thus don’t require those owners to agree to any particular proposal put forth. Both sides have the legal right to ask for anything and both sides have the same right to always say no as long as all of this is done in good faith.

The owners had, in their view, plenty of economic incentive behind their proposals. It could hardly be said they weren’t made in good faith. The players had good faith reasons for saying no. Eventually though the only place this could ever get settled was the bargaining table and not in court. No court or administrative agency can dictate the terms of anyone’s labor contract, simple as that.

Smith’s pushing the union into a legal battle delayed bargaining for months without meaningfully increasingly the union’s leverage. The owners were willing to lose the season if necessary to take back control of their economic future and the players, whose careers are fleeting, were always going to cave. A more reasoned leader would have seen this from the outset and set about to find the best bargain available in a bad situation. As it turns out, the deal Smith did sign was not appreciably different or better then what he could have had before he let his members get locked out.

So Smith has been smarting from this embarrassment ever since and has gone after Goodell at every turn. Hardly a day goes by when the NFLPA isn’t challenging one issue or another or reneging on one agreement or another.

Consider, three recent examples.

First, Smith agreed to HGH testing in the latest collective bargaining agreement and has since been walking back that commitment and it still isn’t resolved.

Second, the owners voted to make it mandatory that all players wear thigh and knee pads, which is well within their rights to unilaterally make that call under the collective bargaining agreement. It shouldn’t be particularly controversial given all the attention that player safety is getting these days. Not surprisingly the union is contesting the owners’ right to force players to wear this protection. Remind me again who cares more about safety?

Third, the union filed a complaint this week alleging collusion by the owners in the uncapped 2010 season. Whatever claim the union had over that matter they waived when they signed the new collective bargaining agreement. Both sides waived all claims, known and unknown, that either had or could have had about any issues under the old collective bargaining agreement, the uncapped year, or the negotiations for a new agreement. Despite this waiver, which Smith signed, he’s suing anyway buttressed by a failed legal strategy which depends on the union's direct disavowal of the agreement it signed—again.

In each case, and irrespective of what the NFLPA might say publicly, these actions are about Smith trying to build his stature on the back of Goodell. A more reasoned leader would find a more reasoned approach but that hasn't been Smith's style.

The owners and the players are under a long term labor contract at the moment so an all out labor war isn't in the offing. But these constant firefights aren't helping the game and they aren't helping the players. They aren't even helping Smith. The union should have strong leadership. Goodell does need a foil and a counterbalance. But Smith at the moment isn't helping his stature or the union's by constantly reneging on the agreements he's signed.

**

When did Jim Brown turn into Bob Feller?

People who never saw Feller pitch tend to know about him through old photos and newsreels or, prior to his death, from his gig as a so-called goodwill ambassador for the Indians. He pull on a uniform occasionally and throw the ball around. He'd also wax cranky on just about everything and everyone. It wouldn't surprise me to learn that the cartoon character Crankshaft was based on Feller.

But Feller had a certain charm anyway. Jim Brown? Not so much.

Arguably the greatest running back ever and certainly the best player to ever play for the Browns, Jim Brown used to serve the role with the Browns that Feller did with the Indians. But then Mike Holmgren was hired and for reasons that have never been explained, adequately or otherwise, Holmgren jettisoned Brown and his $500,000 salary from the Stadium while owner Randy Lerner wasn't looking.

Since that parting, Brown has turned into the cranky old guy. He raised a few eyebrows when the Browns drafted Trent Richardson by calling Richardson ordinary. And he still tweaking his old employer, Richardson and Holmgren, per an interview Tony Grossi conducted with him recently for ESPN Cleveland.

Brown stuck by his assessment of Richardson, calling him efficient. Brown just doesn't see greatness. Fair enough since Richardson hasn't even played a down in the NFL. But Brown did take another shot at Holmgren. He said the Browns are still a mess and it is due in large part to what he feels is Holmgren's lack of commitment to the team or the area.

Brown certainly is coming across as embittered. Losing a half million dollar salary will do that to a guy. But it's not as if Brown's comments lack a basis.

He explained in detail why he feels Richardson is ordinary, mainly due to what Brown feels is a lack of speed and quickness. Brown says Richardson has the opportunity to be a good workhorse type back but fans shouldn't be expecting the second coming of Emmitt Smith. On Holmgren, Brown rightfully points out his penchant for giving revealing interviews to Seattle radio stations while being mostly invisible to the Cleveland media.

The Browns have been a strange organization for so long that it's hard to tell what Holmgren is causing vs. what Holmgren is continuing. But alienating Brown was one of Holmgren's dumbest ideas. Maybe it was a money saver but that probably wouldn't have been necessary if Holmgren has not exercised his dumbest decision to date, wasting a year in this franchise's life by keeping Eric Mangini around for another year.

**

There seems to be a growing consensus that Browns head coach Pat Shurmur isn't very good at his job, based mostly on the team's performance last season.

It's an unfair conclusion to draw.

Shurmur was hamstrung from the moment he got the job. First, he was hired a year too late because of Holmgren's aforesaid dumb idea of retaining Mangini and his system for an extra year. Then Shurmur was hamstrung by the NFL's labor situation which prevented him from having any contact with any players in the off season. That set Shurmur back and set the players back. At most, the offensive scheme he was implementing wasn't fully in place until late in the season.

Finally, Shurmur was handcuffed by the front office's refusal to provide Shurmur with one credible receiver, which is a kind of important position in the West Coast offense. Sure, they drafted Greg Little, but he hadn't even played in a year and when drafted he was immediately their best threat. That's how bad it was.

Shurmur's now had a full off season. The front office still hasn't helped him by again refusing to provide him with credible receivers, but at least he now has a good running back and a quarterback in whom he's more fully vested. This doesn't represent a make or break year by any means for Shurmur but it will tell us far more about what kind of head coach he might ultimately be.

**

The Indians' sweep of the Tigers leads to this week's question to ponder: What's more surprising, the play of the Indians or the play of the Tigers?

Lingering Items--Men of Action Edition

The Cleveland Browns upcoming season promises to be a mess, a spectacular mess. For once, that's a good thing. The alternative was a non-existent season and if there's something Cleveland fans dislike more than a mess of a team is having no team to contemplate.

That's where the season was headed until the National Football League Players' Association, the about to be re-certified trade organization that operated as a union in all but name only for the last several months, finally got religion. Spoiling for a fight more out of revenge than oppression, the NFLPA under the guidance of labor neophyte DeMaurice Smith and a gaggle of resume-building lawyers seemed hell-bent on litigating the owners to death as part of a strategy that had no end game.

So when the litigation path proved to be nothing more than an expensive lesson in delay, Smith started to understand that he was running a labor organization that in one key way resembles any other labor organization. The bulk of its members just want to go to work, do their job and collect a paycheck.

It wasn't an easy process sorting out the mess the NFLPA created with its ill-guided strategy. There was litigation to settle and egos to soothe. And for awhile anyway it looked like the best fans could hope for was a truncated season that would end with a champion that would always carry an asterisk next to its name in the record book.

Pressured by players with work to do and bills to pay and a disapproving court of appeals, the NFLPA had no choice but to finally start bargaining. The details of the agreement at this point aren't even all that important to most fans. It's simply the fact that there is an agreement in place, it contains a hard salary cap and other financial constraints that ensure that the brains in the front office and not the checkbook of the owner will be the difference between the playoff worthy and the also rans, and it will be another 10 years before anyone needs to worry about this again.

That really is good news for all football fans in general and Browns fans in particular. Forget for now all that talk by those saying that the Browns were more adversely impacted by the lockout then other teams. There's no way to quantify that kind of argument. Instead focus on the beautiful mess that this season promises to be.

For example, this will be a season in which you won't be able to tell much without a program. (Aside: Here's a money making idea that I'll give Randy Lerner free: Electronic media guide app. Sell it for $2.50 and keep it updated with every roster move, and there will be plenty, in this upcoming season. You're welcome.) It's not just that their first round draft pick has the incredibly generic name of Phil Taylor or even the fact that Mr. Generic is, strangely, still holding out. It's that players will come and go with a frequency that would make even the Indians management blush. For example, remember Brodrick Bunkley? He's the players the Browns supposedly acquired from the Philadelphia Eagles on Saturday but who instead was traded Monday to Denver. It will be that kind of season.

This is also the season where the Browns are rebooting for the sixth time since 1999 (I'm counting the brief stint by Terry Robieski, who took over for Butch Davis, as a reboot), which would be typical if the Browns were, say, the L.A. Clippers. But this time it's not a reboot of the control-alt-delete variety, but a hard restart where the technician tells you to disconnect from the power source and wait a minute or two before powering up again.

A new defensive scheme, which means new roles and new players, coupled with a new offensive scheme, with too many of the same players in the same roles, wasn't ever going to be easy even if the Browns had been granted an exemption and allowed to not just practice throughout the lockout but were actually forced to conduct two-a-days every day since the Monday after the last Super Bowl. As a result there will be comically disappointing blown assignments on both sides of the ball, particularly early on. The theme of the season isn't going to be anything approaching “just win, baby” but more like “just walk upright, baby.”

Still, it's the kind of mess that is the really hard work of any regime change. Eric Mangini had his own set of challenges when he came in, but his were mostly in trying to bring some level of discipline to a team that had turned into juvenile delinquents under the benign parenting of Romeo Crennel. But Mangini wasn't doing anything terribly different philosophically on either side of the ball. Shurmur has a more disciplined group of players but now has the more Herculean task of teaching them a whole new way of playing the game. It's like the difference between the challenge of getting your kid in college and getting your kid to make his bed.

The real excitement of this season will come not in the visceral progress of a won/loss record over last season's rather meager output, but in the actual progress of players like Colt McCoy. There's no question that the kid has the requisite leadership skills. There is question over how that will actually translate. If it does then this franchise will know that it finally has a quarterback.

Then there are the questions about the questionable receivers and the injury-prone running backs and a defense that for more than a decade now hasn't found a way to stop a decent running back. And really, how well will a West Coast offense perform in an East Coast (or thereabouts, anyway) environment or is there an appreciable difference between a 4-3 and a 3-4 defense?

The point, though, is that this is the really fun stuff of football. It's the kind of thing that fans really do want to argue about and not the boring details of preliminary injunctions and class action lawsuits.

The Browns are going to be a mess of a team this year, count on it. But the game itself and this franchise in particular is on as solid of footing as it's been on in a very long time. So no matter how it turns out, like a wayward favorite uncle, it's nice to have them back.

**
If there is one thing that the kids have gotten right these days, it's the shorthand of texting. So it would hardly surprise if the smartphones of a million different Indians fans didn't generate a collective “WTF” when the trade of its two top pitching prospects was announced.

For me the WTF was completely unrelated to either who the Indians traded or who they acquired. It was completely related to the fact that they made the trade. After dumping Cy Young award winners in two straight seasons, fans were led to believe that the Indians liked their pitching rotation like a sailor on leave in a foreign port likes his women—young and cheap.

Yet here was Chris Antonetti, making his Mark Shapiro/Bartolo Colon signature move, but only in reverse. This time it was the Indians giving up the prospects for the pitcher. Now the Indians fans have two new favorite hobbies, wondering when Ubaldo Jimenez will be traded in 2013 and watching how the careers of Alex White and Drew Pomeranz play out.

Actually, the Shapiro trade of Colon is instructive for evaluating this trade. The Indians did acquire three front line players—Grady Sizemore, Cliff Lee and Brandon Phillips. But Lee and Phillips are long gone and Sizemore's career has been on the steady, injury-plagued decline for the last several years.

This proves the point of what fans should keep in mind about the trading of White and Pomeranz. Players are commodities to be used to buy other commodities. So much of the Indians' inability to pull of any trade of consequence in the last several years and move this franchise appreciably forward was a lack of such commodities. The real value of players isn't always what they do on the field but potentially what they can do on the field for someone else.

There's nothing fundamentally wrong with this trade, either. Jimenez has a track record, is tethered to the Indians rather cheaply for the next two seasons, and clearly fills a need in the pitching staff. (Ok, one small gripe. I hate trading for National League pitchers. They build a record, particularly an ERA, against teams with only 8 hitters in the lineup. They tend to struggle when they get to the American League.)

White and Pomeranz are hardly known quantities with absolutely no guarantee that either could develop even at the level of Jimenez let alone at the level of say, Lee or CC Sabathia. Prospects tend to be overvalued anyway because of their draft position though the correlation between draft position and productivity in baseball is only slightly better than the correlation between how many drinks you have and how funny/charming you become.

That's another way of saying that go back and look at every Indians number one pitching prospect in the last 25 years and ask yourself how many went on to great careers. Since 1985, the Indians have drafted 19 pitchers in the first round and only 4, Greg Swindell, Charles Nagy, Paul Schuey and CC Sabathia, could be said to have had decent to good careers. Remember Mike Poehl, Alan Horne, Jeff Mutis or Tim Drew? I didn't think so.

There's two points here and feel free to glom on to whichever one works for you. Pitchers are a mercurial breed who can't ever be counted on to develop like you think. Or, the Indians are lousy at drafting pitchers. Either way, it's hard to cry much over the loss of White or Pomeranz as if the Indians just re-traded Sabathia and Lee.

I'm glad the Indians made the trade and won't criticize them even if it doesn't work out in spectacular fashion. This franchise needed to show its fans and it did that it understood that the American League Central is weak this season and could be had for perhaps 85 wins.

But since the Antonetti started down the road it's a little disappointing that he didn't complete the journey. Having made this trade, Antonetti needed to finish the job of really getting this team in a position to make a run by getting that right handed bat the team so desperately needs. Without it, 85 wins could be a stretch which means that Jimenez, to his frustration, is probably in for a bunch of 2-1 and 1-0 losses.

**
Given the intersection of baseball and football in Cleveland this past week, here's this week's question to ponder: Which surprised you more, Montario Hardesty making it through his first practice without an injury of Ubaldo Jimenez passing his physical?

No Excessive Celebration

If the National Football League Players Association, a union re-purposed as a trade association so it could sue its employers, was dancing in the streets when Judge Susan Richard Nelson lifted the NFL imposed lockout, they'll dance no longer.

In a stunning but not unexpected rebuke of Judge Nelson's ruling lifting the lockout, the 8th circuit court of appeals not only kept in place the stay of her order that it issued a few weeks ago, it let the union know that their chance of winning in court is even less than the Browns' chances of winning back-to-back Super Bowls the next two seasons.

Ok, they didn't quite use that analogy but they might as well have. What the appeals court did in no uncertain terms is let the players and their trade association know is that their strategy of negotiation avoidance in favor of antitrust litigation was as ill-conceived as a Fox sitcom.

And while it's probably coincidental, how interesting is it that the appeals court issued its decision on the day the owners and the union returned to the mediation table? Very. What likely started out Monday morning as a strut by union leader DeMaurice Smith, who has been all full of himself since Judge Nelson's initial decision, ended up with Smith once again demonstrating the dignity and grace that has marked his short tenure in the job by deliberately misstating the nature of the owners' position.

Informed of the appeals court decision, Smith issued a snide congratulations to the owners for being the first sports league to sue its players in order to avoid playing the game. It was a repeat performance of the same lie he told just last weekend and was just as helpful to the underlying process.

Let's recap and throw in a little civics lesson as well by starting with the beginning of this particular lawsuit.

Just prior to the collective bargaining agreement expiring, the NFLPA filed a petition with the National Labor Relations Board disclaiming its status as a “union” serving as the exclusive bargaining representative of the players. Immediately thereafter, a group of players, backed by the NFLPA and its lawyers, sued the owners, claiming that the collective action of locking them out constituted a violation of federal antitrust law. They asked the judge to issue an injunction preventing the lockout.

The owners didn't file any lawsuit of their own or otherwise sue the players. All they've done is exercise their right under federal labor law to exert economic pressure on the workers by locking them out. Regarding the various lawsuits, all the owners have done is respond to the litigation initiated by the players and their union. First, the owners filed a charge with the National Labor Relations Board claiming that the decertification petition filed by the NFLPA was a sham. Next, they responded to the players' lawsuit by claiming that the district court lacked the legal authority under federal law to stop the lockout.

As we now know, the owners' weren't initially successful. Judge Nelson issued an injunction to prevent the lockout. In order to reach that decision, she had to reach two key legal conclusions. First, she ruled that a specific federal statute, known as the Norris-LaGuardia Act, didn't apply in this case. Under the Norris-LaGuardia Act, courts generally are prohibited from imposing an injunction to halt a labor dispute. Thus, if employees go on strike an employer can't get an injunction to prevent it. If an owner locks out its employees, a court generally can't grant an injunction to prevent that either.

Judge Nelson felt the Norris-LaGuardia Act didn't apply because the union's decertification meant that this was no longer a labor dispute but a commercial dispute.

Second, Judge Nelson ruled that she had jurisdiction to hear the dispute even though the owners were contesting the validity of the decertification before the NLRB. The owners contended the NLRB had the sole jurisdiction to determine if the decertification petition filed with them by the union was valid. Judge Nelson essentially ignored this argument and found that the union had validly withdrawn as the collective bargaining representative of the players. As a result, she said, it appeared likely that the owners were engaging in a violation of federal antitrust law. In order to prevent what she deemed to be irreparable harm to the players caused by the lockout, she issued an order preventing the lockout from taking place.

These rulings were always on very shaky legal ground, from the labeling of the dispute as commercial and not labor to the supposed irreparable harm by the players, and now the 8th circuit court of appeals has agreed. When the owners filed an appeal of Judge Nelson's underlying decision, they also asked the court to issue a stay of that decision, meaning that they wanted to put her decision on hold until the court of appeals could decide whether or not it she was legally correct. It's similar to a criminal defendant asking to halt the imposition of his sentence while he pursues his appeal to a higher court.

In order to get that stay, the owners had to show a number of things, a key one of which was that they had a likelihood of actually convincing the court of appeals that they would win the underlying appeal. After looking at the case and Judge Nelson's ruling, the court of appeals said just that: the owners have demonstrated that they will likely win their case.

In making that ruling the court of appeals completely undercut Judge Nelson's conclusion that this was not a labor dispute. In language that even Smith and every player could surely understand, the court said: “In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits.”

If there has been an “uh oh” moment in any of this it had to come when Smith and the players learned that their carefully constructed strategy of avoiding difficult negotiations with the owners was falling apart around them. And while the alpha male instincts of Smith and his followers will kick in immediately and make them more defiant, it should sink in rather quickly that the leverage they thought they once had as quickly disappeared and with it their chance of beating back the owners' will to change the economic equation within the NFL.

Sure, Smith will tell the players that there are more cards to play in court and that's true. But they aren't good cards. There's a chance that the court of appeals will reverse course when it issues its final decision, but that isn't likely. The players can ask the court to reconsider its decision, but they rarely do. The players can appeal to the Supreme Court, but it isn't required to hear the case and probably wouldn't because it doesn't present any real novel question of law. That means the lockout, in place now, will stay in place until the owners decide to lift it.

The players still have their main lawsuit, the one alleging violations of antitrust law, pending in district court. But that is likely a non-starter if not legally, then practically. With the lockout hanging over their heads, the players would have to be willing to forgo football and the paychecks it brings for the next few years. How many players would stand for that scenario?

The short answer is, few. The reason the players have never been successful at a strike is because they cannot make a commitment to solidarity. The average 12-year old manages his allowance better than the average football player manages his money. The could no more afford to go without paychecks for years than the average worker at the GM plant. Sure, they make more money, but then again they spend more money, too.

There's no question that the dynamics of this dispute have changed dramatically. Armed with the leverage that comes from beating back the union's ill-conceived strategy, the question for the owners is how exactly they want to use it. If they're smart, they'll follow the rule they've imposed on players when they make a play on the field—avoid any excessive celebration.

These are parties that have to live together for a very long time and just because Smith has pursued a search and destroy approach to the relationship doesn't mean it's necessary to return the favor in kind. This labor dispute always called for an even-handed solution and now is the best opportunity for the owners to use their new found leverage for good and not evil and craft the solution the union could never do for themselves.

Norma Rae in a Fedora

Next week the NFL owners and the trade group formerly known as the National Football League Players Association union are scheduled to resume another round of negotiations over a new collective bargaining agreement. Don’t expect anything to get done.

To this point, to call what the talks that these two parties have been engaged in “negotiations” is like calling “Dancing with the Stars” entertainment. It’s just not quite the right word. Instead, the players and their former union have been basically in a stare-down, each claiming they're fighting for what's best seemingly unencumbered by the thought that the game they both profess to love is being jeopardized by their very actions.

For now, union leader DeMaurice Smith, clueless and tone deaf as always, looks at the union's attempt to overthrow the owners and the game as a bit of a Holy War, if a Holy War is what you'd call a fight between the Corleone's and the Tattaglia's.

Invoking Clemenza on Friday, Smith said that the owners forced the players to “go to the mattresses” at the negotiating table. He said the owners had lied to the players and tried to trick them into a deal and as a result the union had to decertify in order to pursue this not as a labor matter but as an anti-trust violation.

NFL Commissioner Roger Goodell, meanwhile, was not nearly as strident or metaphorical. In a separate interview on Friday, Goodell, seeing no reason to attack the players or even Smith, just pointed out the obvious, saying that the vision that the union has for the game, as evidenced by the court filings, is detrimental to the game itself. The union has claimed, for example, that both the draft and the salary cap are illegal and both serve as underpinnings for the incredible success of the league.

But the one yarn that Smith continues to try and spin is to paint the owners' pursuit of an appeal of Judge Susan Richard Nelson's ruling that lifting the lockout as an unprecedented action in which a group of owners of a business are purposely suing to not do business.

They're not suing to stay out of business and Smith knows it. They're appealing a lawsuit filed by the union and the players. That alone is a world of difference. Further, they're appealing in order to keep this as a labor dispute to solve between two inextricably linked parties instead of an anti-trust action where one party's interest is in in hurting the other.

But perhaps the most tone-deaf aspect of Smith's rhetoric is simply that the strategy he's led, having his union actually decertify, is far more unprecedented of an action than a garden-variety appeal of an adverse legal ruling.

Simply put, the course the union is on has been pursued only one other time, by this same union. It's not been done in any other sport and as far as I can tell has not been done in any other industry. But Smith and his advisers believe that this strategy, launched early last year when Smith had each team's players vote during training camp on decertifying, is the most clever and innovative approach and that they are true trailblazers. Norma Rae in a fedora.

Smith meanwhile talks about the braveness of his players and their unbending commitment to their sport, invoking for example Drew Brees' getting together of players to work out as proof that all the players really want to do is play the game they love. In truth, the lambs are being led to slaughter.

Fundamentally, the standoff is about each side testing the other’s mettle. The owners want a bigger piece of the revenue pie and the players are adamant that the owners are going to get it and don’t need it anyway. As long as the owners can keep the players locked out, the players’ thinking goes, eventually they’ll crack. As long as the courts keep a lockout from taking place, the players’ thinking goes, eventually the owners will crack.

Right now the pressure is a bit on the players in the sense that the 8th circuit court of appeals doesn’t seem to be in a terrible hurry to lift their temporary stay of Judge Susan Richard Nelson’s ruling finding that the lockout was impermissible. Each day that passes the players aren’t getting the workout bonuses that supplement their income nicely during the spring and summer months.

But if the lockout is enjoined and the owners are forced to open their doors, those bonuses will once again flow, the season will go forward unabated and there will be game checks to eventually cash. If that becomes the case, the players and their advisers will surely sit their like petulant children who refuse the vegetables their parents shove in front of their faces and no meaningful negotiations will take place in the near term.

Eventually, though, the vegetables must get eaten. The question is when will the players and Smith come to that conclusion? If the lockout stays, that’s easy. The players will crack. They always do. If the lockout is lifted, things get far more complex.

You don’t have to be the Ghost of NFL Future to see how it all plays out because Goodell's has already laid it out for them. They just aren't listening.

In the near term, the owners will adopt some interim rules, careful not to violate anti-trust laws to meet the court’s requirements, but will otherwise be no more motivated to reach a new deal. That will be fine with the players, of course, because as long as they can play football under any rules and get paid, they really won’t see any need to say yes to any re-ordering of the leagues’ revenues.

Indeed, you can expect an almost party atmosphere from the players, at least initially. Unrestricted free agency for any player not under contract, hooray. No draft. A chastened ownership group that can’t work collectively to set the economic road map for the league. What could get better than that? Smith will be canonized by the players as the very re-incarnation of Marvin Miller.

Well, that may be right but only if you thing that could go on indefinitely, which it can’t.

If you believe, for example, that a cooperative, productive relationship between management and the workers is critical to the product produced, then it follows that when the relationship is broken, the product will suffer. Count on it.

As the product suffers, so does the interest others, like networks and beer manufactures, have in supporting it, at least at current levels. Besides, as current contracts like that expire, then the landscape for new deals becomes more fragmented. Teams won’t just be negotiating for their local radio rights, but for their local television rights as well because the owners’ ability to work collectively on these issues becomes severely hampered.

As the economic base begins to crumble, there will be no incentive, for example, for the owners to spend money in such an uncertain climate. Even in the near term, when media and sponsorship contracts still are fully in place, there will be plenty of owners pinching pennies.

There may be unrestricted free agency for any player not under a contract, but that doesn’t mean the floodgates open for new found riches. In fact, I’d expect the opposite to happen. Put it this way, there were plenty of teams in the NFL already spending the bare minimum when there was a salary cap in place. Do you think they would spend more without a cap?

At the same time, injured players would find themselves without protection and potentially benefits, including extended health or retirement benefits. In order to avoid a charge of illegal anti-trust activity, there probably won’t be league wide benefit levels. Instead, each and every one of those items would be subject to individual negotiations.

Maybe some of the top players might benefit from that scenario, the vast majority of the league’s players would not. You only need to see all the efforts underway in states to eliminate the collective bargaining rights of state employees to understand that the lack of the union doesn’t generally raise the standard of living for the employees, it lowers it.

As that scenario plays out over several months and perhaps a year or two, eventually enough players will get fed up with the legal strategy that the union set in motion and make efforts to re-form a union. That would be the point at which the current union leadership might begin to realize that it’s rarely about winning the smaller battles when the outcome of the war is still in jeopardy.Next week the NFL owners and the trade group formerly known as the National Football League Players Association union are scheduled to resume another round of negotiations over a new collective bargaining agreement. Don’t expect anything to get done.

To this point, to call what the talks that these two parties have been engaged in “negotiations” is like calling “Dancing with the Stars” entertainment. It’s just not quite the right word. Instead, the players and their former union have been basically in a stare-down, each claiming they're fighting for what's best seemingly unencumbered by the thought that the game they both profess to love is being jeopardized by their very actions.

For now, union leader DeMaurice Smith, clueless and tone deaf as always, looks at the union's attempt to overthrow the owners and the game as a bit of a Holy War, if a Holy War is what you'd call a fight between the Corleone's and the Tattaglia's.

Invoking Clemenza on Friday, Smith said that the owners forced the players to “go to the mattresses” at the negotiating table. He said the owners had lied to the players and tried to trick them into a deal and as a result the union had to decertify in order to pursue this not as a labor matter but as an anti-trust violation.

NFL Commissioner Roger Goodell, meanwhile, was not nearly as strident or metaphorical. In a separate interview on Friday, Goodell, seeing no reason to attack the players or even Smith, just pointed out the obvious, saying that the vision that the union has for the game, as evidenced by the court filings, is detrimental to the game itself. The union has claimed, for example, that both the draft and the salary cap are illegal and both serve as underpinnings for the incredible success of the league.

But the one yarn that Smith continues to try and spin is to paint the owners' pursuit of an appeal of Judge Susan Richard Nelson's ruling that lifting the lockout as an unprecedented action in which a group of owners of a business are purposely suing to not do business.

They're not suing to stay out of business and Smith knows it. They're appealing a lawsuit filed by the union and the players. That alone is a world of difference. Further, they're appealing in order to keep this as a labor dispute to solve between two inextricably linked parties instead of an anti-trust action where one party's interest is in in hurting the other.

But perhaps the most tone-deaf aspect of Smith's rhetoric is simply that the strategy he's led, having his union actually decertify, is far more unprecedented of an action than a garden-variety appeal of an adverse legal ruling.

Simply put, the course the union is on has been pursued only one other time, by this same union. It's not been done in any other sport and as far as I can tell has not been done in any other industry. But Smith and his advisers believe that this strategy, launched early last year when Smith had each team's players vote during training camp on decertifying, is the most clever and innovative approach and that they are true trailblazers. Norma Rae in a fedora.

Smith meanwhile talks about the braveness of his players and their unbending commitment to their sport, invoking for example Drew Brees' getting together of players to work out as proof that all the players really want to do is play the game they love. In truth, the lambs are being led to slaughter.

Fundamentally, the standoff is about each side testing the other’s mettle. The owners want a bigger piece of the revenue pie and the players are adamant that the owners are going to get it and don’t need it anyway. As long as the owners can keep the players locked out, the players’ thinking goes, eventually they’ll crack. As long as the courts keep a lockout from taking place, the players’ thinking goes, eventually the owners will crack.

Right now the pressure is a bit on the players in the sense that the 8th circuit court of appeals doesn’t seem to be in a terrible hurry to lift their temporary stay of Judge Susan Richard Nelson’s ruling finding that the lockout was impermissible. Each day that passes the players aren’t getting the workout bonuses that supplement their income nicely during the spring and summer months.

But if the lockout is enjoined and the owners are forced to open their doors, those bonuses will once again flow, the season will go forward unabated and there will be game checks to eventually cash. If that becomes the case, the players and their advisers will surely sit their like petulant children who refuse the vegetables their parents shove in front of their faces and no meaningful negotiations will take place in the near term.

Eventually, though, the vegetables must get eaten. The question is when will the players and Smith come to that conclusion? If the lockout stays, that’s easy. The players will crack. They always do. If the lockout is lifted, things get far more complex.

You don’t have to be the Ghost of NFL Future to see how it all plays out because Goodell's has already laid it out for them. They just aren't listening.

In the near term, the owners will adopt some interim rules, careful not to violate anti-trust laws to meet the court’s requirements, but will otherwise be no more motivated to reach a new deal. That will be fine with the players, of course, because as long as they can play football under any rules and get paid, they really won’t see any need to say yes to any re-ordering of the leagues’ revenues.

Indeed, you can expect an almost party atmosphere from the players, at least initially. Unrestricted free agency for any player not under contract, hooray. No draft. A chastened ownership group that can’t work collectively to set the economic road map for the league. What could get better than that? Smith will be canonized by the players as the very re-incarnation of Marvin Miller.

Well, that may be right but only if you thing that could go on indefinitely, which it can’t.

If you believe, for example, that a cooperative, productive relationship between management and the workers is critical to the product produced, then it follows that when the relationship is broken, the product will suffer. Count on it.

As the product suffers, so does the interest others, like networks and beer manufactures, have in supporting it, at least at current levels. Besides, as current contracts like that expire, then the landscape for new deals becomes more fragmented. Teams won’t just be negotiating for their local radio rights, but for their local television rights as well because the owners’ ability to work collectively on these issues becomes severely hampered.

As the economic base begins to crumble, there will be no incentive, for example, for the owners to spend money in such an uncertain climate. Even in the near term, when media and sponsorship contracts still are fully in place, there will be plenty of owners pinching pennies.

There may be unrestricted free agency for any player not under a contract, but that doesn’t mean the floodgates open for new found riches. In fact, I’d expect the opposite to happen. Put it this way, there were plenty of teams in the NFL already spending the bare minimum when there was a salary cap in place. Do you think they would spend more without a cap?

At the same time, injured players would find themselves without protection and potentially benefits, including extended health or retirement benefits. In order to avoid a charge of illegal anti-trust activity, there probably won’t be league wide benefit levels. Instead, each and every one of those items would be subject to individual negotiations.

Maybe some of the top players might benefit from that scenario, the vast majority of the league’s players would not. You only need to see all the efforts underway in states to eliminate the collective bargaining rights of state employees to understand that the lack of the union doesn’t generally raise the standard of living for the employees, it lowers it.

As that scenario plays out over several months and perhaps a year or two, eventually enough players will get fed up with the legal strategy that the union set in motion and make efforts to re-form a union. That would be the point at which the current union leadership might begin to realize that it’s rarely about winning the smaller battles when the outcome of the war is still in jeopardy.

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.

Now, It's the Owners' Move

To NFL owners, the U.S. District Court in Minneapolis, Minnesota is what Three Rivers Stadium used to be to Cleveland Browns fans—an automatic loss. With Judge Susan Richard Nelson's decision late Monday to enjoin the owners from locking out the players, the losing streak continues and it isn't looking good for the rest of the legal action the owners are facing in her court, either.

The dispute between the owners and the players is complex but can be boiled down to a few key points in terms of understanding Judge Nelson's ruling.

The owners and the NFLPA were engaged in collective bargaining for a new labor contract. Just before the old contract expired, the NFLPA decertified as the official bargaining representative for the players, meaning that they immediately disclaimed any right to bargain with the owners on the players' behalf. Meanwhile, when the old contract actually expired, the owners imposed a lockout, which is the management equivalent of the employees exercising their right to strike.

In anticipation of the lockout, a group of players, led by Tom Brady, the quarterback for the New England Patriots, filed a lawsuit alleging that the impending (and, ultimately, the actual) lockout constituted illegal concerted action by 32 separate businesses that served to deny the players the economic right to make a living playing professional football. (There were numerous other, similar allegations regarding illegal concerted activity, but for purposes of Judge Nelson's decision, the lockout was at issue.) They also asked the judge to stop the owners from imposing that lockout. The judge granted that request. She hasn't yet ruled on the underlying merits of the players' main contention, that the owners committed numerous other violations of federal anti-trust statutes.

The owners fought that injunction on a couple of fronts, but mainly argued that the players' action in decertifying as a union was essentially a sham. The owners have filed a charge with the National Labor Relations Board, the federal agency with exclusive jurisdiction over those kinds of disputes, making just that claim, that the decertification was a sham. That charge has not yet been resolved.

Thus, the gist of the owners' argument, and stripping away the legalese, is that unless and until the NLRB rules on their charge, federal labor law prevents the judge from issuing such an injunction.

Because this is professional sports, it seems as if the issues become unnecessarily complex and harder to grasp. A better way to think about the arguments taking place is to put the dispute in a more typical scenario.

If the owners of a local steel mill were bargaining with their employees for a new contract and then the union struck once the contract expired, federal labor law under almost all circumstances would prohibit a judge from issuing an injunction to stop that strike. The same rules apply when there's a lockout.

So why is this dispute any different? Well, it isn't and it is.

It isn't any different because the same laws govern the NFL's labor problems as the labor dispute at the local mill. It is because the union here did something that no other union would typically contemplate—it decertified. As soon as that happened, at least according to the judge, it turned this into more of a commercial and less of a labor dispute and hence, in her view, the governing labor laws preventing injunctions didn't apply.

Not surprisingly, the owners are going to immediately appeal this ruling to the Eighth Circuit Court of Appeals. Whether that court grants the owners an expedited review of the case isn't yet known, but it's certainly not a given. What is certain, though, is that eventually that court will have to issue a decision on all of this litigation is the parties continue down this insane path of self destruction much longer.

Although some commentators suggest that the owners stand a better chance at the court of appeals then they ever did in the district court, the real problem the owners face is the death grip control the Minnesota courts have over the league in the first place. For this the owners have essentially only themselves to blame when they agreed to allow the court to maintain that control as part of the settlement the last time these parties went to the mattresses to resolve their differences.

The other problem for the owners is that they really have very little room to maneuver from a legal standpoint, even if their arguments make practical sense. Federal labor law supports the ability of a certified bargaining representative to give up that status at their discretion, assuming it's done in good faith. In the past, good faith has been defined to mean simply that the members of the union unequivocally voted to decertify. That was certainly the case here.

So much of the owners' position before the NLRB and hence in the district court as well hinges on trying to make the argument that despite the players voting to decertify, the decertification wasn't in good faith. If the decertification is a sham, the argument, goes, then the law absolutely prohibits a judge from enjoining a lockout.

Unfortunately for the owners, there's very little authority for their view, as the judge noted. Thus, she didn't believe the federal labor law preventing injunctions applied.

As the judge noted in her opinion, past strikes have failed the players, although such a finding is of dubious legal relevance. Nonetheless, given that the only effective way for the players to balance the perceived imbalance of power between them and the owners is for them to bargain and, failing that, decertify to prevent the owners from imposing new working conditions. If the owners know that the union can decertify at any time, they will effectively be forever precluded from locking out the players again. In the judge's view, this is a perfectly acceptable strategy. She's right, but so what?

This is where the short-sightedness of all this really bubbles to the surface. The threat of decertification to prevent a lockout only works when it's the owners trying to extract economic concessions. It is of no consequence and indeed harmful if it's the union seeking economic gains because the owners in that situation would love nothing more than to preserve the status quo.

Issues change over the years and eventually what does around does come around. When the economy does improve, the players will want a bigger piece of the pie and it will be the owners that will sit back and not lift a finger to give it to them.

Moreover, and perhaps more to the point, the union's pursuit of legal leverage is ultimately what is preventing these parties from reaching a meaningful agreement. As long as the players continue to live under the misguided notion that a court will force the owners to withdraw their demands for economic realignment they will never sit down and engage in meaningful bargaining. Indeed, they players and their representatives have yet to approach these negotiations in a meaningful way.

The legal machinations between the owners and their employees here are about as exciting as watching televised chess to the average fan. What fans want to know is whether or not there will be football come this fall. Right now it's looking better but that could change with the next pawn-to-queen's-rook-four move that gets made in the form of the owners' next legal filing.

Keep in mind, though, that however long any or all of this legal process takes, the ultimate truth is that NFL football being played each and every fall is only possible for as long as reasonable parties with shared interests want to see that happen and that can only happen with a new agreement The owners grasp that point. I'm not so sure the players or their misguided advisers ever will.