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.

Cracks in the Foundation

The allegation on ProFootballTalk.com that some unnamed NFL teams are talking with some unnamed and undrafted free agents should hardly come as a surprise. If there is one thing that seems to be universal when it comes to the NFL’s labor situation, it’s that no one is overly thrilled with it and would do anything to just have the whole thing behind them.

But labor disputes have a cycle of their own and so too will this one. At its flashpoint, both sides of the dispute are galvanized in their disdain for the opposition. Both promise solidarity among their ranks and, generally, talk a good game.

But as the cycle keeps on turning and the labor dispute lingers on, signs of wear and tear do emerge. In this case it may just be those unnamed teams covertly pursuing free agents in violation of the rules of the lockout. It may also be in the occasional frustration that boils over, usually via Twitter these days, from a player or two with too much time on his hands.

Perhaps the most honest reaction from a member of upper management in the NFL was from the Cleveland Browns’ own president, Mike Holmgren. It was Holmgren who was nearly over-the-moon giddy with the news that Judge Susan Richard Nelson had granted the players an injunction to prevent the lockout and said so publicly.

It was almost as if Holmgren forgot that he’s no longer a coach lamenting the fact that he’s currently without players to coach. But it would be best for him to remember that a far more entrenched member of management these days, even if he’s not quite an owner. As Randy Lerner’s de facto representative of all things Browns, Holmgren would more be expected to unconditionally support the lockout, at least publicly.

This isn’t to complain about Holmgren’s reaction so much as it is to underscore that management, at least that sliver of it that doesn’t pay the bills out of its pockets, isn’t any happier about the lockout then the players. It also underscores the one thing that ultimately tends to break a labor dispute: unrest.

Cracks in the management ranks are usually harder to discern. Players, like any other group of employees, are usually the first to fall apart, generally under the weight of all the overhead they take on by virtue of the salaries they earn. Plenty, probably too many, players are working on their second or third marriage already. There are kids to support and goods to purchase. Those multiple cars sitting in the garage aren’t just going to pay for themselves, you know.

Beyond just the occasional snipping from players who just want a deal done and say so publicly, the other way the frustration in the players is starting to show is their increasing willingness to publicly criticize NFL commissioner Roger Goodell for not being smart enough, strong enough, or something enough, to just get the owners to capitulate in this struggle. He’s an easy target and at the moment isn’t so much a person anyway but a symbol.

It's a measure of their frustration that they would take on the owners so overtly but ultimately harmlessly. It's also a measure of their lack of understanding of the issues in dispute.

Browns’ linebacker Scott Fujita, a member of the National Football League Players Association, has somewhat been the “go to” guy when a comment is needed to keep the pot simmering at a low boil. Follow the trail of what he’s talking about and you can get the sense that sooner or later his loose affiliation will collapse under the weight of its own naïveté.

When Goodell visited Browns’ training camp last August, Fujita wasn’t impressed and wasn’t hesitant to say so, according to an article in the Elyria Chronicle-Telegram at the time.

Fujita said that no matter what questions the players asked, Goodell didn’t have the answers. In truth, Goodell had answers, it just wasn’t ones that Fujita and hence the union wanted to hear. The biggest gripe then as it seems to be now, is that the owners won’t open their books to the unions’ band of forensic accountants, as if this was the Holy Grail to unlocking the labor dispute.

Fujita, articulating the sound bite given to him from DeMaurice Smith, the overmatched head of the NFLPA, at the time negotiations first broke off said that the players need to know what the owners are making before they’d be willing to give back any of the revenue pie they get. The fallacy of course is that as long as even one owner is making one dollar that will be more than enough for the union to claim that changes in the owners seek in the league’s financial structure aren’t needed. That’s why it’s a ridiculous and distracting issue in the first place.

Then came Fujita’s blasting of Dallas Cowboys’ owner Jerry Jones who told 60 Minutes that a NFL lockout wouldn’t be the financial doomsday that may believe it would be. He called Jones’ comments the most irresponsible thing he had heard throughout this process.

Now I’m all for hyperbole, especially for hyberbole’s sake. But Jones’ comments aren’t even the most irresponsible thing I’ve heard today about the impact of the lockout.

Not content to sit on the sidelines and let her husband look foolish all by himself, Jacyln Fujita weighed in of her own accord in a lengthy editorial that appeared in The Nation. Essentially her view is that her husband, indeed all professional football players, are being exploited by billionaire owners who don’t really have the players’ best interests at heart. Yes, I know, professional athletes are our most exploited underclass.

Mrs. Fujita writes about the physical toll a NFL player takes, something that can’t be disputed. But she uses this as a platform to make vague complaints about how the owners aren’t really looking after the players’ health, forgetting all of the significant steps that Goodell, for instance, implemented even last season to reduce the number of concussions or other injuries. She doesn’t mention, by the way, how much resistance Goodell has met from the exploited players on these efforts because if James Harrison isn’t allowed to cheap shot two Browns’ players in one game without drawing a fine then the players might as well just go bowling.

While I certainly don’t begrudge a wife doing what she can to protect her husband, the last paragraph of her editorial seems particularly misguided in light of recent real-life events outside the bubble of the professional playground that’s given her the luxury to live better then she probably could have ever imagined:

That is my wish for tomorrow’s boys, men, mothers, fathers and wives who will build their lives around this American pastime. They will have something when their money runs out. And when their aches and pains become unbearable, they will have the comfort of knowing that their blood, sweat and tears will carry them for the rest of their lives. They did not sacrifice their health and well-being for nothing. They will not be forgotten.
Like our boys in Afghanistan or even Valley Forge.

It’s just inconceivable that her position is literally that anybody that suits up in a professional football game deserves to be set for life, but I guess you have to start somewhere. Oh well, there’s a reason it’s called rhetoric.

Finally, this past week, Mr. Fujita weighed in again, laying blame for all the labor woes at the feet of Goodell, evidence that the near final stage of the players' frustration toward a dispute that won't be resolved soon.

Fujita is now officially disappointed in Goodell because he's not the man he thought he was, not the man who Fujita thought could bring the owners together for a deal. If Fujita's being fair, he should similarly look at his own union leader and make the same assessment.

The issue isn't Goodell or a lack of consensus among the owners. It boils down to the simple fact that players like Fujita are interested in short term answers when the owners are posing long term questions.

But this divide, too, will eventually get bridged. If Fujita is really the barometer, the players are but a few months away from cracking completely.

Lingering Items--Eye Opening Edition

Watching the Indians complete their sweep of the Baltimore Orioles on Sunday served, if nothing else, as a reminder of how easy baseball can seem at times.

In still another textbook example of the kind of baseball every team hopes to play, the Indians’ victory, indeed the entire series, was a clinic of good starting pitching, timely hitting, and an effective bullpen. When those elements click, any team is unbeatable.

For now all of this stands in stark contrast to how we’ve been conditioned by the Indians over the last few seasons. In most cases, the Indians have seen at least two of those three elements, and too often all three, shut down at the same time as they’ve slept walk to one indistinguishable loss after another.

The Indians would seemingly go weeks without getting a timely hit. All too often the scenario played out exactly the same: the first batter would make an out. The next batter would hit a single. The next player would get a single but not be able to advance the runner to third. The next batter would ground out into an inning-ending double play.

If you want a measure of how different things are for this team at the moment, just consider Grady Sizemore’s return to the lineup. First of all, he hasn’t even been off the requisite year it typically takes to recover from microfracture surgery. Then in his first game back his swing looks nearly perfect as he crushed a ball for a home run. Finally, he still had enough speed to turn a ball down the right field line that didn’t get all the way to the fence into a double.

It was enough to make me look twice to confirm that his uniform said “Cleveland.”

How exactly are Indians fans supposed to get used to that? We’re used to things like Travis Hafner coming down with a shoulder problem that lasts longer than the tenure of most Browns head coaches. We’re used to trading great players for projects. We definitely are not used to players coming back from a major injury sooner than they should and performing as if they had been healthy all along.

And then there’s the stellar starting pitching. Watching Fausto Carmona get lit up on opening day seemed to fit like a favorite pair of blue jeans. Watching him throw strikes and baffle hitters in every start since seems to fit like a necktie around a shirt collar that’s pinching you a little too tightly.

It’s not just Carmona, however, that’s causing this comforting discomfort. The relief pitching has been phenomenal. Is it just me or is every Indians pitcher getting ahead of every opposing hitter? By the time the 7th or 8th inning rolls around and the Indians are ahead, the bullpen comes in, throws more strikes and the outcome never much seems in doubt.

Even the obligatory standing ovation awaiting the third out has been going exactly as planned. It never crossed anyone's mind, for example, that closer Chris Perez wouldn't get that third out in the top of the 9th on Sunday, just as scheduled.

Now of course all anyone wants to know, including me, is whether or not there is any chance that the Indians can play this brand of interesting baseball for the rest of the season.

Fourteen games into a season is not a fair sample, certainly. Either is 24. But if the Indians are entering the month of June with 50 or so games under their belt and not much has changed, then it will be time to revise the forecasts.

**

The NBA playoffs started this past weekend and although the games were on seemingly every conceivable television network, just like the first few rounds of the NCAA tournament, it hardly didn’t generate nearly that level of excitement.

Maybe that’s because this was the first time in years that the Cavaliers were not part of the story or maybe it was because the NBA’s playoff season tends to last longer than the tenure of most Browns head coaches. It’s probably some of both.

Indeed, you can essentially put the NBA playoffs on autopilot for the next month and then come back to see where things stand. You won’t have missed much in the meantime.

But to those interested in such things, the NBA playoffs do offer some insight worth considering. First, they amply demonstrate why the regular season is such a waste of time. Whatever else one might think of NBA players, one thing about them is abundantly clear: they play in a different gear come playoff time.

Maybe that’s true in every sport, but it’s far more evident in the NBA. For example, I’m not exactly sure what it would look like for a major league baseball player to work harder in a playoff game the same way I’m not sure what it would look like for a pro football player to do likewise.

But in the NBA, there is no doubt. The players move with more intensity. Their steps are crisper, the plays make more sense, the picks and fouls are harder. It almost seems that in comparison, the regular season is a fraud, a mostly go-through-the-motions exercise to get to the next step.

Second, the NBA playoffs demonstrate exactly why it is so difficult to construct a championship-caliber team. There is no question that only two or three teams at most in the entire group of 486 playoff teams have any chance of winning the NBA title. All of the various first round victims may be getting that ubiquitous playoff experience but it will come at the expense of their drafting position later this summer. And as we know in the NBA, if you don’t have one of the top few picks in the draft you might as well draft the tall guy you met at the grocery store. His odds of playing in the NBA are only slightly less than the 23rd overall pick in the draft.

All of which brings us right back to the Cavs. By virtue of their inability to stink up the place at the end of the season as much as they did for the other 7/8ths of it, the Cavaliers will now have the second most ping pong balls in the upcoming lottery. They could still very well get the top pick but why were they even messing with the odds in the first place?

There’s no guarantee that the Cavs wouldn’t squander the top pick if they end up with it, but the chance of doing so isn’t nearly as great as with the 5th or 6th pick. And each time over the next few seasons that the Cavs end up picking 5th or 6th in the draft means another year in the NBA’s version of purgatory.

As I’ve documented before, once a team sinks to the depths of the league, it’s a long time, perhaps 10 years or more, before the cycle begins to turn once again in their favor. After the Chicago Bulls last won an NBA title and Michael Jordan retired, it was 6 years until they saw the playoffs again. In the 7 years thereafter, they’ve made the playoffs 6 times but only past the first round once.

The point is that while Cavs general manager Chris Grant can say the team isn't in a rebuild, every conceivable statistic says otherwise. You can't take lose the best player in the league and reconstruct the team that was built around him under a NBA system that simply won't allow it.

The Cavs are in for a long and slow trek back and so the fans in these parts will just have to get used to the NBA’s silly season from afar. But take comfort, by the time the Cavs are once again ready to make a real run, LeBron James will either be retired or on to his fourth or fifth team, like Shaquille O’Neal, as he seeks to hang on for one last shot at a ring. Here’s hoping it will also be for his first ring as well.

**

The NFL draft is only a week and a half away but until the owners and the trade association formerly known as the NFLPA come to some sort of agreement that ensures there will be football next season everything else that happens will be anti-climatic.

As the parties wind their way through court-ordered mediation it serves as a reminder of how truly complex the business of the NFL (and every other professional sport) really is. The fact that the NFL and its players have high-class problems doesn’t diminish the fact that they have problems nonetheless.

If you’ve ever taken the opportunity to even peruse the expired collective bargaining agreement, you’ll understand why it takes longer than the tenure of most Browns head coaches to understand the complexity of the NFL’s operations. It’s not just a matter of taking the dollars generated in various ways and splitting it up equally among every team. There are significant issues to work through, issues made all the more complicated by a salary cap that overlays an industry where individual players are still free to negotiate their own wages.

There’s no way to tell at the moment whether the current round of mediation will produce an agreement but when the parties are talking there is hope. Each round of new discussions gives each side added insight into what it will truly take to reach an agreement. Even if these talks aren’t successful, whenever a new deal is reached it will have been set up in part by this round of mediation, just as this round was set up by the mediation that took place before the contract expired.

After listening to Roger Goodell last week talk to Browns fans, I remain convinced that Goodell is a dealmaker who is just looking for common ground. He does want to get a deal done.

The problem Goodell has is the same problem any chief spokesman has. The most difficult negotiation isn’t always across the table but with your own people. The owners have a far greater understanding of the economics of the game and thus are harder to corral because of it.

But take heart. Just like the Cavs will eventually return to the playoffs, the NFL will get a new labor agreement and your Sundays (or Thursdays or Saturdays) in the fall and early winter will once again be filled with NFL football. Whether it's next fall and early winter, well, it's too early to say.

**

With the return to network television of one of the best shows ever made, Friday Night Lights, comes this week’s question to ponder: If Coach Eric Taylor can literally build a new program at East Dillon, win 2 games in his first season, and then beat one of last year’s state finalists in the season’s first game, why didn’t he get even a cursory interview when the Browns had an opening at the end of last season?

NFL Labor Wars: A Primer

Good luck trying to separate fact from fiction when it comes to the NFL and its labor problems with the trade association formerly known as the NFL Players Association. But there is one fact that no one is much focusing on but is perhaps the most crucial for even the casual fan to understand: no matter how much litigation is pursued by the players it will not and cannot result in a new labor contract between the parties.

The best that a court, the NLRB or even some neutral mediator or arbitrator can do is tell the parties to work out the problems themselves, something that the players abandoned yesterday when they walked away from the bargaining table, pulled the pin on the grenade and began pursuing a strategy that isn't in anyone's best interest, including the players they supposedly represent.

Let me break this down as simply as possible. The NFL is an affiliated group of competitors. Though each club is run separately from a business standpoint they do get together as a group to handle the big things like television rights negotiations and collective bargaining with the players' union.

What's crucial to that previous sentence though is that there must be a players' union for the owners to be able to lawfully engage in this activity. Otherwise almost any of this collective action becomes an antitrust violation. The NFL owners can no more get together and set economic terms for the players then, say, Acme can get together with Giant Eagle and agree on wages for their employees absent a certified labor union representing those employees.

When the negotiations between the NFL and the former union didn't produce an agreement by Friday, the union decertified as a union and then had individual players file a lawsuit alleging collusive behavior against the owners not because they thought it would lead to a labor contract but because they think it will put economic pressure on the NFL owners. Antitrust violations, when proven, can be extremely expensive to the perpetrators.

But it's not even about the damages the owners could be forced to pay if they lost such a lawsuit. The real key to this strategy for the players and their former union is to try and get the courts to grant them an injunction against the owners, preventing them from locking out the players. If that's achieved, two things happen, at least under the union's goofy view of the world.

First, they believe this would essentially force NFL owners to stay open for business, though even the union isn't quite sure under what terms that would be. Second, forced to stay open with an injunction hanging over them beings a doomsday scenario that the players believe the owners simply couldn't tolerate. Given that, the union thinks it could then re-certify at any point, return to the bargaining table comfortable in the knowledge that unless they get the deal they want they'll continue this same Groundhog Day strategy of decertification until the owners eventually throw their collective hands up in surrender.

At least I think that's what the former union's strategy is. It's hard to tell because they have an abject neophyte in DeMaurice Smith as their chief negotiator. Smith may look the part of a smart person, someone to go toe-to-toe with sophisticated owners, but Smith has absolutely no background whatsoever in labor relations or collective bargaining. The players might as well have hired Samuel L. Jackson to act the part of a tough guy at the bargaining table, it wouldn't have been any less effective.

In actuality, Smith is a mere puppet for the behind-the-scenes manipulations of union lawyers like Jeffrey Kessler whose goal has never been to reach an agreement but simply keep the owners in court as long as possible, almost out of sport. Kessler and his group led the union down this path. Smith was a bystander to a strategy I'm fairly certain he and the players that are following him don't completely understand and certainly don't know where it could possibly lead.

But irrespective of whether Smith and the players that filed the lawsuit actually understand the intention, what they don't understand is that their strategy is hardly foolproof let alone the key to success.

Let's deal with their first point. In order to keep the owners under the injunction, the union can never re-certify. That means that if football gets played there would essentially be no economic rules in place. The owners couldn't hold a draft because that's an unlawful restraint of trade absent an agreement with a certified union. Teams couldn't place “franchise” tags on players to retain any rights to them. Free agents could sign anywhere for any amount of money because there would be no salary cap. Indeed teams couldn't be constrained to limit their rosters. If the Browns wanted to sign 100 players, they could, though I'm sure they'd still finish 5-11. If the Bengals wanted to put 25 players on their roster they could do that. In short, any attempt by the owners to work together on anything, including collective negotiations with television networks, would be prohibited and thus whatever competitive balance currently exists in the NFL would be abandoned for so-called free market principles.

But the straw that stirs the drink in the NFL, like all professional sports, is television revenues. A key reason the NFL is perhaps the richest sports league in the world is because it has such good competitive balance. Fans in every city (except, perhaps, Cleveland) feel like in any given season their team could go to the Super Bowl. They buy tickets to games, buy jerseys and other team-branded tchotchkes. More importantly, they watch games on television until their eyes pop out of their sockets and they get brainwashed into buying copious amounts of Bud Light and the latest Buick Enclave. Networks like that sort of thing because they earn lots of money from sponsors willing to pay for that sort of audience.

But if the NFL turns into the Wild West it will eventually lose its appeal to the sponsors and thus the networks. Not all at once but over time. The money eventually will dry up. In short, played out to its logical extreme, the players' strategy undermines the health of the sport that they themselves need in order to ply their trade.

On their second point, that the leverage in future negotiations shifts to the players, this is a fallacy. In truth, there will be no negotiations. The minute the union re-certifies the owners get the right to act collectively and then would turn around and lock the players out so fast that their collective heads wouldn't stop spinning for a month. The union simply never gets the chance to exercise the leverage they think they'd gain.

So what this really comes down to is an edge-of-the-cliff gambit that the union believes the owners won't want to go down. The problem of course is that if the owners go over the cliff, they take the players with them. It's a mutual self-destruction strategy and why anyone except a bunch of lawyers looking to get rich off all the litigation thinks that makes sense for anyone actually impacted by all of this is really hard to say.

For now and for probably months to come, NFL football, at least in the form fans have come to know and love, won't exist. Courts will make decisions that the other side will appeal and the lawyers will get rich. Eventually though the hundreds of other players who don't have million dollar bank accounts to fall back on, which is the vast majority of players, will get itchy to go back to work to the only job they know that will pay them the kind of money they desire. When that happens, the pressure on the trade association formerly known as the NFL players union will become immense and if Smith has even an ounce of self-preservation instinct in his bones, he'll recognize his own livelihood and reputation will be jeopardized unless he can solve their problems. At that point the lawyers will be told to work out a deal and one will get struck.

Until all that comes to pass, fans can only wait out the ride. Pack heavy. It's going to be a long one.

At the Height of Uncertainty

If there is one thing you can read into the extension of the current collective bargaining agreement by the NFL Players Association and the NFL owners it’s that as tough as each talks, they’re both afraid of what comes next if they don’t get a deal done.

The union, under the guidance of a way-in-over-his-head new executive director, DeMaurice Smith, has vowed as usual to decertify as a union and then file a lawsuit against the owners should they be locked out if no deal is reached when the contract does expire.

The owners, under the guidance of a far savvier dealmaker, Commissioner Roger Goodell, nonetheless know that when it comes to litigation, particularly before Judge David Doty, their success rate is actually worse than the Cleveland Browns’ third down conversion rate, pick a year.

Which means, of course, that in the course of these negotiations, this week represents the last best chance for the parties to strike a deal before a whole host of consequences, intended and otherwise, are released.

Negotiations are far more art than science certainly but there is one thing that is true in negotiations of any sort. The two sides to the dispute, be they the NFLPA and the owners arguing over splitting over $9 billion in revenues, or a husband and wife arguing over whether or not it’s really necessary to visit her mother again next weekend, are most amenable to resolution when uncertainty is highest.

That would be now.

Two weeks ago, the NFL owners were dealt another setback by Judge Doty (who retains continuing jurisdiction over the two parties by virtue of a previous settlement years ago) with respect to whether or not the owners maximized television revenues in their last negotiations with the various networks that have broadcasting rights.

What led to that dispute was the fact that the owners were able to get access to a huge pile of cash from the networks even if next season is cancelled. Essentially the owners traded off more cash down the road and additional games and scheduling flexibility for the networks in exchange for broadcast payments continuing even in the event of a work stoppage.

From a business standpoint, it sounds like a good tradeoff for both sides. The NFLPA disagreed because they felt that the owners took less money, and hence have less money available to share with the union, in exchange for being able to sustain their operations through a work stoppage. In other words, they felt like the owners left revenue on the table just so that they could have a decent war chest and wait out a lengthy lockout or strike.

A special master felt that the owners had the right to make that deal and that it represented sound business judgment. Judge Doty, on the other hand, who heard the appeal from the special master, disagreed and found that the owners had basically violated their obligations under the collective bargaining agreement by not maximizing the revenues or, at least, taking less money in exchange for payments during the expected lockout.

While that decision will get appealed, the basic point here is that it served as another reminder to the owners that Judge Doty has a very jaundiced view of how they operate their businesses and that their chances in future litigation with the union isn’t likely to be any more successful.

That decision frankly was a game changer for these negotiations. It certainly heightened the uncertainty for the owners and has basically forced them to stay at the bargaining table. It makes them more amenable now to a deal than at any point in the last two years.

All of that doesn’t mean that the union feels that it has all the leverage, because they don’t. While they have enjoyed great success in litigation, not one of those victories has come easily, cheaply or, more importantly, timely. Moreover, one of the great truisms in litigation, as in investing, is that prior results should not be counted on to predict future performance.

The union’s litigation strategy this time around is fraught with its own difficulty. The basis of a potential lawsuit by the players is that it is an antitrust violation for a group of separately owned businesses, like NFL teams, to constrain the market through collective action when dealing with matters such as setting wages and working conditions for the employees. But if there is a National Labor Relations Board-certified bargaining representative of those employees, like the NFLPA is for the players, then there is no antitrust violation even if the owners lock them out.

Success for the players thus hinges on their ability to successfully convince the NLRB that the decertification they’ll be seeking is legitimate and that the NFLPA fully intends to relinquish its rights to act as the exclusive bargaining representative for the players.

When the union went the decertification route 20 years ago, it was under far different circumstances and even then the NLRB raised doubts about whether or not it was a legitimate decertification. As it played out in the years since, it obviously was not. This time around, there is a much more likely that the NLRB will have a better view of what is taking place and find that the decertification isn’t legitimate. If that’s the case, then the entire underpinnings of the players’ potential lawsuit against the owners would be lost.

In other words, for all of the bragging that Smith has done for the players about decertifying as the way to force a settlement, even Smith knows that it is hardly a sure bet, meaning that the union and the players are having their own bouts with uncertainty at the moment.

But if heightened uncertainty makes parties most likely to settle, it hardly means they will. The owners have a group of hard liners that want nothing more than to have the players knuckle under again to their collective will. And why not? It’s worked in the past.

The players, for their part, are hyper-competitive types who feel that there is no obstacle they can’t overcome, even their own hubris. That’s what makes them professional athletes in the first place.

Still, I tend to believe in the better angels and think the parties will use this heightened uncertainty on both sides to actually come up with a framework for a deal before the contract is allowed to expire. As much as the owners want to reign supreme over their serfs, they value more the flow of cash that’s needed to sustain their operations. And as much as the players want to finally beat the owners at this game, they know that the litigation route, if allowed to go the full distance, is going to end a lot of careers and for what, better access to owners’ financial records or to tell the grandkids that your career ended prematurely over a labor dispute?

There is an adage that says that no amount of money is too small to fight about when it’s mine and because of that it will keep the parties going at each other hammer and tong this week. But as both sides play out the doomsday scenarios in their minds they’ll realize that what’s worse than fighting over every penny is not having any pennies to fight about at all.

Spoiling for a Fight

When it comes to professional sports, there is almost no circumstance where a person says “it’s not about the money” and means it. Yet here goes the latest pretender to that throne, DeMaurice Smith, doing just that.

Smith, you see, is the leader of the NFL Players Association, the players’ union. Having been recently elected to that post on a platform of being a fighter who won’t sell out the players like prior leadership supposedly did, he has been meeting with newly elected player representatives from each team and telling them that the mostly stalled negotiations for a new collective bargaining agreement really isn’t about the money, but respect. That’s the first but hardly only clue that Smith’s game plan is to use bravado to mask his incredible naïveté.

None of this would matter much except that with Smith at the helm, there will be a labor disruption of some sort that threatens some or all of the next NFL season. For Browns fans that might seem like the least of their concerns. But it is a far more important issue to the progress of this team than it might otherwise appear. With a new coaching staff just on board, a strike or lockout will just set the organization back that much further.

According to a story in Sunday’s New York Times, Smith has been using most of his time since being elected to let the players know they are “at war” (they aren’t) and lobbying members of Congress on the plight of the beleaguered players whose paltry million dollar average salaries make them America’s most misunderstood underclass.

That Smith is in over his head is probably obvious to everybody but the players that elected him. But then again the NFL Players union isn’t exactly the brightest or strongest union going. In fact, what distinguishes it most is its willingness to inflict damage on its own members before eventually caving to the demands of the owners.

That gets us back to the money part. Smith is downplaying the money issues (which are substantial) by trying to convince the players that the owners’ motives really are about driving the union out of business. It’s an old saw, really. Every new union leader trots out the union-busting rhetoric every time things get a little bit tough. On the list of goals the owners probably have for these negotiations, busting the union probably comes in 40, slots lower than the amount of meal money paid during training camp.

The irony, actually, is that it is Smith who seems to want to bust his own union. He’s been constantly floating the idea of having the NFL Players Association decertify as a means toward gaining leverage against the owners in negotiation.

Here’s how that would work: So long as there is a labor union in place that’s been certified by the National Labor Relations Board, which the NFLPA is, the owners can legally bargain with them as a group without violating anti-trust laws. If there is no certified union, then the owners can’t collectively act against the players without running afoul of anti-trust laws. This is important because Smith surmises that the owners’ strategy is to lockout the players on March 3, 2011, the date when the current labor contract terminates. Lockouts are legal and are designed to put pressure on the union at the bargaining table in the same way that a strike by the union puts pressure on the owners. Smith has vowed that his union won’t strike. Thus, to keep the owners from continuing a lockout once imposed, Smith would have the union file a petition with the NLRB to decertify. Once decertified, it would be illegal for all the owners to work together and keep the players locked out. That would preserve football, I suppose, but under what terms and conditions aren’t exactly clear and that’s the rub.

Smith’s grand scheme is a strategy without an end game. Once the union decertifies, it loses the ability to represent the players. That means there is no bargaining that could legally take place unless the union re-certifies. And if it re-certifies it risks another lockout and the parties end up in a vicious circle where nothing actually gets accomplished.

Moreover, Smith’s strategy lacks for an overarching, more practical reason. His members ultimately are never going to be strong or united enough to see such a radical strategy through even if there were some logical conclusion to it. The NFLPA has always been a weak union. The members, meaning the players, understand that their shelf life in professional football is very limited. There also is the fact that they have no other viable professional football options. Mix in the fact that a fan base still struggling with far more serious economic realities of their own will feel very little sympathy toward them and you have the makings of what ultimately is a failed strategy.

I suspect Smith is actually smart enough to understand all that on some level. But right now it would essentially be career suicide to admit as much. That’s why the posturing, the fiery rhetoric and the hobnobbing with legislators. To Smith it makes him look like he’s doing something of value despite the absolutely vacuous nature of each and every gesture.

If Smith really wants to be a union leader to be reckoned with, his best strategy is to actually sit down with the owners and negotiate a new contract. That’s the far harder work of course and carries with it the smell of defeat, particularly this time around.

According to the New York Times article, the amount in play right now is around $1 billion. That’s the difference between the current revenue 60/40 revenue split which favors the union and the new, unstated split the owners envision. So yea, it’s about money, a whole lot of money.

There are other issues as well. The owners want to make the pie bigger and see an 18-game schedule as the key. They claim, somewhat disingenuously, that going to an 18-game schedule doesn’t really change anything because all that’s really occurring is that the preseason gets cut down to 2 games. Thus the number of games played remains the same it’s just that more count.

Not quite. Veteran players spend very little time playing in the preseason. Those games tend to be populated by players trying to make the squad. Moreover, those games are run at about half the speed of a regular season game. Injuries still occur, certainly, but the chance of any particular veteran getting injured is significantly less.

Then there are the usual other smaller issues, like health care coverage, compensation for off season workouts, pension and the like. These are important, certainly, but they aren’t driving the negotiations.

I can understand why Smith doesn’t want to take on the issues at the table directly. They probably seem overwhelming given his almost complete lack of training or experience in labor matters. His prior work was mostly as a prosecutor which gives him a leg up with all the criminal problems the players get embroiled in but doesn’t necessarily do him much good on billion dollar business issues.

Moreover, these kinds of negotiations are mostly unwinnable from the union’s standpoint, assuming the goal is to win, which it is not. Whenever a new contract is reached, and at some point there will be a new contract, you can count on the players getting less of a percentage of the revenue (but probably more overall) and compromising more on safety issues like the length of the season. The NFL owners are far more equipped to withstand whatever pressure the union can bring to bear and will mostly get their way because the economics and the future of the sport mostly depend on it.

Eventually Smith will come to understand that the real path forward starts at the bargaining table and not in the hallways of Congress. But right now he seems more hell-bent on establishing his own reputation as one tough S.O.B. and sacrificing a season if necessary to accomplish that. It’s’s too bad of course because all that means is that in the interim his members and the fans that support them will be the ones that are S.O.L.

Let The Holdout Begin

At the moment, the most important thing to know about Joe Haden, whom the Cleveland Browns drafted with the 7th pick in this year’s NFL draft, is not his time in the 40-yard dash at the combine or how much man-love Tim Tebow might have for him. Nope. The most important thing to know is that Haden is that when summer rolls around he won’t be in training camp on time. In a world of uncertainty, this is as close to a lock cinch bet as you’ll ever find.

From there a predictable pattern will follow.

When training camp does open and Haden still isn’t signed, you’ll then read the usual quotes from the usual suspects. As the days drag on head coach Eric Mangini will get that hang dog expression of his and say something about how he can only coach the players that are there. Haden’s agent, following the script prepared at agent camp, will retort about how his client is anxious to get into camp as quickly as possible and meanwhile he’s working out on his own in Arizona or maybe Florida or maybe a local high school.

Browns president Mike Holmgren eventually will tire of the question about when Haden sill sign and will snap the neck of the next reporter that asks. The smart money is on Tony Grossi.

Somewhere around the second preseason game, maybe the third, the whole thing will get resolved.

That means of course another round of the usual quotes by the usual suspects.

Haden will say how he’s just glad this thing is over and he can’t wait to get on the practice field. His agent will talk about how difficult of a negotiation it was but in the end the parties compromised so that Haden could get on the field and show why the Browns took him with the 7th pick. The agent might even throw a few bon mots at whoever is negotiating the contract for the Browns, praising his or her professionalism.

Then either Holmgren or general manager Tom Heckert or both will talk about how they are glad this is behind them and how they hope that the league and the players union can find a solution to all of this at the bargaining table come season’s end.

I know all this as surely that I know that it will be a scenario that will be played out simultaneously in no less than 20 other NFL cities come July because that’s how the NFL likes to operate.

Here’s another thing I also know, the salary that Haden will get when that holdout eventually ends: $38.5 million over 5 years with $24 million of it guaranteed. In fact, I’m so sure about this that I’d be glad to bet both Haden and his agent on this. If he signs for anything within 5% of the above figures, then they pay me $100,000 for each day Hayden holds out. If they get more than 5% than this, I’ll give him my next 10 paychecks from The Cleveland Fan.

It’s not that I have any particular insider knowledge here. It’s just that I already know what last year’s 6th pick, Andre Smith, signed for and that’s the best marker for what this year’s 7th pick will sign for. It always has been.

This is hardly science. If you go over the NFL’s salary figures for the first round over the last several years, you’ll find a pretty consistent pattern. The contract of the player drafted one pick before you in the previous year more or less becomes your contract, give or take a few million dollars either way. That’s why Haden’s contract will look like Smith’s, just like Smith’s contract looked like Glenn Dorsey’s, with a slight kicker to adjust for inflation (as if that was a problem in 2009).

Every once in awhile the pattern doesn’t quite hold because quarterbacks drafted early tend to command a premium as if they were the first pick anyway. In 2008 Matt Ryan was drafted third and signed for 6 years, $72 million with $34 million guaranteed. This was higher than either of the two picks before him, one of which was Jake Long, the offensive tackle taken first. Long may get the bragging rights on draft position, but not on salary.

Thus, all you do is adjust for the quarterbacks and you’re back in business. Last year, Matt Stafford was the top pick and signed for 6 years and $72 million, just like Ryan, but this time with $41.7 million guaranteed. With Sam Bradford this year’s number one pick, his contract with St. Louis is likely to be eerily similar in terms of salary and length to Stafford’s but with about $49 million guaranteed. Count on it. His agent is.

The system isn’t foolproof but it is consistent enough to the point that there shouldn’t be any holdouts in any year. But NFL owners like to delude themselves into thinking that they’re really going to hold the line this year and agents like to delude themselves that this is the year they can break a nearly unbreakable mold. Thus a standoff of sorts occurs until eventually someone blinks. Then, let the slotting begins in earnest.

What makes all this interesting if not downright humorous is the fact that one of the key issues keeping the union and the owners apart at the moment is the implementation of a NBA-like rookie salary schedule. Owners want one because they say it will give them more money to allocate to veterans. The union doesn’t want one because they’re still stuck in the notion that higher rookie salaries beget higher veteran salaries.

They’re both full of crap and what’s more they both know it.

If the owners wanted to allocate more money to veterans, then why were so many teams millions below the salary cap in the last several years? Rather than cut a veteran whom they perceive as making too much in favor of an undrafted free agent making the minimum, why not just use a little more of that unused cap space? Wouldn’t that make the team better?

If the union on the other hand really thinks that higher rookie salaries are raising veteran salaries, then they need to get past Marvin Milleresque economic theory and start facing reality. The players that are squeezed time and again when an unproven player like Bradford is given a fortune up front is the long-term veteran with that supposedly raised salary. It’s nice when their veteran status got them that higher salary but not so nice when it ends up costing them their job.

If you’re looking for a dog to back in this fight, go with the owners. Irrespective of the disingenuous nature of their argument, lower operating costs tend to be to the benefit, if only slightly, of the fans. Moreover, getting every player into camp on time is the best way to ensure that the team you thought you were investing in when you bought your season tickets after the draft was conducted is the team you’re getting by the time that first regular season game actually is played.

The hidden issue in all this are the agents that really control the heart and mind of the union. It’s the agents more than anyone else that have the most vested interest in big rookie contracts because of the commissions they generate. Introduce a rookie salary schedule and the agent gets squeezed twice. The commission on his first round pick client goes down if not completely eliminated and the veteran client that doesn’t get cut as a result doesn’t in turn generate a potentially new commission when the agent has to negotiate a contract for him with a new team.

If the union wasn’t so beholden to the agents, this issue would probably be solved and rather quickly at that. Of course when it comes to the Browns, holdouts by rookies have hardly been their most pressing problem. Given their drafting history, too often it’s been to their advantage.