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.

Lingering Items--Laboring Edition

For those who hate the business side of professional sports, the news that the NBA owners are spoiling for a lockout as much as the NFL owners did probably isn’t all that welcome.

The NBA’s collective bargaining agreement expires at the end of this month and for now the players and the owners are getting nowhere fast. There are plenty of similarities between the NBA’s labor issues and those in the NFL, but central to it is the straw that always stirs the drink: money. Would you expect it to be about anything else?

According to a recent article about the negotiations from the Associated Press, the NBA owners are claiming losses for this season at $300 million and an anticipation of 22 of its 30 teams losing money. That’s pretty dramatic if true.

The players don’t necessarily agree with that assessment because they say that television ratings have increased along with ticket prices and merchandise sales. They don’t have any more access to the owners’ books than the NFL players and thus can only speculate on how much the league might be losing. As an aside, why isn’t anyone complaining that NBA owners won’t open their books?

In any event, like their brethren in the NFL, NBA players seem to understand that the economy has changed, at least for their fans, and are willing to make some compromises but it’s the scope of those compromises that are the sticking point. Again, would you expect it to be anything different?

The lynchpin to these negotiations is likewise similar to that in the NFL: the owners’ desire to get better cost certainty. In the NBA the chosen vehicle is the revision of their currently byzantine salary cap into a more straightforward version. But since it’s the NBA where exceptions dwarf nearly every rule, don’t be misled into thinking that it’s a hard cap the owners want in the same way that the NFL has a hard cap. That would be too radical of a change and, frankly, would make too much sense.

If you listen to the players, who claim they’re united just like any labor group claims unity among its troops, they’re willing to give some money back presumably in the hope of having a larger pie to divide down the road. The owners have scoffed, yes scoffed, at what they call the modest moves of the players to this point, but so much of that is just posturing anyway.

Still there is less than a week before the contract expires and while much can happen between now and then, in all likelihood not much will happen. This is the owners’ first real chance since the economy cratered to address their issues and they won’t let go of that opportunity lightly.

In other words, don’t be surprised when the NBA owners do lock out the players, possibly as early as July 1. Like the NFL’s lockout, it probably doesn’t mean much with the season months away but it means enough to label the situation serious, assuming you care whether there is another NBA season ever.

What’s far less certain is whether the NBA players will pursue a litigation strategy. It’s mostly been a failure for the NFL players in that it hasn’t given them the perceived leverage they thought they would have, but that doesn’t mean the NBA players are any brighter than their counterparts in the NFL.

The other thing to keep in mind is that if DeMaurice Smith is the worst head of a professional sports union then Billy Hunter, the executive director of the National Basketball Players Association, is a close second.

What makes Smith inept is his abject lack of experience. He’s a litigator by training and brought that mentality to the NFL players, hence the massive amount of litigation taking place that has bogged down negotiations. What makes Hunter inept is just a general lack of competence and gravitas.

But in fairness to Hunter, he probably understands that David Stern controls the NBA with an iron fist to the point that Hunter would never be willing or able to effectively challenge that authority anyway. Stern is more Kenesaw Mountain Landis and less Roger Goodell and as long as Stern’s in place the players are only going to get as far in these negotiations as he’ll let them.

Whatever union president Derek Fisher’s claims of unity among the players may be, they’ll never effectively challenge Stern’s control or break his will to shape the game as he sees fit.

You don’t have to be fully versed in tea leaf reading to conclude that unless the players knuckle under between now and June 30th, Stern will lock out the players. The only question is whether the players will be as pig-headed as their counterparts in the NHL and let a full season pass until they figure out that for however popular their sport might be in China, in the United States whatever fan uprising might occur will be drowned out by the otherwise massive fan indifference.

**

As for a sport the fans really do care about, football, the good news is that the owners and the players are finally negotiating in earnest. For the most part the posturing that inevitably arises at contract expiration time has given way to the realities that whatever else the courts could do for either of them, the one thing they can’t do is the one thing they need the most: a new labor contract.

The lack of real substantive news coming out of these negotiations is actually a very positive sign. The less the principals talk publicly the more likely it is that they are getting things done behind the scenes.

The average fan, even the average fan who’s in a labor union, probably doesn’t fully appreciate the complexity that is the NFL’s collective bargaining agreement. Much of that complication comes from the provisions dealing with the division of revenue, but the contract is also so much more than that.

The other thing the average fan may not realize is that although the re-slicing of the financial pie is a major issue, there is a laundry list of other items the parties are working their way through, including retiree health care, injury pay and the like. These take time as well.

But the real complication stems from the nuclear approach the union took to these negotiations. It’s not just about reaching a new labor contract. It’s also about resolving the pending lawsuits, particularly the underlying class action lawsuit that was filed.

Without going into the rather mundane details of class action law, the resolution of that lawsuit is subject to both the approval of the court and the prospective class members. Then there is the not so small matter of the union re-certifying as the collective bargaining representative for the players. Although the NFLPA is calling itself a trade union and its attempt at decertification has been disputed by the owners, ultimately this issue needs to get resolved and the union needs to re-form as part of what will surely be a global settlement. Without the re-certification, the negotiated collective bargaining agreement cannot technically be approved by the players.

In short, the parties could reach a deal on the new contract but the process of approving it and living by it could take months to work through. That doesn’t mean that the lockout would need to remain in effect until that happens. But rest assured that unless the owners have very good assurances that everything will get resolved they will be reluctant to open the doors.

It seems like a very good chance that a tentative agreement will be in place in the next few weeks. Whether that means football will ultimately start on time is hard to say. But if it forces a delay in the season, the NFL probably won’t complain anyway. With the way they run the league, nothing would please them more than to play up until the day that baseball’s spring training starts in mid February.

**
A few quick words about Travis Hafner and the Indians.

As frustrating as the Indians recent slump has been, what’s more frustrating is that their highest paid player literally cannot play a position other than designated hitter. For a team that has trouble generating offense, the fact that Hafner is irrelevant for the 9 games in National League cities is a cause for real concern.

Basically the Indians go into this stretch fielding a team with 7 legitimate bats, given that the pitcher will have to hit as well. Everyone saw how moribund the Indians’ offense looked when Hafner was on the DL. The likelihood now is that it will be worse for this stretch in large part because it’s as if Hafner is back on the DL.

It’s nice to see that Hafner has regained most of his batting eye after walking through the desert the last few years. But it’s not so nice that the Indians are paying the kind of money they are paying Hafner and have to endure similar stretches of their schedule when he simply can’t play.

Nine games may not seem like a lot given a 162 game schedule, but going 2-7 instead of 5-4 against the National League could very easily be the difference between making and not making the playoffs.

**

With all the frenzy surrounding the Cavaliers’ just completed draft, this week’s question to ponder arises: How many of those fans either praising or bitching about the Cavs’ picks can honestly say they’ve seen Kyrie Irving or Tristan Thompson play enough to have an informed opinion?

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.

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.

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.

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?

Lingering Items--Clueless Edition

It’s hard to know exactly what to call the NFL “situation” at the moment. The players and their union walked away from the bargaining table last Friday at 4 p.m. so that their lawyers could decertify the NFLPA as a union and then a handful of players could turn around and sue their employers for anti-trust violations. On the heels of those activities came the NFL owners’ move to then lock them out, although since there is no union it’s really unclear what a lockout could actually mean in practical terms.

Nonetheless, this hasn’t and won’t stop the inevitable public relations war over the hearts and minds of the fans, as if swaying the fans one way or the other will help determine the outcome of this dispute.

To the owners’ credit, they aren’t much acting like the fans view of this matters all that much. In that they’re just being honest. To the owners, this is a high stakes game that will in large part determine the value of the multi-million dollar investment they call a football franchise. Sure the revenues getting split up are provided directly and indirectly by the fans, but they know that alienating the customer base in an industry like this isn’t all that relevant of a concern. The fans will return when football resumes. They always do.

The players, on the other hand, seem to think that influencing fans will make a difference. If you’re a fan of Twitter and have any inclination whatsoever to follow the literally hundreds of pro football players with Twitter accounts, you’ll see an amazing consistency in their recent messages: “fans, we feel your pain.”

There is almost no scenario where the players will ever feel the fans’ pain. The disconnect between those who play our professional sports and the people that watch them has never been greater than it is now. It’s not just the money players make, though that’s a big part of it. It’s also the way players conduct their lives. Everything about what most of them do away from the field is designed to keep the barrier between them and the public impenetrable.

But to further the myth anyway, there was Drew Brees, a nice guy, a good quarterback but a clueless businessman, taking an unfortunate and ill-informed shot at the owners’ last offer. He claimed it was all for show, whatever that means.

In truth, the owners presented a very comprehensive, very serious offer to the players. Maybe it wasn’t acceptable because it still involved givebacks on revenues, but to essentially call it meaningless isn’t helpful, particularly when the union hasn’t yet produced for public consumption any of the proposals they’ve made.

There’s actually a reason for this. The union hasn’t made a single serious proposal throughout the negotiations. All they’ve done is respond to what the owners have proposed with a loud and resounding “no” each and every time. They’ve shown little interest in solving the problems presented but great interest in sounding like they are being abused in the process.

What’s really stopping these two sides from solving their problems is that they can’t even agree there’s a problem to solve. The players only want the gravy train to continue unabated. The owners, who actually are the businessmen in the room, see a future where the train has a little less gravy. Until the union accepts the fact that the owners believe there is a problem to solve, the standoff will continue and no amount of quips or tweets or ill-informed opinions by players like Brees is going to change that.

It may be that the owners were spoiling for a lockout all along. But the way the union negotiated with them, it’s pretty clear that they also got what they wanted, a chance to litigate in what is surely a dead-end strategy.

**


There was a letter to the editor in Wednesday’s Akron Beacon Journal that essentially called Ohio State football coach Jim Tressel the “shame of Ohio.” Well, if his misdeeds are the worst shame visited upon Ohio, then we’re in pretty good shape. But I’ve taken a look at the budget deficit in Ohio and the proposed method of solving it and I’m pretty sure that’s not the case.

On the day that letter appeared also came the story that the Indiana Department of Labor had concluded their investigation into the death of Notre Dame student Declan Sullivan, who was sent atop a hydraulic lift in winds gusting up to 60 miles per hour last October by Notre Dame football coach Brian Kelly to film practice, only to have that lift tumble over and crush him.

The Indiana Department of Labor concluded that “the evidence overwhelming demonstrated that the university made a decision to utilize its scissor lifts in known adverse weather conditions.” For that Notre Dame was given a “knowing” citation and fined a mere $77,500, or about $172,500 less than Ohio State fined Tressel for not being forthcoming about a couple of emails.

What’s most telling about the Notre Dame situation is that this knowing violation didn’t just occur on Kelly’s watch, it occurred with his direct involvement. Kelly knew the weather was bad. Kelly allowed the student to ascend on that lift anyway and Kelly didn’t order him back down, despite the worsening weather.

In fact, the weather that particular day last October was severe over a very wide swath, including Columbus, Ohio. Tressel, the so-called shame of Ohio, confronted that same situation on that same day. Responding generally to a question about the severe weather (and before anyone knew of Sullivan’s death) Tressel told the media that he purposely didn’t ask his student videographers to use the hydraulic lift that day because it was far too windy. Indeed, he talked about how he worried about their safety. Shameful, I know.

Declan Sullivan lost his life because Kelly didn’t harbor those same concerns. And for that, no one, but no one, is calling for Kelly’s dismissal or calling him the shame of Indiana or South Bend or even just Notre Dame.

The point, I think, is not so much that Kelly is a bad guy because he isn’t. He’s a decent and honorable man, like Tressel. But the consequence of his inaction on that day cost a student his life. The consequence of Tressel’s inaction, at best, was the delay in an investigation over whether a couple of star players traded body art for pieces of memorabilia that they owned.

See, this is what happens when we knee-jerk our reactions to situations that are more complicated than can fit into the scroll at the bottom of ESPN. Perspective is lost and easy answers are demanded. But the easy answers aren’t always the right answers. I’m not suggesting that Notre Dame should fire Kelly but if there’s a coach that should be, he sure would be a more viable candidate than Tressel.

**


Speaking of items in the local newspaper, you had to really admire Cleveland Cavaliers head coach Byron Scott’s public trashing of his team following practice on Tuesday. Essentially Scott questioned their commitment and their heart. The story didn’t get much play because Scott has been saying the same things all season.

The fascinating angle to all of this is not Scott’s candor but the fact that Scott sees nothing wrong with essentially admitting that his players have all but tuned him out.

Generally speaking when the players stop listening to the coach it’s time to fire the coach. It’s a little too early in Scott’s tenure to run down that rabbit hole, but it’s not too early to suggest that the problem lies more with Scott than the ragged group of players that the Cavs currently have on the roster.

Scott’s right that professional basketball players need to take their jobs seriously. They need to come to work every day prepared to give their best efforts and they need to approach each game with a winner’s attitude. But if the players on this team are lacking any of those qualities at the moment it’s not because they never had them. It’s because they see the situation as hopeless.

Part of that is the lousy roster. Part of that is the lousy coach.

Scott can continue to try and berate his charges into compliance but there’s no reason to think that saying these same things in the same way is going to have any different effect. Getting better players will help, but even then questions about Scott’s own leadership need to be answered.

I know that fans like a passionate coach, someone willing to get in the face of a player and tell him when he’s screwing up. Fans like that because they see that in the movies and it seems to work when someone is writing the script.

But truthfully it doesn’t work any better on the basketball court then it does in any other workplace. Employees don’t appreciate being berated in private let alone in public. It has everything to do with knowing that the coach doesn’t have their backs. Say what you will about former Indians manager Eric Wedge or former Browns head coaches Romeo Crennel or Eric Mangini, but one thing none of them ever did was call out a player or the team like that publicly. Not once.

This is a lesson that Scott hasn’t yet learned, despite all his travels. Indeed, maybe that’s why he’s had so many travels in the first place and why Cleveland will likely just be another quick stop on his long journey to nowhere.

**

With the NCAA tournament starting this week, does it make you nervous, karma-wise, that LeBron James picked Ohio State to win the national championship?

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.