The primary roadblock to a new Collective Bargaining Agreement (CBA) between NFL owners and players reared its ugly head again this week. The overwhelming problem in these negotiations has not been an additional $1 billion cost credits; an 18 game season; a rookie wage scale, etc. The issue holding up labor peace in the NFL is simple: trust.
The NFL owners do not trust the NFLPA leadership and their actions have shown so; the NFLPA leaders are becoming increasingly wary of the tactics and tone of NFL owners. Without trust and comfort in a relationship, no deal is possible, and right now trust is lacking as much as it has for two years.
Litigation, not negotiation
Both sides in the dispute are fighting for the hearts and minds of fans, as Commissioner Goodell's op-ed letter shows, but fans are starting to clamor for more conversation and less positioning and lawyering.
Ironically, it was the NFL that recently publicly stated that the NFLPA should put the effort into negotiating that it has in litigating. Then on Monday the NFL filed an unfair labor practices complaint with the National Labor Relations Board (NLRB). The filing, in a nutshell, was a preemptive strike to try to prevent a potential legal strategy the union may use in a couple weeks.
The NFL believes the NFLPA will pursue a legal strategy of Decertification to achieve its goals: effectively dissolving itself as a union, leaving the NFL no one to bargain with as the collective agent of the players.
With that, NFL players could file claims in antitrust court as individual plaintiffs, something they cannot do while represented by a union. The NFL argues that this is the end game the union has wanted all along and they have engaged in sporadic and halfhearted bargaining, only to be able to decertify in March upon a lockout.
In other words, the NFL doesn't trust the union wants to make a deal prior to being locked out on March 4th. They feel the union is angling for the strategy employed by the NFLPA in the 1992-93 under the late Gene Upshaw, a strategy that led to many gains for NFL player including, for the first time, free agency. Before it gets to that point, the NFL wants to ensure the NLRB is on notice.
Players' leverage?
The NFL's actions illustrate two things: it (1) has never believed the union wants to get a deal done prior to the expiration of the CBA, despite public posturing that they are working hard to do so; and (2) is afraid of individual player antitrust lawsuits and what they could spark.
In antitrust law, as proven by the Freeman McNeil and Reggie White cases of 1992, football players are treated as other employees, not burdened by restraints on where they are able to work and for how long. Individual antitrust lawsuits strike a tone of fear in the hearts of NFL owners. Defending themselves against treble damages in antitrust court is not how the NFL owners want to spend their offseason.
Troubled Trust
The following are ongoing issues of trust in this two-year bargaining process towards a new CBA:
- NFL officials have not appreciated the public comments by union leadership. Owners are wary of telling anything to top union leaders for fear it is in the news the next day or used as part of a campaign such as "Let us play."
- NFLPA officials have felt "talked down to" and tones of condescension from NFL owners. A prime example to the union was the story of Panthers' owner Jerry Richardson, the most hawkish owner in the membership, speaking in paternal tones to players such as Peyton Manning at a pre-Super Bowl bargaining session in Dallas.
- NFL officials have not trusted the NFLPA and their Decertification tour throughout the fall. The league was increasingly frustrated watching the union visit every team to take votes toward using this tactic in March.
- NFLPA officials have not trusted the hiring of attorney Bob Batterman, an attorney they refer to as the "lockout lawyer". The union is convinced Batterman is charged with doing for the NFL what he did for the NHL: tilting the economic system strongly in favor of the owners, even if it takes a lockout.
- NFL officials have not trusted the NFLPA strategy on Capitol Hill. The league feels the union is posturing with Congressmen who just want to talk football to sway their constituents towards their side.
- NFLPA officials have not trusted the NFL's actions in negotiating broadcast contracts that pay through a potential lockout. Despite a ruling for the NFL by the Special Master last week, an appeal to Judge David Doty - who has been very player-friendly - could shift the leverage a bit with a player-friendly ruling.
"Show us your books" source of frustration
NFLPA officials continue to respond to financial concerns from owners by asking for financial transparency with their financial statements. Having said no several times, NFL officials have long been frustrated with these incessant calls to "open the books" of each team, beyond the Packers. Not only will they not show the NFLPA financial statements for reasons that they have already shown them league wide financial data, but also that they do not trust what the union will do with those documents. They fear that sensitive information about what teams pay certain people, their private travel expenses, entertainment budgets, etc. would become public knowledge and cause for embarrassment.
No trust means no deal
As I teach in my Negotiations class at Wharton Business School, negotiations are about trust and relationships as much as they are about the issues at hand.
NFL labor peace since 1987 has been fueled by a long and strong relationship between Upshaw and former NFL Commissioner Paul Tagliabue. Their relationship was formed over a while, and strengthened through personal time and tragedy, including some poignant moments during the 9/11 crisis. Tagliabue retired in 2006; Upshaw passed away in August 2008.
The new captains of this partnership, DeMaurice Smith and Roger Goodell, have not formed a relationship beyond a surface one. I was most encouraged in this negotiation process when on the Monday before the Super Bowl, Smith and Goodell met privately in New York. Even if they didn't talk about football, that relationship is key to making a deal. I would suggest a couple of private lunches, dinners or visits to each other's homes in the next week or two. Only then can a deal be made.