The Trees Have Fallen and The State of NFL Labor

As you may recall, this blog has covered the critical labor aspect of #Deflategate from the beginning, from Marcy to me substantively as the 2015 season began:

If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

The labor law significance of #Deflategate was true then, and it is now. So many people were oh so quick and easy to let their personal pro football prejudices, or their prejudices against pro football, control their framing and thought on #Deflategate, and their opinion as to the usefulness of the protracted litigation. It’s good! It’s bad! Brady is a hero! Brady is a criminal! But that was false framing and thought. Simply as an avatar of fundamental, and critical, labor law, #Deflategate was important and necessary. While it may be over, the ramifications will affect many, if not all, labor unions in the future, and almost certainly for the worse.

Although it will sooner or later seep into all unions and collective bargaining agreements and interpretation, the first one is likely the NFL, where an all powerful and belligerent corporate league treats its employees like meat on a rack to be bought, sold, owned and treated as a perishable commodity. The NFL is a business, and a particularly ruthless one. And there IS a deplorable imbalance between management and players (the labor).

The final takeaway from the #Deflategate litigation is that, in a CBA, management has nearly unfettered discretion to interpret and implement the provisions of a CBA (Collectively Bargained Agreement) and ALL deference and presumption will be given their decisions, whether fair, proper or not. That is very much not a good thing. So, how will that affect labor going forward? The avatar may well, once again, be the NFL, and former executive and agent Andrew Brandt has some very salient thoughts in a two part series at Sports Illustrated. Part One is here. Please give it a read, it is instructive to both NFL fans and others too.

But Part Two of Brandt’s excellent series is where I want to pick up today:

After discussing many important issues in Part I of this midterm look at the 10-year collective bargaining agreement that governs NFL owners and players, this section deals with the all-important issue: where is the money going? With billions of dollars coming into the game, there is always dispute about how much each side should claim as “their share.” The owners, to be sure, achieved their primary goal in this negotiation: to take more of it.

From the beginning of these CBA negotiations, the NFLPA was playing defense against an aggressive push by NFL owners who were intent on reversing the (literal) fortunes from the 2006 CBA extension, a deal that owners voted unanimously to opt out of before the ink was even dry. Having no success in bargaining and facing a lockout imposed by the league, the NFLPA strategy shifted from negotiation to litigation, as the union was dissolved to bring an antitrust lawsuit, Brady v. NFL (the lockout one, not the Deflategate one). Ultimately, after a negative result in the Eighth Circuit Court of Appeals, the NFLPA made a deal to get players into training camp on time.

The league’s top priority was simple: become more profitable by lowering their largest expense, player costs.

And follow the money Brandt does. One thing that really hit home with me is the truth Brandt tells about guaranteed player contracts. Major League Baseball has them. The NBA has them. The only major professional sporting league that does not is the most deadly sport, the National Football League. The league with the most necessity to protect its labor (players) does absolutely the least to do so. More from Brandt:

Although there was much reaction this summer to eye-popping NBA free-agent contracts, many forget that we have similar gawking at NFL free-agent contracts every March (this year’s batch of golden ticket winners included Olivier Vernon, Malik Jackson, Janoris Jenkins and a few others). The difference, of course, is that while NBA contracts are fully guaranteed, NFL guarantees disappear after the early part of the contract (when teams have the lowest risk). NFL management smiles when agents deceive media and fans with reports of illusory guarantees and inclusion of no-risk first-year earnings into total guarantee.

We hear a lot of reasons why the NFL does not guarantee contracts—even from union leadership—that make perfect sense…for management. The primary reason is the high injury risk for NFL players, which, from a player point of view, is exactly the reason for guaranteed contracts. NFL contracts and the allocation of risk they provide have provided incredible value for teams, especially compared to other leagues. It is unfortunate that player contracts are so tenuous in the sport with the 1) most revenue, 2) highest franchise values, 3) greatest injury risk and 4) shortest career lengths.

So, where does that leave the labor in the NFL versus their profit whoring management? It is a complicated answer, and I truly hope you read both parts of Andrew’s series on this subject. The simple answer is with five more years under the current CBA. The better question is really what will happen leading up to, and at, the point of negotiating the next CBA? That is yet to be seen, but, if nothing else, #Deflategate proved, yet again, the incredible inequality that exists in a nation where owners are lionizes and workers are trivialized. Labor, and unions, matter. Their demise over the last few decades is significant in the demise and eradication of the middle class. Don’t let the fact that #Deflategate involved relatively rich players compared to your and my existence, but realize it is a cutout for a much larger problem.

Okay, on to the games! I was out much of yesterday and last night. Which left insufficient time to trash Rosalind and her Stanford Trees. Who proved twigs in a Husky hurricane last night. Ouch. It wasn’t just the leaves that were falling last night, as Van Morrison once described, it was the whole Tree! Today, Wisconsin at the Big House in Ann Arbor looks to be fantastic. But, honestly, I am more excited to see Louisville at Clemson in a battle between the hot ticket QB’s in the country, the Cardinals’ Lamar Jackson and the Tigers’ Deshaun Watson. Now THAT will be a fun game.

Also the deceptively 4-0 (no, they are NOT that good) ASU Sun Devils hope to bring some burning inferno to the Coliseum in LA against the USC Trojans. From my perspective (hey, I’m a lifer AND an alumni) ASU coach Todd Graham sucks. His defense is based on reckless blitzing and is ultra porous. He runs sloppy and undisciplined special teams. And his offense is spread cookie cutter crap. But USC alumni are on the warpath against Clay Helton too. I wonder which fan base prays harder for another tarmac firing?

On the Pro front, can the Patriots go 4-0 without Tom Brady? The bet here is, at Foxborough, yes. Seahawks at Jets may be interesting. Squawks have looked off this year, Wilson is at least slightly hurt, and the Jets not as truly terrible as they looked last week. Could be interesting! The two best games, pretty easily, are Chefs at Steelers Sunday night and Giants at Vikings Monday night. Steelers displayed some serious crake last week against the Eagles. The Chefs are well coached and solid on both sides of the ball. Could be a heck of a game. Giants are better, and more consistent this year. Still some major holes though. I’ll take the Vikes at their new, shiny and VERY loud home.

That is it for this week. Music by the inestimable Van Morrison.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
14 replies
  1. Peterr says:

    The NFL is a business, and a particularly ruthless one. And there IS a deplorable imbalance between management and players (the labor).


    One question I’ve been asking myself lately and would love to see some broader discussion of is how the protests around the national anthem will affect this imbalance. On the one hand, if the NFL views these protests as damaging to their brand and financial interests, you’d expect them to come down hard on a backup QB protesting like this, let alone inspiring others to do the same. The fact that they didn’t tells me they are nervous. But about what?

    Finances: are they thinking that perhaps an uncritical acceptance of police behavior isn’t as uncritically acceptable as it might have been in the past, and are worried that their fans might start protesting the NFL if they crack down on these player protests? [Locally in KC, second year CB Marcus Peters is the biggest local face of the protesters, and also is a huge fan favorite because of his league-leading 4 INTs.]

    Ownership views: Are the league’s owners becoming a bit more enlightened on racial issues, as some of the obvious wingnuts have either passed on or at least passed their ownership on? If so, that might explain the lack of a knee-jerk response.

    Both of these are possible. But there’s one more that seems at least as critical . . .

    Strengthening the solidarity of the players union: From all the accounts I’ve seen, there have been plenty of heavy conversations in the locker room, as players talk these things through. How do you balance the need for team unity and individual outrage at how society treats people of color? From these, it appears that teams have pulled together, despite differences about whether/how to protest. We haven’t seen or heard of any big chasms over this within teams, and if they were big, word would seep out. All that happened without any huge Bigfooting of the conversations by King Roger or the owners.

    But if they owners and King Roger decided to Make an Example out of Kaepernick, Peters, and others, what do you think would happen? Me, I think player solidarity would go through the roof.

    And this, my friends, is the LAST thing King Roger wants to see if the NFL wants to continue its dominance in negotiating the CBA. The less solidarity there is among the players, the less negotiating strength the players have with the owners. Conversely, the more freedom the players feel to speak out, the stronger it appears they are vis-a-vis the owners.

    By the numbers, Kaepernick was fighting for his job in the preseason. The Niners could have simply demoted him or dumped him because of his protests and made a plausible case that the decision was about his performance. Sports Radio could have talked that one to death for weeks, and you couldn’t have said definitively it was because of his protests. Had someone like Aaron Rodgers led a protest and then was cut by the Cheeseheads, there’s no way anyone would have believed it was because of on-field performance.

    These national anthem protests are revealing changes in the labor landscape of the NFL, but parsing out exactly what is not simple. All in all, though, they point to an improvement from the POV of the union.

  2. bloopie2 says:

     How many years does it take the NFLPA to save up a solid strike fund?   Or is that not possible because of all the new players coming in every year?.  I wonder how that whole process works.

    • Phil Perspective says:

      Good question.  I don’t know.  I’ve already heard stories about the Andrew Lucks and Matt Ryans(not them specifically … just that type of player .. higher end .. who will still in all likelihood be around in 5 years) telling fellow players to save their money for exactly that purpose.  Meaning to be prepared now for what may be a few years off.  Hopefully other players are listening.

  3. bloopie2 says:

    Hey, someone please educate me about Facebook (never been there).  Is there text, or only images and videos?  I ask because whenever I click on a CNN headline out of Google News, for example, they always have a video at the top that I have to wait for it to load and then I pause it, just to be able to read the text of the article.  It’s hard to find an article out of Google News that isn’t that way.  Now, I’m an old fart, and I actually prefer to read things for myself.  Are Facebook users (and perhaps I can say that dreaded phrase “the younger generation”) different?  Or do all the news sites do that today, in order to retain viewers for a few seconds more and thus (theoretically) make more money?  Just curious.

  4. Jim White says:

    It was a very disappointing win for the Gators at Vandy, but because so many ranked teams lost, they still moved up five spots in the AP poll to number 18. Even though Tennessee had an impossibly lucky win at Georgia, Florida could still slip back into the top spot of the Ess Eee See East since Tennessee still has to play both Alabama and Texas A&M. If the Gators have Luke del Rio back next week for LSU, they could be in tremendous shape going forward (provided the offensive line decides to actually block people).

    Today is the end of the line for my Rays. A very disappointing season for them, especially since they seemed to have improved their roster significantly. I’m not sure I want Cash to survive as manager, but there are no indications so far that he will be fired.

    It’s still far too early in the season for me to pay attention to the NFL (other than rooting for whoever is playing the Pats–Go Bills!)

    As for the anthem protests, I was a bit surprised nobody hassled me last week at a Rays game when I sat through the anthem.

  5. scribe says:

    Oh, well, the Patsies are at 3-1 after Fat Rex shut them out while Biebs was getting un-jet-lagged from his Tuscan early-autumn idyll with the lovely Giselle.  Motorscooters.  Wine-filled afternoons.  Lambent sunshine.

    Keep in mind that pre-season Patsies fans were saying they’d be happy with a 2-2 record coming out of Brady’s time in King Roger’s dungeon of discipline.  (Seeing how Biebs spent his time off, King Roger’s dungeon doesn’t look quite that bad.) It was only after they went 2-0 that the lust for an undefeated season really caught fire.

    In New England, it was grey and threatening rain while Gostowski missed wide right and flubbed the Patsies’ best chance at a score.  Fat Rex may well have secured his chance at another year benighting  Buffalo with his Rex-ness.  I’m still waiting for the next iteration of foot-fetish videos to erupt.

    Tonight, Angry Brady shows up at Foxboro demanding to know what the kids have done to his house while he was gone.  It’s not quite as bad as baying mobs , nor were there champagne-spraying dwarves  but we’re still likely to see Angry Brady next week.

    Stillers tonite.

    Why do I have to log in my screen name and email address for every single comment?

    • scribe says:

      Watching the end of the Raydahs-Crows, you get to see why the Stillers let Mike Wallace walk a couple years back.  At a critical moment of the game, as his team went ahead, he earned an unsportsmanlike penalty – taunting – which was so severe he was ejected.

      One quick Raydahs TD drive later, Fluke-O (can you tell I dislike the Baltimore team intensely?) ran out of receivers in the face of the Oakland D and came up short on 4 straight downs.  I suspect he could have really used Wallace, either to catch the ball or attract defenders’ attention, on each of those 4 failed passes.  And they wound up out of FG range, turning over the ball and losing the game.

    • bmaz says:

      You are not signed in as a user probably. On the upper right should be a general “Login” button.

      • scribe says:


        And double “Ahhh.” as Big Ben just lobbed a TD pass to a wide-open Heyward-Bey and a 2 point conversion to Marcus Wheaton.

        This Stiller fan smiles.

  6. Rosalind says:

    quick, mom’s on her way home! re-stock the likker cabinet and get your “Top 10 Things That Happened While EW Was Pedaling Her Way Through France” lists ready for inspection. to begin:

    – Trees felled

    – Raiders rose

    Vin ce fin

  7. scribe says:

    Pleasant result on last night’s Stillers game. I liked what Tomlin had to say about their film work from the Iggles debacle: they put everyone in the film room, told them up front to check their egos at the door, and named names across the board.
    I think they got the message.
    And James Harrison continues to Rule. The Chefs wound up double-teaming him and it still wasn’t enough to keep him off their QB. Vindicated, again.

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