Plenty of players, agents, and media members have scoffed at NFL Commissioner Roger Goodell’s brand-new op-ed item appearing in the Wall Street Journal, which explains the end result of the legal strategy that the players hatched on March 11 with the filing of the Tom Brady antitrust lawsuit.
Goodell sets forth some of the same things we’ve been saying of late -- that ultimate player victory in the Brady antitrust lawsuit will result in an NFL with no labor deal, no limits on free agency, no rules that apply across the 32 teams, and no draft. As to the “no draft” concept, Goodell even quotes agent Brian Ayrault’s recent tweets directed to PFT regarding Ayrault’s belief that there should be no draft.
In addition to no draft, Goodell explains that, under the players’ vision of the NFL as crafted by lawyer Jeffrey Kessler, the league would be lacking various devices that have protected players for years. There would be no minimum team payroll (i.e., salary floor). There would be no minimum player salary. There would be no standard compensation for players who suffer serious injuries while practicing or playing. The would be no league-wide benefit plans. There would be no limits on free agency, with franchise “perpetually out of the playoffs” serving “essentially as farm teams for the elites.” (It reminds me of my once-beloved Pirates. If they had anyone in the past decade or so that an elite team actually wanted.)
Also, each team would be permitted to determine its rules for training camp and offseason workouts, with no limits on duration or intensity of practices. And without a league-wide program of drug testing, teams would be left to their own devices. Some teams may choose not to test for marijuana. Others may choose not to test for steroids. (The end result likely would be a decision by Congress to impose Olympic-style testing on the sport, something neither the league nor the players want.)
Those who disagree with Goodell (Mike Freeman of CBSSports.com has characterized the op-ed as “scare tactics”) believe that Kessler’s legal positions are aimed merely at securing more leverage. The players will have plenty of leverage if the lockout ultimately is lifted on appeal, and then Kessler can position the players for even more by arguing that any rules imposed by the teams for 2011 constitute a violation of the antitrust laws.
There’s no reason to believe that Kessler and the players won’t make that argument, especially since the players realize that more leverage can eventually be parlayed into a Collective Bargaining Agreement with better terms for the players. Though we’ve heard privately from NFLPA* sources that the Brady antitrust litigation won’t be attacking the draft, no one has come out and said publicly that the draft won’t be attacked. (We gave NFLPA* executive director DeMaurice Smith a chance to do just that last month, and he didn’t.)
Besides, the attack can come from college players entering the league. If there isn’t a labor agreement in place between the owners and the reconstituted union to make the NFL immune from employee-launched antitrust attacks, Andrew Luck or anyone else can argue that they should (as Ayrault believes) to “be able to choose who they work for.”
Thus, unless and until one of the 10 named plaintiffs or one of their lawyers says “we’re not and we never will attack the draft” and unless and until a new CBA is in place, preventing the clients of Ayrault and other like-minded agents from doing essentially what Maurice Clarett did in 2004 (one of the few big cases in the past decade that the NFL actually won), the draft is in jeopardy.
We hope that, in the end, cooler heads prevail. But cooler heads have yet to make an appearance in two-plus years of negotiation and legal wrangling. There’s no reason, even after the ruling to lift the lockout, to believe that the league will buckle or that Kessler and company will stop pushing for the ultimate leverage for a labor deal that would make even Marvin Miller say, “Wow, that’s a damn good labor deal.” And then, if Kessler and company obtain an order from the highest court in the land that any rules implemented by the NFL violate the draft and if Kessler and company make pie-in-the-sky demands including, for example, partial ownership of the teams by the players, the NFL may decide that it’s better to roll the dice in a rules-free NFL.
If it ultimately happens both sides will share the blame. But as long as Kessler is pushing for no draft -- and as long as no CBA is in place to stop future rookies from doing the same -- everyone who follows football needs to recognize the possibility that, in the future, there will be no draft.
Maybe by then the Pirates will be competitive, and I can go work for Calcaterra.