At a time when the NFLPA* faces the possibility of losing the effort to lift the lockout via the court system, the union-turned-trade-association needs real leverage, if the next step will be to negotiate a win-win, long-term labor deal. Although the most recently published comments from NFLPA* executive director DeMaurice Smith on the subject hint at a stubborn commitment to leverage-through-litigation, the broader circumstances could be cause for a glimmer of hope.
In a new interview posted today by Michael Silver of Yahoo! Sports but conducted “earlier this month,” Smith suggests that he’s committed to a future without a union.
“When I went into this,” Smith told Silver, “my attitude was that the only way you have power is collectively, and I believed in unions as vehicles for employees asserting their rights. But looking back on what Gene [Upshaw] experienced and understanding this particular situation, I’ve now come to appreciate the value of decertification in our particular circumstance. And I don’t see why we’d want to go back to being a union.”
In 1993, Upshaw wanted no part of re-forming the union. But there’s a good chance that Upshaw knew the NFL had to insist on a CBA in order to protect the NFL against antitrust challenges. The settlement of the Reggie White antitrust suit in the 1990s or the Tom Brady antitrust suit today would still leave the NFL susceptible to challenges from players who were not yet in the NFL at the time of the settlement. So if, for example, the Brady class agrees as part of the settlement that the draft will continue, any and all future incoming players could sue to challenge it as an antitrust violation.
Upshaw was very smart. More than smart enough to know that, because of the antitrust exemption that comes with a multi-employer labor deal, the NFL needed the union more than the players needed the union. Thus, Upshaw knew that he could get greater concessions by fighting against the return of the NFLPA.
Smith, in turn, is smart enough to know that, with the first shot of the Brady case seemingly destined to fizzle like John Madden’s “last shot from a Roman candle,” leverage needs to be mustered for the inevitable negotiations that are moving to the front end of the horizon.
Of course, if Smith isn’t saying what he’s saying for leverage, then it’s lunacy. Apart from threatening the competitive balance of the game by putting the draft and free agency restrictions in peril and jeopardizing college football by giving the next Maurice Clarett a much stronger case for forcing early entry into the draft pool, Smith risks inviting a new union drive that would, if successful, render his employment irrelevant. Even Upshaw, who commanded respect in every corner of every locker room, couldn’t keep his players from crossing a picket line. If Smith tries to force a non-union reality onto the NFL, the players who will be affected by the absence of protections like minimum salaries and mandatory benefits eventually will come together and attempt to form a new union.
Thus, in lieu of focusing on the gloom and doom, we’ll assume it’s all about the leverage. Making us even more comfortable in this conclusion is that Silver, like Upshaw and Smith, is smart. And Silver wrote last week -- apparently after interviewing Smith and hearing all about the “no union” strategy -- that he believes based on his conversations with both sides in this labor fight that the end result will be a multi-year CBA.
Which means that Silver believes the union will return.
To get there, the players need leverage. And part of that leverage will be a reluctance by the NFLPA* to remove its asterisk.