Every once in a while, I trip over an issue that strikes a chord with me. In the labor dispute, I’ve finally found one.
The lawyers hired by the players believe that the NFL should have no rules, no draft, and no limits on free agency. Most of the media has been asleep at the switch on this issue for most of the six weeks since the NFLPA decertified and filed a lawsuit that attacks any and all rules that would be implemented among the league’s 32 teams in an NFL without a union representing the players. The media finally is waking up to the issue, in part because the league has begun to focus on it.
In addition to the comments from league executives during a lengthy interview with Associated Press sports editors, NFL Commissioner Roger Goodell, who raised the issue during a conference call with Giants fans, reiterated it during an interview with USA Today.
“I think when you get back and look at this, I think what’s being pursued by the union attorneys is a completely different vision for the NFL than what I have,” Goodell told Jarrett Bell.
“They’re challenging fundamental aspects that have made the league successful and popular with the fans. They’re going after the draft, as an example, pursuing the draft as illegal. They’re pursuing free agency restrictions as illegal. They’re pursuing aspects of the salary cap as illegal. That’s what they’re saying. We don’t believe that. It’s been negotiated. We think they’ve been good for the players, the clubs and, most importantly, the fans. It’s what’s created a successful product. So the union attorneys are attacking everything that we think has made the league successful.”
In fairness, the 10 players who have filed the Tom Brady antitrust lawsuit against the NFL do not argue that the 2011 draft is illegal. (The plaintiffs in the Carl Eller case, which has been consolidated with the Brady case, are indeed attacking the draft as illegal.) But that’s only because the expired labor deal contemplated that there will be a draft in 2011. Via rookie linebacker Von Miller, the incoming rookies are attacking any restrictions or rules regarding the money paid to the 2011 draft picks. By next year, if the lawsuit is still pending (and it very well could be), we fully expect the players to add a member of the 2011 draft class, who’ll claim that the draft violates the antitrust laws, too.
We’re confident that this will happen because lawyer Jeffrey Kessler has argued, repeatedly, that a non-union NFL should have no player-acquisition rules of any kind -- including no draft. (Daniel Kaplan confirmed Kessler’s beliefs earlier this month, during an appearance on PFT Live.)
When it comes to Kessler’s position, the players fall into three possible categories. First, players like Cardinals kicker Jay Feely understand Kessler is doing, but they assume that, eventually, NFLPA* executive director DeMaurice Smith will tell Kessler to put a sock in it. Those players must have missed Smith’s comments last month during an extensive interview (we could call it “exclusive!” since he was only talking to PFT Live at the time, but that tactic is lamer than a one-legged Dachshund).
“Will next month’s draft be the last draft ever?” I asked. “Is that the end result of this anti-trust lawsuit: no rules, 32 companies acting independently and therefore no draft? You think that’s where this is headed?”
Smith could have said, “We’re not attacking the draft, and we never will.” But he didn’t. He provided a vague answer that suggests the draft will be attacked, and that this isn’t simply huffing and puffing from Kessler.
“You know what, I don’t know,” Smith said. “And Mike, man, you’re a lawyer, I’m a lawyer. You and I have probably had a lot of confidence in the way in which court cases were going to work out, either ones that you and I were trying or ones that we were watching. You know you can’t predict anything. I don’t know. What we hope to achieve is the game of football for our fans, the game of football for our players. And that’s what I’ve got my eye focused on right now.”
Smith is right. Once the pin is pulled on the legal grenade and the lawyers are given the ability to throw the thing wherever they want, no one knows if, where, and how it will explode. The players may simply want the leverage that comes with attacking the draft, but once the draft is under attack the players may win.
And then all of us lose.
The second category of players consists of those who agree with Kessler, and who want the draft and all other rules to go away. We’re aware of not a single player who agrees with Kessler.
The third category consists of players who don’t realize what Kessler is doing. Rams running back Steven Jackson is the charter member of that group.
In response to Goodell’s quotes regarding the attack on the draft, Jackson basically told Mike Freeman of CBSSports.com that Goodell is lying. “The glaring omission from the Commissioner’s comments is the truth,” Jackson said. “We are challenging his lockout of players and fans. How could he miss that?”
Jackson is only partially right. The short-term strategy is to argue that the lockout of a non-union work force violates antitrust law. And there’s a good chance the players will win, ending the lockout.
But ending the lockout won’t end the lawsuit. There still will be no labor deal, and the players will challenge within the confines of the lawsuit any rules that the NFL applies post-lockout as antitrust violations, including any restrictions on free agency, the use of a salary cap, and unless and until De Smith unequivocally says otherwise, the draft.
Again, we’re not pro NFL and we’re not pro player. We’re looking out for the long-term interests of the game. Currently, Jeffrey Kessler is playing Russian Roulette with the long-term interests of the game, and De Smith is letting him.
So what should the players do? They should privately (not publicly) press Smith to insist that Kessler drop any attack on the draft. It’s not disloyal for the players to express themselves privately to Smith, and it wouldn’t conflict with the effort to end the lockout. Though abandoning any effort to end the draft would technically sacrifice some leverage for the players, it would also eliminate an argument that potentially threatens the foundation of the sport.
This isn’t an attack on the players. Our goal is to make sure the players understand what the lawyers are doing. If the players understand it and support it, then the players should come out and say so. If they don’t, then they should make their views known to the folks running the litigation, so that this labor dispute won’t inadvertently result in serious, long-term damage to the game.