Earlier this week, outgoing NFLPA president Domonique Foxworth had a pointed message for anyone who doesn’t like the Collective Bargaining Agreement negotiated in 2011.
“You got a problem with it? F--k you,” Foxworth said.
Former NFL player Sean Gilbert has a problem with it. And Gilbert has said that he has a plan for pulling the plug on the 10-year package, if he becomes the next executive director of the NFLPA. But Gilbert has to date declined to elaborate on how the deal can be scrapped.
The answer could be in Article 69, Section 2 of the labor deal, titled “Termination Due To Collusion.”
“If at any time the conditions of Article 17, Sections 16(a), (b), or (c) are satisfied, the NFLPA shall have the right to terminate this Agreement,” the CBA states. Article 17 deals with collusion, and if collusion can be proven via the findings of a System Arbitrator, subject to appeal to a three-person panel, the NFLPA can scrap the agreement.
To prove collusion, the NFLPA would have to show that teams, through its employees, entered into “express or implied” agreements among each other to limit individual team decision making in one of five ways: (1) whether to negotiate or not negotiate with a given player; (2) whether to submit or not submit an offer sheet to a restricted free agent; (3) whether to offer or not offer a player contract to any player; (4) whether to exercise or not exercise a right of first refusal; and (4) coordination among the teams regarding the terms or conditions of employment to be offered to any player for placement in a contract.
The procedure for establishing collusion becomes complicated and convoluted, but the biggest challenge relates to proving it. Surely, it has happened; the cap penalties imposed two years ago on the Cowboys and Redskins arose from their refusal to participate in collusion regarding the uncapped year. The challenge would be to prove that it’s still happening, in one of more of the ways listed in Article 17.
The best evidence of it would come from proof of the league or specific teams chastising other teams for certain tactics when negotiating player contracts. If, for example, the Browns get dressed down next week at the league meetings for signing Bengals restricted free agent Andrew Hawkins to an offer sheet, that would be proof of collusion. (Hawkins became the first player to change teams under an unmatched offer sheet since running back Mike Bell in 2010.)
Still, how would collusion be proven? Ideally, the NFLPA would need testimony from a former team or league-office employee who has no interest in returning to the industry and who can credibly blow the whistle on collusive practices.
The answer to the question of why Gilbert has been tight-lipped about his strategy for scrapping the deal likely comes from Section 17 of Article 17, which places a 90-day limit on pursuing an effort to terminate the agreement based on collusion. The 90-day period begins to run on the day “the player knows or reasonably should have known with the exercise of due diligence that he had a claim.” If Gilbert says too much about his strategy, the players who would be filing a claim for collusion after Gilbert is elected (if he’s elected) would face an argument that they should have known about the possible claim long before Gilbert got the job.
All of this presumes that the players would even want to scrap the current deal. Now that the salary cap is spiking, criticism of the contract may subside. Still, the ongoing silence from the owners -- who were openly complaining about the prior CBA not long after it was signed -- suggests that the deal is a very good one for them. Which could mean that, at least financially, it’s not as good as it could be for the players.
That said, the players got the best possible deal under the circumstances they faced in 2011, when the owners were determined not to get a win but a blowout. For the players to secure a win (via antitrust litigation that extremely viable but time consuming), missing paychecks became necessary. The players weren’t willing to do that. So they had to use the litigation process to leverage the best possible arrangement short of losing regular-season games.
Gilbert’s candidacy ultimately may turn on the question of whether enough players (or, more accurately, player representatives) want to scrap the current deal with six seasons remaining on it.