This past week the NFL and the NFLPA scheduled their first meeting regarding collective bargaining negotiations. Although over the course of the past negotiations the NFL has held, and used, considerable bargaining power over the current NFL players subject to the CBA, new professional leagues may have eroded some of this bargaining power. Players may now have the opportunity to effectively negotiate for significant changes in areas of concern such as compensation and injury prevention.
Few of us remember (or will admit in public to remembering) a film called The Replacements. The film was released in 2000 and aside from the corny dialogue and quirky characters, it followed a bartender-turned-quarterback who got an opportunity to play professionally during a labor strike. This feel-good story wasn’t just a star vehicle for Gene Hackman, rather it was loosely inspired by labor relations within the NFL. In 1987, after the NFL CBA expired, the NFLPA instituted a strike. Although some notable players crossed the picket-line, an overwhelming majority of players sat out games. In response to the strike, the NFL resorted to industrial self-help and hired replacement players. Benefitting from the recent failure of the USFL, NFL organizations had a deep pool of competitive athletes who were ready to play. This isn’t to say a few off-duty bartenders and bouncers didn’t sneak onto NFL rosters. Nonetheless, the NFL fought back against pressure from the players. As a result, the strike and ensuing negotiations largely produced compromises, rather than “wins” for either labor or management and ushered in the modern NFL.
Jumping ahead to 2010-11, the NFL and the NFLPA engaged in protracted negotiations resulting in a lockout lasting just over 25 days. Television contracts and compensation were at the heart of the dispute over exponential growth revenue that was arguably not being equitably distributed to the players. Although replacements were not used, the NFLPA decertified and the players raced to court to begin an anti-trust lawsuit against the league. What ensued were secret mediations and negotiations using developments in the lawsuit to gain an advantage. There was no winner in these negotiations, as players reasonably feel underpaid and accordingly NFL owners feel as though they have given away too much of their revenue stream. Notably, there were no competitive professional football leagues during this time—even Bon Jovi abandoned football in 2011.
After the conclusion of the 2020 NFL season, the CBA negotiated and agreed to during 2011-12 will expire. Labor relations between the NFL and the NFLPA are again tense, with current players such as All-Pro Richard Sherman stating a strike or lockout is inevitable due to the issues that need to be addressed. Among these issues is compensation, with players rightfully asking for a guaranteed contracts and larger shares of television and streaming contracts. Although news breaks about record-setting contract values for star athletes in the league each off-season, the average career length in the NFL is approximately 3 years and the current minimum salary is less than 1 million dollars per season. This leaves many young athletes with a short window to maximize their earning potential, and thereby creates a significant pay gap between teammates. Moreover, as an example of fertile areas for renegotiating, there are relatively new contracts with Amazon Prime and Yahoo which allow for streaming games, with advertisements, to mobile devices—generating significant sums of money for the League. Currently, players do share in this new revenue stream, but they receive under 50% of all revenue. Additionally, the NFL policy concerning substances of abuse generates robust debate, as marijuana has been decriminalized and even legalized for recreational use across the country.
The National Labor Relations Act (NLRA), a body of laws and regulations, oversees private unions and the relationship between labor and management. Many of the statute’s regulations act as a default, and can be changed in a collective bargaining agreement. A relevant example, the right to resort to industrial self-help in the form a labor strike, is technically lawful where the strike is over a mandatory term or condition of employment for the unionized employees. However, as in the NFL’s CBA, this default right is commonly restricted in contract to reserve the right of labor to strike solely over union security (existence of the union). The same rule applies to a lockout, where an employer ceases operation during negotiations over a mandatory term or condition of employment. Additionally, under the NLRA, it is lawful for an employer to hire permanent replacement workers during a strike or lockout. The law is unclear concerning short-term replacements because it is not lawful to hire employees with the intent to break the union. Nonetheless, NFL management has maintained since the 1980s they retain the ability to use replacement players.
However, unlike collective bargaining negotiations in 2010-11, the professional football marketplace is vastly different. The AAF has officially declared bankruptcy and is considering its remaining player contracts assets, meaning a vast majority of players are locked into their contracts with the AAF during bankruptcy proceedings for the foreseeable future. Also, the XFL is launching its inaugural season in 2020. Between these two leagues and the resurgence of the CFL of late, a large amount of talented and competitive football players will be under contract elsewhere. It remains to be seen if they would be willing to forego any of those opportunities to play as a replacement in the NFL for a few games. This leaves the NFL’s potential roster composition skewed heavily towards the bartender end of the spectrum, not to say there is anything wrong with that trade. It just doesn’t necessarily translate to professional football without a few hiccoughs.
The risk of the product becoming watered down due to a lack of professional football talent available for replacement games can remove some of the NFL’s inherently uneven bargaining power. The NFLPA, like the labor force in any industry, will always be at a disadvantage due to the financial stability of league owners. In other words, they’re billionaires and they don’t need football. But removing an arrow from the quiver of management during negotiations can mean millions in additional compensation and more rights for young men who put their bodies on the line every week. In light of the growing market for professional football, it’s time the NFL is subjected to the same type of pressure their labor force is.
By Tony DiPerna
Photo Credit: Matt Slocum/AP
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