Time is short for NFL, players

By Mark Maske
Washington Post Staff Writer
Wednesday, December 15, 2010; D04

NFL owners are scheduled to gather Wednesday in the Dallas area for a one-day meeting with time beginning to run short - in the NFL season and in the period that remains for them to reach a labor pact to avoid a confrontation next year.

The collective bargaining agreement between the owners and NFL Players Association expires in March. Both sides say they want to find a way by then to complete negotiations on an extension that would preserve the longstanding labor peace that has been a crucial part of the sport's winning economic formula.

If that doesn't happen, the current negotiations could give way to a showdown that may include a lockout of the players by the owners or the players decertifying the union in a bid to avoid being locked out.

"They are in the midst of a very difficult negotiation," said Gabriel Feldman, director of the sports law program at Tulane University. "You're going to hear more and more about a potential lockout and decertification as we get closer to the end of the season. At this point, I'd say it's still too early to say those possibilities are more than a threat."

Both sides say they remain focused on negotiations. The sense of urgency seems to have increased in recent weeks as the owners and players try to avoid the NFL's first work stoppage since strikes by the players in 1982 and '87. There was a glimmer of hope last week when the league and union agreed that the NFLPA could postpone filing a collusion accusation against the owners. It wasn't a labor settlement, but it showed the two sides could agree on something.

"Keep in mind, most collective bargaining agreements in what I'll call the work-a-day world, negotiations are begun 90 days maybe prior to expiration," Bob Batterman, an attorney for the owners, said during an October interview in his office in New York. "We started here two years in advance . . . We can get this thing done. Will we? I don't know."

The stakes are very high for an industry with annual revenues approaching $9 billion. The NFL, with its lofty television ratings, is the undisputed king of professional sports leagues in the United States. But the peaceful business partnership that was forged by former commissioner Paul Tagliabue and late union chief Gene Upshaw soon could be threatened.

Players and DeMaurice Smith, the union's executive director, have said they expect the players to be locked out next year. NFL Commissioner Roger Goodell and others on the management side have said the owners want an agreement that addresses what the owners consider the sport's economic problems.

"While I think it would be preferable to have a deal before the end of the year, the reality is we don't have one," Smith said Tuesday. "We told every player to prepare for the lockout. We continue to see steps being taken by the league to prepare for that lockout."

If there is a lockout, it could begin in March. The current labor deal contains a provision that the NFL draft still would be held. But other offseason activities, such as free agent maneuvering and teams' workouts and practices, would be halted.

Public pressure on the two sides to reach a settlement likely would increase as next season nears. There would be no games with replacement players. The use of replacement workers during a lockout is generally not permitted under labor law, experts say.

But the players could attempt to avert a lockout by decertifying the union - in effect, putting the union out of business as the bargaining agent for the players. The move would expose the owners to a potential antitrust lawsuit by the players. The owners still could lock them out, experts say, but the risks for them would increase because the lockout could be added to any antitrust claim filed by the players.

The players have decertified the union in the past. The sport's longstanding system of free agency and a salary cap was put into place in the early 1990s as part of a settlement of antitrust litigation. That system remained in effect until this season was played without a salary cap when the two sides could not agree to an extension of the labor deal. The owners voted in May 2008 to end the current labor agreement two years early.

Feldman said he believes there is a good possibility that the owners and players will settle their differences before it comes to a lockout or a decertification of the union.

"When we've seen work stoppages in the past, there has been a fundamental disagreement between the two sides," Feldman said. "There was a paradigm-shifting issue, like a salary cap or free agency. I don't see that here. I see them fighting over a significant amount of money, but not fighting over a fundamental issue that dictates the way the business is going to be run."

The owners called the 2006 labor settlement, which gave the players about 60 percent of designated league revenues under the salary cap, overly favorable to the union. The owners have proposed increasing the amount of money taken out of the revenue pool before the players' portion is calculated, contending that players wouldn't have to take a pay cut because revenues would increase greatly with owners having more money to re-invest in the product.

The owners also have proposed an 18-game regular season, a rookie wage scale and blood-testing of players for human growth hormone.

The players have objected to the notion of taking what they call a significant pay cut, and have expressed wariness about the prospect of a longer regular season, noting the increased opportunity for injuries.

"What we have said is that the proposals that they put forward don't address the health and safety issues," Smith said Tuesday.

Feldman said it's unclear what the long-term implications of an NFL work stoppage next year would be.

"It's the great unknown, what happens if you take your product off the market," Feldman said. "Part of it would depend on how long a work stoppage would be. Are you talking about missing regular season games or not? An entire season? We've seen what happened in the past with baseball and hockey. Part of it is how strong your product was before it went away, and the NFL product is obviously very, very strong. But it's always a risk when you take it away for a period of time."

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