The Superbowl Is Over. Now The Real Battle Begins

Date: 11 Feb 2011 | posted in: From the Desk of David Morris, The Public Good | 3 Facebooktwitterredditmail

Dear football fan,

The Superbowl is over. But the real combat is just beginning.  This time it’s not Packers v. Steelers.  It’s Workers v. Bosses.  And for thousands of workers and millions of fans, this is the game that counts.

In the game of football, the rules favor neither side.  And they are enforced.  Each team has the same number of players and similar resources.  In the business of football, however, the rules overwhelmingly favor one side.  And the resources each side commands are vastly unequal.

Consider the different access the media each side has.   The NFL Players Association (NFLPA) submitted a 60 second ad for broadcast during the College All Star game, played the day before the Superbowl.

The NFLPA was a title sponsor of the All Star game.  As part of its sponsorship agreement it received two minutes of network air time.   The ad itself was anything but inflammatory.  It showed a dark stadium, empty locker rooms, locked gates and dozens of individual fans and players repeating the refrain,  “Let Them Play”.

None of this mattered.  The College Sports Network, owned by CBS, refused to broadcast the spot.  Executives at CBS said it “crossed the line of fairness”.   They insisted they “didn’t want to get involved” in the labor negotiations.

But of course, CBS is very much involved in the labor negotiations–on the side of the owners.   CBS shells out $620 million to the NFL for the rights to broadcast its games and to access other NFL content.  The NFL also receives $1.1 billion from ESPN, $720 million from Fox and $600 million from NBC.

Last year CBS and the other broadcasters signed a contract with the team owners designed to give them enormous leverage in their negotiations with the players.   In return for the NFL receiving less money initially, the broadcasters agreed to pay it $4 billion even if the season is not played.(See Update below)

Adding insult to injury, on  Superbowl day, during the pregame show Fox News ran a segment on the labor dispute but talked only to one side.  Chris Wallace interviewed NFL Commissioner Roger Goodell, who represents the owners.  He did not interview DeMaurice Smith, who represents the players.

A Brief Review Of Football Labor History

The battle between labor and management is always uneven.  Up until the 1930s management didn’t even have to negotiate with its workers. Owners could fire workers who tried to organize. Often the courts declared unions illegal.  In the 1930s workers finally gained the legal right to form unions.  Owners were required to bargain “in good faith”.  The owners rarely followed the rules.

For NFL players, every yard gained from management has been hard fought and hard earned.NFL players began to organize in 1956. Players on the Green Bay Packers and Cleveland Browns formed an association and made minimal demands on their team owners:  a minimum wage, per diem pay to cover expenses and, believe it or not, uniforms and equipment paid for by the teams!

The owners never met with the players and refused to respond to any of their proposals.

The players, as would be the case for the next 40 years, turned to the courts for help.  The US Supreme Court ruled that the NFL did not enjoy the same antitrust immunity that Major League Baseball did.  The result was that many NFL rules that limited player mobility and negotiating power could be viewed as illegal restraints of trade. Rather than face that prospect through another lawsuit, the owners granted many of the players’ demands, including setting up a minimal pension plan.  But the owners refused to enter into a collective bargaining agreement with the association.

In 1968, threatened by the possibility that the players would join the powerful Teamsters union, the owners said they would recognize the NFLPA if the Teamsters were rejected.  The players did so, but the owners still refused to bargain with the union.  The players voted to strike.   The owners countered by declaring a lockout.  A few days later the owners relented, but the concessions won by the players were modest.  According to Wikipedia, the owners agreed to contribute about $1.5 million to the pension fund but maintained the then current minimum salaries of $9,000 for rookies, $10,000 for veterans and $50 per exhibition game.  The owners refused to allow for independent arbitration.

In 1970, after the NFL and the AFL merge, their two players’ unions also merged.  After a brief lockout, the players went on strike.  They returned two days later when the owners threatened to cancel the season.  The players did, however, gain the right to bargain through their own agents with the clubs, impartial arbitration but only for injury grievances, some improvements in basic salaries and pensions, and dental care.  Following negotiations, many union player representatives were let go by their teams.

In 1974 the players again went on strike, this time focusing on the hated Rozelle Rule that allowed any team that lost a free agent to another team to receive something of equal value from that team.  Few teams were willing to risk signing a high profile free agent only to see their own rosters depleted.

NFL Commissioner Pete Rozelle imposed the rule unilaterally in 1963.  Instructively, that was the year after he negotiated the NFL’s first broadcast contract with CBS, $9.3 million for two years.  Each team began the season with $332,000 in the bank.  That was greater than most teams’ payrolls at the time, guaranteeing a profit to all teams even before they sold a single ticket or played a single game. Flush with cash, the team owners could have started a bidding war for free agents, so Rozelle all but eliminated free agency.  The agreement by the NFL owners to share the revenues equally also opened up the specter of future Green Bay Packers:  teams in small cities with a non-profit, community ownership structure.  So in 1963 the League also adopted a rule banning further non-profits.

In 1974 the players rallied under the banner, “No Freedom, No Football” but gave up six weeks later.  They again turned to the courts for help.

In 1977 John Mackey of the Baltimore Colts became the first NFL player to successfully defeat the League owners in court.  Along with 35 other NFL players, he challenged the validity of the Rozelle Rule.  The owners argued that the rule was part of a collective bargaining agreement and therefore exempt from antitrust law.  The court disagreed, concluding the Rule was not the product of good faith bargaining but had been forced upon a weak players union.

Pursuant to the court decision, the owners reached a settlement with the union.   Impartial arbitration of all grievances was implemented.   Some free agent restrictions were ended.  But the League’s new version of free agency was almost as restrictive as its first.  From 1977 to 1987 only one player changed clubs out of the thousands of free agents who were eligible.

In 1982, the players again took on free agency.  They went on strike for 57 days.  The owners refused to budge.  One reason was that their TV contracts with the networks, which provided about 60 percent of the owners’ income, guaranteed they would be paid whether games were played or not. The players capitulated.

In 1987 the players again tried to allow individual players to enter a true marketplace for their talents.  When no progress was made in the negotiations after two weeks of regular season play, the players voted to strike. The league responded by canceling games and hiring replacement players.  The strike was broken.  The union voted to return to work.

The day the strike ended, the players once again turned to the courts.  The NFLPA filed an antitrust suit in Federal Court.  The Court of Appeals ultimately rejected that suit.   The Supreme Court has held that even in the absence of current collective bargaining agreement, as long as a bargaining relationship still exist the antitrust immunity holds.  The Chief Judge dissented, noting, “this court’s unprecedented decision leads to the ineluctable result of union decertification in order to invoke rights to which players are clearly entitled under the antitrust laws.”

As Gabriel Feldman, law professor at the Tulane Sports Law program explains, “Essentially, players are required to choose labor law (and collective bargaining) or antitrust law (and individual bargaining and litigation). If the players choose labor law, an antitrust shield is raised that prevents them from attacking NFL rules under the antitrust laws. To lower the shield and choose antitrust law, the players must end the collective bargaining relationship.”

In December 1989, the players voted to end the NFLPA’s status as the players’ collective bargaining agent.  The NFLPA then re-formed as a voluntary professional association.

Since the NFLPA no longer represented the players in collective bargaining, individual union members were able to bring an antitrust action against the NFL challenging its free agency rules as an unlawful restraint of trade.  A group of players, led by New York Jets running back Freeman McNeil filed suit challenging the restrictions on free agency.  An all-woman jury heard the case in 1992.  Pat Bowlen, owner of the Denver Broncos told the Rocky Mountain News that he didn’t want “eight women who are basically domestic housewives to decide the future of the National football League.”

In 1992, the jury ruled in the players’ favor.

That verdict and the threat of a class action filed by Reggie White, and then with the Philadelphia Eagles on behalf of all NFL players brought the parties back to the negotiating table. The NFL finally agreed on a formula that permitted free agency. In return, the owners demanded and received a salary cap, albeit one tied to a formula based on players’ share of total league revenues.

Once the agreement was approved the NFLPA reconstituted itself as a labor union and entered into a new collective bargaining agreement with the league. Players win unrestricted free agency for first time and are guaranteed a higher percentage of major league revenues in exchange for giving the owners a salary cap on payrolls.

The NFLPA and the league have extended their 1993 agreement five times, most recently in March 2006 when it was extended through the 2011 season after the NFL owners voted 30-2 to accept the NFLPA’s final proposal.

In 2010 the NFL exercised its option to terminate that contract, effective March 3, 2011.  If a new agreement is not reached by then, the team owners threaten to close down the league.

Millionaires vs. Billionaires?

Currently the revenues are split about 50-50 between players and owners. (The net revenues, after the owners subtract some of their expense from the total, an amount worth more than $1 billion in 2010, are split 57-43, which is the percentage you often read in the media.)  The owners want the players to give back about $1 billion that is coming to them under the 2008 contract.

The owners argue that while the players’ percentage will decline, the amount the players receive will not if they agree to another of the owners’ demands:  extending the regular season to 18 regular games.  The current schedule has 16 regular season games, up from 14 in 1977 and 12 in 1960.

Another issue is whether to cap the rookie’s pay scale and if so, what to do with the money saved.   Both the players and the owners agree that there should be a rookie pay cap. But the players want half of the estimated $200 million in savings put toward retired players and the other half toward veteran players. The owners want all of that money.

Most people appear to favor the players in this labor dispute, at least at the moment, but now that the season is over, fan reaction will likely be muted.

The media so far is describing the labor battle as millionaires fighting billionaires.  And it is true that the median salary across the NFL is a handsome $1.4 million a year.  The rookie minimum is $310,000.  But the length of an average NFL player’s career is only 3.6 years.  And even a short career takes a heavy toll on the body.

The owners, watch from cushy seats in heated skyboxes.  The players are engaged in a very violent game played on a cold, hard field.   In 2010, 350 players were on the injured reserve list for an average of nine and a half games.  At the Superbowl we watched Packer star cornerback Charles Woodson exit the game with a broken collarbone, Packers cornerback Sam Shields leave with an injured shoulder and Steeler star receiver Emmanuel Sanders sit out almost the whole game with a foot injury.   Green Bay’s quarterback, Aaron Rodgers, has suffered two concussions this year.  The announcers noted he now wears a special helmet.

Each professional football player now has a l0 percent chance of suffering from a concussion in a given season.  Mild traumatic brain injury (MTBI), the medical term for concussions has become the most common specified type of injury in pro football, occurring nearly twice as often as hamstring strains.     .

The Center for Disease Control estimates that l5 percent of patients diagnosed with MTBI experienced disabling problems on a “persistent” basis.

The long-term health risks associated with NFL injuries include a significantly increased likelihood of Alzheimer’s or dementia.

A 1994 study of 7000 former players by the National Institute of Occupational Safety and Health found that football linemen have a 52 percent greater risk of dying from heart disease than the general population.

Essentially, the quality of life of an ex-football player is likely to be diminished from his life on the field.  Even more damning, the quantity of his life will also be diminished.  The average NFL player who plays for more than 5 years has a life expectancy of 55 years.  If he is a lineman this drops to 52 years.  US life expectancy overall is 77.6 years.

To my knowledge, there have been no studies of the life expectancy of NFL owners.  But since life expectancy is correlated with wealth it is likely they’ll live longer than most of us.

Since a professional football player’s tenure is so short and the probability of debilitating injury so high, a key issue affecting the quality of life of a professional football player is the level of medical benefits and pension.    NFL pensions are skimpy.   The pensions are vested only after 4 years and as we have seen, the average player’s career lasts only 3.6 years.   Even long-term players receive little, especially in comparison to other professional sports leagues like major league baseball.  According to former cornerback Bernie Parrish, Major League Baseball has average pension benefits that are three times higher than those offered by the NFL: $36,700 average vs. $12,165.

Former Packers guard Jerry Kramer gets a pension of $358 per month.  Willie Wood, who helped Vince Lombardi win 5 championships during Wood’s 12 seasons, is now in a wheelchair.  He receives a pension of $2,000 a month.

Consider that baseball’s gross income is about $4.3 billion while last year the NFL grossed over $7 billion.  As Parrish says,   “There is no excuse not to have the NFL retirement benefits matching MLB’s.”

As for medical care, after enormous public pressure and congressional hearings, in 2007 the NFL created the “88 plan”.  The number refers to the number worn by John Mackey, the first President of the NFLPA who was let go by the Colts because of his role in the 1970 strike.  It is also the amount the NFL currently pays for institutional care for an ex-player suffering from Alzheimer’s or other forms of dementia:  $88,000.

It is possible that the issue of disability benefits and medical care will be decided, as so many other issues have been, in court.  An increasing number of NFL players are going to court to sue the NFL on these issues.

The players union is not perfect.  For one thing, it hasn’t represented well the interests of all its members, focusing instead on enabling ever-higher salaries for its current players.  Some 50 years ago the team owners agreed to share equally the network broadcasting revenue but the players have yet to divide up their collective revenue more fairly between current players and retirees.

The NFLPA can also be criticized for not using its member’s fame and influence to assist other workers.  NFL stars do not walk the picket lines when other workers strike.  They do not honor the picket lines of other workers.

Indeed, the NFLPA doesn’t formally call itself a union.  It is an association.  Probably it embraced the word “association” because the word “union” has disagreeable connotations in modern America where less than 12 percent of the work force belongs to a union.   That’s unfortunate.  The word union projects a strength and unity of purpose the word association lacks.  And that strength and unity will be crucial when faced with the power and influence of 32 team owners with collective wealth over $40 billion and a $4 billion lockout fund at their disposal, courtesy of the t.v. networks.


Update:  U.S. District Court Judge David Doty ruled on March 1 that the NFL violated its Collective Bargaining Agreement by negotiating a contract that gave it billions of dollars even if a season is not played. Judge Doty ordered another hearing to determine whether the players’ remedy will be financial damages or an injunction preventing the league from pocketing the money during a lockout.

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David Morris

David Morris is co-founder of the Institute for Local Self-Reliance and currently ILSR's distinguished fellow. His five non-fiction books range from an analysis of Chilean development to the future of electric power to the transformation of cities and neighborhoods.  For 14 years he was a regular columnist for the Saint Paul Pioneer Press. His essays on public policy have appeared in the New York TimesWall Street Journal, Washington PostSalonAlternetCommon Dreams, and the Huffington Post.