The NFL Lockout: Why the Players Haven’t Voted

Amid reports that the owners voted to approve a settlement agreement last night, fans and media members alike prepared to call an end to the lockout. Most woke up this morning wondering why the players haven’t yet voted to approve, and I see public sentiment quickly turning against them.

Here is the situation as I currently understand it….

The players and owners verbally agreed to terms of a new CBA. However, as I recently explained on Forbes, they have to execute a settlement agreement first to close out the court case. Then the Players Association would have to recertify (which requires support of a majority of the players) and a new CBA would have to be signed by both sides.

Right now all we have is the owners vote to approve a settlement agreement they appear to have drafted. They’ve built in conditions, such as the Players Association recertifying by Tuesday and a new CBA being signed within three days of the settlement.

Here’s where the problems begin. Last time the players association recertified following a court settlement (1993), the CBA mirrored the settlement agreement. That’s not the case this time. This time the owners are asking the players to settle the lawsuit based on nothing more than a verbal agreement between the parties. The players have not seen the new CBA in writing. They’re being asked to trust the owners to present them with a written agreement that fully reflects the verbal terms.

What happens if the owners present them with a CBA that differs from what as verbally agreed upon and the players don’t reach an agreement with the owners in three days? Well, the players will have no court case, the Players Association will be recertified, and the old CBA will be put in place for the next ten years. That’s a huge risk for the players to take.

Even more likely than reverting to the old CBA is that the players will feel pressured to accept a CBA that gives them some, but not all, of what they were getting under the verbal agreement. I would imagine if the owners decided to play with terms, they’d keep the players side of the deal sweet enough to keep from reverting to the last CBA.

In my opinion, if the owners were truly ready to get this deal done and were on the up and up, they would have included the new CBA in the settlement. It’s as easy as saying in the agreement, “Following approval of this Agreement by the Court, the players agree to recertify the NFLPA and execute a collective bargaining agreement in the form attached as Addendum A.” They didn’t, which tells me they’re still trying to get the upper hand.

Here’s an analogy. What if you had an offer from a competing company. Your current employer verbally agrees to give you a more lucrative contract. However, you have to turn down the other offer before you get to see your new written employment contract. What would you do?

The attorney representing the players, Richard Berthelsen, advised them in an email last evening that the owners forcing the players to recertify violates labor law. I would imagine they are also advising the players of the risks in approving this settlement agreement without having seen the new CBA. The tight timelines outlined by the owners put pressure on the players to act quickly. Public sentiment following the announcement of the owners vote last night puts additional pressure on the players.

At this point, I would be shocked if the players voted to approve the settlement today.


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  • TMC
    July 22, 2011

    Lawyers from the NFL and NFLPA had several meetings where they crafted the language of the new CBA. Those meetings were designed so when all the details were agreed upon, the CBA would be ready to go. The idea that no one in the NFLPA has seen the CBA is ludicrous. What were their lawyers doing in those meetings? What were they crafting? Did they not retain a copy? If they did not, they are some of the worst lawyers on the face of the planet. Did they not show those deals or appraise Smith of the details? Would he not have to approve? The disconnect appears to be between the legal teams of the NFLPA, DeMaurice Smith, and the players.

    The owners lifting the lockout and allowing players back into facilities is a huge risk for the owners. If the players then decide to change terms of the CBA, the gate has been opened and the NFL will have huge issues re-instituting a lockout.

    While it is easy to see that the “terms of recertification” in the settlement are potential violations of labor law, if the NFLPA has agreed to recertify in a timely manner, even stating it could be done in this time frame, then it would not be coercion to add stated terms into a settlement. I am sure that the NFL lawyers were not found by looking on the back of buses and are fully aware of labor law as they have argued details of it in the NLRB case against the NFLPA’s decertification.

    As for your analogy, if there was a distrust with my current company to the point where I felt they were going to hurt me, I would not be looking to stay with them for a better offer anyway. If I trusted them enough to build a partnership, I would have to trust that they would do the right thing. At some point, we all have to take a leap of faith. The owners, by stating they would lift the lockout on the NFLPA’s word they would deal, is a leap of faith.

    • Kristi Dosh
      July 22, 2011

      Lawyers don’t generally sit in negotiating room drafting actual documents. You take notes on what is agreed upon and draft the language back in your office. Then you share a copy with the other side to see if they have comments. My understanding of the current status is that the owners attorneys have not given a copy of the proposed CBA to the players attorneys, only a copy of the settlement agreement.

      I see no reason why the owners wouldn’t include a copy of the CBA as a part of the settlement agreement. Why wait to settle that in the three days following recertification?

  • TMC
    July 22, 2011

    First, there were various news reports of the lawyers meeting for days to craft the language of the CBA. The owners, players, or their negotiating teams were not present, only the lawyers.

    It has happened in this manner several times. Therefore, the NFLPA’s legal team was present while adapting the language of this contract.

    In addition, there are certain aspects of the collective bargaining agreement that has to be worked out with the union, not the legal teams representing the plaintiffs. Right now, the NFL has been negotiating with the legal teams of the named plaintiffs. They have to reach a settlement in the legal case and reform as a union before voting on the CBA. The owners will not agree to a deal without a union because it opens them to litigation at a later date. The owners are willing to lift the lockout if they reform the union. Then, they can vote on the CBA and finish the details needed that can only be bargained once a CBA is in place, details such as workplace safety, drug testing, and the conduct policy.

    The players are very ill-informed at the moment as evident by some of the statements in the press. Takeo Spike made a statement that he was concerned about inflation and its effects on their 48% in the future years. He is the 49ers player representative. He will be one of the guys selling the other 60 players and is worried about the effect of inflation on a percentage of revenue? In addition, players have made various statements about the owners slipping in details, as you mention in your article. If they lack a copy of the CBA, how does any player know something was slipped in? There is a disconnect between the top of the players organization and the players.

    As for the original CBA mirroring the settlement agreement, there were parts that were agreed upon in the settlement, but the CBA was much more comprehensive than that settlement, which also contained a provision that from the date of the settlement, the players had 30 days to reform the union or the settlement was void. I guess their goes the coercion argument.

    The players should take this one step at a time. If the settlement has no major issues, you make the call to move forward. If the CBA is not what was agreed upon, you present the evidence to the mediator as an act of failing to act in good faith and move forward from there. The NFL has laid plans to eat this elephant and the plans include doing it one bite at a time with risk to both parties. The NFLPA is trying to eat the whole elephant in one bite.