Mehri’s report “chronicles the reckless spending of the NFLPA, following the money trail from NFLPA leadership to law firms with anti-union agendas on the receiving end.”
November 16, 2017
Every year a new NFL/NFLPA controversy makes news, casting a shadow on professional football. Legal showdowns in which the players’ association without fail seems to eventually wind up loosing its courtroom battle sometimes eclipse the game itself in headlines. The latest example is the ever zig-zagging Ezekiel Elliott saga which recently ended in Mr. Elliott’s decision to withdraw from the case and a subsequent motion by the NFLPA to dismiss the litigation they began.
In short, as the case wound its way through courtrooms in Texas and New York, Elliott challenged the fairness of the arbitration agreed to by the union that should be dedicated to securing his best interest and that of all players in the National Football League. Elliott found himself accused of domestic violence against his ex-girlfriend. Because of conflicting testimony and other evidentiary factors law enforcement did not press charges against him.
After a year-long investigation, league investigator Kia Roberts agreed with law enforcement that Elliott’s ex-girlfriend was an unreliable witness and recommended no disciplinary action should be taken against Elliott. Her recommendations were, according to court documents, omitted from the official report to the NFL and Elliott was suspended for six games for violation of the league’s personal conduct policy in regard to domestic violence. In his appeal to former league executive Harold Henderson, he was denied access to testimony from his former girlfriend as well as Commissioner Roger Goodell, and thus he was unable to determine what the commissioner knew in regard to his case and was unable to properly defend himself in the arbitration.
Not that it probably made any difference since Article 46 of the NFL-NFLPA Collective Bargaining Agreement grants the commissioner broad and unilateral power to discipline a player as he sees fit. The NFLPA suffered major court defeats in both the Brady and Peterson cases as the union’s attempted to undo the damage of the agreement they endorsed.
As noted in Mehri’s report, both the Eighth and Second Circuits agreed that the NFLPA received what it had bargained for.
From the Eighth Circuit Adrian Peterson decision:
“Allowing the Commissioner or the Commissioner’s designee to hear challenges to the Commissioner’s decisions may present an actual or apparent conflict of interest for the arbitrator. But the parties bargained for this procedure, and the [NFLPA] consented to it. See CBA art. 46 § 2(a). It was foreseeable that arbitration under the Agreement sometimes would involve challenges to the credibility of testimony from Goodell or other League employees. When parties to a contract elect to resolve disputes through arbitration, a grievant ‘can ask no more impartiality than inheres in the method they have chosen.’” NFLPA v NFL, 831 F.3d 985, 998 (8th Cir. 2016)
From the Second Circuit Brady (Deflategate) decision:
“Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator in all disputes brought pursuant to Article 46, Section 1(a). They did so knowing full well that the Commissioner had the sole power of determining what constitutes “conduct detrimental,” and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration brought pursuant to Section 1(a). Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.” NFL Mgmt. Council v. NFLPA, 820 F.3d 527, 548 (2d Cir. 2016)
Mehri attributes the union’s problems to an anti-union stance from within beginning with NFLPA head DeMaurice Smith and trickling down to dilute the union itself. The following bullet points highlight the reasons for his stance:
Of the $113 million in legal expenses, as noted above, according to the report Winston & Strawn has received 46% of the NFLPA’s legal spending. Indeed, Jeffrey Kessler of Winston & Strawn has become one of the more visible faces of the NFLPA as he did high profile work on their behalf in the Elliott, Brady, and Peterson cases.
But while Kessler is a talented attorney, and broadly admired for his anti-trust litigation work, it seems ironic for a union to deploy his skills against a player as has been done in their ongoing lawsuit against Eagles’ right tackle Lane Johnson who has filed against both the NFLPA and NFL in regard to an arbitration he feels was unfairly biased against him. This duplicity did not go unnoticed by Johnson’s attorney Steve Zashin, who has cited Kessler’s arguments for Elliott as a duplication of those he uses against Johnson.
As noted in Mehri’s report, it is also ironic that the largest recipient of legal fees funded by NFLPA dues is a firm that typically represents management over labor in the firm’s primary areas of litigation practice.
The report cites the following text from the Winston & Strawn website:
Our attorneys… successfully represent clients, including multi-employer bargaining associations, in litigation involving state court injunctions against labor organizations for mass picketing. Notably, we have been adverse to all of the largest unions in the United States, including the Teamsters, United Auto Workers, Services Employees International Union, International Association of Machinists, United Food and Commercial Workers, United Steelworkers of America, and other labor organizations
Another pro-management law firm, Dewey & LeBoeuf received legal fees amounting to $11.6 million from the NFLPA between 2009 and 2012 when the firm went bankrupt. “The firm’s leaders were indicted for fraud for their roles in allegedly manipulating the company’s books to obtain loans while hiding the firm’s financial plight. Former top executives, including the firm’s Chairman, Steven Davis, conspired to falsify income statements in an attempt to forestall its collapse in 2012, the firm’s former finance director testified in July 2015,” according to Mehri’s report.
It appears these choices are easily explained, however when one looks at the background of current NFLPA Executive Director DeMaurice Smith.
Latham is also national counsel for the NCAA in opposing players’ concussion cases, continuing their legacy of player opposition. Based on this information it seems fair to question Smith’s dedication to union objectives and the workers they represent. As Mehri states in his report:
Despite the NFLPA’s extraordinary spending on legal services and because of its fundamentally corporate, anti-union, orientation, the NFLPA has miserably failed its players. NFL players receive the lowest pay and they have the shortest careers in major American professional team sports even though the NFL collects far more revenue than its sister leagues. In addition, NFL players suffer under the most disadvantageous disciplinary structure. Worse still, they are locked into this status as second-class citizens vis a vis their basketball and baseball playing brethren for a ten-year term, the longest CBA term in American sports. This is all courtesy of the NFLPA’s current leadership.
Through the 2011 CBA that Smith negotiated, the players have forfeited hundreds of millions of dollars annually. In sharp contrast to the prior CBA, under which player revenue outpaced owner revenue, the 2011 CBA accelerates owner revenue at a pace that far exceeds player revenue. Indeed, from 2011-2016, owner revenue outpaced player revenue by roughly $2.5 billion, and that gap will continue to grow. To quote a league insider cited by the Washington Post’s Mark Maske in a November 10, 2017 article, the 2011 CBA is, all told, “worth $10 billion to the good for [the owners].” And to quote the Boston Globe: “No matter how you slice it, the owners obliterated the NFL Players Association and . . . DeMaurice Smith in the 2011 negotiations.” It is well-established that under the 2011 CBA, the players fell behind from the start and have stayed behind.
The reports also demonstrates that while average player career lengths have plummeted and players face an economic stalemate, the average NFL franchise value has more than doubled from $1.02 billion to $2.23 billion during the current CBA term.
A player heath study done by Harvard University and released earlier this year stated that “The NFL and NFLPA should not make player health a subject of adversarial collective bargaining,” but this is exactly what has happened; and as demonstrated above, the NFLPA received the short end of the bargain.
The NFLPA’s shortcomings have also failed retirees. While MLB and NBA players receive health insurance for life, NFL players are only eligible to continue their coverage for five years when they retire. This is the shortest insurance duration provided by any major sports league and it certainly isn’t a labor-friendly policy, yet it was agreed to in the CBA.
The most troubling development within the NFLPA, however is a constitutional change done in secret which quietly circumvented free election and left the approximately 2,000 active members without a voice regarding their leadership.
As Mehri stated in the report:
For decades, the NFL’s players, through their Club’s Player Representatives, have had the opportunity to elect their Executive Director every three years. This year, however, they were disenfranchised. The election was preempted by way of a secretive constitutional amendment about which the vast majority of players had no knowledge, let alone consent. Instead of the players having choice, 14 members of a handpicked Selection Committee – only 6 of whom are
Player Reps – voted to extend Smith’s tenure without the benefit of competition. Corporate Lawyers are famous for using “fine print” to diminish the rights of American’s workers. That is exactly what Smith and his team of corporate lawyers did to NFL Players. They stripped them of their voting rights and ability to control their destiny without their knowledge or proper consent. NFL Owners gleefully applauded the news.
Having been immunized from competition, Smith has no incentive to do better for the players than he has over his previous ineffective nine years in office. Competition produces the best. With no player choice, and therefore no competition, players are not getting the best. It is critical that NFL Players have a choice.
Cyrus Mehri announced his plans to challenge DeMaurice Smith in September. Prior to his challenge, the changes to election procedures were unannounced and the NFLPA Constitution from 2007 was still posted on their website. I interviewed him a few days after he announced his candidacy and was very impressed with his platform and vision.
While the closed committed had until mid October to decide whether or not to open the election up, NFLPA President Eric Winston announced abruptly on September 19, the first allowable day, that Smith had been extended to another term. This quickly and effectively closed out Mehri’s challenge.
“While the NFLPA’s anti-union and anti-player choices and culture have diminished players economically and non-economically, NFL players can stand up for their rights,” Mehri writes. “The NFLPA Executive Committee can immediately disavow the use of anti-labor law firms and give the long overdue pink slip to their pro-corporate executives.”
This excerpt from the conclusion of Mehri’s report says a lot.
I emailed Mr. Mehri, requesting comment. He replied, “I remain undeterred in my desire to challenge DeMaurice Smith and restore the NFLPA to it’s rightful place among labor unions. It only takes a two-thirds vote of player reps to restore democratic principles and regular elections to the NFLPA. I have a plan and the experience it takes to get the job done. We will succeed.”
Players are coming to realize the power they possess. The anthem demonstrations prove that players do have leverage when they choose to use it, and as they have challenged the NFL owners regarding their freedom of speech, they can take back their union and implement the needed changes to secure their success now and in the future.