My 2 cents
February 24, 2020
Ivan F. Soto
Executive Director AFLPU
I would be remiss to not offer my condolences and prayers on this solemn 24th day of February 2020 to all of the families involved in the recent tragic accident that took the lives of Kobe, his daughter, and their friends. Kobe spoke more than once of his advocacy for labor-management relations and the rights of all Athletes. His legacy lives on in each of us that hold those same values with the utmost respect.
In light of all the robust debates, conversations and opinions on the status of the current NFL / NFLPA CBA negotiations we all have some value to offer so here are my couple pennies.
Having led and been directly involved in successful union side pro football CBA’s covering the Arena Football League and AFL China over the last 7 years has given me a unique opportunity to witness and participate in the delicate ballet we call collective bargaining. Specifically, as it relates to professional sports which has similarities to other labor industries but also has some very unique qualities not experienced in other industries. In my experience, the Labor/Management collective bargaining process is foreign to most workers and managers even for those that are covered by a CBA or attempting to reach mutual agreement on a contract. The NLRA contains numerous guidelines and requirements however most of them can be somewhat subjective and open to ultimate interpretation by the NLRB so this tends to lead to some confusion or ambiguity on what is or isn’t permissible when bargaining. Without going into the intricacies and minutiae of what can be done during bargaining, what must be done and what can not be done to avoid putting you to sleep I will attempt to highlight where I believe things stand with respect to the Owners latest offer, why they offered it and if it makes sense at this point for the Players to agree to the Owners demands.
Bargaining typically has a lifecycle where the leverage pendulum swings back and forth from one side to the other and continues until an agreement is ultimately reached. This pendulum continues to swing regardless of a lockout by management or work stoppage (labor strike) by labor and intuitively understanding the current position of the pendulum during bargaining is critical for any negotiation team to be able to determine their best option or better defined by Harvard as your BATNA (Best Alternative To Negotiated Agreement). Failing to understand or have some knowledge of where the bargaining pendulum is at any given moment during bargaining can come with small or large consequences either through making overly aggressive concessions, leaving “money” on the table or allowing the leverage pendulum to swing back to the other side without gaining anything of value. In my opinion, miscalculating the leverage pendulum position comes at a price and rarely goes without consequences.
There always seems to be a lot of flak taken by Union side leadership or their Director for the current state of the bargaining process or the eventual outcome of the negotiation, sometimes justifiably but many times unjustifiably. That is just the nature of the business and unless you have all of the facts and circumstances it is easy to fall into the trap of misdirected blame when in reality it is just what the members were willing to fight for or what management was willing to agree to.
In the end, it is the Union membership that votes yes or no to the agreement in front of them and the terms of that agreement comes directly and unequivocally from the leverage Union members provide their Leaders or negotiation team. A skilled negotiator is able to get to an agreement even with minimal leverage however that same negotiator can likely get to a very fair and favorable agreement if they are provided with all of the tools needed including the ability to walk away or to call for a work stoppage without members breaking rank as solidarity is critical during bargaining.
Depending on where the leverage pendulum is, what terms are on the table as well as the level of leverage capital provided should dictate as to whether a deal should be recommended up or down by any negotiation team or if a pivot to BATNA should be advised.
From what I have reviewed about the CBA terms the NFL Owners have recently presented to the Players it seems to me that there are some concessions being offered by the Owners but what they are seeking in return for those concessions from the Players is just too far below the Player’s BATNA. Players have a whole year left on the current deal so the question is why would Players give up what the Owners are asking of them when their BATNA right now is the current CBA in place? Are the gains of the new terms worth enough to Players to concede to what the Owners are asking them to give up over the Players just pivoting to their BATNA?
Without knowing all of the details involved in getting to the current offer from the Owners it would be premature to judge how good or bad this offer is however based on where I believe the leverage pendulum is right now for the Players and knowing that their BATNA is their current CBA that has another full season left on it, I would emphatically NOT recommend accepting the current offer from the Owners at this premature stage of the process. What the Owners are offering is just not valuable enough, in my opinion, but there are thousands of Players with their own opinions and circumstances which need to be heard and understood as a Union is a democracy and that should be respected.
The fact that the Owners are rumbling that no further concessions or talks would be made until this offer is presented to the Players is a typical “head fake” no different than many of the jukes we see Players pull off on the field with sheer brilliance. The NFLPA is not likely under any obligation to present any offers to the membership for a vote at this point as they currently have an active and in force CBA which has over a year left on it.
Unless directed by the membership there need not be any vote on any offers from Owners this far from the end of the CBA. The Union is not obligated to alter the current CBA and can maintain that it is too premature and pointing back to the NLRA on any ultimatum’s as it has long been understood that Boulwarism or “take it or leave it” bargaining tactics have been found to be an NLRA Unfair Labor Practice (ULP) so I doubt the Owners are very serious about any take it or leave it bargaining position on their latest probing offer to the Players.
In my experience and opinion, there is too much time left on the current CBA and frankly, the Owners offer is just not robust enough for Players to accept for what is being asked of them to concede. If the Owners offer had come with a much lower term length such as 5 years versus the current 10 years that could have gone a long way toward considering any offer, as it would provide an opportunity to get back to the table sooner to address any unforeseen consequences of the Owners offer.
There are other issues to consider beyond deal term however that was a tactical mistake by the Owners in my opinion unless the Players take the bait on the offer. I do think the offer was a tactical move from the Owners, a probing technique if you will. The Owners are probing to see just how united and committed the Players are to provide their Union Leaders or bargaining team with the leverage needed before undertaking any hard and heavy bargaining.
Kudos to the Owners as it is a tactic that management side bargaining has used somewhat effectively in the past however recently seems to be losing its impact as union members have come to realize that in most cases and unless there is a very favorable deal on the table it rarely makes sense to accept a deal this far from the end of a current CBA term. Low-value deals can always be accepted later as the NLRA also prohibits regressive bargaining and the Owners would likely face another NLRA ULP should they pull this current offer off the table and came back later with a weaker offer.
The Players clearly know that this offer from the Owners will likely get better, not worse over the next few months and that the League will continue to negotiate their media/tv deals regardless of the status of any labor agreement at this point. Those media/tv deals will come with protections in the event of a lockout or work stoppage so it is not unreasonable to believe that the NFL is capable of negotiating with their media partners and the Players at the same time.
The show must go on and even if there were a breakdown between the NFL and the NFLPA in reaching an agreement before the end of the 2020 season which leads to a lockout or work stoppage for 1 or more games I think that eventually, a deal must happen as there is just too much money and value to be lost by both sides for an extended disruption of games. In unstable lower revenue sports leagues like the former Arena Football League, it can be even more difficult to prevent disruptions or catastrophic results such as teams folding or the league filing for bankruptcy as typically there are a few deep-pocket Owners that control the league’s destiny regardless of any CBA negotiation so all that can be done is to try and negotiate the very best terms for the Players without giving too much weight to things that are out of the Players control. Even in doing that there could be outside financial pressures that can derail a league in the middle of a CBA term or season such as happened with the Arena Football League or the AAF as just two examples.
In my opinion, there is a near 0% chance that the NFL Owners would fold the league let alone be able to file bankruptcy and there is a very high probability rate north of 75% that the Owners will offer and the Players will gain much more value than what is currently being offered based on where the leverage pendulum sits today. The NFL Players could lose out on some pay, benefits and opportunity to play a few games which is short term pain for long term gain but the Owners also have negative consequences such as large ongoing expenses/debts to service and even more importantly fragile ego’s as well as political and social relationships to appease to allow a protracted disruption of our Nation’s favorite sport and League.
Ivan F. Soto
Arena Football League Players Union