March 6, 2020
Whether you speak of a nation or football league, class warfare is a lethal weapon when deployed effectively. For the past 10 years, the NFL has game planned and executed that plan through the CBA now up for voting by NFLPA members. The strategy is simultaneously brilliant and despicable. In my view, they’ve managed to lock players into a chess match against the devil with life-and-death consequences for those who are left behind. The provisions contained in the proposed agreement have gone so far as not only dividing active membership but also retired players, pitting the needs of one group of players against the needs of his alumni brothers.
Deflect and Distract
Another NFL strategy honed to perfection is that of deflection and distraction and it appears among both Yes and No votes the league has thus far executed successfully. A sportswriter with a major publication saw some of my tweets raising various issues and asked me why none of the players are talking about anything besides the proposed 17-game schedule. I believe the answer to his question rests in one of three answers and since there are approximately 2,000 players involved, likely a combination of all. Either players are having difficulty articulating the other detrimental CBA provisions or feel this is the one that resonates with the most players OR the NFL has succeeded in causing a large number of players to focus on a single issue allowing the league to put a plan in action that will result in great harm and do so largely unnoticed by the majority of players.
I’ll attempt to address as many issues as possible while, mostly omitting what others have addressed. Two articles I highly recommend for supplemental reading are The Inequities of the Proposed CBA by Andrew Brandt and NFL players better read the fine print before approving owners’ new CBA offer by Ron Borges.
The NFL Didn’t Give Anything Away
Negotiations are supposed to be a back and forth give and take that results in compromises on both sides that each party is able to live with. That didn’t happen this time. When you study the CBA as a whole you begin to realize that for every surface gain for players, the owners have shrewdly taken it away from them in other parts of the contract, and this is where the strategy of deflection and distraction comes into play. It’s also a factor in the class warfare aspect in that what is given to one group of players is taken from another group instead of the owners’ pockets.
I’m going to address points that I feel have been overlooked and in no particular order since each player has his own set of priorities but I’d like to ask players to unify and adopt the mantra of “No Man Left Behind.” There are many similarities between the NFL and the military, including high-level training, great physical risk, and a culture of obedience. While the latter may be necessary on a battlefield whether it’s in the jungles of Asia, the deserts of the Middle East, or an NFL stadium, that training can be counterproductive to the individual needs of players when they’re not engaged in the actual execution of football. A commitment to “No Man Left Behind,” however, strengthens the individuals involved and can allow them to work as a unit knowing that others have their backs. This is also the type of solidarity required in order for a labor union to prevail against management.
The NFL hopes to steal your legal rights
While the caption isn’t exclusive to Article 39, that’s essentially the result of many of the terms of Article 39 governing Medical Care. under this heading which was expanded from 3 ½ pages in the 2011 CBA to 27 in the proposed CBA, accepted by the NFL.
The first element that players should be aware of is that more isn’t always better and that’s especially true here. When faced with litigation the NFL’s go-to defense is preemption based on §301 of the Labor-Management Relations Act (LMRA). It’s an argument they’ve been largely successful with partially due to some courts’ over-zealous application of the statute but partially due to the requirement of interpreting or not disturbing a CBA. While the NFL tends to strike fear into many plaintiffs’ lawyers with the preemption argument, it’s by no means infallible–or at least prior to this CBA it wasn’t.
One example is the Ninth Circuit ruling in the Dent painkiller lawsuit in which the panel found that compliance with the law does not require interpretation of a CBA and violations of federal law are not preempted.
Another example that ties directly to the CBA revisions of Article 39 is the Stringer lawsuit. In Stringer v. NFL, a widow sought recompense for the negligent heat-induced death of her husband, Korey. The defendants argued that preemption applied because medical care was covered in the CBA.
In a brilliant brief on behalf of the widow Kelci Stringer, the argument is framed:
The court agreed in examining the relevant language of §301:
The court also examined applicable precedent:
While the entire excerpt is instructive, the highlighted portion of the text is essential to understand. A case is not preempted by merely having to consult a CBA and violations of federal law which supersedes state law claims such as in the Dent case may survive. However…
Most tort claims that players or their families might file are more similar to Stringer and based on state law and here’s where Sohn’s brief and the CBA intersect. When he noted that the CBA didn’t mention weather conditions, much less how to provide related care, the judge agreed that this was outside the scope of the CBA and he allowed the case to proceed, and in proceeding procured a sizeable settlement for Mrs. Stringer.
Attorney Brad Sohn who has represented and won cases through beating preemption tweeted his concerns about this CBA:
Having been asked by to sum up my issue with the #nflpa #nfl #cba, so I do so here. pic.twitter.com/CT5C0Cp11v
— Brad Sohn (@BradSohn) March 6, 2020
The detailed provisions that took Article 39 from 3 ½ to 27 pages will have to be referenced in any future lawsuit and if there is a provision that relates to the crux of the lawsuit it will be preempted leaving the player or his family without recourse.
Here are some of the changes that will likely, need interpretation as opposed to consultation with the CBA, thus foreclosing any hope of obtaining relief through litigation.
Section 1: Club Physician
You should quickly note that heat-related illness is now referenced under the responsibilities for the team physician, which would almost certainly mean that Stringer would have been dismissed on preemption and a widow would have been left without any vindication or financial relief following the negligent death of her husband. If you’re a player, think for a moment, “What if this was your wife and you’d died a needless early death due to negligence?” Wouldn’t you want her to have financial security in your absence, and force some accountability for the acts that took you away?
I also highlighted infection prevention because players have won lawsuits or negotiated large settlements for careers derailed by MRSA infections, which would also be preempted.
Two additional categories were added under the heading “Team Consultants.” Often when a retired player files a disability claim, psychological and or addiction issues become disqualifying. While both pain management and mental health are of great importance to players, I’m not fond of seeing this encoded into a CBA where the records might one day be used to the detriment of the player.
The reference to a pain management specialist might have foreclosed the Dent appeal as well. While the Ninth Circuit panel ruled that an employer cannot bargain for that which is illegal, this reference to pain management would have likely required interpretation of CBA provisions which normally results in dismissal.
Further down in Section 20 you’ll note that an entire section has been added to address pain management and medications.
It’s far too lengthy to delve in every element of this section, however, players should be aware that this section seems to have been put in place as a direct result of the Dent and Evans lawsuits to prevent current players from filing suit to question the administration of medications to keep a player on the field, or issues that a player may experience in the years ahead such as kidney failure or heart problems that sometimes manifest due to the over administration of these NSAIDs and opioids.
Annually, the NFL updates its disability policies to plug any provision in which a player found a way to prevail in federal court, such as requiring one of the “neutral “ Plan Doctors to have found a player disabled regardless of personal medical records and also making it challenging for players who have conditions that make it difficult or unsafe to travel since often the player is scheduled for appointments hundreds of miles from his home.
One of the more shocking measures taken was to quietly obtain a new EIN on which to hide compensation to Disability Plan doctors after a judge ruled in favor of a player who’d demonstrated a conflict of interest in pulling the compensation from the Benefit Plan Form 5500 filings. It took some sleuthing on my part to track this down and ironically, shortly after I found how the doctor pay was stealthily filed, a brief was filed in a player’s disability suit seeking this information through discovery while Groom Law Group argued against providing it claiming it to be “irrelevant.”
Much of what you see in Article 39 is ten years’ worth of counter-arguments to various litigation that the league has faced in the last decade with the goal of assured preemption dismissals.
There are many other examples to be found in the giant expansion of Article 39—far too many for me to address one by one since there are issues elsewhere in the CBA but if you read through the various additions with LMRA preemption in mind, it should become apparent that provisions as detailed and exacting as the ones found here will benefit the NFL much more than the players. I’d go a far as to wager that Article 39 is worth much more to the NFL than the 17th game, and could in the future save them billions.
Stay tuned for Part 2, etc. as I’ll attempt to address as many sections of the proposed CBA as possible while the voting period for players is open.
Voting members of the NFLPA should be fully aware of what they’re signing should they agree to this deal because for many it will impact them for life. #KnowYourWorth
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Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.