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When People Show Who They Are, Believe Them. The COVID-19 Effect

Pinocchio DeMaurice Smith NFLPA CBAMarch 27, 2020
Sheilla Dingus

What a mess!  As the nation self-isolates, while COVID-19 continues to spread and wreak havoc leaving every facet of life untouched, sports certainly is no exception.  First, the NBA canceled its season, followed quickly by the NCAA’s announcement of a March without Madness, or at least the madness of the wildly popular basketball tournament.  MLB and MLS soon followed with the NHL begrudgingly placing their season on ice as well.  Even the Olympic Games were reluctantly canceled by the IOPC.

There’s a saying, “When people show you who they are, believe them.”  As people began to grapple with the realities of a pandemic and a world largely without sports, elite NBA/New Orleans Pelicans rookie Zion Williamson announced that he’d cover the salaries of largely minimum wage venue workers while Gayle Benson, the owner of the Pelicans as well as the NFL’s New Orleans Saints, who is worth multiple billions compared to Zion’s single-digit millions remained silent.  In a strikingly different response, Dallas Mavericks owner Mark Cuban almost immediately pledged to take care of the team’s hourly workers and began an initiative to provide daycare for the children of healthcare workers.  He has also shown leadership in urging that people are not rushed back to work too quickly.

“There’s no reason to rush this,” he said via NBC Sports.   “I’d rather err on the side of caution. I’m not going to tell people to go to work when I’m uncertain.”   Sending employees back to work too quickly may be “unforgivable” in the eyes of younger Americans, too, Cuban said. “So not only is it smart to take care of your employees, but it’s also good business and that’s the way I’m looking at it.”

Even a MLB general manager, in a league that is known for being miserly toward its minor league offshoots, took initiative to see that those less fortunate didn’t go hungry.

In contrast, Boston Bruins owner, billionaire Jeremy Jacobs laid off his hourly workers, leaving them isolated and without income.

The seemingly invincible NFL drew the good fortune of being in the offseason as coronavirus fears, closed up shop for nearly every other American sports enterprise and virtually everything worldwide except for Russian ping-pong and Japanese sumo wrestling.

As all this was coming to a head, the NFLPA put a new CBA out for vote to its membership. While the CBA is a disaster for both active and retired players, expanding the season to a 17th game and another playoff round while gutting disability benefits, both Commissioner Roger Goodell and NFLPA boss DeMaurice Smith pulled out all the stops to urge players to take the deal, including leveraging friendly media.  While many high-profile players pointed out the flaws of the CBA and urged their colleagues to vote “NO” as cities began to shut down amid coronavirus fears, Pro Football Talk’s Mike Florio leveraged that fear to scare players into voting “Yes.”

Russell Okung, who has been very outspoken in his opposition of the CBA, recently filed a complaint with NLRB, for violations of the NFLPA Constitution and retaliation against those who dared to challenge DeMaurice Smith in his desire to push the defective CBA through seemingly any means.

Russell Okung CBA NLRB NFLPA

Russell Okung, an offensive lineman who was recently traded to Carolina, said that the proposed collective bargaining agreement should not have been sent to the full membership to vote because the deal was rejected twice by a majority of the executive committee.Credit…Harry Aaron/Getty Images

(Originally published by New York Times on March 9) With just days to go before N.F.L. players vote on a 10-year labor agreement, one of the most influential members of its union’s executive committee has accused the staff of the N.F.L. Players Association of negotiating the proposed deal in bad faith.

Russell Okung, who has been vocal opponent of the proposed 10-year labor deal now before roughly 2,000 N.F.L. players, on Monday filed an unfair labor practice charge with the National Labor Relations Board, the independent federal agency tasked with guarding employee rights.

The three-page filing accuses the N.F.L.P.A. staff, including its executive director, DeMaurice Smith, of forcing a vote on the deal over the objections of its executive committee, in violation of the union’s constitution. Okung also accused the union’s leadership of trying to muzzle him from speaking out about the lack of transparency with the executive committee about the negotiations with N.F.L. owners, which began last year.


Unfortunately, the CBA was narrowly ratified by only 60 votes on March 14.  Its effects will have far-reaching consequences for active players and retired players, alike, but it will have an especially devastating effect on disabled retirees.

Ed and Keith O'Neil

The former N.F.L. player Ed O’Neil, 67, left, will see an estimated $1,400 increase to his monthly pension, but his son, Keith, also a former pro, will lose $2,339 in benefit payments. “Where is the thought process of taking away from guys who can’t work?” Ed O’Neil said.Credit…Libby March for The New York Times

(Ken Belson, March 25, 2020, New York Times)

Ed O’Neil left the N.F.L. four decades ago, and over the years he has spent less and less time following professional football. He joined the league in 1974 as a first-round draft pick of the Detroit Lions, and he learned last week that as part of the new, 10-year collective bargaining agreement, he and thousands of other former players will get bumps in their pensions. For O’Neil, who is 67 and began drawing on his pension three years ago, that could mean about $1,400 more per month.

But O’Neil, a retired football coach, is not celebrating. His son, Keith, a former linebacker who played four years with the Dallas Cowboys and the Indianapolis Colts, will see his N.F.L. disability payments decline, another provision of the new labor deal that stipulates that next year about 400 former players on total and permanent disability will see the amount they receive decline by the value of their Social Security disability benefits. Keith O’Neil, who received a diagnosis of bipolar disorder with psychotic episodes in 2010, will get $2,339 less per month.


While other sports have put the brakes on, the NFL has forged full speed ahead, beginning the new league year and proceeding on schedule with free-agency.  While restrictions forced audience-attended draft events in Las Vegas to be canceled, the draft will also move forward as scheduled with the aid of technology.  In true dictatorial manner, Commissioner Roger Goodell has threatened to discipline anyone working for the NFL or one if its clubs that criticizes their plans.

Players will likely heed the warning since they also got the short end of the stick regarding player discipline. Instead of weakening the commissioner’s power for “conduct detrimental,” they now face even harsher punishments for certain offenses, with no ability to challenge guilt or plead innocence regarding the commissioner’s determination.  Players now only have the ability to challenge the length of their suspensions and not the validity.  Daniel Wallach explains via The Athletic.

Article 46 Commissioner Discipline NFL

Image: The Athletic

(March 26, 2020, Daniel Wallach, The Athletic)

Not long ago, the issue of player discipline loomed as a high-priority item for the NFLPA when it came time to negotiate the next collective bargaining agreement.

Between 2015 and 2017, the union was on the losing end of a string of federal court rulings – in cases involving Tom BradyAdrian Peterson and Ezekiel Elliott – that reaffirmed the NFL commissioner’s broad disciplinary authority under Article 46 of the CBA, and made it decidedly more difficult for players to successfully challenge the commissioner’s disciplinary decisions in court.

In each of these high-profile cases, the federal courts upheld lengthy suspensions imposed by commissioner Roger Goodell for conduct which he deemed to be detrimental to the game (in the case of Brady), or a violation of the league’s personal conduct policy (in the cases of Peterson and Elliott), despite serious questions being raised as to the fairness of the league investigation and disciplinary proceedings. (Note: The Athletic is currently offering a free 90 trial subscription.)

 


Please excuse the lack of original content on Advocacy for Fairness in Sports for the past couple of weeks.  I assure everyone that we’re still hard at work.  I’ve been focused on some of the investigation aspects of our reporting and hope to have some updates on cases we’ve been following and a few surprises in the near future.  Advocacy for Fairness in Sports was first to report on numerous flaws in the 2020 NFL CBA, including the issues of how the NFL has made their preemption argument virtually bulletproof, the devastating impact of disability cuts for retired players, how pre-93 pensions will leave some disappointed, and how the CBA works together as a whole to solidify the NFL’s legal defenses.  Without our reporting, many active players would have remained unaware of these important detriments, and I believe it had an impact regarding the slim margin of passage.  Executive Committee member Lorenzo Alexander tweeted that players are trying to correct measures that harm the disabled and I believe that without our reporting, this would have flown completely unnoticed and under the radar.


Please help us to continue to have an impact and help the voices that sports callously dehumanizes to be heard.


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Editor at Advocacy for Fairness in Sports | Website

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.

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