Fordham Intellectual Property, Media and Entertainment Law Journal Volume 20 Volume XX Number 4 Volume XX Book 4 Article 8 2010 Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season? Jeffrey F. Levine Bram A. Maravent Associate, Mierzwa & Associates, P.A. Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Jeffrey F. Levine and Bram A. Maravent, Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season?, 20 Fordham Intell. Prop. Media & Ent. L.J. 1419 (2010). Available at: https://ir.lawnet.fordham.edu/iplj/vol20/iss4/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. C08_LEVINE-MARAVENT_10-24-10_FINAL (DO NOT DELETE) 10/24/2010 1:03 PM Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season? Jeffrey F. Levine* Bram A. Maravent** INTRODUCTION ........................................................................... 1421 I. NATIONAL FOOTBALL LEAGUE ........................................... 1425 A. NFL Origins .............................................................. 1425 B. Modern NFL and Issues ............................................ 1427 C. Negotiating the 2006 CBA ......................................... 1428 II. THE NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION ...................................................................... 1430 A. From Clean Uniforms to a Piece of the Pie .............. 1430 B. A Cat and Mouse Game—Negotiations Between the NFL and NFLPA ....................................................... 1433 C. The NFLPA Finds a New Leader and Fights for True Free Agency ...................................................... 1440 A PDF version of this Comment is available online at http://iplj.net/blog/archives/ volumexx/book4. Visit http://iplj.net/blog/archives for access to the IPLJ archive. * J.D., Tulane University Law School, 2007; B.A., University of Michigan, Ann Arbor, 2004. The author has served in various legal capacities with the Phoenix Coyotes and Cleveland Cavaliers. In addition to his legal practice, Mr. Levine currently serves as a staff writer for the Business of Sports Network and as a guest contributor to the Sports Law Blog. ** Associate, Mierzwa & Associates, P.A., Lake Worth, Florida, where he practices traditional labor law, employee benefits law, and election law. Bram thanks his colleagues: Matthew J. Mierzwa, Jr., Mark W. Floyd, Shellie S. Sewell, and Maria S. Melius for their time and support during the writing and editing process. Bram also thanks the love of his life, Stacey Brandt, for her constant support during the drafting of this Comment. 1419 C08_LEVINE-MARAVENT_10-24-10_FINAL (DO NOT DELETE) 10/24/2010 1:03 PM 1420 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:1419 D. Decertification and Challenging “Plan B” Free Agency ....................................................................... 1443 E. The Modern Era—a Time of Mutual Economic Gain and Benefit ................................................................. 1445 III. RECOUNTING THE NHL LOCKOUT ...................................... 1451 A. From Enjoying Unrivaled Success to Facing-Off Against Dire Financial Straits .................................. 1451 B. 2004 Lockout ............................................................. 1453 IV. THE PERTINENT LAWS, POSITIONS, AND POSSIBILITIES OF THE PARTIES ........................................................................ 1456 A. Statement of the Case ................................................ 1456 B. Applicable Law .......................................................... 1457 1. The National Labor Relations Act and Refusals to Bargain Collectively ...................................... 1457 2. The Bargaining Obligation ................................ 1458 a) The Duty to Meet, Confer, and Negotiate .. 1458 b) The Obligation to Deal in Good Faith ........ 1459 3. Subjects of Bargaining ....................................... 1460 4. Per Se Violations................................................ 1461 5. Good Faith ......................................................... 1462 6. Examples of Good and Bad Faith ...................... 1463 7. The Duty to Furnish Information ....................... 1465 8. Employer Defenses ............................................ 1469 9. Financial Information......................................... 1471 C. General Considerations ............................................ 1473 V. POSITIONS OF THE PARTIES ................................................. 1474 A. The National Football League: The League Is Not Disclosing Financial Information Because It Is Not Alleging an Inability to Pay and Thus Is Bargaining in Good Faith ............................................................ 1475 1. The Disclosure of Financial Statements Is Not Necessary to Understand the League’s Bargaining Position That the Current CBA Is Obsolete ............................................................. 1477 2. Cost Containment Includes a True Rookie Wage Scale and Modifying Player Discipline Mechanisms ....................................................... 1479 C08_LEVINE-MARAVENT_10-24-10_FINAL (DO NOT DELETE) 10/24/2010 1:03 PM 2010] SPORTS LAW FORUM: FUMBLING AWAY THE SEASON 1421 3. The System Needs to Change ............................ 1482 B. The National Football League Players Association: The National Football League Is Not Bargaining in Good Faith ................................................................ 1483 1. The Disclosure of Financial Statements Is Vital to Understanding the League’s Bargaining Position .............................................................. 1484 2. A Rookie Wage Scale Already Exists ............... 1489 3. The League’s Pockets Keep Getting Deeper ..... 1492 4. The League Was Dragging Out Negotiations to Free Itself from Antitrust Law ........................... 1496 VI. PREDICTIONS—LOCKOUT SEEMS IMMINENT ....................... 1498 INTRODUCTION On Tuesday, May 20, 2008, the National Football League (the “NFL” or the “League”) officially notified the National Football League Players’ Association (the “NFLPA,” the “Players’ Association” or the “Union”) that ownership (the “Owners” or “Ownership”) had elected to opt out of the parties’ current collective bargaining agreement (the “CBA” or the “Agreement”).1 This decision threatens nearly two decades of uninterrupted labor peace and mutual financial gains. In 2006, Owners capitulated to Union demands, as they hastily ratified the CBA during an emergency meeting in the interest of maintaining steadily climbing League revenues.2 This action by Owners was intended to avoid a work stoppage, which would have derailed the continuing economic success professional football had enjoyed. The chief concession was to allocate an additional percentage of League revenues to player salaries,3 which under the 2006 CBA now 1 John Clayton, NFL Owners Vote Unanimously to Opt Out of Labor Deal, ESPN.COM, May 20, 2008, http://sports.espn.go.com/nfl/news/story?id=3404596. 2 Vito Stellino, NFL Confidential: Goodell’s Hands Full with Heavy Contract Issues, FLA. TIMES-UNION, Aug. 13, 2006, http://jacksonville.com/tu-online/stories/081306 /jag_4408901.shtml (noting that “labor peace was more important than having a labor strike or Armageddon” (quoting Jacksonville Jaguars owner, Wayne Weaver)). 3 Id. C08_LEVINE-MARAVENT_10-24-10_FINAL (DO NOT DELETE) 10/24/2010 1:03 PM 1422 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:1419 approached 60% of League gross revenues. In signing the agreement, Ownership seemed more concerned with preserving labor peace than considering the long-term consequences of the future. As the situation stands today, skyrocketing player salaries and a severe recession have drastically altered Ownership’s opinion of the CBA. Despite league-wide revenues approaching a healthy $9 billion,4 Ownership has taken the position that the 2006 CBA allocated too high a percentage of revenues to players and now threatens the NFL’s economic viability.5 Said one owner, “[i]t’s a bad deal. A lot of people realize that now.”6 The NFLPA expected Ownership to opt out of the CBA in 2008.7 Now, the Union is unifying its front after the passing of the Players’ Association’s longtime and seminal Executive Director, Gene Upshaw. Shortly before passing, Mr. Upshaw had commented on the League’s rationale for opting out, saying “[j]ust because the owners did not make as much as they wanted, they feel they lost money. We are not going to retreat [from a higher allocation of revenues] and we are not going to take less.”8 When the NFL opted out, Commissioner Roger Goodell sent Upshaw an email providing three reasons why the League had exercised its option to reopen the contract for negotiation. Goodell pointed to (1) high labor costs (an unacceptable percentage of League revenues being allocated to paying player salaries); (2) problems with NFL rookie salaries (exorbitant contracts to unproven players); and (3) the legal inability of franchises to