by Ethan Randecker
On March 15, 2020, NFL players approved the league owners’ proposed collective bargaining agreement (CBA) by a slim majority vote of 1,019 to 959. This agreement came after almost a year of negotiations between the NFL and the players’ union, also called the National Football League Players Association (NFLPA). The league’s previous CBA, established in 2011, was set to expire after the 2020 season. The new CBA will now be in place until the end of the 2030 season. Team owners sent their ratified proposal to players on February 20, after which the NFLPA executive committee rejected the proposal in a 6-5 vote. The NFLPA’s vote, however, served only as a recommendation to the players’ union. The proposal was then passed on to the NFLPA player representatives—composed of one representative per team—and the group approved the proposal 17-14 with one abstention, effectively sending the proposal to all players for a majority vote.
Among the most covered changes include: a move from 16 to 17 regular season games beginning as early as the 2021 season; an expanded playoff field from 12 to 14 teams; an increase in the players’ revenue split from 47 percent to a potential 48.5; practice limitations; reduced punishments for players testing positive for marijuana; and harsher penalties for player holdouts. The deal also includes an increase in the minimum salary, pensions, roster sizes, and health benefits for players. Still, many star players were opposed to the deal. Many disagreed with adding an additional game and advocated for a 50-50 revenue split. Executive committee member Sam Acho pointed out, however, about 65 percent of the players are making a minimum salary, so the increase in the minimum was enough to convince many to vote “yes” on the proposal.
The approval of the new NFL CBA yields legal ramifications unknown to most fans. The average fan would probably just say, “Why are they complaining? They are making millions.” But that is not the case, for most players do not make millions and spend far less than 10 years playing in the league. Football is their entire career, and although it can be short, the benefits and injuries they receive will affect them for the rest of their lives. Therefore, it is imperative that the players negotiate a deal that maximizes their time in the league.
Was the CBA Negotiated in Good Faith?
Russel Okung, a member of the NFLPA executive committee, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against the NFLPA on March 9, 2020. Okung claimed that the NFLPA violated Section 8(b)(1)(a) of the National Labor Relations Act (NLRA) by breaching its duty to fairly represent employees because the NFLPA executive director, DeMaurice Smith, passed the CBA to player representatives despite the executive committee voting against the agreement. Okung also alleged that there was a violation of 8(b)(1)(a) by a use of “coercion, including statements and violence.” According to Sports Illustrated’s Michael McCann, Okung said that Smith and others have used threats to keep him and other players from “speaking up” on the agreement and he has been “subjected to an abusive NFLPA investigation.” Finally, his charge also included claims that the NFLPA violated Section 8(b)(3) of the NLRA by engaging in bad-faith, surface bargaining. Whether the NLRB finds the NFLPA guilty of these charges, Okung’s suit heightens the disunity made evident by the close vote. According to executive committee member Lorenzo Alexander, the association needs unity for future CBA negotiations. Alexander predicts a change in leadership, with Smith up for re-election in 2021.
On March 30, free agent safety Eric Reid tweeted a memo his lawyers sent to the NFLPA, alleging that some of the language in the agreement the players voted on is different from the language in the agreement on the NFLPA’s website. The memo includes links to the two agreements and screenshots of the specific differences that lie within Article 60. The memo revealed that the original agreement only adds Section 3.6 to Article 60, yet the new agreement also adds Section 4.2. Both sections result in offsets in disability benefits, i.e., the monthly disability payment a player could receive from the NFL will be reduced by the amount of the monthly payment the player receives from Social Security Disability Insurance (SSDI). According to Reid’s legal team, however, Section 3.6 governs players who submitted disability applications on or after January 1, 2015, whereas Section 4.2 governs those who submitted applications prior to January 1, 2015. The attorneys asserted that the new language in Section 4 may reduce benefits for “hundreds of families.” As a result, Reid and his lawyers called for an invalidation of the new CBA, a re-vote, and an independent investigation into the changes in the agreement’s language.
The NFLPA responded two days later by sending a memo to all NFL players, claiming that the lawyers’ assertions are “completely false.” According to the NFLPA, a change was made, but the change was made to correct a “cross-reference” and the CBA gives them the discretion to make such corrections. The association stated that the additional language does not reflect a substantive difference from the agreement the players voted to approve. They claim that in both agreements, the offset in benefits at issue applies to all players notwithstanding the date they applied for disability. The NFLPA also claimed Reid’s lawyers knowingly made false accusations. Although the NFLPA appears to have cleared up the accusations against them, the charges brought by both sides further highlight the disunity in the union.
A Win and a Loss for Players
Despite contention over some of the widely covered aspects of the agreement, there are a few lesser known changes to the new CBA with massive consequences. To the benefit of the players, the appeal process from the 2011 CBA’s Article 46 will be drastically changed. Article 46 previously allowed the commissioner, Roger Goodell, to impose punishments and lead the appeal process for all conduct deemed detrimental to the game of football. In this light, Goodell had been referred to as the “judge, jury, and executioner.” Under the new agreement, punishments for off-field conduct will be imposed by a neutral party determined by both the NFL and NFLPA and the appeals of such punishment can no longer be heard by the commissioner and will instead be heard by a neutral arbitrator.
In the past, the lack of this provision led to questionable punishments and many court appeals. For example, the New England Patriots were accused of deflating footballs under the direction of quarterback Tom Brady in 2014. After an investigation, Brady received a four-game suspension because he “was at least generally aware” of deflating the footballs. Brady appealed the decision and requested a neutral arbitrator, but Goodell denied and served as the arbitrator himself. Goodell, who one can reasonably assume would be inclined to make an example out of cheaters, upheld the suspension. The NFL filed a lawsuit in federal court for a declaratory judgement, where Judge Richard Berman vacated Brady’s punishment. The controversy would not end there, as the NFL appealed to the 2nd Court of Appeals, which held that the commissioner acted within his discretion to resolve the controversy and reinstated the suspension. Likewise, courts usually uphold arbitrators’ decisions, especially when the parties agree to arbitration in contract. Therefore, having a neutral arbitrator increases the players’ chances of a more fair ruling in appeals. The appeals process in the new CBA removes the bias present in previous years and serves as a major win for the players, who are no longer at the mercy of the commissioner.
Nonetheless, additional language in Article 39 is a major loss for the players. The article sets forth detailed medical care policies for players in 28 pages. In the 2011 agreement, Article 39 was only 4 pages. The agreement includes such specific policies that personal injury suits are now likely to be preempted by the collective bargaining agreement, taking away some of the players’ abilities to succeed in lawsuits over poor medical care received from teams. According to Reid’s legal team, these additions will be used by NFL attorneys to prevent them from paying out “billions of dollars” to players’ families in civil litigation. While the new CBA’s details over medical care appear to serve player health, some claim the NFL is trying to make itself less liable for injuries in the future.
Approval of the new CBA helps the NFL and the players avoid a plethora of legal issues. Had the players not voted to ratify the CBA, the NFLPA and the NFL would have had another year to negotiate prior to the expiration of the previous CBA. In the event that the union and the NFLdid not come to an agreement, the players could strike, the owners could lockout, and the players could decertify their union to file an antitrust suit. When the NFL and the NFLPA failed to come to an agreement before the CBA expired in 2011, team owners commenced a lockout. As a result, 10 players joined a class-action antitrust suit against the NFL to end the lockout. The players decertified (i.e. voted out) their union because the Supreme Court ruled in Brown v. Pro Football., Inc., that players must resort to labor laws to sue the NFL since the organization was exempt from union antitrust suits.
The United States District Court for the District of Minnesota granted an injunction to stop the lockout, yet upon appeal by the NFL, the Eighth Circuit Court of Appeals vacated the order. In his majority opinion, Judge Steven Colloton referenced the Norris-LaGuardia Act, which restricts federal courts from granting injunctions in cases that involve or grow out of “labor disputes.” He declared that the existence of a union is not required to establish a labor dispute. This decision thwarts players from decertifying and seeking antitrust remedies in the case of impasse and ownership lockout. Ultimately, the approval of the new collective bargaining agreement saved the NFL from lengthy and expensive disputes, which could have hurt player income and league revenue.
Over the coming years, the concessions that owners made in Article 46 and that players made in Article 39 will become more clear. Players may receive more equal punishments, and NFL preemption defenses may save the league billions. Also, depending on Okung’s and Reid’s actions, the NFLPA leaders may be found to have negotiated in bad faith or made a substantive change to the approved CBA without player consent. This would undermine the players’ trust in the union and Smith’s chances of re-election. Nevertheless, the 2020 NFL season will start unimpeded by labor negotiations, and both the new benefits and drawbacks for each side will be reaped until at least 2030.
 Associated Press, NFL union executive committee rejects labor deal; player reps to vote next, Lᴏs Aɴɢᴇʟᴇs Tɪᴍᴇs (Feb. 21, 2020), available at https://www.latimes.com/world-nation/story/2020-02-21/union-committee-rejects-nfl-labor-deal-player-reps-to-vote.  Nᴀᴛɪᴏɴᴀʟ Fᴏᴏᴛʙᴀʟʟ Lᴇᴀɢᴜᴇ (NFL) & Nᴀᴛɪᴏɴᴀʟ Fᴏᴏᴛʙᴀʟʟ Lᴇᴀɢᴜᴇ Pʟᴀʏᴇʀs Assᴏᴄɪᴀᴛɪᴏɴ (NFLPA), Cᴏʟʟᴇᴄᴛɪᴠᴇ Bᴀʀɢᴀɪɴɪɴɢ Aɢʀᴇᴇᴍᴇɴᴛ (2020) [hereinafter NFL & NFLPA 2020].  Sam Acho, “Though 1% of NFL players have the loudest voice, the proposed #CBA is a good deal for the other 99%. Here’s why:”, Tᴡɪᴛᴛᴇʀ (March 8, 2020), https://twitter.com/TheSamAcho/status/1236765112196792324.  Kerri Anne Renzulli & Courtney Connley, Here’s what the average NFL player makes in a season, CNBC (Feb. 1, 2019), https://www.cnbc.com/2019/02/01/heres-what-the-average-nfl-players-makes-in-a-season.html.  Okung v. National Football League Players Association (NFLPA), NLRB No. 21-CB-257665 (March 9, 2020).  Michael McCann, Unpacking Russell Okung’s NLRB Charge Against the NFLPA, and What Comes Next, Sᴘᴏʀᴛs Iʟʟᴜsᴛʀᴀᴛᴇᴅ (March 10, 2020), https://www.si.com/nfl/2020/03/10/russell-okung-nflpa-charges-cba-negotiations  Okung, 21-CB-257665 NLRB.  McCann, supra note 6.  Okung, 21-CB-257665 NLRB.  Jabari Young, NFLPA executive director’s future in doubt as players work to repair image after 10-year agreement, CNBC (March 23, 2020), https://www.cnbc.com/2020/03/23/nflpa-executive-directors-future-in-doubt.html.  Eric Reid, “My lawyers @meiselasb and @markgeragos sent a letter to the @NFLPA and @DeSmithNFLPA this morning demanding answers why language in CBA was changed after vote and demanding a new vote and investigation. Read the letter and compare CBA we voted on vs. CBA posted on NFLPA website.”, Tᴡɪᴛᴛᴇʀ (March 30, 2020), https://twitter.com/E_Reid35/status/1244640335927664640.  NFL & NFLPA 2020, supra note 2 at 316.  Reid, supra note 11.  Id.  Id.  Ben Meiselas, “Sad NFLPA puts more work into memo deceiving players than negotiating. They now claim change to CBA after vote was ‘cross-reference...inadvertently omitted in a earlier version,’ and such a change is OK based on secret side deals and oral understandings w NFL. Complete trash.”, Tᴡɪᴛᴛᴇʀ (April 1, 2020), https://twitter.com/meiselasb/status/1245518734489317376.  Id.  Id.  Mike Fisher, Pot, Power & Playoffs: How NFL CBA Proposal Would Impact The Cowboys, Sᴘᴏʀᴛs Iʟʟᴜsᴛʀᴀᴛᴇᴅ (Feb. 21, 2020), available athttps://www.si.com/nfl/cowboys/news/pot-power-playoffs-how-nfl-cba-proposal-would-impact-the-cowboys.  Nᴀᴛɪᴏɴᴀʟ Fᴏᴏᴛʙᴀʟʟ Lᴇᴀɢᴜᴇ (NFL) & Nᴀᴛɪᴏɴᴀʟ Fᴏᴏᴛʙᴀʟʟ Lᴇᴀɢᴜᴇ Pʟᴀʏᴇʀs Assᴏᴄɪᴀᴛɪᴏɴ (NFLPA), Cᴏʟʟᴇᴄᴛɪᴠᴇ Bᴀʀɢᴀɪɴɪɴɢ Aɢʀᴇᴇᴍᴇɴᴛ (2011) at 204–5 [hereinafter NFL & NFLPA 2011].  Loren Korken, The Key to Fixing the NFL’s Arbitration Process: Negotiation, FIU Lᴀᴡ Rᴇᴠɪᴇᴡ (Oct. 6, 2017), https://law.fiu.edu/2017/10/06/key-fixing-nfls-arbitration-process-negotiation/.  NFL & NFLPA 2011, supra note 20 at 276–77.  Jeremy Cole, Dropping the Ball: How the Commissioner's Exercise of His “Best Interests” Authority Is Failing the NFL and What Can Be Done About It, 17 Tᴇx. Rᴇᴠ. Eɴᴛ. & Sᴘᴏʀᴛs L. 43.  NFL Management Council v. NFL Players Ass’n, 820 F.3d 527 (2d Cir. 2016).  See Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 572 (2013), in which the Supreme Court concluded that “the arbitrator’s construction holds, however good, bad, or ugly.”  NFL & NFLPA 2020, supra note 2 at 213–41.  NFL & NFLPA 2011, supra note 20 at 171–74.  Ryan Boysen, NFL's New CBA Is A Raw Deal For Players, Attys Say, Lᴀᴡ 360 (March 21, 2020), https://www.law360.com/benefits/articles/1255578/nfl-s-new-cba-is-a-raw-deal-for-players-attys-say.  Eric Reid, “I asked my lawyers @meiselasb and @markgeragos to review all 456 pages of the proposed CBA. Attached is their summary. It’s a bigger disaster than we could have imagined.”, Tᴡɪᴛᴛᴇʀ (March 9, 2020), https://twitter.com/E_Reid35/status/1237026423111585792.  Sheilla Dingus, The Proposed NFL CBA is a 456-Page Legal Defense Strategy, Aᴅᴠᴏᴄᴀᴄʏ ғᴏʀ Fᴀɪʀɴᴇss ɪɴ Sᴘᴏʀᴛs (March 9, 2020), https://advocacyforfairnessinsports.org/feature-stories/nfl/the-proposed-nfl-cba-is-a-456-page-legal-defense-strategy/.  Gabriel A. Feldman, NFL Lockout: The Legal Issues Behind the NFL-CBA Negotiations, HᴜғғPᴏsᴛ (May 25, 2011), https://www.huffpost.com/entry/the-legal-issues-behind-t_b_820579.  Brady v. National Football League 644 F.3d 661 (8th Cir. 2011).  See Brown v. Pro Football, Inc., 518 U.S. 231 (1996).  Brady, 644 F.3d at 663.  Norris-LaGuardia Act, 29 U.S.C. § 101 (1932).  Brady, 644 F.3d at 673  Id.