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Is De Smith willing to do a deal?

DeMaurice Smith

DeMaurice Smith, executive director of the NFL Players Association, leaves the federal courthouse Friday, June 3, 2011, in St. Louis. A three-judge panel from the 8th Circuit Court of Appeals is hearing arguments by the NFL and its players association on the legality of a nearly three-month lockout by the league. (AP Photo/Jeff Roberson)


We addressed a couple of times on Wednesday the current status of the talks from the players’ perspective. They fear that the players, sensing a deal is coming, will agree to whatever the owners propose in order to get a resolution. Complicating matters is the perception by the players that the owners have engaged in a bit of bait and switch, changing numbers and concepts to which the players believed the two sides generally had agreed, in anticipation of an eventual decision by the players to take the best deal that’s offered.

The league believes, we believe, that the ongoing influence of lawyers Jeffrey Kessler and Jim Quinn is keeping a deal from getting done. The league also believes, we believe, that Kessler and Quinn have been trying to derail the process ever since they were kicked out of the room by NFLPA* executive director DeMaurice Smith, possibly to the point of working behind Smith’s back and lobbying members of the NFLPA* Executive Committee to resist Smith’s recommendations.

The league further believes, we believe, that Kessler and Quinn realize they need only to keep a deal from being reached for roughly two more weeks. After that, with the Hall of Fame game scrapped and the NBC money that goes along with it forever lost, the league’s offer will begin to shrink, and the players will be less inclined to do a deal.

Some of the facts seem to support the league’s perception regarding the motivations of Kessler and Quinn. For example, we’ve heard from yet another source (we’re now up to three) that an effort is being made to get “special treatment” for the named plaintiffs in the Tom Brady class action. We can only wonder how much time has been wasted on the issue, the discussion of which serves only to shrink the available time for dealing with the truly important topics. We also wonder whether the named plaintiffs really want to pursue special treatment, if doing so means possibly preventing a deal from being completed by reducing the amount of time available to do so.

Another issue relates to the contours of “total revenue,” of which the players reportedly would receive 48 cents. The players, we’re told by players-side sources, want the sales tax on tickets to be included with the “total revenue” figure. It’s an objectively ludicrous position, in our view, to give the players 48 percent of the sales taxes, since 100 percent of those taxes are never retained by the league. And if Kessler and Quinn are wasting time on this issue, it’s even less time that can be devoted to the important issues.

The real question is whether De Smith has the desire and the will to force Kessler and Quinn to focus on the issues important to getting a deal done, and whether Smith ultimately has the nerve to stand up to them when the time comes to do a deal to which they very well may object, given the league’s perception that Kessler prefers to lose a season (or more) in the hopes of pursuing an antitrust verdict so large that the players ultimately would own part (or maybe all) of the league. Indeed, the general deal that remains within striking distance would be truly fair (in our assessment) to both sides, with plenty of owners not thrilled and plenty of players likewise unhappy. (Mutual discontent is usually the best sign of a truly fair deal.) But the only folks who possibly would completely hate the deal would be Kessler and Quinn, not simply because it would cut off their supply of legal fees but also because it would wipe out their plans (if the league’s perception is correct) of a crippling antitrust verdict that would make Kessler the new Marvin Miller.

Although Smith has done much in the past month to win the respect and admiration of the owners, his biggest test officially has arrived. We think he wants to do a deal, we think he has yet to figure out how to close the deal, and we think he realizes that if he fails to do a deal he won’t be re-elected by the players in March 2012. If the league’s belief that Kessler and Quinn want to keep a deal from happening is accurate, then Kessler and Quinn necessarily want to see De Smith lose his job, since that will be the practical outcome of a lost season.

Thus, De Smith needs to find a way to neutralize Kessler and Quinn. While the owners have the ability to nudge their outside lawyers into a position of practical irrelevance (and we think the owners already have), it’s virtually impossible for 1,900 players to come together and remind the lawyers that the lawyers work for the players, not the other way around. In this specific circumstance, the obligation to put the lawyers in their place falls to De Smith, and his ability to do it -- and to then do a deal -- will go a long way toward determining whether he’ll be the next Gene Upshaw, or whether his old Patton Boggs nameplate soon will be reattached to the door to his office.

Plenty of people have openly questioned whether De Smith was the right man for the job he now holds. He can prove them all wrong over the next two weeks and, in so doing, he can secure this gig that he surely digs, for as long as he wants it.