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Ten things to know, right now, about the labor situation


Last month, we slapped together a snapshot of 10 things to know, as of the day on last month when we slapped it together, about the labor situation.

Much has happened since January 12, so it’s time to look as 10 things to know right now, now that we’ve slapped together 10 things to know.

And, yes, there’s some repetition. But most of it is new. And all of it is stuff that you need to know right now.

Starting . . . . now.

1. A lockout is virtually certain at this point.

Last time around, we explained that a lockout would happen long before September. It’s now clear, given the comments of NFL lawyer Bob Batterman and subsequent remarks from Commissioner Roger Goodell, that a lockout will begin on March 4.

Goodell says that 490 players due to become free agents on March 4 won’t become free agents absent a new deal. Though Goodell has been reluctant to admit that free agents won’t become free agents only if the league implements a lockout, the message is clear.

Without an agreement, a lockout is coming on March 4.

There’s another reason to expect a lockout. ESPN’s Chris Mortensen pointed out during a Friday appearance on Mike & Mike in the Morning that the league wants, as we’ve surmised, to escape the jurisdiction of Judge David Doty. It will happen if the current agreement expires. And if the current agreement expires, the league will implement a lockout, pending the negotiation of a new deal that wouldn’t fall under Doty’s umbrella if it’s finalized after the current agreement expires.

Of course, the union could agree before the current deal expires to an extension that would fall beyond Doty’s jurisdiction, but at this point we can’t imagine either side agreeing to anything without getting something in return.

2. The union still has the ability to try to block a lockout.

During the 2010 regular season, the NFLPA embarked on a series of meetings with players from every team. Systematically, the union obtained advance approval to decertify in the face of a lockout.

Derided by the NFL as a decision to “go out of business,” decertification would prevent the league from locking out the players by converting the NFLPA from a legally-recognized union into a collection of individual, non-union workers. Some think that the NFL would challenge the maneuver as a sham, but such an approach would entail P.R. risks, since the NFL would be using litigation in order to force a lockout on the players. Given that the NFL has repeatedly criticized the union for using litigation in place of negotiation, it would be a challenging exercise in double-talk for the league to resort to litigation against the union.

It remains to be seen whether the union will decertify. If the union fails to decertify, it will prove that the effort was a ruse aimed only at making the NFL think that decertification could occur.

If decertfication happens, the league then would be compelled to craft across-the-board rules regarding free agency, the draft, and player salaries. The union would likely respond by filing an antitrust lawsuit, arguing that the league consists of 32 separate businesses that cannot work together to place common limits on its workers. (This is why the American Needle case was viewed as being critical to the labor situation, even though the facts center on marketing deals. If the league had secured a ruling from the Supreme Court that it is one business, an antitrust claim based on labor rules may have been doomed from the start.)

We’ve heard that the union possibly won’t decertify because the union is concerned that the rules implemented by the league for a non-union work force would have a much better shot at withstanding an antritrust lawsuit than the rules employed after the failed strike of 1987. If the union decertifies, files an antitrust lawsuit, and then loses the case, the players will be in a much worse position than they are right now.

3. The owners still have an alternative to a lockout.

Just as the union may be bluffing about decertification, there’s still a chance that the owners are bluffing about a lockout.

It’s a remote chance, but it’s still a chance.

If a new agreement isn’t reached by March 4, the owners aren’t required to lock out the players. The owners can declare an impasse and then implement the last, best offer as the new set of rules, pending a formal agreement.

In an appearance last month on PFT Live, NFL lawyer Bob Batterman made it clear that, absent a new deal by March 4, the alternatives will be imposition of a lockout or declaration of an impasse.

If the league declares impasse and imposes the last, best offer, the union then would have to decide whether to work under those rules, or whether to strike. With the union repeatedly insisting that it won’t strike, some nifty P.R. moves would be required in the event the union decides to walk out in the face of a decision by the league to “let them play” under the terms of the NFL’s final offer.

Some think that the league prefers a lockout because the players at some point would agree to the terms of that last offer for several years beyond 2011, presumably after they miss one or more game checks. By implementing the last, best offer, however, the league would be getting what it wants, at least in the short term.

Likewise, the league would be able to claim the moral high ground in the event of a work stoppage. No longer would the owners be locking out the players; if football goes away for all or part of the 2011 season, the players would be the ones to make that happen.

Still, the players could strike at any time, like at the outset of the postseason or two days before the Super Bowl.

4. The league is counting on a free agent uprising.

It’s widely believed that, once the players start missing game checks in September, they’ll fold the tents and cry “uncle” to their NFL sugar daddies.

The league has been trying, in hardly subtle fashion, to remind the 490 players due to become free agents that, for them, they’ll start missing checks in March.

Fueling the effort was Jets cornerback Antonio Cromartie, who’d like to parlay his solid season into a signing bonus that will help feed the many mouths relying on him. Cromartie’s strong comments brought into focus the fact that nearly a third of the league’s players will see their potential bonus checks delayed. If, ultimately, the labor situation is resolved in August or September, few if any players will receive big-money deals in 2011.

Thus, if enough of the 490 realize that they’ll be hurt by an offseason lockout like all players will be hurt by an in-season lockout and if enough of them speak out, the union could end up facing a ton of pressure to get a deal done before the end of March.

5. The player-acquisition process will be bass-ackwards.

In a normal year, teams have the opportunity to acquire veteran players via free agency or trades in March, weeks before the draft.

This year, an offseason lockout would make the draft the first, and perhaps the only, tool for adding new players.

So if a team enters the offseason needing a quarterback, the team may have to reach for one in the draft because there may be no opportunity to otherwise get one. That said, the possible absence of team-managed offseason workouts and minicamps will make it even more important to find rookies who could walk right in and be ready to play in September -- and who can be trusted to work out on their own without team supervision, until the lockout is resolved.

Either way, teams routinely use the draft as a way to address any lingering immediate needs after free agency and to build for the future. In 2011, those immediate needs will be even greater in April.

6. Fans need to wake up regarding the lack of an offseason.

We’ve heard plenty of folks in the media contend that fans don’t care and won’t care about a lockout until September, when regular-season games are missed. On this point, those folks in the media just don’t get it.

The NFL currently has the most robust and intriguing offseason of any sport. With the arrival of the current free-agency system in 1993, the NFL has made baseball’s hot stove league look like a used match in a bucket of rain water.

An offseason lockout would wipe it all out. No free agency, no trades, no OTAs, no minicamps, no training camps, no preseason. Nothing, with the exception of the three-day April oasis known as the draft.

So when August rolls around and it’s time to start putting together that fantasy draft board and you have no idea how to prioritize the players because there was no free agency and no trades and no offseason workouts and no buzz about who’s looking good and who isn’t, you can blame yourself for not making it clear to the league and the union that, for the fans, the process of disconnecting emotionally and financially from the game begins far earlier than the moment the first regular-season game is missed.

7. The union arguably has nothing to lose by waiting.

When the NFL and the union issued a joint statement on Saturday, February 5 suggesting the that two sides were committed to doing a deal by March 4, we were encouraged. For months, we’d been saying that a deal can’t be done until the two sides agree to the moment on which the clock strikes 12. It previously was believed that the league considered that deadline to come in early March, and that the players were targeting a much later date.

For the league, there are plenty of reasons to do a deal before March 4. Apart from the disruption to the normal offseason activities, it’s much easier to sell tickets and do deals with sponsors if the doors haven’t been padlocked shut.

For the union, there’s no real reason to do a deal now. Sure, the money lost during an offseason lockout is money from which the union won’t take its cut, but that’s a shared burden, and it shouldn’t squeeze the union into doing a bad deal.

That’s the sense that’s currently emerging. The NFL clearly wants to a deal. But the NFL wants to do a deal on its terms.

Although the league claims that the goal remains to negotiate an agreement that the players will regard as a fair deal over the long haul, it could be that the league wants the players to swallow a so-so deal and simply to think it’s a good deal about which the players won’t complain for a generation or longer. Thus, if the NFL wants to do a deal so badly, the only real leverage at this point that the players have is to wait.

Though the league has threatened that the deal will get worse once March 4 comes and goes, threats like that are made all the time. The question becomes can the union do a better overall deal later than it can now.

In many respects, we simply won’t know until time passes. As mentioned below, public opinion could be tilting toward the players. Also, perhaps some of the pending legal claims will be resolved in the players’ favor.

Either way, the union gains nothing by doing a deal now, but for avoiding the potential outcry from the 490 looming free agents. If those men can be placated, the union will be able to dig in.

And why shouldn’t they? The current deal was deemed to be a good one by 30 owners five years ago. Since then, the league has become more popular and more profitable. In the end, it’s possible that management doesn’t think the league is making enough money. It’s possible that management merely thinks the players are making too much.

8. Revenue sharing continues to lurk.

When the current labor deal was negotiated in 2006, the owners squabbled over the issue of revenue sharing. Basically, the NFL decided long ago to share core revenues like box-office receipts and TV money. Over time, many teams have discovered and exploited new forms of revenue that aren’t shared, like luxury suites.

Last time around, a debate raged over the impact that a player-compensation model based on total football revenues would have on the teams that generate relatively low amounts of total football revenue. Bengals owner Mike Brown argued at the time that the new system could eat into his profit margin by raising his overall labor costs, since the salary cap and salary floor would be determined by the revenues generated not only by the Bengals but by high earners like the Cowboys, Patriots, and Eagles.

Former NFLPA executive director Gene Upshaw insisted that the last labor deal include an agreement among the owners regarding supplemental revenue sharing, even though such an accord arguably was irrelevant to the union. In the end, the owners did the deal, in large part because the teams found themselves squeezed by restrictive rules of the last year with a salary cap, which was set to launch if a new labor deal hadn’t been reached.

Today, the owners want to squeeze back, and they’ve done a great job of keeping under wraps the lingering disagreements regarding supplemental revenue sharing. But multiple league sources have told us that a major potential fight among the owners regarding revenue sharing lurks just beneath the surface.

So how do the owners avoid that fight among themselves? Ravens cornerback Dominique Foxworth nailed the owners’ strategy: “Let’s take it from them.” Mike Brown doesn’t care if Jerry Jones is making too much money; Brown wants only to be making what he deems to be enough for himself. So by giving the players a smaller slice of the pie, Brown’s team will receive enough cash each year to offset the effect of high-revenue teams on labor costs.

With the union searching for viable pressure points aimed at getting a new deal done, the best strategy would be to expose the notion that the owners are simply hoping to give the players less money in order to permanently solve the problem of supplemental revenue sharing. To the amazement of some owners, the union has yet to make that argument, and possibly won’t.

The union should. We’re told that the owners hope to continue to keep their internal disputes under wraps, and then to work out a long-term solution to revenue sharing after getting the best deal possible from the players.

9. It takes only nine owners to kill a deal.

It’s widely believed that a group of hard-line owners want to push the union to the breaking point and beyond, even if it means losing an entire season.

Though the number of owners who potentially feel that way isn’t known, it only takes nine owners to block any proposed deal.

Unlike the union, which can push a new agreement through via a simple majority vote, 75 percent of the owners must agree to the move. With 32 owners, 24 votes are needed to approve an agreement.

And that means (abacus engaged) nine votes can keep the league from agreeing to terms with the players.

10. The NFL is starting to bungle the P.R. war.

During the February 11 ProFootballTalk Live, a portion of the monologue was devoted to the question of whether the league could be starting to lose the P.R. battle with the players.

Here’s the condensed version.

For months, both the league and the union have tried to win the hearts and minds of the fans and the media via various public relations strategies. And all of them have failed.

Folks who get it won’t be falling for the notion that the Commissioner is cutting his pay to $1, or for the efforts of the union to align with real unions that represent people who make far less money than pro athletes. But with the news that the league stormed out of the room after the union reportedly made a reasonable opening proposal to collect 50 cents of every dollar that passes through the cash register, the pendulum finally has swung toward the players -- even if it happened without the players trying to make it happen.

Coupled with the Super Bowl ticket fiasco, folks seem to be starting to turn on the owners, making everyone more willing to scrutinize everything the NFL is saying and doing in an effort to abandon a deal that, as of five year ago, the league happily embraced.