It may be time for new labor strategy

5/24/2011 - NFL

Although we have not yet reached the June 3 appeal hearing, I am hearing questions of "What do we do next?" starting to ripple through NFL players. Last week, the 8th U.S. Circuit Court of Appeals ruled to keep the lockout intact and -- barring a surprise decision on appeal -- showed its hand on the next ruling. Assuming the ruling on appeal tracks the ruling last week -- which is more likely than not -- the lockout will continue indefinitely.

Since the ruling, I have heard from more agents and players in a week than I have for a while. They are reaching out to survey what is ahead. I ask about answers from NFLPA leadership. Some say they don't know whom to ask, and some say their player representatives are not sure because they have no relationship with the lawyers who are representing them in Brady v. NFL.

I am also getting questions about NFLPA leader DeMaurice Smith, who will come into focus more and more in coming weeks as the face of the players and, I hope, as the person able and willing to negotiate a new collective bargaining agreement.

I have spent time with Smith and find him to be likeable and passionate about representing the players. We both grew up in Washington, D.C., as fans of the Redskins, and I admire his passion. My sense is that his support from players is solid but about to be tested. I have empathized with his role, as I refer to him "playing goalie" in trying to protect the status quo for the players while the owners seek a rollback.

Smith is not liked by NFL owners and executives I have spoken to. I have heard some of them say that Smith "digs litigation" which is -- pardon the pun -- a personal dig at Smith.

In March 2009, the NFLPA elected Smith executive director in a surprising unanimous victory over former players Troy Vincent and Trace Armstrong. Smith, an unknown at the time, took the audience by storm. He strategically finds talking points that reverberate with his audience -- as he has recently done speaking of the late Dave Duerson -- and did so that day with an impressive PowerPoint presentation playing up connections in Washington, up to and including President Barack Obama. As one player rep told me: "Guys were all looking at each other and saying, 'We want that guy!'"

Smith advocated an aggressive posture toward management, a clear departure from the personal relationships former union chief Gene Upshaw had with former commissioner Paul Tagliabue, Pittsburgh Steelers owner Dan Rooney and Carolina Panthers owner Jerry Richardson. Smith stayed true to his word. He also presented the legal strategy of decertification and litigation, formulated along with lead counsel Jeffrey Kessler. And with the emphatic ruling by Judge Susan Nelson in the players' favor in April, the plan was thriving.

Last week's ruling by a three-member panel of the 8th Circuit Court put a dent in the strategy and may prompt a different plan. As the eminent philosopher and negotiator Mike Tyson once said, "Everybody has a plan until they get punched in the face."

With the 8th Circuit Court's resounding rebuke of Judge Nelson, it is expected that the 2-1 majority view of Nelson's handling of the case is unlikely to change.

The response from the NFLPA was to blame the NFL for keeping the sport dormant, saying the granting of the NFL's request "means no football." Pointing the finger at the other side has been a trademark of this dispute; both the NFL and NFLPA have played the "it's their fault" game.

Smith accused the NFL of "suing to stop football," although he is named counsel for the plaintiffs bringing the lawsuit in Brady v. NFL.

Privately, Smith may be telling players: (1) There could be a different result come June 3 with the appeal hearing and opinion (possible but unlikely); (2) Expect a significant damage award soon from Judge David Doty on the television contract lockout insurance case (likely, but the NFL will appeal with an indefinite timing for the appeal to be heard).

Beyond that, there does not appear to be an identifiable plan to address an indefinite lockout.

The players can appeal a negative ruling on appeal to the full panel of the 8th Circuit Court, although it is hard to see the full panel not backing the majority opinion.

The players also can appeal to the U. S. Supreme Court. Even if the Supreme Court were to take the case, which is unlikely, it returns from summer recess on the first Monday of October and then would schedule a hearing sometime in 2012.

Let me say this: I completely understand the NFLPA's strategy of decertification and litigation. History has shown that NFL players have made more gains through the threat of antitrust litigation than through collective bargaining. Negotiations are about leverage, and NFL players gain more leverage from the threat of antitrust litigation than from bargaining.

However, unlike what occurred 20 years ago, the NFL has made it a priority to avoid paying players while simultaneously being sued by them. And now the court has allowed that strategy -- the lockout -- to stay in place, perhaps indefinitely.

Thus, if there is no end to the lockout in sight and there are no checks being written, another plan must develop.

I sincerely hope for two things in the coming weeks:

1. That the NFLPA's Plan B -- if the players lose on appeal -- is a willingness to move from litigation to negotiation and make a deal.

2. That the NFL -- if it wins on appeal -- uses the leverage of an indefinite lockout fairly and reasonably with its most important partner, the players, for a deal that will define their relationship for years to come. As the NFL has found out, no one wins with a one-sided agreement.

Let's hope that these business and legal adversaries stop being enemies and find common ground.

Andrew Brandt, a former NFL executive and agent, writes for the National Football Post and is ESPN's NFL business analyst. Follow him on Twitter: @adbrandt