A brief introduction: I’m excited to continue my tenure as—I’m pretty sure—the only sportswriter at the Observer this football season. You can find all my columns from last year here.
Last year, I closed my final NFL column by saying, “It makes me sad that it’s the off-season now, when all the toxic cultural byproducts of football flourish without the game itself to redeem them. I want to fast-forward to next September, when we’ll get to start all over again.” Lo and behold, I was correct! This past summer, Football America was subjected to the Ballghazi Scandal (also known as Deflategate), an endless parade of leaked comments, alleged misconduct, and vague recrimination being traded back and forth between the NFL League Office and the New England Patriots: recent Super Bowl winners and my favorite team. The story reached a level somewhere beyond insufferable around the time we started talking about the specifics of Tom Brady replacing, or maybe—gasp—destroying his cell phone. Furthermore, the Ballghazi saga actually remains unresolved: after a New York District Court overturned the NFL’s punishment for Patriots quarterback Tom Brady, the NFL promptly filed an appeal, which will be heard after the conclusion of the season, which makes me pray for an asteroid to hit the Earth sometime shortly after the Super Bowl. I am confident that, like Dr. Strangelove, its companion in nihilistic absurdity, the Ballghazi story will somehow end with someone gleefully riding an atomic bomb as it falls to earth. I sincerely hope that the next time I write about Ballghazi it is for the lead-in to a story about the repeat-Super Bowl-winning New England Patriots.
Fortunately for everyone, I’m not actually going to write about Ballghazi itself. Instead, hidden below the insanely overwrought drama of Ballghazi is a very important chapter in the history of NFL player-management relations. The court’s rejection of the four-game suspension and massive fine that NFL Commissioner Roger Goodell gave Tom Brady marked the fifth time in a row that a Goodell punishment had been struck down in court after an unsuccessful attempt at resolution within the NFL disciplinary structure: this time, and the previous five times before, the NFL Players Association brought suit against the NFL, alleging that the punishments were illegal under the Collective Bargaining Agreement (CBA) between players and the league. All five times, the courts agreed. What does this tell us about NFL labor relations, besides the fact that Roger Goodell is terrible at picking appropriate punishments?
A quick aside: the NFL takes it upon itself to punish player conduct that is unrelated to the game, but may not fall within the purview of the US criminal justice system. I am somewhat okay with this. While the NFL’s personal conduct policies are (obviously) inconsistently applied—and often only after consistent public pressure to do so—it makes sense for a business with such a massive public presence to have some rules governing the behavior of its often very famous employees.
For starters, the entire NFL disciplinary structure—from the allowable terms of punishments drafted and levied by Goodell, to the appeals process also helmed by Goodell—is determined by contract negotiations between players and management. The specific rule under which the five overturned punishments were issued, which states that Goodell can punish “conduct detrimental” to the league as he sees fit, was clearly meant to give the league an all-purpose cudgel with which to enforce a wide variety of player conduct issues. Before it was used to punish Tom Brady, it was used to punish Adrian Peterson and Ray Rice after massive public outcry erupted during their respective abuse scandals. In these and previous cases, it was determined that the NFL applied the “conduct detrimental” rule in ways that violated other aspects of the CBA—in the case of Tom Brady, it was determined that sections of the CBA defining and punishing equipment tampering better fit the allegations against Brady.
Why does such a rule exist if it’s never legally applied? On the surface level, one could say that the “never legally applied” part of that sentence exists because Roger Goodell has demonstrated no leadership ability beyond that of stumbling from crisis to crisis, and no aptitude whatsoever for appropriately punishing players. That is a correct analysis; however, on a deeper level, this rule exists because of a pervasive imbalance of power between NFL players and management. Essentially, NFL players negotiated their last CBA from a position of such weakness that a rule was written that the NFL believed would let them punish essentially any player for any action. Some other examples of this power imbalance in action include:
– NFL players are subject to an extremely strict drug testing regime relative to other major sports.
– NFL teams have the money they can spend on players each year limited by a strict salary cap, essentially a way to keep player incomes artificially low.
– NFL teams possess a special mechanism called the “franchise tag” to keep star players from leaving in free agency, paying them a guaranteed average of the top five per-year salaries at their position for one year; in the case of true stars, though, this can often mean a drastic pay cut compared to what they’d get on the open market, and means they miss out on the safety of a long-term contract with money guaranteed in case of injury.
– NFL players rarely receive guaranteed contracts, meaning that the vast majority of their yearly salaries can be lost at any given time if their team releases them.
– Finally, NFL players make less money per year than many athletes in other popular American sports leagues, although the NFL is the most profitable professional sport by far.
This issue exists in the current CBA, and it has existed in past versions of the document as well. To some extent, it’s driven by unchangeable economic conditions: NFL players, on average, have far shorter careers than athletes in other major sports, have a far greater risk of injury than athletes in other sports, and work within a monopoly, meaning that there are no alternative football leagues they could threaten to walk off to. However, the main reason NFL players are at such a disadvantage relative to the league is because of poor leadership of their union. The most instructive comparison can be drawn between the NFL Players Association and the Major League Baseball Players Association (MLBPA). Between 1966 and 2009, first under the leadership of Marvin Miller and then Donald Fehr, the MLBPA became the most powerful and effective professional sports union in the country, taking MLB players from a situation in which they had low pay, heavily restricted free agency, and no collective bargaining arrangement to their modern standing: no salary cap, no franchise tag, loose drug-testing rules, and guaranteed salaries and pensions. The NFLPA, by contrast, has allowed for a rule to be written into their CBA that the NFL commissioner actually believed could allow him to levy completely arbitrary punishments on players as long as they could be reasonably suspected of “conduct detrimental to the league.” The major concession they won in the last CBA, reached after a lockout in 2011, was the instillation of mandatory limits on practice time, which while being an important step for player health, is hardly revolutionary.
This is where the recent court record gets interesting; coincidentally, it is also where I veer into the realm of speculation. While the recent rulings haven’t been radical in the slightest, they’ve only really told the NFL that “conduct detrimental” isn’t a means to circumvent other procedures in the CBA. They have shown the players and the public that the NFL League Office and Commissioner Goodell have no idea what they’re doing. The current NFL CBA expires in 2020. We can reasonably expect most conditions in and around the league to stay relatively constant until that time, including Goodell keeping his job—given that he’s survived numerous scandals up to this point. Until then, NFL management faces a dilemma: either they continue strictly punishing player conduct and face more potentially losing lawsuits, leading to a loss of public credibility and bargaining leverage in CBA talks or they back off the current strategy of strict conduct policing, and potentially signal weakness to the public and NFLPA.
It’s a bad position to be in in the light of looming contract negotiations and unfortunately for NFL management, it’s almost entirely their fault. They’ve been obsessed with governing professional football from a position of strength for a very long time, and that policy led them to commit the overreaches like Ray Rice and Adrian Peterson’s inconsistent punishments, like Ballghazi. They got too greedy; in football jargon, they didn’t play for field position when they should’ve. Welcome back to football.