Part One 

Now that we are under 100 days until the end of the Collective Bargaining Agreement (CBA) between the NFL and the NFL Players Association (NFLPA), this begins a multi-part series on the labor dispute in the NFL. I will give background and delve into key issues facing the two sides. With experience on both sides of the table as an agent and a team executive I will try to lend my insights and forecast where this may be going.

The dominant story in football in the coming months will be the potential for the no football in 2011, a season potentially washed out by NFL owners locking out NFL players from playing games due to the inability to agree on a CBA govern the business of football.

Robert KraftICONKraft's positive comments help, but little progress has been made.

Negotiations between the NFL and the NFL Players Association have produced little to this point. Despite recent optimistic comments by influential team owners such as the Patriots Robert Kraft, there has been more activity in lockout preparations the NFL negotiating reduced salaries for team and league employees in 2011, the NFLPA Decertification tour, etc.than in negotiations. It has appeared that once we entered the 2010 League Year with no salary cap and, more importantly, no salary floor -- all urgency to negotiate a new agreement faded. And this low spending year has emboldened ownership in attempting to forge a new economic system for the future.

How did we get here?

To review, in March 2006 NFL ownership ratified a new agreement with the players by a vote of 30-2, with Ralph Wilson of the Bills and Mike Brown of the Bengals the dissenting votes. I remember the day well, communicating with our president at the Packers at the time, Bob Harlan, who kept saying that the meeting was all about revenue sharing plan. Nothing about the labor deal? I would ask. No Harlan would respond, Were just talking revenue sharing.

The late Gene Upshaw the head of the NFL Players Association at the time --had created the specter of an uncapped year ahead that would -- as he painted it -- change the way the NFL does business irrevocably and make football look like baseball. He had invoked the ominous phrase Once the Salary Cap goes away, its not coming back! that stoked fear then (it has not done so now), afraid their colleagues in that room would drive player spending to new heights without a Cap to apply the brakes.

And, of course, Upshaw had a strong and long relationship with then-Commissioner Paul Tagliabue and Tagliabues presentation of the deal to his membership was important. The near-unanimous ratification of the CBA in 2006 was, in part, an outgoing homage to Tagliabues successful tenure as Commissioner and a testament to the labor peace that he and Upshaw had created for almost two decades.

Player payroll surge

Upon ratification of the new deal in 2006, the Cap went up geometrically. In years prior to 2006, and years since 2006, growth rates for the Cap have been in the 6-7% range. In 2006, the Cap grew 19%.

The 2005 Salary Cap for NFL teams was $85.5 million; the 2006 Salary Cap for NFL teams was $102 million. Whether that was not fully explained to ownership nor fully understood remains a mystery. However, soon after the ink was dry on the deal, more owners and league employees started to feel that the deal needed to be rolled back, especially in an environment of a lean economy and lost appetite for public funding of stadiums.

Opt-out

The agreement was supposed to continue until March of 2013. The owners had an opportunity to shorten the deal by two years if they exercised such opt-out by November of 2008.

They didnt need to wait that long. Six months before their opt-out deadline, the NFL owners voted unanimously in May of 2008 to end the current CBA two years early, meaning 2008 and 2009 would be played with a Cap and the last season, this 2010 we are in, would be played without one. And it meant that the CBAs expiration date would now be March 3, 2011.

New sheriffs

With new leadership on each side of the equation since 2006, the battle begins anew. Commissioner Roger Goodell is leading an ownership group determined to take back some of the turf that was lost in 2006, as the economic environment has been altered in the years since, especially in the area of stadium financing.

NFLPA Executive Director DeMaurice Smith, a surprise winner in the search to replace Upshaw, is using his dramatic presentation style learned from litigating and navigating the Washington legal and power circles to convince fans and the media that the players simply want to play. Smith is in a difficult position, merely trying to protect what he already has and show his membership that he can deliver a deal at least as good as the one they have now.

Both Goodell and Smith are negotiating a CBA for the first time, and their relationship will be paramount. To this point, there has been little to none of the chemistry that Tagliabue and Upshaw had, but the relationship is still in its early stages with more communication through the media thus far than to each other. The lack of meaningful interaction between the two, however, is a reason for the limited progress at this point.

Part Two 

This week, the NFLPA continued its message to agents and players to continue to save money, while the NFL publicly announced refunds to games lost due to a potential work stoppage. There was a glimmer of hope, though, as the union indefinitely delayed a potential collusion claim for the lack of free agent activity this past offseason.

With that, lets get back to the issue at hand the negotiation of a new NFL CBA -- and the issues at hand.

Taking a cue from David Letterman, here are in multiple parts - the Top Ten Issues in the NFL Labor Negotiations to prevent a lockout in 2011, starting with issues 10 and 9:

10. Retired players

This is one issue on which both sides agree, both for altruistic reasons and for their own public relations reasons. There is a mutual desire to address older players often dealing with physical and mental challenges from their time in the NFL, albeit with different groups involved.

The NFL has made a point of publicizing its programs aiding the physically and mentally infirm, from its joint replacement program to its Plan 88 -- named after NFL legend John Mackey -- aiding former players with dementia.

The NFLs in-house efforts are led by George Martin. They have espoused the promise that no benefits for retired players will be negatively affected in 2011 with a lockout (contrasting to benefits for active players, which will disappear).

The NFLPA has its own retired player arm, headed jointly by former players Nolan Harrison and Cornelius Bennett. It has proposed that the NFL use money saved in benefits this season -- about $320 million, or $10 million per team -- towards retired players, a proposal entitled the Legacy Fund. That offer has not been accepted.

DeMaurice Smith prefers using the term former players rather than retired players, noting the time between being an active and a former player is often the time of a phone call from a team. Smith also invited former players to the NFLPA annual meetings. Both the league and the union are seeking the hearts and minds of this group.

Smith is trying to distinguish himself from Gene Upshaw, known to be indifferent to the problems of retired players. Smiths challenge, as Upshaws, is to convince active players to slice off part of their pie to go to those who preceded them. That is an internal struggle that the NFL is not a part of.

Forecast: Both sides agree to increase their funding to retired or former players, the level of which to be determined. Funding will come from different sources, among them savings from rookie spending. This will be one of the easiest issues to resolve. As noted above, the differences that the two sides may have, especially the union, may be more internal than with the other side.

9. Player safety

The issue of concussions and brain trauma which encompasses the violent hits that were front and center this year -- has become mainstream discussion in football now, thanks to increased awareness due to a variety of factors. A year ago, Congress shamed NFL leadership in comparing them to the tobacco industry! Those comments stung and resonated, forcing action by the league.

New concussion guidelines were issued last year and, in a gesture to the NFLPA, the NFL fired its medical director on the issue, Dr. Ira Casson, a staunch defender of the premise that there was no long-term brain loss of function from repeated concussions.

The NFL has now taken the safety issue a step further, ratcheting up enforcement of head-to-head collisions in protecting the business of the game (its marketable offensive star players) and having cover in the case a catastrophic event such as paralysis.

The issue of player safety bubbled up again in the offseason with the overzealous use of OTAs (Organized Team Activities), a pet peeve issue of Upshaw, resulting in the loss of days or weeks from four teams. The offseason activity calendar is much in play with another issue here, the game-changing issue of the 18-game season.

Also, NFL fine money is now increasingly allocated towards research for improving equipment for the safety of players as well.

The NFLPA has to be careful when players such as James Harrison now fined $125,000 of his 2010 salary of $755,000, or 17% -- and Troy Polamalu question the leagues enforcement of these hits. This is a divisive issue that many offensive players support. Like the rookie contract issue, this could divide the players, never a good thing for presenting a united front in bargaing.

Forecast: Both sides agree to improved enforcement and curtailment of offseason activity (this will be part of the 18-game season resolution as well). There will continue to be independent neurological testing and more investment in research towards safer equipment design. There will be added input from the player group working on this issue, with their findings incorporated into the leagues position on the issue.

The NFL and NFLPA jointly agreed in August to have on-field discipline appeals heard by Art Shell and Ted Cottrell, who are NFL employees. The NFL will also consider adding a player representative to a panel that issues discipline -- and hears appeals -- for on-field collisions.

Further, there will be more clarification over the offseason of the application of fines and suspension over hits. Changing the enforcement of the rules in the middle of the season was difficult for players, coaches and officials.

Issues up next in the series: Drug-testing and bonus recovery (Haynesworth, anyone?)

NFL labor pains, Part Three 

by Andrew Brandt
December 15, 02010
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Two internal meetings took place this week. The NFLPA held a conference call with 30 of the top player agents to give an update on collective bargaining. The message was short on specifics but presented a pessimistic outlook on negotiations, suggesting the NFL's proposal reflected a share of revenues not seen in two decades. DeMaurice Smith was having agents prepare for the worst, but that was to be expected.

And in Dallas today, NFL owners gather to assess their strategies going into a critical period for negotiation of a deal that ends in 75 days.

Today, our countdown of the most important issues in these CBA negotiations continues with issues #8 and #7 bonus recovery and drug testing.

8. Bonus Recovery

Nothing frustrates team personnel more than not being able to recover previously paid bonus money for players exhibiting bad behavior. Grievance and arbitration decisions have continued to rule on the player side, including those involving Ashley Lelie (option bonus not recoverable) and MIchael Vick and Plaxico Burress (signing bonus not recoverable).

Further, a recent Special Master ruling nullified signing bonus forfeiture clauses for two Miami Dolphin players who retired after receiving small signing bonuses early last year. The Dolphins, as other teams, drafted broad forfeiture language, which was disallowed, and the ruling further weakens team recovery rights to players who behave badly or just walk away from their team.

Now the Raiders are trying to recover money from old friend JaMarcus Russell, although their theory involves a contract drafting issue, not a behavioral issue.

Speaking from experience, I and many team negotiators spent a disproportionate amount of their time trying to draft language to protect the team in case of negative behavior, even knowing much of it will not pass muster in front of an arbitrator.

Some positive news came a year ago in a grievance by the Chiefs against Larry Johnson that ruled future guaranteed salaries could be invalidated due to negative behavior, although the bonus issue is paramount to management.

Forecast: The union will not fight this issue beyond a token effort and allow for broader recovery rights for signing and option bonus recovery. This is a relatively easy and necessary give for the NFLPA. It does not want to have the continued specter of players keeping their bonuses despite willful bad behavior.

7. Drug Testing

It has been an embarrassing year for the NFL on this issue. Pat and Kevin Williams -- and other players by deduction -- continue to play despite 2008 suspensions for a banned substance. Brian Cushing played himself into the Pro Bowl and Rookie of the Year last season despite a pending steroid suspension hanging in the balance while under appeal. And storm clouds are gathering about Dr. Anthony Galea, who provided platelet-rich injections to injured NFL players and allegedly more injections of Human Growth Hormone (HGH).

DeMaurice Smith and the union have supported uniform and collectively-bargained drug testing rules to trump any lawyering done in state courts as happened in Minnesota.

However, with the United States Supreme Court recently refusing to get involved in the Williams dispute, the fight now plays out first in the Minnesota state court of appeals and then in Congress going forward. The problem for both sides is that their joint feeling that the CBA trumps state law seems in peril.

Forecast: The NFLPA supports the NFL position on a collectively bargained drug policy, for both illicit substances and steroids and allows the policy great latitude in trying to keep the issue from the courts, although it is not certain that it can. In exchange, the league relents on pushing for HGH testing.

The NFLPA is also going to be making a big issue of having an independent arbitrator -- instead of the Commissioner -- hear appeals on both conduct and drug testing. On the conduct issue, to be discussed in a coming column, the Commissioner will not give up the right to legislate morality in the best interests of the game.

On drug testing issue, however, the NFL will compromise and allow for an independent body to hear appeals. In fact, the league is willing to turn the whole issue of testing especially for steroids and performance-enhancing drugs to a group such as the World Anti-Doping Agency (WADA). My sense is the NFLPA would resist that, as the tolerance of a group like WADA is far stricter than that of the NFL.

Coming next: the enhanced (18-game) season.

First, NFLPA assistant executive director of external affairs George Attallah wrote the following letter:

"To the Editors: The current Collective Bargaining Agreement (CBA) between the NFL players and owners that was signed in 2006 expires March 3, 2011. In May 2008, owners opted out of the agreement early. While negotiations between the NFL players and owners continue, the actions taken by the NFL and its owners signal an employer-imposed lockout. The players want to play a full and complete NFL season in 2011 and have asked the owners to extend the deal in an effort to work out a new deal without an interruption of NFL operations.

"It has been widely reported that the owners have asked for an 18 percent reduction in the players portion of revenue. While the justification for this rollback remains in serious question, the purpose of this letter is to set the record straight on the revenue breakdown between players and owners. Currently, the phrase most frequently used to describe the division is, Players get 60 percent of revenues. This is not an accurate depiction.

"On behalf of the NFL players, I am asking you to adjust the terms used in referring to this subject in your reporting based on the facts provided in this letter and the attached supporting document. There are two terms that you may have heard, but are distinct and not synonymous: all revenue and total revenue. ALL revenue refers to all the revenues generated by the NFL and its operations. Total Revenue is a CBA term that refers to all of the monies that are left after the owners receive an expense credit, which have exceeded $1 billion in each of the past two years. The correct characterization of the revenue breakdown is as follows:

"Players receive approximately 50 percent of ALL revenues in the NFL. Or, Players receive less than 60 percent of Total Revenue after the owners take expense credits off the top.

"For the past two years, the expense credits the owners have received exceeded $1 billion. To provide a factual basis for this representation, below are the agreed upon percentages since 2000:

"Players Percentage of All Revenues since 2000:

2000-56.5%

2001-52.6%

2002-51.8%

2003-50.5%

2004-52.3%

2005-51.1%

2006-52.7%

2007-51.8%

2008-51.0%

2009-50.6%

Players Percentage of Total Revenue since 2000:

2000-61.7%

2001-57.1%

2002-56.1%

2003-54.3%

2004-57.0%

2005-55.1%

2006-58.4%

2007-58.0

2008-57.7%

200957.1%

To provide an alternate explanation, the revenue model in the NFL can be defined by this simple formula:

All Revenue minus NFL & Owner Expense Credits equals Total Revenue

Total Revenue is a term of the Collective Bargaining Agreement, not a term of accounting. Total Revenue is not equal to the entirety of the revenue (all) generated from the league, but is the remainder of money after the owners receive a number of expense credits. I have attached a sample list of expense credits that the NFL and NFL owners are eligible to receive under the terms of the 2006 CBA.

The media plays an important role in providing millions of NFL fans information on Americas most popular sport. NFL players are paying attention to how these negotiations are being covered and I am writing on their behalf to ensure their business is covered fairly and accurately. As reporting of these negotiations becomes more intense, accuracy and fairness will be vital to informing the millions of fans that have concerns about having a complete NFL season in 2011.

Thank you for reviewing this information. I invite you to visit www.nflplayers.com/lockout to seek out more facts and figures related to this CBA negotiation. Please feel free to reach out to me with any additional questions or for clarification at any time.

Sincerely,

George Atallah

Assistant Executive Director

External Affairs

Through its labor-centric site, the NFL issued the following rebuttal to Atallah's letter:

"NFL memo to sports editors nationwide:

The NFLPAs letter to you attempts to rewrite the facts and rewrite history.

Beginning in March 2006, when the CBA was last extended, and continuing until earlier this year, the NFLPA repeatedly and publicly recognized in fact, trumpeted the fact that players receive 60 percent of NFL revenues.

In January 2008, only seven months before he passed away, no less an authority than Gene Upshaw, who negotiated the 2006 CBA, told Bloomberg News, Were getting 60 percent of the revenues and when its all said and done, were not giving any of it back. I think they have to live with their 40 percent.

On its own website in an August 2008 press release celebrating the legacy of Upshaw, the NFLPA wrote, In 2006, during the most recent set of labor negotiations with franchise owners, Upshaw secured nearly 60 percent of total league revenues for the players. Nothing has changed in the interim except the unions rhetoric.

The NFLPAs revisionist history relies on a sleight-of-hand. The NFLPA ignores the fact that certain monies, which they characterize as an expense credit or gift for the owners, are committed to revenue-generating costs and investments such as stadiums. Those are not dollars that the owners receive off the top, as the union claims. They are not dollars that anyone owners or players can put in their pockets.

Of the dollars available for allocation, the players receive about 60 percent and the owners receive about 40 percent. That is no less true today than it was in 2006 when the CBA was signed, in 2008 when Gene Upshaw made clear the unions position, or before the union revised its rhetoric in an effort to secure political support for its negotiating position.

Arguments over percentages and allocations whether the players receive 60 percent of the revenues or only 52 percent obscure the facts that really matter. Over the past 10 years, players have received $31 billion in compensation and benefits, including $4.5 billion last year alone. The average player received over $2 million in compensation in 2009 with the minimum salary for an NFL player of $310,000 (U.S. median household income in 2009 was $51,425 according to the U.S. Census Bureau).

Those numbers all continue to go up. NFL player compensation has doubled in the past decade. The NFLPA itself announced only two weeks ago in a Dec. 3 story by The Associated Press that NFL player compensation had increased by six percent this year. According to the U.S. Department of Labors latest Employment Cost Index, the average salary and wages of a civilian worker increased 1.5 percent from September 2009 to September 2010.

We want your readers to know that our goal and commitment is to negotiate a new collective bargaining agreement that is fair to players, teams, and fans. That agreement will not be influenced by rhetoric, sleights-of-hand, or a propaganda effort that simply ignores the facts."