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SBD/March 11, 2011/Leagues and Governing BodiesPrint All
The NFL Players Association filed papers Friday to decertify, effectively disbanding the union and giving it the chance to sue under antitrust laws if there is a lockout. In a statement, the group said, “The NFLPA will move forward as a professional trade association with the mission of supporting the interests and rights of current and former professional football players.” The move came after the 16th day of federally mediated negotiations in which the union rejected the latest offer from owners, as "significant differences continue to remain," union chief DeMaurice Smith said.
LEAGUE RESPONSE: NFL Commissioner Roger Goodell met the media after the news: "We worked hard. We didn't reach an agreement, obviously. As you know, the union walked away from the mediation process today to decertify." More Goodell: "We do believe that mediation is the fairest and fastest way to reach an agreement that works for the players and for the clubs. And we believe that ultimately this is going to be negotiated at the negotiating table. They've chosen to pursue another strategy, and that is their choice.” Giants co-owner John Mara, who had been part of the process for the past two weeks, said the union had a “take it or leave it” stance during talks, and kept the “same position as last September.” Mara: “Essentially during that two-week period the union’s position on the core economic issues has not changed, one iota. Their position has basically been ‘take it or leave it,’ and in effect they’ve been at the same position since last September. … One thing that became painfully apparent to me during this period was that their objective was to go the litigation route. I think that they believe that that gives them the best leverage. I never really got the feeling during the past two weeks that they were serious about negotiating, and it’s unfortunate because that’s not what collective bargaining is all about.”
For the latest updates on this story, see the SBD/SBJ Labor Watch, updated as of 7:20pm ET.
EARLIER TODAY: NFL and NFLPA negotiators were at the Federal Mediation and Conciliation Service building this morning, with only a few hours remaining on the CBA deadline. The entire NFL labor owners group arrived, minus the Patriots’ Robert Kraft, who remains in Israel. Broncos Owner Pat Bowlen was accompanied by team President Joe Ellis. The other eight members are the Bengals’ Mike Brown, Cowboys’ Jerry Jones, Chargers’ Dean Spanos, Steelers’ Art Rooney, Giants’ John Mara, Packers’ Mark Murphy, Panthers’ Jerry Richardson and Chiefs’ Clark Hunt. Jones said as he entered the building there might be news within an hour or two, but that time period elapsed with no development. NFLPA Exec Dir DeMaurice Smith stopped before entering the building to say, “We won’t have many comments heading into this morning. But, look, this morning, our thoughts and prayers are with the folks in Japan. There are some things that keep and make sure all things are in perspective. So we’re going to head inside today and try to get some work done, but our thoughts and prayers are for people who are digging out right now and people who are preparing for the worst. We’ll talk to you guys a little bit later."
SNIPING BETWEEN SIDES THRUSDAY: The league and union began aggressively sniping at each other again Thursday night after a relative period of calm overseen by Cohen. With the CBA expiring at the end of the day Friday, and the deadline for the union decertifying at 5:00pm ET, a new deal is all but an impossibility, and an extension unlikely at the moment given the rancor. Smith Thursday night was so upset upon hearing comments from NFL Exec VP & General Counsel Jeff Pash suggesting the union was not committed to negotiating, that Smith unannounced went to the NFL Network cameras in front of the Federal Mediation & Conciliation Service building where the two sides have been negotiating and gave an interview in a torrential downpour. “We saw Jeff Pash’s comments a few moments ago, and instead of driving home, we made a short detour to come back, because I think it’s important that everyone and all of our fans understand and know the commitment of our players to this process,” he said. Pash had said about an hour earlier in the same spot, “If both sides have an equal commitment to getting this deal done, it will get done. I don’t know if both sides have an equal commitment.” Pash also questioned Smith’s public comments that the league and union were $800M apart on how much of an expense credit the league should get. “I never understood it to be $800 million,” Pash said.
NO ADDITIONAL FINANCIAL INFO AVAILABLE: It appears clear that NFL owners after a 90-minute conference call Thursday had rejected making any more financial information available to the union. The league had proposed allowing a third party auditor to examine cumulative profit numbers from the league, including access to team financials to verify the overall figure. The union wants access itself to audited team financials. Ravens CB and player rep Domonique Foxworth told CNBC that the information offered from the league was “laughable.” He added the numbers “offered us can be extrapolated from the numbers that are printed in Forbes.” That comment was likely to anger the league because Forbes numbers are estimates based only on public information, while the figures that would have been made available to the auditor the teams themselves have not seen, other then their own of course.
DOTY TO RULE OVER DECERTIFICATION: If the union decertifies Friday, it is expected to file notice in the court room of Federal Judge David Doty and then, as a newly constituted trade association, would likely ask for a temporary injunction to prevent the league from locking out the players. The league, upon expiration of the CBA at day's end, could lock out the players, but not before that expiration. If Doty grants the injunction, the league could appeal that decision to the 8th circuit court of appeals. During the appeals process, the league would likely be forced to take the players back and impose work rules. The new trade association would also likely file an antitrust lawsuit against the league. At the same time, the league may ask the NLRB to decide on the charge the league brought that the union was not engaged in serious bargaining. The NLRB, if it agreed with the league, could file what is called a 10J injunction request in a federal court seeking to block the decertification. A union cannot file an antitrust lawsuit, so decertifying is critical to the players' strategy.
NFLPA Exec Dir DeMaurice Smith "promised the players Thursday on Twitter that he will have an update for them" about CBA negotiations on Friday at 2:00pm ET, and "all indications are the union will decertify, setting off a long legal battle with NFL owners, who then are expected to lock out the players," according to Gary Myers of the N.Y. DAILY NEWS. A source indicated that it "appears Smith is walking away early from mediation in his decision to decertify." The source added that the union then "could file a temporary restraining order to prevent a lockout for five days and then battle it out in court." The "other possibility would be to file an injunction, which could take a month or more to work itself through the legal process." Myers notes if an "injunction is upheld, the issue is when will the league year start and free agency begin." But if the "injunction is denied, the players would be locked out and there will be no movement." The union's request to get an injunction against a lockout is expected to be heard by District Judge David Doty (N.Y. DAILY NEWS, 3/11). In N.Y., Bart Hubbuch notes if the NFLPA decertifies, it "most likely would be granted a quick injunction that would allow football to continue uninterrupted under essentially the rules of the old CBA while the NFL appeals and the sides duke it out in court." The players have been "increasingly emboldened since a favorable ruling" from Doty last week in the NFL media fees case. Sources said that the players "feel much more confident now of beating the owners in court on antitrust grounds, especially if -- as expected -- Doty is the judge presiding over the proceedings" (N.Y. POST, 3/11). Smith last night said, "If we're headed toward a lockout we're going to protect ourselves and do whatever we can to stop the lockout. That option, obviously, includes decertification" ("The John Riggins Show," MASN, 3/10).
READY FOR A COURT SHOWDOWN? In Philadelphia, Paul Domowitch notes if the NFL and NFLPA cannot agree to a third extension of the CBA, the union "will likely decertify and play its hole card: Doty." Indiana Univ. School of Law Dean Gary Roberts said, "Judge Doty has had -- and I can't think of any way to say it without overstating it -- he has had a remarkable and extraordinary string of always ruling for the union. He has given them whatever they've wanted. Any case that goes to litigation usually has a plausible argument on each side. But I mean it's almost inconceivable that an objective, neutral judge would rule, in every single case -- case after case after case -- for the same side when both sides have plausible arguments" (PHILADELPHIA DAILY NEWS, 3/11). USA TODAY's Jarrett Bell notes beyond decertification, players are "expected to file antitrust lawsuits -- including a case that includes star quarterbacks Peyton Manning, Drew Brees and Tom Brady as plaintiffs -- that challenge a wide range of NFL operations." Franchise player tags, restricted free agency and the draft "all could be targeted in individual antitrust cases." NFL Exec VP & General Counsel Jeff Pash said, "It's no more or less of a threat than it's ever been. We've known for years that the union's strategy is to litigate -- to fake its own death and run to court. If they decide to do that, that's what they'll do, and we'll deal with it" (USA TODAY, 3/11).
FREE TO DO WHAT I WANT: SI.com's Peter King cited sources as saying that there is a "distinct possibility that trades and free agent movement could be allowed long before the two sides reach a new labor deal." It likely would not be allowed "until at least the middle of April, and maybe not 'til May," and would "center on the legal labyrinth the case could go through if the players choose to decertify." A longtime Doty observer noted Thursday that an injunction "could take up to a month to be issued under usual circumstances, and then the decision on whether the appeal would be allowed another week or two." A Friday decertification, then, "could lead to the league restarting business, as forced by the court, by late April, around the time of the April 28-30 NFL Draft (SI.com, 3/10).
While there were "small-group talks between NFL and union representatives on the 15th day of mediation" Thursday in DC, "no one gave any indication that progress was made," according to ESPN.com. With the NFL CBA set to expire at the end of the day Friday, the "loudest words" from Thursday's bargaining "came in the evening, sparked by comments" from NFL Exec VP & General Counsel Jeff Pash, the league's chief negotiator. Pash said, "If both sides have an equal commitment to getting this deal done, it will get done. I don't know if both sides have an equal commitment. ... Obviously, we have the commitment." A league source said that owners "conducted a 90-minute conference call Thursday afternoon in which Pash debriefed them on what has happened since the owners met last Wednesday in Virginia." The source said that it was a "matter-of-fact conference call with owners in complete agreement about the direction they are headed." The source added the message to Pash and NFL Commissioner Roger Goodell at the end of the call was, "Do what you have to do and we support you" (ESPN.com, 3/11). League and union sources both indicate that there was "moderate interaction between the sides, but those talks were on non-economic issues only." Sources said that "small groups of representatives from both sides participated, but there wasn't interaction between players and owners" (NFL.com, 3/10).
Brees was involved in Thursday's
mediation session in DC
TAKING THE DISPUTE TO TWITTER: In N.Y., Judy Battista notes after mediation ended Thursday evening, there was a "remarkable exchange of digs and taunts on Twitter from both sides, revealing how much bile had built up in negotiations that have seemingly gone nowhere after the second extension was granted a week ago." At one point, NFLPA Assistant Exec Dir for External Affairs George Atallah said that if "owners continued to question the players’ commitment to negotiations, the union was prepared to make public all of its unanswered problems." In response, Aiello said, "That won't take long" (N.Y. TIMES, 3/11). Later Thursday night, Atallah tweeted, “I would like to request an expense credit from the owners on the last 3 hours of my life.” After Atallah made that remark on Twitter, in addition to a similar one in an e-mail to the AP, Aiello responded, “While George is at it, ask him when is union going to respond to our 150 pages of draft CBA provisions that they received eight days ago. Waiting.” Longtime NFL agent Howard Shatsky responded to Aiello on Twitter by writing, “I have just 3 words for Jeff Pash, Greg Aiello and the NFL owners: JUDGE DAVID DOTY!” Shatsky added, “Ill respond for George, you can take your 150 pages of CBA revisions and shove em! Can you say treble damages, Doty is waiting!” Chiming in, Texans OT and player rep Eric Winston directed a Tweet at Aiello: “Where can the fans buy your jersey next year? You are becoming a star!” Observing the war of words, several NFL observers entered the fray. ESPN's Adam Schefter wrote, "During last labor showdown in 2006, NFL's @gregaiello and NFLPA's @GeorgeAtallah weren't on Twitter. Times, tones, timelines are different." 16W Marketing co-Founder Frank Vuono: "Isn't this special? Biggest sports negotiation ever being fought on something called 'twitter.'" The N.Y. Times' Battista added, "The media blackout seems to be going well" (THE DAILY). ESPN's George Smith said, "There is no question that there is bad blood between the two sides. That was clearly expressed late last night" ("SportsCenter," ESPN, 3/11). YAHOO SPORTS' Doug Farrar wrote, "Talks seem to have degraded to the level of a second-grade sandbox fight, and things do not look promising at all right now" (SPORTS.YAHOO.com, 3/10).
TOO MANY CHEFS IN THE KITCHEN: ESPN's Schefter said several people on both sides who are "familiar with the case ... believe that there frankly are too many people involved." The NFL "has all the owners, lawyers, in addition to Roger Goodell and Jeff Pash," while the union has Smith, "lawyers and all the players involved." Schefter: "All of these minds in one room at various points in putting in their input have made this a very challenging process. ... This has become a large and out-of-control process whereby there are too many voices trying to impact and influence the process, and it is really crippled any progress the two sides made late last week" ("SportsCenter," ESPN, 3/11). Meanwhile, ESPN's Andrew Brandt said the "lack of trust" between the two sides has become the "hallmark of this negotiation." The NFL has "never trusted the union" and thought "the plan all along" by the NFLPA was to decertify, while the NFLPA has "never trusted the NFL." Brandt: "Both sides have had this back-biting, sniping, and even up to the point last night where Jeff Pash, one of the most reasoned guys in the NFL, extremely adept lawyer, inflaming the situation more" ("Mike & Mike in the Morning," ESPN Radio, 3/11).
PLENTY OF TIME ON THE CLOCK: BROADCASTING & CABLE's Ben Grossman noted the "latest supposed deadline for the NFL labor talks is Friday, but the real deadline is not until late summer when the players are supposed to start getting paid and the networks have to start contemplating life without football." So if the NFL "endures a work stoppage here for a while as expected, few expect the league to actually miss any games, there is just too much of a gravy train to knock it off the tracks, and both sides know it" (BROADCASTINGCABLE.com, 3/10). SportsNet N.Y.'s Chris Carlin said as the summer progresses and the possibility of missing games, and players "not getting paid," becomes more of a reality, players are "going to start to run into a little bit of a revolt." Carlin: "I think those players are going to be itching to get back to work and start getting paid" ("Loud Mouths," SportsNet N.Y., 3/10). Meanwhile, former National Labor Relations Board Chair William Gould on Thursday said, "The bottom line is, there’s too much money involved for there not to be an agreement. But we just don’t know whether tomorrow or -- if they extend it another week, or two more weeks -- will yield anything. But I think it’s unlikely that we’ll lose the entire season. There’s just too much at stake" (CHICAGO SUN-TIMES, 3/11).
Two days after a hit by Bruins D Zdeno Chara sent Canadiens LW Max Pacioretty to the hospital, Canadiens ownership "struck out at the league’s decision not to suspend Chara, the NHL Players Association vowed to inspect the league’s arenas for safety, the police said they are investigating, and the Prime Minister of Canada weighed in on the issue for good measure," according to Gordon & Bradshaw of the GLOBE & MAIL. Canadiens Owner Geoff Molson on Thursday sent a letter to fans in which he used "uncharacteristically blunt language to express the organization’s disgust with the NHL’s decision not to suspend" Chara. Molson termed the NHL’s ruling, which found that Chara’s "shove of Pacioretty into a stanchion between the players' benches justified no further sanction," a "hard blow for both the players and fans of the Montreal Canadiens." Molson: "It was one which shook the faith that we, as a community, have in this sport that we hold in such high regard." He added, "Our organization believes that the players’ safety in hockey has become a major concern, and that this situation has reached a point of urgency" (GLOBE & MAIL, 3/11). Molson in the letter said NHL Commissioner Gary Bettman "has agreed to make this issue a priority" at next week's GM meetings in Boca Raton, Fla. (Montreal GAZETTE, 3/11). Molson added, "I am asking for the support of the 29 other NHL owners, to address urgently this safety issue. And I am willing to play a leadership role in coordinating this group effort" (Montreal GAZETTE, 3/11).
UNION'S TAKE: NHLPA Exec Dir Donald Fehr said that "all sides should separate the noise from what needs to be done to make the game safer for its participants." Fehr: "Do people think things are actually more dangerous than they were a few years ago? Or is it the increased scrutiny (on head hits) which is causing us to hear a lot more about it?" Fehr said that "preliminary inquiries indicated the design of the glass and the posts around the players’ benches at the Bell Centre in Montreal may have played a role in Pacioretty’s injuries." Fehr: "It has been suggested to me that the location where this took place on the ice may have contributed to it, but I don’t know that." He said that the NHLPA is "examining all aspects of the overall issue of hits to the head and concussions." But he added that the union "will not be asking the general managers, whose annual meetings next week in Florida are expected to be devoted to this issue, to consider anything in particular" (David Shoalts, GLOBE & MAIL, 3/11). In L.A., Helene Elliott writes, "If the union is so concerned with workplace safety, it must go beyond measuring padding and getting rid of seamless glass and implore players to stop hitting one another in the head" (L.A. TIMES, 3/11). ESPN.com's Pierre LeBrun wrote Fehr "needs to show leadership on this issue. He's been way too quiet" (ESPN.com, 3/10).
TIME TO TAKE ACTION: The GLOBE & MAIL's Jeff Blair writes, "This certainly seems like hockey’s steroid moment, doesn’t it? That time when other people hold a mirror up to the face of the game and simply say enough with the excuses, it’s time to change" (GLOBE & MAIL, 3/11). A GLOBE & MAIL editorial is written under the header, "NHL Risking Its Integrity By Turning A Blind Eye." The editorial: "The integrity of the game is at stake. It cannot be separated from the safety of the players. Astonishingly, Gary Bettman ... responded on Thursday by aiming a head shot at Air Canada, suggesting teams could turn to another airline for charter flights." The "integrity of the game is in question; the league hasn't shown it has an answer" (GLOBE & MAIL, 3/11). In Toronto, Damien Cox writes the NHL has been "very, very tardy in coming to grips with this issue" of head hits and is "still plagued by the problem" (TORONTO STAR, 3/11). In Toronto, Cathal Kelly writes, "The NHL sits quietly in its corner of the sporting market, hoping for a period of relative calm, but unwilling to do anything drastic that might ensure that" (TORONTO STAR, 3/11). In Vancouver, Cam Cole wonders, "How many consecutive nights do the highlight shows have to dwell on the head injury du jour before the league gets it?" (VANCOUVER SUN, 3/11).
NHL Commissioner Gary Bettman "quietly negotiated a five-year contract extension last November," according to David Shoalts of the GLOBE & MAIL. Bettman's current contract, which pays him $7.2M annually, was set "to end this summer," although the NHL BOG "may have earlier picked up an option that extended it to 2012." One source said that the five-year extension was "unanimously approved by the nine-member executive committee." Bettman "confirmed via e-mail he received an extension." Bettman wrote, "Old news. I believe my contract has been extended four times, each time with the approval of the board of governors." One governor said that he believes Bettman also "reached an understanding with the executive committee" that Deputy Commissioner Bill Daly and COO John Collins "will also be retained beyond this season." Daly, who earned $1.9M last season, "would only say he does not have a contract." One governor said that NHL BOG Chair and Bruins Owner Jeremy Jacobs "made the move with an eye toward the end" of the CBA in September '12. The governor said that the board "wants to head into negotiations with the NHL Players' Association with solidarity on the management front." The BOG "does not want any perception Bettman could be a lame-duck commissioner if he does not have a new contract" (GLOBE & MAIL, 3/11). CBSSPORTS.com's A.J. Perez notes Bettman "has never been a fan-favorite," but "lost is the fact that Bettman is popular among the only contingent that counts: the league's 30 owners" (CBSSPORTS.com, 3/11).
PERFECT STORM: In Toronto, Damien Cox wrote this week has been a "perfect storm" for Bettman. The NHL's "two areas of greatest vulnerability, the two issues that attract the most public scrutiny and open the league to charges of being structurally unsound and run by outlaws, have been played out in some of North America's largest media centres this week." In one corner, the league-owned Coyotes are "quite possibly headed to Winnipeg," while in the other, "you have the violence issue, which this week was played out in an entirely different, nearly unprecedented fashion" when Canadiens LW Max Pacioretty was seriously injured by a hit from Bruins D Zdeno Chara. The overall impression for the league is "instability and mayhem." Bettman "has weathered such events time and time again," and this "won't bring him down." But it is "remarkable that at a time when the other North American leagues should be attracting gobs of negative publicity over their impending labour troubles and potential stoppages in competition, it's the NHL that's getting all the bad ink and being widely described as a league in turmoil" (THESTAR.com, 3/10). The GLOBE & MAIL's Stephen Brunt writes, "A question arises naturally as one of the worst weeks in National Hockey League history draws to a close. So just who is in charge here?" Brunt: "This must be Gary Bettman's time. ... He's the only person with the power to say that what came before was wrong, and what happens from here on must be right" (GLOBE & MAIL, 3/11).