SBJ/Jan. 31-Feb. 6, 2011/In Depth

Why would America's most popular sport shut down?

After Sunday's big game, 25 days remain before the NFL's collective-bargaining agreement expires, setting up a make or break deadline.

Or is it?

Perhaps the least-appreciated aspect of the long-running and vitriolic public battle between the NFL and the players union is the significance of March 4, appearing to be the first day the NFL will operate without a labor pact in 18 years, assuming an unexpected breakthrough doesn't occur in coming weeks, or the deadline isn't temporarily extended.

Empty Stadium
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Empty stadiums loom if labor issues are not resolved.
The league is publicly treating the date as a fundamental threshold deadline, one that could change what it offers the union, how the sport's business operates moving forward and, of course, one that could trigger locking out the players.

But the union has not appeared as certain that moving past the date without a deal is a massive leap. After all, no games are lost on March 4, most players do not receive checks until the summer (some players are due bonus money in April), and a deal could just as easily be struck in early April as early March.

In fact, the internal financial clocks of each side are wound differently, which may explain why the union's executive director, DeMaurice Smith, said last year that the NFLPA had already passed key internal deadlines. For the league, March is the time when sponsor, suite and season-ticket contracts are renewed. But for the players, with some exceptions like the option bonus money due in April, the big dollars do not flow until games start. For them, a bigger deadline may have been March 5, 2010, when the salary cap went away.

The difference is critical because in almost all labor disputes, agreements are struck while pressed against a deadline. But here, the deadline is uncertain. Is it March 4? The opening of the preseason in early August? Or in September when players lose their first game checks?

"The history of labor discussions of this magnitude has shown us that real movement of some kind (either closer to an agreement or further away) does not occur until some real deadlines are established in the process," said David Abrutyn, IMG's managing director, senior vice president and head of global consulting.

This is a well-established labor-negotiating maxim. The NFL and NFLPA struck their last labor agreement in March 2006 against the deadline of pending free agency, an event both sides agreed carried meaning.

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The goal of both sides is to reach a new labor deal, but owners stand to feel the financial pinch first.
But now the NFL is convinced the union wants to first wait for the outcome of its two complaints against the league filed with a special master, charged with hearing disputes between the sides (in this case over the value of broadcast contracts and an allegation of collusion.) The union also is lobbying on Capitol Hill, leaving the league contending that the NFLPA does not want to negotiate. The NFLPA has long denied this charge.

Nevertheless, sources within the league say that is why the union is not as jumpy about March 4, and helps explain league officials' increasingly frustrated pronouncements that the NFL needs a serious negotiating partner, underscoring the word "serious."

"The parties could always extend the current contract, the union would have some interest in that, but I don't know if the owners do or not," said Bill Gould, a Stanford law professor and former head of the National Labor Relations Board.

In other words, the union sees no reason why the two sides shouldn't just extend past March 4, while the NFL, seeking to dramatically reorder its economic universe, doesn't want to wait.

The union and league declined to comment for this story, though they have been quite public in where they stand. The NFL, with sponsorship and season tickets to renew soon, has said it will be even tougher post-March 4 to strike a deal. Much of this month's six-hour owners meeting in Atlanta was spent reviewing post-March 4 strategy.

» RAMPING UP THE RHETORIC
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"We are at war! Nobody gets strong without fighting. Nobody stays strong without fighting. Nobody negotiates their way to strength. Nobody talks their way to a good deal. Nobody sits down and just has miraculous things happen."
— DeMaurice Smith, NFLPA executive director, as quoted by The New York Times


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"I don't look at it that way. This is a business dispute and negotiations. We've been partners and we should continue to be partners. … This is not anywhere near a war. This is a business dispute that we've got to get resolved."
— NFL Commissioner Roger Goodell, as told to NFL Network

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"You got our head union rep acting like an a-hole. They got their guys acting like a-holes. So they just need to get their sh-- together and just get it done."
— New York Jets cornerback Antonio Cromartie, as quoted by NYDailyNews.com

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"I just think the negotiators should get it together and start doing what they should do, and get a deal. If they sit down and work things out, I think they could have a deal rather quickly."
— Pittsburgh Steelers Chairman Emeritus Dan Rooney, as quoted by the Los Angeles Times

The union, by contrast, is beating two drums: insisting the league open its financial books to prove profit margins have shrunk as the owners claim; and to urge that the players not be locked out. One of the union's first offers was to extend the CBA another year, which the league rebuffed.

"I proposed early on, instead of having talk about lockouts, let's do a lock-in," NFLPA President Kevin Mawae told reporters on a conference call earlier this month, suggesting the idea of shutting the two sides in a room together.

Gould, who writes on sports law, said, "It's like a train hurtling down the tracks. The initiative is coming from the owners' side, and my sense is a lot of people on the union side view this as beyond their control if in fact the owners won't negotiate a contract extension."

If Gould is wrong, and most don't think he is, and a deal can get done before March 4, the critical dates in coming weeks are Feb. 15 when the owners meet in Philadelphia; the NFL combine in Indianapolis Feb. 23 to March 1 when both sides will have a chance to meet; and the owners meeting in Fort Lauderdale March 1-3.

If a deal is not struck by March 4, the subsequent deadlines will then depend on the course of action. At that point, the NFL has two options: lock out the players and continue bargaining, or declare an impasse and enforce work rules, likely to comprise the league's last offer.

If the players are locked out, the NFLPA could then decertify and thus sue the owners under antitrust rules. At that point, the owners could then impose work rules on its newly nonunion work force, while the legal case would wind its way though the courts, like 25 years ago when the union decertified.

That union won a hard-fought victory that resulted in the 1993 CBA, giving players free agency and the owners a salary cap. But it took several years and left many players competing for seasons without a labor agreement.

If the league decided not to lockout, it could declare an impasse and impose work rules right away. The NFLPA would then almost surely bring a complaint to the National Labor Relations Board arguing an impasse had not been reached and the NFL is not within its rights to create the rules unilaterally. The union could also strike at that point.

A lockout is a more efficient way, though, Gould said. "The virtue of a lockout is it puts maximum pressure on everybody in the negotiating units," he said.

Marc Ganis, a sports consultant who is friendly with management, said the problem for the league is that its economic pain has already started, while the players won't begin to feel it until September. That disconnect, he said, is making a deal tough to get done right now.

Several league sources earlier this month at the Atlanta owners meeting complained that if the players were paid like most employees, with paychecks coming every few weeks, the league would be in a better position.

All experts agree that after March 4, absent a deal, the process moves into far more risky, complicated terrain. Right now there is only negotiating to be done, but on the fourth day of March, if there is no deal, the legal process will commence at some point soon after, whether it is an antitrust lawsuit, NLRB complaint or some other type of action.

"For the NFL," said one source familiar with both sides, "the objective before March 4 is to get a deal to live by. Afterwards," this source added, it is to enforce its will on the union through a lockout or mandating work rules.

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