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Volume 21 No. 1
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Gilbert: Firms back case for ending CBA

Sean Gilbert, the former NFL defensive tackle who is campaigning for the job of NFL Players Association executive director held by DeMaurice Smith, has consulted with two major New York law firms about his plan to terminate the NFL collective-bargaining agreement based on collusion claims.

“Both firms expressed confidence in the case,” said Gilbert last week via email. He declined to name the firms. Gilbert also said he has evidence that NFL clubs colluded in violation of the CBA, but he would not provide any information on what that evidence is. 

“Termination of the CBA” was the first point on Gilbert’s 23-point platform that he unveiled last week. Gilbert told reporters he was “extremely” confident that the current CBA, which extends until 2021, could be terminated and he would then be able to negotiate a host of better terms for players. 

The campaign by Gilbert marks the most public challenge to Smith’s leadership at the union. Smith has led the NFLPA since 2009 and is up for re-election in March. He was previously re-elected, unanimously, in 2012.

The NFLPA declined to comment on Gilbert or his campaign. The NFL also did not reply to emails seeking comment about Gilbert’s plan to terminate the CBA.

But the idea of getting a new, better deal for players raised the hopes of some agents last week. Many have privately expressed frustration about the current CBA, especially the rookie pay system, which restricts how much money players can earn in their first few years in the league. 

The NFLPA has defended the labor deal on a number of grounds, including that teams now have a minimum cash spend that must be spent on players and that the 2014 NFL salary cap of $133 million is the highest in league history.

Some sports law experts were skeptical last week of Gilbert’s assertion that he has evidence of collusion that could result in the termination of the current CBA.

Gary Roberts, a sports law professor at Indiana University who formerly worked at Covington & Burling, the NFL’s outside law firm, said arbitrators would be reluctant to allow a clause like the anti-collusion provision in the NFL CBA to trigger the end of the agreement. Collusion would have to be “egregious,” Roberts said, adding that he knows a lot of NFL agents and is not aware of any such claims of collusion. 

Other lawyers also questioned what evidence Gilbert could have and, if he does have it, why he has not produced it already. 

Gilbert, who is the uncle of New England Patriots cornerback Darrelle Revis, distributed materials that cited articles 17 and 69 of the CBA, which spell out how the NFL CBA can be terminated if collusion between multiple clubs involving multiple players is proved before an arbitrator. But Article 17 says any action against the league must be brought within 90 days of “when the player knows or reasonably should have known with the exercise of due diligence that he had a claim” or within 90 days of the first regularly scheduled game in the season in which the violation occurred, whichever is later. 

Mark Levinstein, a partner with Washington, D.C., law firm Williams & Connolly who has represented athletes in labor and antitrust matters, said that based on the language regarding the 90-day time limit, there is a chance a collusion claim could be barred if players know of it. 

“If [Gilbert] has the evidence now and he got it from players, there is a significant risk [the arbitrator] will say the players have the information and he should have brought the case 90 days after he learned of it,” Levinstein said. 

Levinstein, Roberts and other attorneys also believe that if Gilbert were to have compelling evidence of collusion, NFL owners would fight the case, and it could take years to resolve the matter. Gilbert has not said when he would reveal what evidence he has, but many in the industry presume it would be at or around the time of the election for executive director next March. 

“Given it will take years of litigation to resolve this, he is not helping [players] by saying they will have to wait six months before he will tell them [what the evidence is],” Levinstein said.

Gilbert, via email, said he did not know whether players and agents had the same information he has. He also said he was not worried about any time limitation quashing a collusion claim. 

Told of the skepticism of his claims, Gilbert said in reply: “Just so you understand, I don’t bluff. I never bluffed in my career and I have never advised my nephew, Darrelle Revis, to bluff when guiding his career. I assure you that I have done my due diligence on the collusion case. I am not posturing to get elected. Posturing only backfires in the long run.”

Publicly, Gilbert has said that he has met with about 200 players and 40 agents as part of his campaign. He also said he would use the CBA termination as “the stick” and expanding the NFL regular season from 16 to 18 games as “the carrot” in getting a host of new, better economic terms for players from the NFL. Those items, which are part of his platform, include increasing pay, including minimum salary; lessening franchise tag and transition restrictions; and reducing the amount of time players must spend in the league before they can renegotiate their deals or become free agents.

All of those things are good for contract agents, and while many agents are in favor of increasing pay and reducing restrictions in player contracts, they had differing opinions on Gilbert himself when asked about him and his platform last week. 

Levinstein said agents seeking to change the CBA should be careful what they wish for given the recent history of labor deals for the major sports unions, outside of baseball. 

“There is no reason to think the two sides are going to yield a new deal that is better for the players,” Levinstein said. “All evidence is to the contrary. Each time unions meet with management, they make a slightly worse deal or a much worse deal.”