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Friday, August 19, 2016

Ironic Passive Aggressivenes by NFL Players

The NFL players have a union.  The NFL players have a collective bargaining agreement.  The NFL players are angry with Commissioner Roger Goodell for acting under that collective bargaining agreement.  Those players implicated in the Al-Jazeera PED scandal are angry that they have to comply with the league's investigation or else face suspension. 

The question to all of these issues is the following:  why?

The reason I ask is because the players have a collective bargaining agreement.  Their protests, frustrations and anger result from actions that the league has carried out or may carry out under that agreement.  For example, certain players who have not spoken to the league as a result of the Al-Jazeera allegations are annoyed that they have to cooperate with the league.  Put very simply, their anger and frustrations are wrong and misplaced.

Employers in this day and age are obligated -- perhaps by law if not policy of an at-times very unforgiving Department of Justice -- to investigate compliance complaints.  The Al-Jazeera allegations are serious enough that the league needs to investigate them.  And forget about the law, even.  PEDs can give a player and his team an unfair advantage.  By the league's own rules, such alleged misconduct must be investigated.  A corollary to that is a fundamental tenet of employment law -- if you don't cooperate with an investigation, you get fired.  By the way, refusing to cooperate because you might want to take the Fifth Amendment in a corresponding criminal investigation won't help an employee.  In many cases, employers fire those employees too. 

The players to a degree are lucky that they have a union and a collective bargaining agreement and should work with NFLPA leadership to maximize their benefits and protections under it.  But to the extent that the league is doing what it is doing and the CBA permits it (such as letting Commissioner Goodell -- without third-party review -- mete out discipline), they players should grin and bear it.  That's what they signed up for.

So what's their remedy?  The United States Court of Appeals for the Second Circuit (in what explicably was not a unanimous decision) upheld the CBA with respect to Tom Brady, despite all of the Patriots' public relations and the NFLPA's public relations arguing that this was an injustice.  Whether or not people liked the decision, again, it fell squarely under the CBA.  The players made a huge deal out of the Brady matter, but their frustration was misplaced. 

Instead of focusing their anger on the league and the commissioner, they should direct their comments to their union head, DeMaurice Smith, and urge him to develop a dialogue with the Commissioner to improve upon some of the things in the CBA.  Look, even if the league has a right to do certain things under the CBA, it also worries about its brand.  Translated, the Commissioner won't always win if he enforce or takes advantage of the CBA to the specific letter of it.  Doing so would convey a lack of wisdom on his part.  Atop that, Smith should try to make his points now to prepare the Commissioner and the owners for what the players might ask for in the CBA negotiations the next time around.  That would be a start.

But for the players to get the changes that they seek, they might need to strike and strike for a good period of time.  Historically, the owners have won to a much greater degree than in baseball (which has the most successful union in the history of unions) and basketball.  The reasons seem to be two-fold.  First, the average football player's career is a fraction over three years, which means that the average player really cannot afford to strike, especially for an issue that will be unlikely to affect him.  Second, football is a sport populated with players who have been told what to do since age 6 or 8 or whenever Pee Wee football starts.  The football player population seems less likely to talk back to its ownership than other populations do in other sports.

DeMaurice Smith and his executive committee would be well-served to get the messaging right.  They need to keep their membership focused on playing well and growing the revenue in the NFL.  They need to let them know that they are pushing on the key issues that they want to improve upon.  And they need to show progress on those key issues.  What they also should do is try to focus the players on anything but letting issues that they bargained for in the current CBA eat at them to the point of distraction.  That distraction will not improve the situation or make any individual player play better. 

Whether they like the ownership groups, the Commissioner or the league, well, that's up to them.  But they'd be better suited being aggressive in their discussions and negotiations than in public displays of anger and frustration that usually only get the better of those who are angry and frustrated. 


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