Labor pains: The NFL/NFLPA dynamic, and when good faith goes bad

One ancillary benefit of, or detriment to, the New Orleans Saints' bounty punishments and the NFL's handling of them, is that there is an increasing sense that the NFL Players' Association either didn't fight hard enough for a hand in the player discipline process, or got duped into believing that the process would be more equitable than it has been. When the league's current collective bargaining agreement was signed on August 5, 2011, it was thought by many that a new era of labor peace was about to begin. Less than a year later, that has proven to be anything but the case.

While the NFL and NFLPA got through the 2011 season with minimal damage, the subsequent bounty investigation was just the headliner in a series of off-season dust-ups between the two parties. More under the radar was the league's decision to punish the Dallas Cowboys and Washington Redskins with serious dings to their salary caps -- $10 million to Dallas and $36 million to Washington -- over the next two years in response to alleged salary cap violations in the uncapped year of 2010.

The two teams, the NFL claimed, used the uncapped year (one effect of the expiration of the old CBA, signed in 2006) to offload large contracts in a way violated the spirit of the rules. In response to the rational argument that there can be no cap violations in an uncapped year, the league pointed to a nebulous violation of competitive balance, and said that teams had been warned about tripping too many wires in their dealing during that time.

The NFLPA didn't see it that way, and filed a collusion claim against the NFL in May, alleging that the league created an illegal and artificial salary cap during that time.

"The NFL never told us that these [punishments] were for 'cap violations,'" NFLPA Lead Outside Counsel Jeff Kessler told me on May 23. "In fact, just the opposite. The NFL, when we were negotiating about the salary cap this year, admitted that there was no salary cap in 2010, and any behavior by the teams would have been entirely lawful and proper. They gave us no clue about any mythical salary cap. We only learned of that after the agreement was signed.  After the agreement was signed, owners and others publicly admitted it to the media."

While Kessler said that the complaint against the NFL was more about the mythical salary cap than what happened specifically to the Cowboys and Redskins, the overarching narrative when talking with Kessler and George Atallah, the NFLPA's Assistant Executive Director of External Affairs, was that the good-faith negotiations between the two sides that led to the new CBA were not so good in retrospect.

"The union did not have any role in determining the penalties that were imposed," Kessler said. "What happened is, prior to the time when the union knew anything about there being collusion in 2010, the league conditioned their agreement to a union request as to how to calculate the salary cap in 2012 on the union agreeing to these cap charges against the Cowboys and against the Redskins.

"And the union was not told anything about prior collusion. They were told this is something the league was insisting upon because they believed this was important for competitive balance. And had the union known about prior collusion, the union never would have agreed to these cap reallocations."

When talking to various NFLPA sources in the last month, one gets the sense that the union feels itself on the wrong end of a metaphorical deal between Darth Vader and Lando Calrissian. "I am altering the deal," Vader told Calrissian in The Empire Strikes Back. "Pray I don't alter it any further."

And that leads us to the discipline in the New Orleans Saints' bounty investigation. Yahoo! Sports recently spoke to a league source who was integral to the CBA negotiations, and continues to be involved as a player advocate. Some NFL players, and a percentage of the general public, believe that the Players' Association didn't do enough to defend itself in negotiations, which led to NFL Commissioner Roger Goodell acting as "Judge, jury, and executioner," in the words of suspended Saints linebacker Jonathan Vilma.

Vilma and his attorney, Peter Ginsberg, left the Monday suspension appeal an hour into the process, because they believed they would not receive a fair hearing. Later, linebacker Scott Fujita told the media that there was still no direct evidence of the alleged "pay-to-injure" plays that led to his suspension, and defensive lineman Anthony Hargrove insisted that he was not the one speaking about bounties in a DVD of the 2009 NFC Championship game that the NFL used as evidence against him.

The NFLPA feels that it has been fast-tracked again, and things decided in supposed good faith during CBA negotiations are falling apart very quickly. As a result, additional matters the NFL may push to install during the current agreement, such as HGH testing and an 18-game regular-season schedule, will find more opposition from here on out.

"Now, people understand why the players are being a pain in the neck about HGH testing -- because the players don't want to be in a world where they have to deal with this," the source said. "There has got to be an independent arbitrator with this stuff -- at least on HGH -- before the players agree to it. The players aren't going to trade HGH testing for a fair process."

Regarding the NFL's authority, and the alleged runaround of the planned arbitration panel that was supposed to hear all appeal complaints connected on-field actions (as one would assume intent-to-injure claims would be), Goodell took care of that one fairly quickly, drawing his "conduct detrimental to the league" card and playing it for all it was worth. The Saints didn't help with their systematic culture of dishonesty, but the Players' Association (and by proxy, the players) don't feel any better about the way this has happened.

"Per the CBA, the Commissioner has the authority which has been held up by two different arbitrators," the source said. "That's been upheld so far. But the players don't necessarily believe that the process by which he's conducted this investigation is in line with the CBA."

In retrospect, it's clear that had the NFLPA seen the Saints debacle coming, it would have fought harder for a stronger voice in player discipline. But the sense at the time was, based on conversations with several people in the know, that player discipline was considered to be a fairly insignificant subject when compared to season length and percentage of TV and digital rights revenue.

NFLPA head DeMaurice Smith had to run all negotiations by the player reps and the Executive Committee, and the general sense was that player discipline was a primary concern for a very small percentage of players -- many of whom were digging their own holes in that regard. Not even Fujita, who's on the Executive Committee, nor Saints lineman Will Smith, who is the Saints' current alternate player rep, had any idea they'd be in the crosshairs of a process many on the inside believe left them "screwed."

There is still room for negotiation in the current CBA. At some point around 2014 or 2015, when the money from recently-negotiated TV deals kicks in, the NFL will want to talk with the NFLPA about an expanded regular-season schedule, and will promise certain revenue bumps in return. However, the response the league will get will be based as much on recent perceived transgressions than anything it offers at that time.

In other words, Roger Goodell has two years to repair a bridge that the other side is just about ready to burn. Because the NFLPA will now fight the NFL on everything -- from HGH to hip pads.

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