Six Lessons From The NFL labour Impasse

1. Roger Goodell is what we thought he is — an empty suit. Goodell’s elevation to the commissionership in 2006 was the first act leading to the current impasse. Paul Tagliabue proved to be a more powerful (and effective) commissioner than his famous predecessor, Pete Rozelle, whose tenure ended with two combative strikes. Tagliabue, Rozelle’s top counsel, managed to consolidate greater authority in the commissioner’s office when it came to labour negotiations, and that helped guarantee the lengthy era of labour peace following the early 1990s antitrust battles. Unfortunately, Tagliabue also pushed for the pro forma succession of his own top lieutenant, Goodell, who has now been exposed as a mere frontman for the owners — particularly those owners who were determined to start a new labour war against the players.

2. DeMaurice Smith had a plan and executed it perfectly — so far. For their part, NFL players remained under the tin dictatorship of Gene Upshaw, who consolidated all decision-making in his hands. Had he lived, Upshaw no doubt would have found away to sell “his” players out to the owners in order to avoid another public battle. His death paved the way for DeMaurice Smith, an opportunistic ex-prosecutor no doubt looking to burnish his credentials for a possible future in politics. Smith hatched the strategy of preemptively decertifying the union and declaring antitrust war the minute the collective bargaining agreement ran aground. Smith also smartly had high-profile quarterbacks — players immune to post-lockout retribution from the owners — front the antitrust lawsuit. If the players successfully convince a judge to stop the lockout by decree, it will be a major tactical victory for Smith.

3. The players are committed to remaining wards of the federal courts. Unfortunately, Smith’s litigation strategy also means his players will remain dependent on the federal court system for some time to come. Decertifying-and-suing sounds wonderful on paper. But by trading “collective bargaining rights” for “antitrust rights,” the players are now subservient not just to judges, but their own lawyers. Remember, the antitrust strategy only works if you never go to trial. In the short term the players may have leverage to force the owners back to the bargaining table under friendlier terms, but that leverage evaporates if the courts go against the players at any stage of the proceedings. Furthermore, if this case does go to trial without an anti-lockout injunction, the media and public backlash will increase against the players who initiated the lawsuit, irrespective of the fact the owners caused the actual impasse.

4. The owners do not appear to have a plan. Much like Mike Shanahan’s fumbling of his starting quarterback last season, the owners have yet to articulate a clear plan for resolving the impasse they caused. The “final offer” presented to the players on the final day of mediation gave every appearance of an ad hoc proposal. There doesn’t even seem to be any clear leadership among the owners. The antitrust lawsuit immediately placed the owners on the defensive, and that’s where they’ll remain until someone takes charge and provides some semblance of an offensive strategy to actually resolve the impasse.

5. The press and the fans won’t influence the outcome of all this — but there is a group that can. As I expected, the media backlash seems to be going more against the players than the owners. There have also been rumblings of genuine fan outrage. But none of that really matters. All the press and fan carping on the World Wide Web won’t resolve the underlying lack of trust and substantive disagreements between the players and owners. But that’s not to say there isn’t an outside force — other than the government and the courts — that could force a speedier resolution. That force is the television broadcasters — you know, the people actually payingthe NFL the billions of dollars the owners and players are fighting over. If the networks got together and exercised their collective influence, I suspect the owners and players would be forced to listen. Network executives need to get over their traditional deference to the owners and assert their prerogatives as paying customers.

6. Don’t Expect Any Help from Obama or Congress. There have already been political rumblings. A senior House Democrat proposed revoking the NFL’s limited antitrust exemption for television contracts. This will go nowhere. For one thing, that exemption applies to other leagues like the NBA — and a key senator responsible for overseeing antitrust policy, Herb Kohl, happens to be an NBA owner who benefits from the current law. On a larger scale, the White House and Congress are simply too distracted with their own in-fighting to meddle too much in the NFL impasse. Washington is gearing up for the 2012 election, not the 2011 NFL season. And while there’s a slight chance an eager regulatory agency — *cough* FTC — might seize the opportunity to try and play hero, the lawyers for both owners and players should be able to keep this fight in the courts, at least until the end of this year.

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