Monday, August 29, 2011

The NFL CBA and Contract Holdouts

The Tennessee Titans put Chris Johnson, their standout running back, on the their reserve/did not report to training camp list today. Chris Johnson has held out for much of training camp in his own personal lockout because he wants to renegotiate his current playing contract to make him one of the highest paid players in the league. The holdout tactic is nothing new as players such as Emmitt Smith, Larry Fitzgerald, Logan Mankins and Vincent Jackson have used the tactic before. I thought that this was such a big issue that something would be included in the new collective bargaining agreement that would limit the practice.

Johnson is in the fourth year of a five year deal where he is scheduled to make $1.065 million this season, which would barely cover the $840,000 in potential fines that he has rung up for missing practices. Under Article 42, Section 1 (vi) of the new CBA, any unexcused late reporting or absence from preseason training camp by a player under contract comes with a $30,000 a day fine.

It is obvious that these fines have not been effective in stopping or deterring contract holdouts from occurring. I am currently writing and editing a law journal article on this topic where I propose that players and their teams enter into mandatory mediation prior to holding out, as opposed to salary or non-binding arbitration, which is prescribed for disputes over minimum contracts. I will either post that article or let you know where you can read it if I find a Journal to publish it. Nonetheless, the new CBA did not do enough to address the holdout epidemic and it will be costly to the players' teams and their fans. If and when Chris Johnson returns to the field for the Titans, he will be way behind the learning curve, which will have negative effect on the teams chances on winning the Super Bowl this season.

Monday, August 15, 2011

What exactly is in the new NFL CBA?

Lost in the excitement of the fact that football is back and the preseason games are in full swing is the fact there is a new 10-year collective bargaining agreement that is chock full of new and modified rules and provisions. With the second and third stringers seeing a majority of snaps, now is a better time to dig deeper into what exactly is in the new NFL CBA and the type of impact it will have on the NFL labor market as well as the ongoing and future CBA discussions in the NBA, MLB and NHL. The NFL CBA can be found here if you want to follow along at home.

Because the majority of the news reporters already covered the salary cap/revenue sharing deal points that seemed to take up a majority of the NFL lockout coverage, I will focus this discussion on more of the nuanced provisions such as: (1) the prevalence of binding arbitration as way to settle most disputes, including player contract holdouts; (2) new performance enhancing drug (HGH) testing; worker's compensation rules; (3) worker's compensation filing rules; and (4) the Commissioner's power to discipline players for off the field conduct, among others. Up first, we will discuss the rise of alternative dispute resolution, specifically the rise in the use of arbitration and whether it can be used to settle contract holdouts. Stay tuned!

Wednesday, August 3, 2011

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.