What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:

"No one will bully us into a test"

The Legal Costs for Super Bowl XLVI

Yesterday's Super Bowl definitely was an exciting finish to an NFL Season that was on the brink of never occurring.  Remember that lockout that threatened to wipe out the season?  Well, here's a friendly a reminder I am sure most labor lawyers would be interested in.   The average Super Bowl ticket cost  $1,999.00, which is small beans in comparison to the amount that the NFL Players Association paid in legal fees incurred this past year. 

The Am Law Daily took an in depth look at how much was spent in legal costs leading up to the NFL lockout from March 1, 2010 through February 28, 2011.  The NFLPA, like all other Unions, have to file public LM-2 forms with the National Labors Relations Board.  The NFLPA spent approximately $63.2 million on representational fees including outside legal fees, and an additional $1.7 million on lobbying and political activities.  The top three law firms to rake in legal fees Latham & Watkins ($3.1 million), Dewey & LeBoeuf ($2.9 million), and Patton Boggs ($948,983).   DeMaurice Smith, former Latham and Patton Boggs Partner, and who is the current NFLPA Executive Director, did not do too shabby for himself either.  After agreeing to accept a $1 salary while the lockout was going on, Smith collected $1.5 million in back pay and an additional $1 million bonus for a job well done in resolving the labor quagmire. 

It will be interesting to see how large the legal fees were for next years disclosure that will include fees earned related to the lockout that occurred from March 2011 through July 2011.  I'll also provide a rundown of the NBPA and MLBPA's legal costs related to their CBA expenses once they become available.  However, Am Law Daily did a good job estimating their respective (MLBPA and NBPA) legal costs based on past disclosures. 

In the NFL, It Gets Better; I Promise.

Pete Olsen, Ohio State University Moritz College of Law 3L Student, and author of the blog "Wide Rights" has uncovered quite a find in the new NFL collective bargaining agreement.  The NFL is the first professional sports league to protect players from any sexual orientation related discrimination (assist PrawfsBlawg). 
As Prawfsblawg (emphasis added by author) points out, the language from the 2006 CBA Article VII, Player Security, reads :

Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.

The new language in the 2011 CBA, now moved to Article 49, reads:

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.

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!