Posted on: March 12, 2011 9:53 pm

NFL PLAYERS working on 'non-NFL' sponsors

Posted by Will Brinson

As the league locked out the players Friday night, we listed seven important questions that fans should ask for the coming months. One thing we forgot to mention (and/or debate) was the state of endorsements for NFL players. As most folks know, they're marketed as a group and typically lined up with "league sponsors" in groups.

That's not the case anymore, however, and as the Sports Business Journal's Liz Mullen reports , NFL PLAYERS -- the license and marketing arm of the trade association formerly known as the NFLPA -- is looking for new sponsors with which "to align themselves."

"The NFL failed to renew, extend, or otherwise provide these rights for sponsors," Keith Gordon, NFL PLAYERS president, told Mullen.

And, as a result, NFL PLAYERS "is now actively engaging with non-NFL sponsors who seek to align themselves," Gordon said.

Think like, say ... beauty products.

Here's the interesting thing about how this works: though the players union decertified, the NFLPA still exists. (After all, it's an "Association" made up of "Players," even with the recent decertification.) So it will provide legal support for the players and, apparently, continue to market the players as well.

One thought that crossed my mind was the possibility that EA Sports' Madden franchise could face problems that baseball video games dealt with in the past with respect to individual licensing. (Perhaps you remember Giants slugger "Joe Young" from back in the day?) Well, that won't be the case here.

"No, the status [of the union] doesn't impact our business," Gordon told CBSSports.com.

This is because all individual players ink a Group Licensing Agreement ("GLA") that they "really can't opt" of in the event of something like decertification.

So, Madden's safe (though Gordon did point out that roster updates could be a bit slow to come through if the season is delayed), and there's no reason to think the players will be doing anything other than trying to work positively with current sponsors, given their no-paycheck-at-the-day-job situation.

What will be interesting to see is how Gordon and NFL PLAYERS approach "non-NFL sponsors." And if you're wondering what exactly constitutes such an endorsement, Gordon's description to me -- he called them "categories where we've not been engaged" -- is the best way to describe it. 

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Posted on: March 12, 2011 7:35 pm
Edited on: March 12, 2011 7:38 pm

NFL lawyers on decertification: 'A sham'

Posted by Will Brinson

The NFL made a news splash Saturday when it announced the hiring of two high-powered lawyers to represent the league in the antitrust suit filed by the no-longer-unionized players.

But the league's long-time outside council, Gregg Levy, also made some noise over the weekend calling, as we predicted yesterday, the NFLPA's decertification "a sham."

"The union only pretended to decertify in 1990," Levy said in a statement posted on NFLLabor.com. "As history has confirmed, that purported decertification was a sham. In an effort to protect its ability to repeat the fraud a second time, the union tried in the White settlement to limit the NFL's ability to challenge in an antitrust court any future attempt by the union to pull off a similar sham. But that limitation could have applied only if the purported decertification occurred after expiration of the Stipulation and Settlement Agreement. The union was in such a rush to get to court that it did not wait until SSA expiration. The league is therefore free to show that this 'decertification' is also a sham."

The "sham defense" is best explained by referencing another not-so-legalese term: the "duck defense." That's a reference to an old idiom -- "if it walks like a duck, and it talks like a duck, then it is a duck" -- because the NFL is going to attempt and claim that the union is, as Levy said, only decertifying in order to prevent the league from locking players out, and that it remains a union, despite the small technicality of not actually being a union.

Here's the thing: this point of contention is going to make or break the 2011 NFL season, not whatever PR directives the NFLPA and NFL will be rapid-firing over the next few months.

Because, as I mentioned on Friday night, the Minnesota District Court system is going to decide at some point whether or not the decertification was a sham.

The issue for the NFL is that in the CBA and the White v. NFL Settlement Agreement they "waive any rights" to claim decertification is "a sham, pretext, ineffective, requires additional steps, or in fact has not occurred" ... as long as said decertification occurs "after the expiration of the express term of the CBA."

As we all know, the union decertified before the CBA expired. The reason they did so is they were in a Catch-22, because the CBA language required the players, if they wanted to sue the league, to either do so before the CBA expired, or to wait until six months after the expiration of the CBA.

So the players could have avoided any issue with the "sham defense" at all by waiting to sue, but of course they couldn't sue until they decertified, and waiting six months to do would have coincided with the start of actual football.

Long story short is that the District Court could still decide that the union's decertification is not a sham, and lift the league's lockout, but the Levy makes a pretty compelling case as to why the court shouldn't.

Now the only question is whether or not it will be more compelling than what the players' attorneys offer up in opposition.

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Posted on: March 12, 2011 12:42 am
Edited on: March 12, 2011 1:36 am

7 questions NFL fans should ask about the lockout

Posted by Will Brinson

First of all, the NFLPA no longer exists, as the union decertified on Friday afternoon. (I highly suggest you read this Q & A on what decertification means , too.) And as of Saturday, March 12, the NFL is locking the players out .

But what happens to football now that things are seemingly in utter chaos and the NFL has locked out the trade association formerly known as the NFLPA? 

Well, no one actually knows , because much of it hinges on legal decisions but we can take a gander at some possibilities in the old lucky No. 7 formation.

1. A lockout --  does that mean I get no NFL football in 2011? 

Well, not necessarily. The interesting thing about a full-on legal battle is that there's a decent chance all the "action" takes place in the courtroom. Which means there's a decent chance that actual NFL football gets played. Could much of the offseason be lost? Most definitely. And could part of the regular season be missed? Sure. In fact, the whole season could go unplayed, but there's just waaaaay too much money at stake (about $9 billion, in case you didn't hear) and way too many mortgages that need to be paid on stadiums and way too many paychecks that need to be cashed for the NFL simply not to exist in 2011.

NFL Labor
2. What happens next?

No, see, that's the thing. There's a lockout but there's not definitely one. Which sounds really stupid, but makes sense when you consider that the legal issue of a lockout -- whether the NFL can actually stop a non-union from coming to work -- won't get solved for a little while. As it stands now, the earliest we'll probably know whether a lockout is actually happening is probably Monday. But it could be anytime Saturday, only that would mean that someone employed by the government works on a weekend for the first time ever. (Hey-o!)

No, but seriously, judge Judge David Doty's first piece of work will be deciding whether or not the NFLPA (when it was a union) was within its legal rights to decertify. If he says yes, then the league won't be able to lock the players out and we'll move closer to a "normal" offseason. 

3. Wait, why wouldn't the NFLPA be able to decertify? I mean, they already did, didn't they?

Yes, they did. But the league is likely to try and block the decertification based on the logic that the NFLPA decertified before and then rejoined at a later date. In fact, the league will be regularly (and publicly) referring to it as a "sham" in the coming days. However, there's a certain portion of the lawsuit against the league that references a previous ruling by Minnesota court that "the NFL could not assert any claimed exemption to antitrust laws based on an allegation that the action by a majority of NFL players to renounce collective bargaining is somehow ineffective or a sham."

To put it more simply: the players got a "decertification insurance" the last time around, and they're going to be using it.

4. Can my team sign Nnamdi Asomugha (or anyone for that matter)? 

Not yet, because there's also not free agency. If the NFL had skipped the lockout and imposed the last set of rules on the players, the market would have been open and the result would have been utter and total insanity. Not to mention a lot of awkward negotiating (after all, these guys are suing each other). 

What probably happens on this end is that we get a ruling on whether or not decertification is legal, and then, somewhere down the line -- think 3-6 weeks, as is being reported by various outlets -- free agency starts. That's not terrible, because it means teams will get a decent head start on filling out rosters and making sure no really stupid money gets tossed about for free agents. Alternately, it might not start until August, and then it'll be kind of ugly to see what happens in a really short amount of time.

5. How about Peyton Manning -- can my team sign him?

No. Because Manning is currently "franchised" by the Indianapolis Colts. But there's an interesting part of the players' antitrust lawsuit dedicated to those tags, where the lawyers in charge point out that there's no logical reason for the franchise tag to survive any longer. Namely, that once the CBA expires, so does the franchise tag and that the NFL is just imposing the tag (along with the Transition Tag) because it wants to without any legal basis.

This is vastly more interesting now that the union no longer exists, because the argument from the players is that applying such a restriction is a violation of trade law. Oh, and yes, there ARE three named plaintiffs who happen to be designated as franchise players: Manning, Vincent Jackson and Logan Mankins.

Manning's probably not going to leave the Colts, but, needless to say, fans of Indy's franchise (and Indy management) probably don't want to see the franchise tag disappear quite yet. After all, these guys are tagged right now, but if that tag disappears, there's a decent chance they become unrestricted free agents. Just like free agency, it's TBD.

6. What about the draft -- is my team getting Cam Newton?

There's a clause in the lawsuit about that too! Go figure, right?

And, in the player's suit, the draft is also called an "anticompetitive restriction." In the "real business world," this makes sense -- imagine if you were the top graduate from business school out of Harvard and, instead of deciding to work at the job that offered you the most money and best benefits and whatnot, you had to go work for whatever company finished with the worst profit margin the previous year? You'd be pretty angry. And we'd all work for Aol.

That's not to say there won't be a draft, but if the players are as unified in late April as they are now, they could always boycott the draft. And, in a total worst-case scenario, a ruling from Judge Doty could come whereby the draft IS considered an anticompetitive restriction and therefore no longer a legal method of "hiring."

The most important thing to remember about those two points, though, is that as the draft gets closer, there's a good chance the owners face an even tighter squeeze to make some sort of settlement happen and get ready to play football.

7. Will my favorite players just be working hard to get prepared for the upcoming season? Anything else I should know?

Well, yeah. About that. See, at midnight, the NFL's personal conduct policy and drug testing goes out the window. That means if someone wants to spend the evening chugging HGH out of a bong, they can't actually get in trouble with the NFL for it. (Johnny Law might disagree, but that doesn't matter for work purposes.)

And, as we've noted, agents are in the wild, wild west, too . That should mean lots of poaching and no union to regulate whether these guys are paying off college athletes. So, yeah, a sleazier version of Lord of the Flies .

Much more devastating and serious is that there will be lots of coaches and employees who are also worked out and not getting paid. Fans care about football, as is their right. But we/they are still consumers -- many people are going to be losing their jobs because these two diametrically opposed sides feel compelled to play a high-stakes game of chicken in a very public arena.

And that, folks, is the key word here: leverage .

It's what this whole shebang is about and it's why we'll be dealing with a barrage of "we're winning but we're not in it to win, we just care about the fans!" public relations statements over the next few months. This thing will, in my humble and not legally legal opinion, still end in a settlement.

It'll come once things get really ugly in court and both sides are really happy with each other, but it will come. And we will (probably) have football in 2011. But it's not going to be a rough road getting there, so strap in. 

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Posted on: March 11, 2011 9:52 pm

Report: NFL expected to announce lockout tonight

Posted by Andy Benoit

Hours after the NFLPA went nuclear and decertified, Gary Myers of New York Daily News reports that the NFL is expected to announce a lockout tonight. If that’s the case, it will be up to the courts to decide what happens next.

The prevention of players from playing is the NFL’s ultimate leverage. The players’ ultimate leverage is decertification, which they enacted earlier. The antitrust lawsuit filed by nine players Friday evening aims at preventing a lockout.

It’s possible, perhaps even likely, that the league’s lockout effort will be blocked by the courts. That’s when appeals will be filed.

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Posted on: March 11, 2011 8:45 pm

Roger Goodell writes letter to fans

Posted by Andy Benoit

After the disappointing conclusion to Friday's labor talks, NFL commissioner Roger Goodell wrote a letter to fans. Here it is (via NFL.com, of course):

Dear NFL Fan,

When I wrote to you last on behalf of the NFL, we promised you that we would work tirelessly to find a collectively bargained solution to our differences with the players' union. Subsequent to that letter to you, we agreed that the fastest way to a fair agreement was for everyone to work together through a mediation process. For the last three weeks I have personally attended every session of mediation, which is a process our clubs sincerely believe in.

Unfortunately, I have to tell you that earlier today the players' union walked away from mediation and collective bargaining and has initiated litigation against the clubs. In an effort to get a fair agreement now, our clubs offered a deal today that, among other things, was designed to have no adverse financial impact on veteran players in the early years, and would have met the players' financial demands in the latter years of the agreement.

The proposal we made included an offer to narrow the player compensation gap that existed in the negotiations by splitting the difference; guarantee a reallocation of savings from first-round rookies to veterans and retirees without negatively affecting compensation for rounds 2-7; no compensation reduction for veterans; implement new year-round health and safety rules; retain the current 16-4 season format for at least two years with any subsequent changes subject to the approval of the league and union; and establish a new legacy fund for retired players (US $82 million contributed by the owners over the next two years).

It was a deal that offered compromise, and would have ensured the well-being of our players and guaranteed the long-term future for the fans of the great game we all love so much. It was a deal where everyone would prosper.

We remain committed to collective bargaining and the federal mediation process until an agreement is reached, and call on the union to return to negotiations immediately. NFL players, clubs, and fans want an agreement. The only place it can be reached is at the bargaining table.

While we are disappointed with the union's actions, we remain steadfastly committed to reaching an agreement that serves the best interest of NFL players, clubs and fans, and thank you for your continued support of our league. First and foremost it is your passion for the game that drives us all, and we will not lose sight of this as we continue to work for a deal that works for everyone.


Roger Goodell

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Posted on: March 11, 2011 6:34 pm

Wild wild west for agents now

Posted by Andy Benoit

Agents are part of the NFLPA. So what happens to the when the NFLPA decertifies? In short, agents are on their own.

Pro Football Talk obtained a copy of a memo sent by the NFLPA to agents:

“By now you are aware that members of the National Football League Players Association renounced the NFLPA’s status as the collective bargaining agent for NFL Players. Going forward, the NFLPA will instead be operating as a professional association committed to promoting, protecting and enhancing the careers of professional football players – past, present and future.

“By becoming a professional association, the NFLPA has changed its relationship with agents who represent NFL players. Since the NFLPA no longer is the collective bargaining representative of NFL players for wages, hours and working conditions, it is no longer a requirement that Contract Advisors be certified by the NFLPA in order to represent players in individual contract negotiations with NFL clubs.  In other words, the NFLPA is discontinuing its agent regulation system.”

This all means that any Joe off the street can now be an agent.

CBA, Decertification, DeMaurice Smith, Labor Talk, Labor Talks, Lockout, Mediation, NFL, NFLPA
Posted on: March 11, 2011 6:21 pm

NFLPA's letter to Roger Goodell and NFL clubs

Posted by Will Brinson

Or perhaps a better title would be "Dear, Roger." Because that's how DeMaurice Smith's letter to Roger Goodell -- informing him that the NFLPA planned to decertify -- began.

Perhaps it's not that amusing, considering the state of the NFL right now, but it still at least seems odd. (As transcribed from NFL Network.)
Dear Roger,

This is to advise you that, pursuant to a vote in which a majority of the players indicated that they wished to end the collective bargaining status of the NFLPA, the NFLPA is renouncing its status as the players' collective bargaining representative and disclaiming interest in continuing as the collective bargaining agent of the players as of 4:00 p.m. eastern time today. It is the players' intention to instead operate hereafter as a professional association dedicated to improving the business conditions of professional football players in the National Football League, including the enhancement and the protection of the contracting rights of its members. By copy of this letter to each member clubs of the NFL, I am also informing them of this important change in our status.

Sincerely, DeMaurice Smith
Now, it's worth noting that this is typical of a letter from a lawyer, and probably one that wasn't actually written by De Smith himself. (One has to assume that he has a secretary and/or legal assistant for such matters.)

Much more interesting is that the NFLPA claims to have decertified at 5:02 PM EST. But Smith's letter clearly indicates the players' intent to decertify at 4:00 PM EST.

Given that the owners will likely attempt to file some sort of legal motion that claims the decertification is a sham, it'll be interesting to see whether or not the timing difference there factors in. The principle there being that the NFL would attempt to prove the players were negotiating in bad faith based on their intent to decertify from the beginning.

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Posted on: March 11, 2011 6:04 pm
Edited on: March 11, 2011 7:23 pm

Nine players file lawsuit against league

Posted by Andy Benoit
D. Brees (US Presswire)
The NFLPA decertification has taken place, and the aftermath is already underway. 

Superstars Peyton Manning, Tom Brady and Drew Brees are among nine plaintiffs who have filed antitrust claims against the NFL in the 8th Circuit Court. The other plaintiffs are Giants DE Osi Umenyiora, Chargers WR Vincent Jackson, Pariots G Logan Mankins, Chiefs LB Mike Vrabel, Vikings LB Ben Leber and Vikings DE Brian Robison. Also, among the players is Texas A & M first-round rookie prospect Von Miller, who is representing the rookies. (Nice -- and gutsy -- way to introduce yourself to the league.)

The players allege that the NFL conspired to deny the players' ability to market their services. This has been the players' silver bullet all along. After the American Needle vs. NFL case in May determined that the NFL consists of 32 separate entities, the league became vulnerable to antitrust laws. Separate entities cannot bind together to prevent players from working.

Expect the league to file a counter suit claiming that the NFLPA’s decertification is a sham. Per the terms of the Collective Bargaining Agreement, the NFLPA could only sue the league after decertifying.

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The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com