How the Sausage Gets Made: The 2011 NFL Collective Bargaining Agreement
This past year was a dramatic one for the NFL, and not solely because of the spectacular on-field play. On August 11, 2017, Dallas Cowboy’s running back Ezekiel Elliott, the NFL’s leading rusher in 2016, was suspended for the first six games of the 2017 season for violating the personal conduct policy. Five days later, Ezekiel Elliot, through the NFL Players Association (NFLPA), appealed the suspension. The NFLPA’s lawsuit did not try to undermine the factual conclusions from the NFL’s investigation, rather it challenged the process the league undertook to suspend Elliott. The NFL, on the other hand, wanted to enforce Elliott’s suspension in the 2017 season and confirm Commissioner Roger Goodell’s authority to issue punishment based on “conduct detrimental” to the league as mandated in Article 46 of the collective bargaining agreement. The NFL counted on the deep reluctance of judges to interfere in arbitration under labor law. League lawyer Dan Nash argued that because NFL players granted Goodell broad disciplinary powers in Article 46 of the Collective Bargaining Agreement, they surrendered the right to any judicial intervention. This line of reasoning was virtually identical to the winning arguments the NFL deployed in appeals against Tom Brady during Deflategate and Adrian Peterson after he pleaded no contest to misdemeanor reckless assault. Following a lengthy and eventful legal battle, the suspension was ultimately upheld on November 9 by the United States Court of Appeals for the Second Circuit.
As the cases of Elliot, Brady, and Peterson have shown, the NFL’s collective bargaining agreement is an extremely important document to the sport of football. Any fan of the NFL can gain a deeper understanding of the league and its off-field drama by first understanding the collective bargaining agreement itself.
What Is the NFL Collective Bargaining Agreement?
The NFL Collective Bargaining Agreement (CBA) is a labor agreement between the National Football League Players Association (NFLPA) and National Football League (NFL) team owners. The agreement establishes health and safety standards, determines distribution of league revenues, and establishes benefits, including pensions and medical benefits, for all players in the NFL.
The first collective bargaining agreement was reached in 1968 after player-members of the NFLPA voted to go on strike to increase salaries, pensions, and benefits for all players in the league. Later negotiations of the collective bargaining agreement called for injury grievances, a guaranteed percentage of revenues for players, an expansion of free agency, and other issues impacting the business of the NFL. The NFLPA and team owners have negotiated seven different agreements since 1968.
What events surrounded the 2011 NFL CBA?
The 2011 CBA did not disappoint in terms of drama. The negotiation process began in early 2010, but completely stalled by early 2011. After failing to make any progress in negotiations, both sides accepted mediation under the auspices of the Federal Mediation and Conciliation Service (FMCS), set to begin in mid-February. During mediation, players and owners agreed to extend the 2006 CBA by one week. The FMCS failed to mediate a settlement and the previous CBA expired on March 7, 2011.
That same day, the NFLPA announced it was no longer a union. This allowed players to file individual antitrust cases, many of which challenged the legality of the impending lockout. Tom Brady and Peyton Manning were two of the eight named plaintiffs in the action filed in Federal District Court in Minnesota. The Federal District Court initially ruled for the players, declaring the lockout illegal because the players were no longer members of a union. The 8th Circuit Court of Appeals stayed the District Court’s ruling, and the lockout continued pending a final determination in the appellate court. In July 2011, as court-ordered mediation continued between players and owners in New York, the 8th Circuit court announced that the Norris–La Guardia Act prohibited it from enjoining the lockout.
After several months of negotiations, the longest lockout in league history ended on July 25, 2011 following a tentative litigation settlement which reclassified some league revenues for cap purposes. This settlement was conditional upon the NFLPA re-constituting as a union and incorporating the settlement terms into a new CBA. Players reported to training camps in July 2011, and voted to re-constitute the NFLPA as a union. After the vote tally was confirmed on July 31, 2011, the NFLPA began six days of bargaining that resulted in a new CBA being signed on August 5, 2011.
What can we expect when the current CBA expires?
The 2011 CBA included a no opt-out clause and a ten-year term set to expire after the 2020 season. DeMaurice Smith, the executive director of the NFLPA, believes there’s going to be a work stoppage after the current collective bargaining agreement (CBA) expires following the 2020 season. “I think the likelihood of either a strike or a lockout in [2021] is almost a virtual certainty,” Smith said in an interview with MMQB.com last August.
What does this mean for the fans? The last time the NFL had to cancel games due to a work stoppage came in 1987. Smith hasn’t indicated any belief that game cancellations are impending, however the NFLPA is taking the possibility of a work stoppage so seriously that it warned players last May to start saving money….
Daniel Emoff is a J.D. candidate, 2019, at NYU School of Law.
