- The Beginning - 1956
Early Organizational Efforts
In addition to problems in Green Bay, efforts also were underway to organize in Cleveland. Disgruntled players there had asked Creighton Miller, the first general manager for the Browns, to help them organize a players' association. Miller, a former Notre Dame player and an attorney, at first declined but finally agreed to help in 1956. Using the Browns' players as a nucleus, Miller began contacting selected players on other teams to join the new association. Don Shula took the lead in Baltimore, Frank Gifford in New York, Norm Van Brocklin in Los Angeles. By November 1956, a majority of players in the league had signed authorizations to allow Miller and the new NFLPA to represent them.Their first meeting took place at the Waldorf-Astoria Hotel in New York in November of 1956 in conjunction with a game between the Chicago Bears and the New York Giants. Ironically, the Bears were the only team in the 12-team league that had not joined the association. The proposals from that initial meeting were few in number—players requested a minimum $5,000 a year salary, uniform per diem pay for players, a rule requiring clubs to pay for players' equipment and, more importantly, a provision for the continued payment of salary to an injured player. The players submitted their proposals to League Commissioner Bert Bell in January 1957. Representative Creighton Miller later recalled how he and fellow reps Kyle Rote and Norm Van Brocklin were received: "We made arrangements with the Commissioner to go to Philadelphia during the owners' meeting... Bert (Bell) put us up at the Racquet Club and the owners were meeting at some hotel. We got there maybe on a Sunday night and Kyle Rote had to leave on Wednesday and Norm Van Brocklin left about Friday. I was still there Saturday, and we never did get a chance to meet with the owners and we never got a response from any of the proposals at that time."
Antitrust Ruling Gets Owners Attention
After being snubbed by the owners, players decided to get serious. They threatened the owners with an antitrust lawsuit. The action came at the right time because another lawsuit, started more than a dozen years earlier, came before the Supreme Court that year. In the earlier case, a feisty noseguard named Bill Radovich wanted to move from Detroit to California to play because of an illness in his family. He was denied the move and later was boycotted by the other teams in the NFL. He sued the league for violations of the antitrust laws. The NFL had assumed that because baseball had antitrust exemption, the NFL had antitrust exemption, too. But that was not the case. In 1957, the Supreme Court ruled in Radovich v. NFL that the league was, indeed, subject to antitrust laws. The owners quietly granted many of the demands from the players association shortly after the Supreme Court decision was announced. Owners knew the players would file another antitrust suit if they continued to deny players' rights.
Making Ground, One Inch at a Time
But by mid-1958, players again were frustrated. The injury protection clause the owners had agreed to still was not in place. Owners had agreed to pay $50 above their regular contract for each pre-season game, but some players had not been paid. Proposals for a pension plan, hospitalization and other benefits had been presented to the owners—and ignored. That November, Billy Howton of the Green Bay Packers and then president of the NFLPA, threatened to sue the owners again for antitrust violations. Again, the owners responded immediately, creating a benefit plan that included hospitalization, medical and life insurance with a plan for retirement benefits at age 65. Commissioner Bell gave Howton his personal assurance that a pension plan would be developed and instructed him to go in and say "thank you" to the owners and leave town.
- The 1960's - AFL/NFL Competition
The 1960s became a time of increased frustration after the NFL faced competition from the new American Football League. Players who hoped to use the leverage caused by the new league to improve their contracts were sorely disappointed. Instead of more benefits, players discovered that the owner-controlled pension plan had been amended to add a clause saying a player would lose his pension if he went to "another league." Again, players threatened court action, and a few incremental gains followed. Players pushed through pension coverage to a group of 110 players who were in the league in 1959, when benefits were introduced. Life insurance and health coverage benefits were improved and, for the first time, two player reps were designated to sit on the Retirement Board. But by 1966, any leverage created by league competition was undone when the two leagues merged. The NFLPA tried to oppose special federal antitrust legislation to exempt the merger, but its meager funds weren't enough to hire lobbyists or mount an effective opposition. Angry with the owners and dissatisfied with the weakness of the NFLPA, Bernie Parrish of the Cleveland Browns asked George Meany of the AFL-CIO to help form a union of professional athletes. Although Meany was not interested, the Teamsters Union was. Parrish and a Teamsters representative toured the country in an attempt to get the signatures needed to have the Teamsters represent the players in collective bargaining. Creighton Miller would not hear of it, and a split developed in the ranks. Matters came to a head at the January 1968 player rep meeting in Florida. Two labor attorneys from Chicago—Dan Shulman and Bernie Baum—engineered a compromise whereby the NFLPA would remain an association rather than a union, thereby eliminating the supposed stigma of the Teamsters. Owners said they would formally recognize the NFLPA if the Teamsters union was rejected. But after the vote, the owners refused to bargain with the NFLPA. At the time, and although the AFL and the NFL had merged, the NFL Players Association operated independently of the AFL Players Association and represented only the 16 teams of the old NFL. As it turned out, operating separate organizations was a crucial mistake for the players, since the League was able to play one group against the other in its bargaining strategy. Representing only 16 of the 26 teams, the NFLPA proposed new pension demands in 1968. Players prepared to strike when their demands went unmet. Instead, they were locked out by management for a week, and then staged a brief strike. That strike eventually led to the first-ever collective bargaining agreement. The agreement called for far less than the NFLPA had hoped to achieve. Included in the demands were minimum salaries of $15,000 for rookies and $20,000 for veterans, exhibition game pay of $500 per game, lowering retirement age to 45, and impartial grievance arbitration. But, under the contract eventually agreed to, minimum salary remained at $9,000 for rookies and $10,000 for veterans, exhibition game pay stayed at $50 per game, the commissioner remained as the arbitrator, and retirement age stayed at 65. The reason players accepted those modest gains was that the players on the ten AFL clubs not represented by the NFLPA accepted the owners’ terms without telling NFLPA leaders. Members of the NFLPA were frustrated, but had very little room to maneuver. They did, after all, only represent 16 of the 26 teams in the league.
- The 1970's - AFL and NFL Players Associations Merge
The two players associations combined forces for the first time in 1970, when it was again time to bargain with the NFL owners. By that time, the owners' merger was completed in all respects and 1970 was to be the first year in which old AFL teams were included within the regular schedule of NFL games.Combing the two players associations was not without its political problems, however. Understandably, there was jealousy between the two groups, and a genuine fear on the part of the AFL players that their group would be swallowed up by the larger NFLPA. In January 1970, the two associations met for the first time, and the inevitable clash between the leadership of the two groups occurred. The NFL players pushed Ed Meador of the Los Angeles Rams as president of the combined group, and the AFL players pushed for Jack Kemp, then-president of the AFLPA. To avoid a severe split, a compromise candidate—John Mackey of the Baltimore Colts—was acceptable to both sides as the new president. Kemp and his people accepted Mackey on the condition that Allan Miller, a former AFL player, would become general counsel for the new organization. Meeting with owners in 1970 proved another challenge. Owner representatives Tex Schramm and Ted Kheel expressed a willingness to talk about recognition of the new association, but insisted that lawyers (except for Miller and Kheel) be excluded from the meeting. Schramm and Kheel later added another condition—that the NFLPA agree that it would no longer attempt to negotiate any increases in pre-season pay. Years later, John Mackey recalled those negotiations:"I was supposed to meet their negotiator and their lawyer, two on two. When I walked in, there were nine of them, and I knew that wasn't fair. Then their guy said, 'Young man, before we talk we want you to sign this paper to show your good faith in bargaining.' Now I didn't like this at all. First he had forgotten my name, and they had stroked me so much in meetings in Hawaii and Florida and New York. Secondly, they wanted me to sign a piece of paper without reading it. And thirdly, my lawyer agreed with them, saying 'boilerplate, just boilerplate—sign it.' I said, 'Wow—now my lawyer is with them, too.' Quickly scanning, I saw the words 'in perpetuity' and I knew that was a long, long time. So I said, 'You guys go out to lunch and my lawyer and I will study this.' When they left, I took that paper and tore it into little pieces."Mackey contacted a labor law firm, Lindquist & Vennum, of Minneapolis. After first advising the players to "tell the owners to go to hell," the firm recommended filing a petition with the National Labor Relations Board to become a recognized union. Player reps agreed and the NLRB granted certification to the NFLPA and, for the first time, took jurisdiction over professional athletes.
NFLPA Becomes A Real Union
Nevertheless, the fledging union was in a weak bargaining position in 1970, despite the merger of the two associations. The staff was small. Debts were high. No means existed to communicate with membership. The NFL completely dominated the agenda and steadfastly refused to discuss the system.To show their dissatisfaction, the players went on strike in July 1970 after a brief lockout by the owners. But the strike lasted only two days because owners were threatening to cancel the season. Eventually, the NFLPA signed a four-year agreement that increased minimum salary to $12,500 for rookies and $13,000 for veterans. The system was kept in place, but the pension was improved and dental benefits were added to the insurance plan. Players were given the right to have agents for the first time. Most significantly, the 1970 agreement also gave players the right to meaningful representation on the Retirement Board, and the right to impartial arbitration of injury grievances. The 1970 battle took a toll. Following the negotiations, many player reps were let go by their teams and John Mackey was traded to San Diego, where he was essentially forced to give up his career. Still, the players believed it was in their power to do more. Forging ahead, they decided to build a stronger union. Years later, John Mackey summed it up:"They gave us what they wanted to give us, made us smile and say 'thank you.' But from that day forward, we decided to build a legitimate union. All efforts since then have been designed to develop our strength. Now we have the strength to take them on."In 1971, the NFLPA hired its first executive director—Ed Garvey, an attorney from Lindquist and Vennum who had helped organize the union. An office for the union was established in Washington, D.C., and a campaign launched to educate players.Players also knew it would take more than union organizing to win against the owners. Strengthened by the new union, the reps voted to file suit against the NFL to eliminate the Rozelle Rule, which effectively prevented players from moving to another team after their contracts expired. That lawsuit became known as Mackey v. NFL.
The Fight for Freedom
When the 1974 negotiations began, the NFLPA had a staff of eight, a $200,000 strike fund and a more experienced negotiating team. The players also had a theme: "No freedom, no football." The most important of their demands were: * Elimination of the option clause and Rozelle Rule, which limited free agency; * Impartial arbitration of all disputes; * Elimination of the draft; * Elimination of the waiver system; * A new, individual contract to protect players, including guaranteed payment of salaries. But owners were unmoved. Believing they could win in court, owners steadfastly refused to participate in collective bargaining. On July 1 players went on strike. But by August 10, the owners still had not agreed to a single demand. In frustration, the players called off the strike and took the battle to the courts and the NLRB. The ensuing standoff lasted through the 1974, 1975 and 1976 seasons.
Victory and Defeat
In 1976, the players emerged victorious in court. In the Mackey case and in other cases pending in the courts and at the NLRB, owners were found guilty of violating federal labor and antitrust laws.
By the time settlement was reached in 1977, a real dichotomy had developed. On the one hand, the union had been extremely successful in its legal challenges to the NFL system, and it won convincingly whenever it challenged the League in court. On the other hand, the players' support for the union had waned. Less than half the players paid dues in 1975, the year after the strike.
With legal victories on the one hand but weakening ranks on the other, the NFLPA signed a new agreement in March 1977. The agreement made great strides in some areas but not much progress in others. Benefits were increased substantially; impartial arbitration of non-injury grievances was won, substantial reforms in the waiver system and the option clause were gained. The Rozelle Rule was ended and a collectively bargained system was put in place of Rozelle's one-man rule on free agent transactions.
Although the new free agent system made sense in theory, since it geared draft choice compensation to new salary offers made to the free agent player, it did not anticipate the huge increases in club revenues—and therefore salaries for players—which began occurring one year after the 1977 CBA was signed. As a result, most players were "worth" more than a first-round choice when they became free agents.
- The 1980's - Era of Change
The first refusal/compensation system governing free agents in the 1977 CBA saw very little player movement because a first round draft choice (or more) was too high a price to pay for signing another team's free agent. At least that was the excuse club owners gave for not bidding on free agents from 1977 through 1981. However, the players eventually realized that the owners' practice of sharing TV and gate revenues on a nearly equal basis meant that clubs had no incentive to bid on free agents anyhow, whatever their cost in terms of draft choices. Since most stadiums were full, why would an owner bid millions for a free agent if his revenues couldn't go any higher as a result?
This realization led players to a new approach in bargaining for a new CBA in 1982. Adopted by players at an NFLPA convention in Albuquerque in March of that year, the proposal called for players to be paid 55% of the clubs' league-wide revenues. Those revenues would be divided among players based on years of service, playtime and individual and team performance. The proposal was designed to pay players based on performance, not on how high a player was drafted or how well he was expected to play.
The owners summarily rejected the percentage-of-gross proposal in early 1982, saying they didn't want players as their business partners. Through their hired gun, Jack Donlan, owners said they needed to continue determining salaries through individual negotiation, in part because a new league—the USFL—was beginning play in 1983. They argued that the USFL could "cherry pick" individual players by offering more than the percentage-of-gross system would provide them, and that they needed to be able to match or exceed USFL offers through continued negotiation with players on an individual basis.
The 1982 Strike
Collective bargaining got nowhere, so the NFLPA Board of Player Representatives voted to call a strike beginning after the second weekend of regular season games in 1982. In response, the owners shut operations down completely on September 21, 1982, and barred players from doing anything on team property. This standoff continued for almost two months, with owners remaining steadfast against any change in the system. The ultimate settlement occurred only after two things happened:
1. It appeared likely that the season would be canceled unless regular season games resumed in early November.
2. The owners agreed to a much improved salary/benefit package and guaranteed that that package would be worth at least $1.28 billion over the 1983-1987 seasons.
The players ultimately accepted the deal, but not without considerable dissension. Some teams—the Detroit Lions, Chicago Bears, and New England Patriots in particular—refused to return to practice until owners signed off on a complete agreement. Other teams—the San Francisco 49ers and New Orleans Saints, for example—were already back to practice before the tentative settlement was reached on November 16.
The 1982 CBA was eventually signed on December 5, 1982, after another three weeks of continued negotiation. When it was signed, the owners paid $60 million in "money now" benefits, which offset much of the salaries players lost while on strike. The players also gained severance pay for the first time, and increases in minimum salary, pension, pre-season pay, injury protection, and other monetary benefits. Improvements also came in the medical rights area, with players gaining the right to a second medical opinion, the right to select a surgeon for injury-related operations, and the right to inspect their club medical records.
In addition, the NFL agreed to an agent certification system whereby clubs would negotiate veteran contracts only with agents certified by the NFLPA. There was also an agreement that the NFLPA would receive copies of all player contracts so that relevant salary information could be made available to players and those certified agents.
In short, while the 1982 CBA did not change the NFL system in any significant respect, it instead increased the price the owners would have to pay to continue that system, and it assured that players would have accurate information when they attempted to negotiate their salaries within that system.
The Beginning of a Breakthrough
A simplistic account of the 1974 and 1982 bargaining efforts would say that the players fell short of their goals on both occasions. In 1974, they set out to achieve free agency, but the 1977 CBA restricted free agent movement almost as much as the old system. In 1982, they set out to achieve a defined percentage of the gross revenues and a "pay for performance" system, but the old system continued along with improved benefits.
A more enlightened view of those negotiations, however, was that the battle was never going to be won in the short term. The owners, who had their way for most of the league's history, were a powerful group that always stuck together in dealings with the players. Because they shared most of their revenues, they were unlike the Major League Baseball owners, whose internal conflicts made them less than a united front when dealing with the players union. The NFL owners could always outlast the players, since players had short careers and an inherent fear of making careers even shorter "by taking a stand."
These realities were proven again in 1987, when the NFLPA opened negotiations for a new CBA to succeed the 1982 agreement. A lot had happened in the interim. Ed Garvey left his job as Executive Director to enter politics. Gene Upshaw, who had served as NFLPA President during the 1982 strike, was a natural choice to succeed Garvey since he had experience as a player and union leader and also as a negotiator of the 1977 and 1982 agreements. The player reps unanimously elected Gene as Executive Director in June of 1983, and the organization changed significantly thereafter.
Gene's primary objective was simple—he wanted to have the players determine the goals of the organization. He worked closely with Jeff Van Note (NFLPA President 1983), Tom Condon (NFLPA President 1984-1986) and Marvin Powell (NFLPA President 1986-1988) to meet with and poll the players on their bargaining objectives in preparation for the expiration of the 1982 CBA in 1987. The results of a league-wide player survey taken in 1986 made clear that the players viewed free agency as their highest priority. This was not surprising, since only one player even got an offer from another club during the entire term of the 1982 CBA, despite the fact that over 500 players had become "free agents" under the system.
While benefits were improved in the 1982 CBA, players still had no choice as to where they would play since the system essentially prohibited free agent movement. At the same time, revenue disparities increased among the teams to the point where, unlike in 1982, an owner could increase his revenues through luxury box sales and other sources if he could assemble a winning team. In other words, free agency could work for players in 1987 if they could ever force owners to agree to it. That, however, would not be easy.
Strike: The Scab Season
Not surprisingly, the owners’ response when 1987 bargaining began was to reject the players' free agency demands. Since the USFL had gone out of business in 1986, management again had their monopoly intact, and there was no reason to abandon their "our way or no way" approach at the bargaining table without being forced to by the players. The players therefore voted in the spring of 1987 to authorize a strike, nevertheless hoping one could be avoided through compromise. But, instead of compromising, Jack Donlan, who was again the owners' spokesman, began planning for the use of replacement players in the event a strike was called. He was instructed to do so by the NFL Management Council Executive Committee ("CEC") headed by powerful Tampa Bay owner Hugh Culverhouse. Culverhouse believed that the league had been too soft on players in 1982, and fellow CEC members Tex Schramm (Dallas), Mike Brown (Cincinnati) and Bill Bidwell (Cardinals) agreed with him. Culverhouse also knew free agency would push veteran salaries up and force clubs to be more competitive. That, of course, would mean less profit for him and other owners.
Donlan appointed former Atlanta general manager and player Eddie LeBaron to head up the replacement player effort, and the "scab league" was born. When real players went on strike in mid-September of 1987, scab players recruited by LeBaron—consisting mainly of players already cut in the 1987 pre-season- filled rosters. Unfortunately, some veterans also crossed the picket line, saying they needed the money or did not believe in free agency.
Worse yet, the owners had a big financial stake with the TV networks in seeing to it that the games were televised, even it if meant using scab players. Unlike 1982, when the networks paid the owners in advance, the agreements between networks and the owners in 1987 were structured so that the only way the owners could receive TV revenue was to make sure games were played.
Even though only 15% of the real players crossed the picket line during the 1987 scab season, it became clear to the NFLPA leadership that collective bargaining could not work in dealing with the NFL monopoly. Any group that would put vastly inferior talent on the field and call it NFL football would obviously stop at nothing to defeat the players' free agency demands made under labor law.
Player reps therefore voted to end the strike, and they sent the players back to work on Thursday, October 15, 1987. The same day, however, the NFLPA filed an antitrust lawsuit against the NFL in federal court in Minnesota, challenging the owners' intent to continue the first refusal/ compensation system and other restrictions on players from the previous agreement.
Back to the Courts: Powell v. NFL
In obvious retaliation for filing suit, the CEC voted to deny the players' return to work for that weekend's games, choosing instead to use scab players for the third week in a row. Owners wanted striking veterans to lose yet another paycheck, so they kept them from playing even though the strike was over. The NFLPA quickly filed unfair labor practice charges with the NLRB, and the NLRB issued a complaint against the owners for their discrimination against striking players.
Once allowed back, the veteran players completed the 1987 season without a new agreement, and replacement players were let go. Internally, the owners declared victory, believing that the NFLPA would not have sufficient funds to sustain a legal fight. They even awarded bonuses to Eddie LeBaron and the Management Council staff for their efforts in putting the scab games together. Much animosity remained, however, between players who stayed on strike and teammates who crossed the picket line.
Meanwhile, the antitrust lawsuit—named Powell v. NFL after NFLPA President Marvin Powell—proceeded before Judge David Doty in Minnesota. Doty ruled in favor of the players in late January of 1988, saying that the 1987 bargaining impasse ended any exemption owners would have to continue their restrictive practices under the antitrust laws. The owner’s quickly appealed Doty's ruling, expressing confidence the Eighth Circuit Court of Appeals would overrule it.
As a precautionary measure, the owners nevertheless implemented what became known as "Plan B," which freed players at the bottom of the roster from the first refusal/compensation system. Under the Plan B system, which was first implemented in 1989, clubs could "restrict" 37 players and continue to subject them to the first refusal/compensation system. Players who were not restricted could sign with other clubs between February 1 and April 1 without restriction. Players continued to play in 1988 and 1989 without a new CBA, believing that any system that denied free agency to the top 37 players would fail under the antitrust laws. Fortunately for the players, the NFLPA was able to finance the legal effort by substantially increasing group licensing revenues, which grew from $2 million in 1988 to over $11 million by 1990. This was possible only because the vast majority of players signed Group Licensing Authorizations, granting exclusive rights to the NFLPA.
The owners were beginning to worry in 1989, since the players won before Judge Doty in 1988 and began accumulating enough licensing revenues to sustain the legal fight if an appeal was needed. Then, owners were given a reprieve on November 1, 1989, however, when the Eighth Circuit Court of Appeals reversed Judge Doty's previous ruling for the players. The Eighth Circuit ruled that, so long as a union represented players, they had no rights under antitrust laws to sue owners. The court said that players had to choose between being a union and using their right to strike under labor laws, or relinquishing their union rights and pursing their antitrust rights as individuals in court.
Owners proclaimed victory, believing the NFLPA leadership would never have the courage to give up the NFLPA's status as a union representing players. The owners were never more wrong. Two days later, the NFLPA Executive Committee voted on November 3, 1989 to abandon the NFLPA's status as a collective bargaining agent, and players ratified the move in team meetings that followed. Players understood that the union was originally formed to protect players, but the court decision meant that continuing as a union would only protect owners from trebled damages under antitrust laws. Player reps met in Dallas on December 5, 1989, and finalized the decision by officially ending the NFLPA's status as a union.
- The 1990's - Growth of the Union
McNeil Case Filed
In its place, they re-formed the NFLPA as a professional association, dedicated to protecting the individual contracting rights of NFL players. The primary goal of the new organization was to pursue litigation on behalf of individual players; the new NFLPA Bylaws specifically prohibited any collective bargaining efforts.
In the spring 1990, a new lawsuit was filed on behalf of eight players whose contracts expired after the 1989 season. The lead plaintiff was Freeman McNeil of the Jets and he was joined by Don Majkowski of the Packers, Tim McDonald from the Cardinals, Niko Noga of the Lions, Mark Collins and Lee Rouson of the Giants, Dave Richards from the Chargers, and Frank Minnifield of the Browns. The lawsuit claimed that Plan B rules restricting free agents violated the antitrust laws, and that the players had a right to sue since there was no longer a union representing NFL players.
The NFLPA paid for the McNeil case, along with several other cases challenging illegal practices of the NFL. Owners, who thought they were protected by the cloak of the labor laws, argued they still should be, even though the NFLPA dropped its union status. They argued the NFLPA was just a "union in hiding," and that it just dropped its official union status to get around the Powell appellate court ruling.
Licensing Wars Begin
Meanwhile, the owners adopted another strategy that would severely threaten the NFLPA's ability to finance any court battles. Realizing that NFLPA-financed litigation could continue only if the players continued to sign NFLPA Group Licensing Authorizations and support the group licensing program, they waged an all-out effort to have their licensing arm—NFL Properties—steal players away from the NFLPA's group licensing program.
The league offered money to individual players to abandon the NFLPA and appoint NFL Properties their exclusive licensing agent. From 1990-92, NFL Properties spent in excess of $30 million in direct payments to players for group licensing rights, obviously hoping to steal enough players so that the NFLPA would not have a sufficient number of recognizable players to attract licensees. These payments were nothing more than outright bribes, since NFL Properties had no real hope of generating enough group licensing revenues to offset the payments.
Defections to NFL Properties began with a group of quarterbacks, known as the Quarterback Club, who were guaranteed $500,000 each to divert their rights to the NFL. The original group included Jim Kelly, Warren Moon, Dan Marino, Phil Simms, John Elway, Bubby Brister, Boomer Esiason, Troy Aikman, Jim Everett, and Randall Cunningham. After signing the Quarterback Club, NFL Properties signed several more superstars to six-figure deals, including Michael Irvin, Sean Jones, Steve Emtman and Ronnie Lott. Properties told players that they need not honor their GLAs since the NFLPA had abandoned its union status and no longer provided collective bargaining services. By 1992, NFL Properties was offering a minimum of $10,000 to any player who would sign up, and over 700 players did so. This trend posed a serious problem, since continued licensing income was necessary to fund the McNeil and other cases.
More Wins in Court
The legal tide turned in the players favor after the NFLPA abandoned its union status. In March 1990, an NLRB judge ruled that the owners violated labor laws when they refused to allow strikers to return for the third scab game back in 1987. This backpay award totaled about $19 million for 1,400 players affected. As usual, however, owners refused to accept defeat and appealed the case to the full NLRB in Washington.
Meanwhile, the players achieved another significant victory in the McNeil case in Minnesota, when Judge Doty ruled in spring 1991 that the NFLPA's change in status meant that the owners were no longer exempt from antitrust laws. This meant that league lawyers would have to defend the Plan B restrictions in a full-blown trial before a jury.
That trial began in June of 1992. Players finally got their day in court, even though it took almost five years to get there.
The McNeil trial was not easy. For each of the eight plaintiffs, NFL lawyers put up charts before the jury to show how many hundreds of thousands of dollars they had received in salary and bonuses over their careers. They called witness after witness—including Chuck Noll of the Steelers, George Young from the Giants and Commissioner Paul Tagliabue—to say that the first refusal/compensation system was necessary to preserve competitive balance and fan interest. The NFL spent millions on lawyers' fees and expert witnesses, and made it known that, even if they lost, they would appeal all the way to the U.S. Supreme Court.
Jury Finds for Players
After 50 days of trial, the McNeil case finally went to the jury on September 9, 1992. After two days of deliberations, the jury announced its verdict. They found that the Plan B system violated antitrust law because it was more restrictive than it had to be to achieve competitive balance. On damages, however, the jury ruled for only four of the eight plaintiffs, awarding a total of $543,000 for Dave Richards, Lee Rouson, Frank Minnifield, and Mark Collins. Most importantly, though, the legal issue had been won, and the players finally were able to strike down the Plan B system.
Within seven days of the McNeil verdict, NFLPA lawyers filed another case for Keith Jackson of the Eagles, who had been "protected" under Plan B in early 1992 but was still unsigned when the verdict was announced. Joe Phillips of the Chargers, Garin Veris from New England, Webster Slaughter of the Browns joined Keith and several other players still unsigned at that time. In late September, Judge Doty granted the players' motion for an injunction against Plan B, making these players unrestricted free agents, free to sign with any club in the league.
The McNeil and Jackson cases represented a real turning point in the players' relationship with the league. Finally, after going through a month-long strike, a loss in the Powell case, and five years without a CBA, the layers could no longer be subjected to the Plan B system. At least, that is, until and unless the owners could get the McNeil verdict reversed by an appellate court.
Settlement Talks Begin
The McNeil and Jackson victories, along with a $30 million verdict for the players in the 1989 developmental squad case (Brown v. NFL), made many NFL owners think it was time to reach a settlement with the players in. They worried about having to pay treble damages to players, especially after a class action antitrust case was filed in the name of Reggie White of the Eagles (White v. NFL) in October 1992.
Other owners, particularly Norman Braman of the Eagles who headed the NFL Properties committee, wanted to duke it out in court. That faction believed that the Eighth Circuit Court of Appeals would reverse Judge Doty and the jury in McNeil just as they did in the Powell case in 1989. They also believed that the NFLPA would run out of money, since more than 700 players eventually would take bribe money from NFL Properties and leave the NFLPA's group licensing program with fewer stars to attract licensees.
NFL lawyers advised owners that the players' victories in McNeil and Jackson meant only that Plan B could not continue. It did not mean that another system could not be put in its place in 1993 that could still restrict the players. For example, the owners could have implemented a "Plan C" which would subject only 30 players per team (rather than 37) to first/refusal compensation, and give all players free agency after 10 years in the league. The players would never accept such a system, but it would be different enough from Plan B that another McNeil type case would have to be filed and tried before a jury before it was found illegal. That would take years, and there would be a real question whether the NFLPA could survive long enough to finish the battle.
In short by late 1992, there was leverage on both sides. Players had managed to enjoin Plan B and were proceeding to claim treble damages for all players who had been damaged by that system. But the owners were appealing the McNeil decision and would have no liability if it were reversed. Even if McNeil was upheld, the fact that only four of the eight plaintiffs in McNeil were awarded damages meant that class action damages for all players would be tough to prove in the White case. Meanwhile, a "Plan C" could be unilaterally implemented which would still restrict free agents in 1993 and beyond.
Settlement talks therefore began in earnest in November 1992. Lawyers from both sides, along with Gene Upshaw from the NFLPA and Commissioner Tagliabue, met on dozens of occasions trying to find middle ground for settlement of the court cases. The players wanted meaningful free agency and fair damages for the plaintiffs. The league wanted a salary cap which would keep free agency from financially threatening teams in smaller markets. The players opposed a cap, saying it would unduly restrict the market.
The settlement eventually came, but only after both sides compromised. Owners agreed to free agency, but only if there was a salary cap. Players agreed to the cap, but only if player costs first exceeded 67% of league revenues. Even then, the cap would have to be high—64% of revenues—and the clubs would have to guarantee that at least 58% of revenues would be spent on players. (Historically, up until then, the players' share of revenues had averaged less than 50%). And most importantly, the owners would have to agree that there would be no cap in the last year of the deal—1999. In addition, $195 million in damages would have to be paid to settle the various court actions, including the White v. NFL class action.
A settlement was finally reached in January 1993, and submitted to Judge Doty for approval. He approved it preliminarily on February 26, 1993, and issued his final approval on August 20, 1993 after several hearings and written submissions to the Court.
A Union Again
With antitrust issues resolved through the litigation settlement, there was no longer a concern about a players' union giving the owners an exemption to the antitrust laws under the Powell case. Accordingly, the NFLPA Executive Committee (and later the Board of Representatives) voted in January of 1993 to obtain authorization from the players to again certify as a union. After a majority of players at team meetings throughout the league signed cards authorizing the action, the NLRB confirmed the NFLPA's majority status in March 1993 and it became a certified union. The purpose, of course, was to collectively bargain for new and improved benefits, grievance procedures and working conditions.
Meeting almost daily from March 31 to May 6, 1993, NFLPA negotiators eventually reached agreement on a new CBA with Commissioner Tagliabue and Harold Henderson, Executive Director of the NFL Management Council. The new Collective Bargaining Agreement was the product of hard, intensive bargaining. It had been almost twelve years since the various bargaining issues had been discussed in any detail, and it was not easy to resolve the many differences between the parties. But the CBA was tentatively agreed to on May 6, and submitted to the players for a ratification vote at team mini-camps that month.
NFLPA staff members met with 26 of the 28 teams (all but Philadelphia and Green Bay, which did not have mini-camps but were sent ratification ballots by mail), and conducted a written ballot on the proposed CBA at each meeting. The final ballot count was 952 in favor of the CBA and only 34 against, showing very strong support for the union's efforts.
The 1993 settlement gained for the players two things they had fought for but lost in previous bargaining efforts: free agency, and a guaranteed percentage of the gross revenues. Players had struck for free agency in 1974, but fell well short of the goal. Players struck for a percentage of gross in 1982, but the system remained the same. Achieving both in 1993 was therefore a significant accomplishment.
Not everyone who went on strike in 1987 and supported the NFLPA thereafter benefited directly from the new free agency system, since many of those players' careers ended before it was implemented. Unfortunately, the history of professional athletes' struggles to change the system in their favor has always been a matter of current players sacrificing for the benefit of those who would play after them.
But the 1993 settlement did achieve considerable benefits for players whose careers had ended during the battle. For example, all players' pensions, whether active or retired, were retroactively increased by 40% as a result of the settlement. Those who played prior to 1959 achieved their first pension. Also, players who played in 1989 and thereafter have collectively received $110 million in damages from the White settlement. And, backpay checks from 1987, plus 60% interest, were sent to 1987 strikers in November 1994 as a result of the 1993 settlement. Thus, the NFLPA had again met its commitment to all players, "past, present and future."
In February 1998, the 1993 Collective Bargaining Agreement was extended through at least 2003. The extension gave players a new annuity plan, salary guarantees for five-year plus players, significantly increased minimum salaries and numerous other benefits.
Why Was There A Settlement?
So why did the players' lawyers decide to settle the antitrust cases in 1993? Why did the NFLPA leadership decide to organize a union and agree to a new system in the 1993 CBA?
Quite simply, the decision to settle was based on choosing between two clear alternatives. One was to continue in court by urging Judge Doty to grant an injunction to stop the owners from continuing to restrict free agent players after their contracts expired. The other was to negotiate a compromise which would give reasonable free agency and a generous percentage of revenues to the players, in return for a mechanism to keep escalating salaries from jeopardizing teams in smaller markets.
The first alternative—pursuing the court battles—could succeed only if players, including superstars, would support NFLPA group licensing to keep revenues flowing in. Even then, the lawyers felt it was unlikely that Judge Doty would enjoin the owners from restricting all players at the end of their contracts in the future. Instead, he would more likely allow the owners to implement a "Plan C" which could still restrict a significant number of players. Moreover, the Eighth Circuit Court of Appeals—the same court that reversed Judge Doty in the Powell case in 1989, could reverse whatever Judge Doty did.
Lawyers were nevertheless prepared to aggressively pursue this court fight, and NFLPA leaders were, too. The problem was having the continued resources to do it. By January 1993, more than 700 veterans, led by several all-pros, had taken the owners' bribes from NFL Properties, often at the urging of their agents. To make matters worse, drafted players were accepting NFL Properties' bribes even before they reported to their first training camp, making them ineligible for the NFLPA group licensing program. This battle of attrition had itself become a legal fight, with the NFLPA pursuing litigation against NFL Properties for intruding on its licensing program. It was even necessary for the NFLPA to sue individual players who had renounced their NFLPA Group Licensing Authorizations after signing with NFL Properties.
The ultimate decision to settle was, therefore, much like a player deciding on his individual contract. Does he take a multi-year deal with a big signing bonus and guaranteed money? Or does he take a one-year deal at less and bear the risk of a career-ending injury? In the 1993 settlement, the players got a multi-year deal with guarantees of 58% of the revenues and an "up-front" bonus of $195 million in litigation damages. And, more importantly, they got free agency for the first time in history.
It was not the perfect deal, but no deal ever is. At the very least, however, it put the players in a far better position than ever before. And that position will improve even more before the deal is over, since the last year of the 1998 Extension Agreement has no cap and provides for free agency after six years in the league.