The High Cost of Free Agency
It's a must-win situation for NFL players. Freeman McNeil v. National Football League, which is scheduled to go to trial in U.S. district court in Minneapolis on Monday, marks the third time the players have sued the league to obtain unfettered free agency. But never before have the players sacrificed so much to get to this point.
With the owners unwilling to give in to the players' demand for unrestricted free agency, there has been no collective bargaining agreement for almost five years. Without a contract the players could do nothing when management froze pension benefits, eliminated severance pay, added a week to the regular season and a round to the playoffs, implemented random drug testing, introduced a restricted free-agency system (Plan B) and raised the health insurance deductible from $200 to $1,400.
The players now want Plan B—in which a team protects 37 players after each season and sets the rest of its roster free—ruled illegal. They also want to collect damages for each of the protected players since 1990. The players hope that the owners will then be forced to negotiate a new contract that would include unrestricted free agency. Gene Upshaw, executive director of the NFLPA, says, "If we don't get free agency now, we're never going to get it."
There is a chance, albeit a slim one, of a pretrial settlement. When negotiations stalled last Thursday, the two sides were two years apart on a plan to allow unrestricted free agency (the owners said a player would have to play six years in the league before testing the open market; the players wanted four), millions of dollars apart on a possible salary cap and worlds apart on a wage scale for players in their first three years (the players want no part of such a scale). The likely scenario is that settlement talks will start again after a few weeks of court testimony, perhaps when the judge, David Doty, takes a two-week break in July to attend two conferences.
Paul Tagliabue, the NFL's principal attorney before he succeeded Pete Rozelle as commissioner in November 1989, has been positioning the owners for a settlement for two years. He removed several hardliners from the Management Council Executive Committee, the negotiating arm of the owners, and replaced them with such progressives as Denver Bronco owner Pat Bowlen and Buffalo Bills general manager Bill Polian. Tagliabue has also spent a lot of time on the phone with Jim Quinn, the players' chief negotiator and trial attorney, in talks that Tagliabue has described as "very serious."
So it's on to the courtroom, where the owners have lost several decisions but little ground. Former NFL player John Mackey won a historic antitrust judgment in 1972 and another former player, Marvin Powell, won significant rulings in '87. Another player, Yazoo Smith, got the NFL draft ruled illegal in '75. Even the USFL got a court to rule in '86 that the NFL was a monopoly. But the gains made in the Mackey and the Smith rulings were abandoned by the players during collective bargaining, and the USFL collected a whopping $3 in damages. The Powell decision was reversed by the eighth circuit court of appeals in November 1989—in the last case Tagliabue litigated for the NFL—when the court bought Tagliabue's argument that an individual could not sue for antitrust violations on a contract that had been bargained collectively.
After the Powell ruling, the NFLPA decertified as a union. Eight players, including New York Jet running back Freeman McNeil, filed suits against the NFL, claiming that Plan B, which was created after the Powell decision by Tagliabue to satisfy antitrust law, was, in fact, a violation of that law.
Assuming there is no settlement, the trial could go into September, and appeals could last another two to five years. "The public sees it as a battle of rich owners against rich players," says Bowlen. "You'd think we'd be smart enough to be able to sit down at a table and work it out."
Blast from the Past