On The Outside Looking In

The NFL players association got hammered in its 24-day strike, but that defeat could contain the seeds of eventual victory in the only arena in which the NFL ever seems to lose—the courts. On Thursday, the day the players ended their walkout, only to be told that they would not be eligible for last weekend's games because they had not reported in by the owners' 1 p.m. Wednesday deadline, the union filed an antitrust suit against the league that challenges, among other things, the college draft and restraints on free agency for veterans. The NFLPA also filed charges of bad-faith bargaining with the National Labor Relations Board. A decision in the players' favor would give their antitrust suit more bite.

A key issue in any labor-management dispute is whether the sides bargained in good faith. If players and owners don't resume negotiations and then come to terms, and the NLRB and antitrust actions proceed, management may well regret some things it said and did before and during the strike—because in court it could lose a lot more than it ever would at the bargaining table. Both the NLRB and the courts could be impressed by the union's charges that the owners started assembling replacement, or scab, teams before the strike was declared, that management threatened players to get them to cross picket lines and that management refused to budge on the major issue, free agency. Remarks from the owners' side that were perhaps throwaway lines in the heat of battle might be viewed in a different light by the NLRB or a court.

"I was struck by the arrogance of some of those statements," says John Weistart, a Duke law professor who is coauthor of The Law of Sports. "Some of them were shocking. Management was surprisingly intransigent in its position on free agency, more so than in past contract talks. Their position was harsh in light of the fact that the increase in free agency hasn't led to the demise of baseball and basketball. It was tough economic posturing, a flat refusal to bargain, which is the definition of bad-faith bargaining. There was no evidence of give-and-take.

"Some of management's other practices were highly unusual, too, like getting an agreement on the length of contract—three years—and then at the last minute going back on it and trying to put in six years. It seems that every time management had a chance to stick it to the union, it did. Of course, we don't know all the facts in this. We don't know what sheaves of evidence will come out when management is called on the carpet before the NLRB."

The Mackey decision of 1976, a major victory for the players in the same U.S. district court in Minneapolis in which the NFLPA filed last week's antitrust suit, struck down the Rozelle Rule, which had given the commissioner the authority to determine what compensation a team signing a free agent owed the team for which the player had previously played. While the Eighth Circuit Court of Appeals affirmed that district court decision, it tempered the players' victory by holding that player compensation was not illegal as long as it was the product of good-faith bargaining.

The players say they have evidence this year that management has done everything but bargain in good faith. "We started the bargaining process on April 20 [more than four months before the collective-bargaining agreement expired on Aug. 31]," says Gene Upshaw, executive director of the Players Association, "and on April 23 the owners sent out a memo about getting a scab season ready. I have a copy of that memo."

In accusing management of preferring union busting to good-faith negotiations, Upshaw also cites the changing of the first roster-cut date, which each season triggers the collection of mandatory union dues and initiation fees through automatic payroll deductions. The first cut traditionally had followed right after the second preseason game. This year it came after the third round of exhibitions—or one day after the old contract expired. Without a contract, union dues are no longer mandatory, and management is no longer obliged to deduct them from paychecks.

According to the NFLPA, management also told players that their finances would suffer if they didn't cross the picket lines. In Dallas a number of Cowboys, including Tony Dorsett, Too Tall Jones, Doug Cosbie and Everson Walls, received letters from club president Tex Schramm advising them that they could forfeit annuity clauses in their contracts if they didn't report for work. Dorsett and Jones complied; Walls and Cosbie, Dallas's player rep, did not. "I won't go in," Cosbie said. "I've kissed that money goodbye."

"That's a highly questionable practice," says Weistart. "You can't use private contracts to burden a man's right to strike. The right to strike is protected by law, and it's a very dear law."

The players maintain that during negotiations they proposed at least half a dozen compromises to their original demand of unlimited free agency. One proposal that was discussed but never formally reached the table was the so-called West Coast Plan. Under it a player would be bound by the present system for seven years. In years eight through 10 an owner could match any other team's offer and keep the player. After 10 years, provided his contract was up, a player would be free. The plan, which would affect few players in a league in which the average career is 3.2 years, received a chilly reception from the owners, some observers believe, because it was reportedly suggested by the Raiders' Al Davis, who is still a pariah in many management circles.