NFL Executive Vice President Jeff Pash at NFL Spring Meeting
May 24, 2011
We've just finished our first day of the meetings. I know you heard earlier in the day from Rich McKay and others about competition committee activity and some rules that were passed on player safety. We also spent a fair amount of time on labor and collective bargaining issues. We gave the clubs a very thorough update on not only where the court cases stand, but of greater interest to the clubs, the whole mediation process and where we are in negotiations, where we ended up last week when we finished in Minneapolis, and what we're looking ahead to when we're back in Minneapolis with Chief Magistrate Judge Boylan and the representatives of the players on June 7-8. That was really a significant part of the discussion and one that was of great interest to the owners. I'll stop there and take questions.
On the league's estimate that $1 billion could be lost if the work stoppage lasts until September:
The concern obviously is that as the uncertainty continues, and in the absence of an agreement, that there will be revenue losses. Those losses certainly accelerate when you get to the point of missing games. If the preseason games are lost, you'll lose gate, you'll lose television, you'll lose sponsorship, and advertising revenue. It would have an effect. We have estimated and have given these figures to the players association quite some time ago that it could be as much as $1 billion in lost revenue if there's not an agreement prior to September.
On NBPA filing claim against owners:
I think it's quite interesting, I haven't had a chance to look at the charge. By all accounts that's a fairly potentially contentious negotiation where the clubs are apparently seeking significant achievements in their bargaining agreement. The union there is sticking with traditional labor law remedies and labor law rights, and they are apparently dealing with it as a collective bargaining matter as a labor matter, rather than following the path of our players association and not doing so, preferring antitrust and litigation remedies. I just think the difference in approach is interesting. I haven't had a chance to read the complaint or charge, so I don't know the specifics of what's being alleged and I certainly have no knowledge of the negotiations that would allow me to have a view on the merits one way or another. It's sort of an interesting approach the two players associations have taken.
On the contingency plan:
We have not had any discussion of contingency plans like that here. Our contingency plan is to negotiate an agreement with the players association so that any plan for opening training camp, signing players is done based on collectively bargained and agreed upon procedures. We're not looking to have any outcome other than that. All of the discussions, as I mentioned earlier, have really been focused on bargaining and negotiations and consensual resolutions, that's what we need to be doing. That was our focus today.
On the mediation process being artificial due to litigation:
I think what I said was that the setting is artificial because it's in the context of litigation. What we need to have is a comprehensive agreement that covers the full scope of all the issues that have to be resolved between players and teams as part of an ongoing agreed upon set of rules. It doesn't do anyone any good to be resolving some specific claims that are brought in the context of an antitrust suit, but on the other hand have people attacking the Draft and trying to overturn the Draft next year, have people challenging other elements of the free-agency rules in some other proceeding. We hear talk about individual cases being brought and things like that. I think what we need to do, both for atmospheric purposes and for substantive reasons, is to get away from the courtroom setting and not have our focus be on ‘what's the next court date' and ‘who's taking this appeal from what ruling' and ‘who's filing what motion to accomplish that result' and instead get the people who can make decisions and make agreements into a conference room together and have the kinds of candid discussions that need to be had and that can result in an agreement and in some compromise to get the game back on the field as quickly as possible. That's what I'm talking about as something as being in an artificial setting That's what I mean because it's an extension of litigation. It's not in the form of negotiation and collective bargaining and reaching a comprehensive settlement which what I think we have to have.
On decertification being an impediment:
I've always believed and I still believe that when we reach a resolution we will reach a resolution that involves a thorough, comprehensive labor agreement. That's the only way we can really resolve the issues, not just today but going forward. It's worked in the past. I think everyone would agree that the game is better than it was 10 or 15 years ago, it's continued to improve. There has been continued innovation, there's been continued expansion, new teams , more jobs, new markets, new television, more things for fans in the stadiums, more things for fans who watch at home. So there's a whole world of opportunities out there for people who share it. All we have to do is put some of the harshness that litigation process brings with it behind us. Just check it at the door and recognize that we have a tremendous opportunity to build something together. If there is that kind of a shared commitment and shared recognition, what is available for players, for fans, for clubs, for retired players, I don't think there's any limit to what we can accomplish. But we've got to stop thinking of it as a binary equation - one side wins one side loses. That's not the way to look at it. We have to be figure out how everybody advances, how everybody wins, how everybody is better off. I really believe we can do that.
On whether the league can negotiate the fine points with the NFLPA given that they've decertified:
I think you just have to decide what kind of an agreement you're going to reach, and then you can call the discussions whatever you want to call them. At the end of the discussions when the agreement is put in place, everyone understands what it is. It happened before, and it can happen again. I don't personally believe that the NFL Players Association has vanished from the face of the earth or that it's not continuing to do much of what a labor organization would do, but that's not the point. We've made it clear we'd give them whatever kinds of protections they think they need. But again, it goes to the point of how litigation tends to freeze people. It tends to divert your focus away from compromise, away from settlement, into hard and fast ‘we win, they lose' types of positions. That's what we need to get away from.
On the mediation in Minneapolis on June 7 and whether he thinks a comprehensive agreement could come out of that process:
I think you can't ever refuse to take advantage of an opportunity to meet and talk. So when we go back to Minneapolis on the 7th and 8th of June, our goal will be to have the kinds of discussions that can lead to a comprehensive solution. We'll work with the players, we'll work with the mediator, the Judge, who I think is very committed to trying to do whatever he can to help the parties. Even if you don't reach an agreement in that session, any session you've had can lay the groundwork for future discussions or related discussions that can help you to get there. I don't think any time together is wasted. It can be frustrating. It can sometimes be less productive, but it's not wasted. So we will take full advantage of the opportunity when we're next in Minnesota.
On if revenue loss will be reflected in proposals:
We are cognizant of what is happening on the revenue side. It's why I've said, and many others have said, this doesn't get easier with time. This doesn't get better with time. It gets more challenging. It goes to the question that was asked earlier. I think any labor settlement is going to have to reflect what the economics are and what the economics can reasonably project to be. For everyone's benefit, the benefit of the players, the benefit of the clubs, we should have a shared incentive to get this accomplished sooner rather than later. It's not as though it will get easier or less challenging as time goes on.
On if what was on the table on March 11 is back on the table when negotiations resume:
One of the things that the magistrate has asked is that we not get in to those kinds of discussions. He's been very clear with us about maintaining the confidentiality of proposals and not debating publicly. Out of respect to him and to the process that he and Judge Nelson have created for us we ought to stick with that direction.
On the NFLPA still acting as a union:
What I said was I don't think they have gone away in the sense of not performing many of the functions that they performed before. I believe that among those functions could be a constructive role in reaching a comprehensive settlement.
On needing the players to be a part of a union in order to agree to a CBA:
To have a collective bargaining agreement, you need to have a labor organization of some form or another. Bob Batterman could give all the chapter and verse. There has to be a labor organization.
On the NFLPA needing to ‘reappear' in order to agree to a CBA:
If you think they have gone away, then they have to reappear. If you think they are still around, then they have to appear.
On how the retired players' involvement impacts negotiations:
The retired players group, particularly Mr. (Carl) Eller, has been constructive. He has made a number of comments concerning how he and presumably other retired players perceive the appropriate, desired relationship between retired players and the clubs and the league as a whole in ways that I thought have been very constructive and have really resonated with owners. A couple of the members of our committee are former players so that has been a very positive dialogue. We know and have been consistent that a key part of an ongoing agreement is going to be making improvements for the betterment of retired players. It was part of our proposal on March 11. It had been part of proposals we had made for some time prior to that in terms of improved pensions, improved medical benefits and improved disability benefits and adding other programs for the benefits of other retired players. We welcome that discussion. It is something that our owners care passionately about and that they want to have as part of a new agreement. We welcome Mr. Eller and his comments and the opportunity to discuss those issues and have them be a part of an overall settlement.
On fixed costs and parts of the disagreement being binary in nature:
I do not agree that is a binary element that has been out there. There are a lot of ways to bridge those gaps. You could have a percentage basis. You could have a fixed level with some sort of a base, what has come to be called ‘true up' to reflect revenue increases on some basis. There are some who have suggested that you take the share of revenues that players were receiving up to a certain point and then you modify, reduce the share of the next set of revenues. I have heard that suggestion as well. So there are a lot of ways that this could be done. It is really just a question of who is going to do it - by which I mean we should do that together. Those are decisions, issues and discussions best had between the clubs and the players rather than submitting them for courts, judges, juries, appeals and things like that. I think we can decide them quite capably.
On if those issues are part of mediation process:
They can be part of the mediation process. But unfortunately, they are also part of the litigation where the issue is not, as I understand the claims being asserted, ‘should it be a fixed number, or a percentage, or some combination of the two;' it is ‘should there be any salary cap at all?' The salary cap, according to the litigation, is illegal and should not be permitted. It is a difficult position. That is a very binary position. If you start from the premise that the salary cap has been good for the game, it has been good for players, it has been good for fans, it has contributed to competitive balance, it has allowed early free agency, it has helped fuel growth in player salaries and benefits, it has allowed weaker teams to boost themselves up, and it has a lot to contribute to competitive balance and the attractiveness and the quality of the game. If you start from that premise, then it seems to me you can have a very constructive discussion about how the cap can be calculated, what revenues go into it, what revenues are shared, whether you treat higher-margin revenues and lower-margin revenues differently, whether you start with a fixed guarantee and have some floating above that - there are a lot of things you can get into at that point. But if we are in a true binary equation - the salary cap is illegal and cannot continue - that is a more difficult discussion to have.
On if that is part of the NFLPA effort to get leverage:
There is no question the litigation is part of an effort to get leverage. What kind of cap the players would agree to I am not sure I would know. In any case, that is the kind of discussion we need to be having in a negotiated context, perhaps in the context of the mediation in Minnesota or perhaps in some other context. But that is clearly a conversation that is best had between the players and the clubs, and one that I would think if it were had with the right atmosphere and the right commitment to compromise and to reaching a solution, it could be a very constructive discussion - one that could work out for everyone.
On the status of the negotiations in the event the Eighth Circuit rules in favor of the NFL:
I start from the premise that whoever prevails, it doesn't resolve anything. The only way to resolve this is through negation. We have been very consistent about that. The best thing that we can do is be out of court and into a serious, sustained, faithful negotiation process.
If the Eighth Circuit rules in our favor on the appeal from the preliminary injunction, it is simply one piece of the litigation. I am sure other aspects of it will go forward. As I say, I think litigation tends to freeze people and it tends to make it harder to compromise. While I would prefer to have the court rule our way than not rule our way, it will not solve things.
What will solve things is a genuine commitment to reaching a negotiated solution. That is what we need. That is what I really believe we can have. We can have an agreement that will work well. We have shown that in the past. The problem is that when the parties are in court, they tend to get polarized. It is hard to show flexibility, on the one hand, because there is a concern that it will weaken your legal position in some way. We just need to get out of that environment and into an environment where we are looking to compromise, we are looking to share and we are looking to build together. If we do that, I really do think we will be fine. I really do.
On the Eighth Circuit ruling prompting serious negotiations:
It may well. All I am saying is that it shouldn't take a court ruling to prompt serious negotiations. If the Eighth Circuit said, ‘We have a calendar issue and we are not going to hear this until January,' I would say there is as much reason to be negotiating as if they said, ‘We are going to hear it on June 3' or ‘We are going to hear it tomorrow.' We have a business that can continue to be something that we can all be proud of. When I say all of us, I mean players, retired players, coaches, owners and fans. It is a great thing. No one wants to be shut down. No one's preferred course of action is to be locked out and not be playing football. There is plenty of incentive for both sides to get to the bargaining table and get into a conference room and really work through these issues. There is a fair and balanced and positive agreement to be made. I really believe that. If I didn't believe it, I would be quite discouraged but I am not. I really believe there is an agreement to be made here that will work for everybody.
On the players losing their legal position if they continue CBA negotiations:
There are plenty of ways to give the players the kind of legal protections that they need. We have said that we are willing to do it. We can make the kinds of commitments to them that would allow honest and constructive discussions without anyone sacrificing their legal position. We don't need to spend the time arguing about the shape of the table. We can work that out.
On why it is better to do it the collective bargaining method versus court supervision:
I don't believe that the court supervision has contributed in any way to the labor peace that we've had from 1993 through 2010. What contributed to it was recognition by both sides that negotiations and collective bargaining, which is what went on for all that time, was in their interests. And that they were able to build something great together. They were able to work through their issues in an honest and candid way that involved compromise. The owners certainly didn't get everything they wanted through that time. And the players didn't get everything they wanted through that time. But together they recognized that what unified them was much stronger than what divided them. And that had nothing to do with the court. That had to do with recognition of where people's mutual interests lay, that they had a shared responsibility to one hundred million Americans who follow the National Football League and care about it passionately. That's what gets agreements done, not complaints and lawsuits. Agreements get done when people have shared interests.
On 1982 and 1987:
You are sort of asking me to go back to a time when I wasn't nearly as involved but I think it did exist. But it's like any relationship, sometimes it has its rocky points and so you had a strike in 1982 and then a strike in 1987, but both times the parties resolved those disputes and got the game back on the field and that can happen again. No court intervened in 1982 to get the game back on the field. No court intervened in 1987 to get the game back on the field. The players and the clubs got the game back on the field.