Upshaw Trying to Out-Fox Owners : League Counters by Saying Union Can’t Stage Games

Preliminary negotiations are under way between the National Football League Players Assn. and the Fox Broadcasting Co. to televise games involving union players during their strike.

Though in their infant stages, the talks represent the latest challenge to team owners and already have produced an assortment of intriguing questions, including:

--Would the telecasts violate individual contracts between NFL teams and their union players?

--Was NFLPA Executive Director Gene Upshaw’s proclamation to reporters Monday--”Fox has given us a blank check to put on our own games.”--fact, fiction or simply wishful thinking?

--Is the possibility of union games a viable alternative or nothing more than a negotiating tool to force NFL Management Council director Jack Donlan back to the bargaining table?

--Is everyone getting worked up about nothing?

The owners’ executive committee, which met in New York Tuesday, answered an emphatic ‘yes’ to that last question.

According to league attorneys, the striking union players, except for a small number of rookies, each signed a personal-services contract that includes an “other activities clause.” The clause, said Richard Appel, a Washington-based labor counselor for the NFL owners, binds the players to their specific team. To play for anyone else, he said, would constitute a breach of contract.

“That provision says, in effect, that during the life of the contract the player is prohibited from playing in other activities, including football games,” Appel said. “The league position is that the provision is binding.”

And this from a high-ranking NFL official: “I don’t think there’s any way they’ll be able to (play).”

So why, then, did Upshaw spend part of his day suggesting otherwise, indicating that an agreement between the players and Fox was possible? Partly because Dick Berthelsen, the NFLPA legal counsel, thinks Appel’s stance may be wrong.

“We feel the (players’) right to strike supersedes that provision,” Berthelsen said. “Like in any other industry, people have the right to seek alternative employment on a temporary basis while they’re on strike, especially when the employer gains an unfair advantage by replacing them during the strike.”

Sure enough, it was the NFLPA that approached the Fox network last week, in search of alternatives. But contrary to Upshaw’s earlier remarks, no blank check has been issued. Not only do the legal questions remain unresolved, but a Fox spokesman said the negotiations were at a standstill.

“At this point, there isn’t anything substantive to talk about at this point,” said Brad Turell, Fox vice president in charge of publicity. “Definitely no agreement has been signed.”

In 1982, striking union players arranged television coverage for so-called “all-star games.” The games were permissible apparently because of the owners’ decision to lock out the players.

Back then, said Ram guard Dennis Harrah, players earned $1,000-$2,000 for each game. “It was something that got the players over some rough spots with cash,” he said.

And this time?

“If (the NFLPA) got some big-money backers for these games, who knows?” he said. “This strike is so different than the one before. I’d play (in a union game) just to give my support.”

But there are other considerations. For instance, who would be responsible if a player were injured during a game not sanctioned by the NFL?

Harrah said he has devised a plan.

“There’s no way I’d get hurt, because I’d wear $2,500 worth of tape,” he said. And then, in a more serious tone: “It’s a total risk. If you can get an insurance policy to cover you for a game like that, buy it.”

After last week’s failed talks between the owners and union in Philadelphia, the NFLPA may be looking for an option that not only will counteract this week’s games involving non-union players, but also will pressure management to resume negotiations.

The union’s intent is unclear: Does it want to give its striking members a chance to earn money? Or provide the viewing public with an alternative?

For the moment, the NFLPA must decide if the experiment is worth risking a lawsuit by league owners. Next, it must get a contract from Fox, or any other network willing to televise the games.

Can a contract be arranged?

Said Berthelsen: “Like our negotiations with the owners, you never know when.”

Times staff writer Chris Dufresne contributed to this story.