A TWO-SIDED QUESTION : Courts Will Have to Decide If/When 526 NFL Players Become Free Agents

As the wheels of justice grind slowly, 526 National Football League players remain in limbo, waiting for the courts to give new meaning to the words free agent .

Their contracts expired Feb. 1, but that doesn’t mean a third of the league’s talent suddenly was turned loose to seek offers from the highest bidders.

That is only their union’s dream.

After last season’s 24-day strike collapsed, having settled nothing, the NFL Players Assn. went to court, seeking an injunction to lift the league’s exemption from federal law that prohibits such restrictions on player movement as the league imposes--an exemption the players agreed to in negotiations in 1977 and ’82 in exchange for other considerations.

Although the collective bargaining agreement expired last Aug. 31, according to labor law, the terms remain in effect until the two sides reach an impasse in new collective bargaining.

Meanwhile, player movement is subject to the old compensation and right-of-first-refusal guidelines agreed upon in 1982.

The union claims that an impasse has been reached.

“We have been at impasse for some time,” said Doug Allen, assistant executive director of the NFLPA under Gene Upshaw. “As far as we’re concerned, those players are free agents. The court is determining whether management’s imposition of restrictions is legal.”

But the NFL Management Council, in the words of executive director Jack Donlan, says: “Impasse? We’re not even close.”

Donlan has advised NFL clubs to hold tight until the court rules--meaning that even if the players think they are free, nobody will talk to them.

U.S. District Judge David S. Doty of Minneapolis said that before he would rule on the question of impasse, he would wait until the National Labor Relations Board had ruled on the league’s charge filed last Sept. 16--six days before the strike--that the union had bargained in bad faith.

John Jones, a Management Council spokesman, said: “You can’t have reached impasse (if) one of the parties did not bargain faithfully.”

Both sides make cases for themselves.

Said the players union’s Allen: “When Gene (Upshaw) went to meet with the executive committee of the Management Council, chaired by Hugh Culverhouse (owner of the Tampa Bay Buccaneers), Culverhouse said, ‘Gene, there will be no compromise on free agency.’ That was before the strike, in August.

“(Later,) at a long session in Philadelphia, when Tex Schramm (Dallas Cowboys president) and Dan Rooney (Pittsburgh Steelers president) were at the table, Tex Schramm said there would never be free agency for players in the NFL, ‘Not after 5 years, not after 10 or even if he played 20.’

“Then Jack (Donlan) said at Tysons Corner (Va.), a week before the strike ended when he broke off negotiations, that we were in a ‘quagmire,’ that there was no progress and if our position on free agency hadn’t changed there was no point in continuing negotiations.

“In fact, in a letter to Gene at that time, (Donlan) characterized where we were on the free agency issue as ‘at deadlock.’ That is a phrase used in labor law that is synonymous with impasse.

“Gene and Jack have met three times since the strike and talked a number of times on the phone, and there have been no changes. We’re clearly at impasse.”

Jones counters that the players never responded to a Sept. 7 proposal to liberalize the compensation system.

“The system was negotiated in ‘82, when salaries went through the roof,” Jones said. “Then the system didn’t work as effectively as the union or the Management Council thought it would.”

The problem was the two-year bidding war with the now-moribund United States Football League that sharply escalated NFL salaries to a current average of $230,000, the league’s figure, or $211,000, the union’s figure.

“All the elements on the chart were based on an average salary of about $90,000,” Jones said. “No. 1 (draft choice) compensation began at $140,000, whereas on the Sept. 7 proposal a $140,000 salary is a No. 4.

“The proposal that’s on the table really makes a movement toward lessening the compensation levels, which should yield player movement.”

Although clubs signing the highest-paid free agents would still need to pay the free agents’ former teams up to two first-round choices as compensation, Jones said, the Sept. 7 proposal would allow 47% of the league’s players to move with compensation of a No. 3 or less and would increase from 70 to 222 the number of current players who would require no compensation at all.

With all but the lowest-paid players, the former clubs also would have the right of first refusal, i.e., they could keep the player by matching any other offer.

But the players don’t want any compensation or first-refusal conditions. They want outright freedom of movement. The league offers compromise.

“Even up to the point of the Friday before the strike began, Sept. 18, Donlan met with Upshaw to tell him there was further room for movement on this proposal,” Jones said.

Professor Paul Weiler of the Harvard Law School, an expert on labor law, has an opinion on the outcome.

“He probably thinks the players are going to win,” said Dick Steinberg, personnel director of the New England Patriots, who would have 22 players affected. “All those academic types predict that.”

Steinberg was right.

Weiler said: “I think that’s likely, from what I understand about what went on in negotiations. They probably would get a ruling that an impasse is close to being reached, if not reached.

“Even if the judge says, ‘You’re not quite there,’ it wouldn’t take very long to get to an impasse after one final stab at negotiations.”

In a separate action, the union also hopes to invalidate a clause in the ’82 collective bargaining agreement that extends the college draft through 1992, with or without an agreement.

Allen said: “We are maintaining before the court that that was not the product of arms-length, bona fide bargaining and therefore should not be enforceable. They extracted that extension out of us under duress after the strike had ended and we’d reached agreement.

“They said, ‘OK, we’re not going to put all these benefits in place and pay the money now unless you also agree to an extension of the draft.’ We were in an untenable position at that point.”

Weiler said: “I wouldn’t bet 10 cents on that argument.”

And the union doesn’t seem to be pressing it real hard.

Said Allen: “We have not yet sought an injunction, but there has been an intervention in the case by Kelly Stouffer, who represents the class of players affected by the draft.”

Stouffer, a Colorado State quarterback, was drafted in the first round by the St. Louis Cardinals last season but never signed.

Weiler said: “They’re not going to win that one. They are going to win the other one.

“That’s what the union wants, anyway. Those (526 free agents) are their members, the ones that went out on strike. It’s not the college players they’re immediately worried about. The union has always been prepared to give the league some concessions for the entering players in return for greater mobility and financial rewards for the veteran players.”

Jones points out how the players went full circle in 10 years.

“The people involved with (former union leader Ed) Garvey made the agreement in ’77 in which they authorized the first-refusal compensation system in return for (union) dues check-off,” Jones said.

Payroll deduction assured the union of receiving dues from all members, a service the league discontinued after the ’87 strike. That put the union in a difficult financial position.

“In ‘82, they were given the severance and stuff,” Jones said. “And in ‘87, they lost dues check-off to go after free agency.”

National Basketball Assn. players recently decided to decertify their union as their bargaining agent, canceling all bets from prior agreements and creating, in theory, instant free agency.

Weiler calls that action “the doomsday weapon” and doesn’t think the NFLPA will use it. Neither does Allen.

“We distinguish ourselves from the basketball case in a number of ways,” Allen said. “The most important (difference) is the judge in our case makes it unnecessary to contemplate that kind of event.

“He said that the exemption management got from the old agreement continues in effect until the parties reach an impasse on the relevant issues--the free agent restrictions--and we’ve clearly reached impasse. It’s not necessary for us to go out of business for players to secure their right to free agency.”

Weiler said: “The basketball union felt compelled to use that particular tactic because it got a comparatively unfavorable ruling from the judge in New Jersey (that) the labor exemption would expire, but the time was not defined as a point of impasse.”

Should the NFL players win free agency, what then--chaos?

“Absolutely not,” said agent Leigh Steinberg. “That situation would parallel late 1966 or early 1977. (In the Yazoo Smith and John Mackey cases,) the draft had been struck down and the restrictions from free agency struck down.

“As we approached it, there was not going to be a draft.”

Then, Steinberg recalled, the judge in the case suggested alternatives, such as separate AFC and NFC drafts, so that a player would have a choice of teams.

Instead, the league cut the draft rounds from 17 to 12 and said that players not signing the first year after they were drafted could be drafted again the next year--a policy still in place.

“An extraordinary thing happened,” Steinberg said. “Teams geared up to go out and sign players . . . to compete the same way that law firms and business firms (compete) for the most talented college graduates.”

The Dallas Cowboys printed slick brochures, listing the benefits of playing for them. The Kansas City Chiefs printed T-shirts.

Dick Steinberg said: “There would be some bidding going on. It would be tough because some teams have more money. But I can’t predict that teams would just go wild, (although) it could really screw up the league if it happens. Without the compensation system, it would really disturb the balance of power.”

Allen disagrees.

“If they’re signing players to three- and four-year contracts, they have stability,” the union leader said. “They can always say no. They control who they hire, the length of the contract, the compensation they pay him.

“They have all the tools they need to create financial responsibility. They don’t need to make economic serfs out of (the players).”

Leigh Steinberg said: “The best quarterbacks are not all going to end up on the same team.”

And, he suspects, all the best quarterbacks wouldn’t want to play in Los Angeles or New York.

“(The Cleveland Browns’) Bernie Kosar is a great example,” Steinberg said.

Some players might find they can’t make a better deal elsewhere or, worse, nobody else is interested in hiring them. One NFL personnel expert cited as an example Raider quarterback Marc Wilson, who was hot and cold but was paid $1 million last season.

“I don’t think there’s a great market for him,” the expert said. “He’s not worth what he’s making now.”

So would free agency be so bad for the owners?

Leigh Steinberg said that the owners generally regard it as a concept “brought from a distant planet or another country.”

“The free enterprise or free agency system is exactly how owners amassed the fortunes to purchase teams in the first place,” he said.