The NFL’s Union That Isn’t a Union : Football: Players have taken a big risk by decertifying, and those in the labor world will watch closely what happens next.

On a humid afternoon at a training camp in Wisconsin 34 years ago, the Green Bay Packers were told, as usual, to put on the same old, wet sweat socks and athletic supporters they’d worn at morning practice--or bring their own.

Rebelling at last, they said: “Enough is enough.”

Said management: “Do it our way or retire from football.”

But in unity, there is power. What they really needed, the Packers decided that day, was a union--the first in a league that was already 36 years old.

And in time, there were three consequences of that decision: fresh sweat socks each afternoon, fresh supporters, and a player-owner war that has defaced the NFL ever since.

In legal terms, from the first, it has been a single-issue conflict. The disputed point: To what extent can pro football claim an exemption from U.S. antitrust law?

The melodrama has been endlessly repeated by generations of NFL owners and players:

--First, as each issue came up--health insurance, a minimum wage, exhibition-game pay or, for example, the right to hire an agent--the owners turned the players down.

--And each time, the union said, “Enough is enough.”

--The owners replied, “Do it our way or retire from football.”

--Then the players responded with strike threats, strikes, antitrust threats and antitrust suits, and under that hammer, the clubs eventually, in most instances, have given ground.

What’s new this year? Well, the players have retired from the union business.

Reacting to a disadvantageous ruling by the Eighth U.S. Circuit Court of Appeals, they have declared that theirs is not a trade union but a national association of professionals, much like the bar association.

As a union, the NFLPA had been an anomaly, anyway, losing 25% of its members annually--when cut by the teams that own them--and functioning without a collective bargaining agreement in each of the last three years.

Nor do they need such an agreement, the players have concluded.

“The courts have forced us to choose between collective bargaining, on the one hand, and unrestricted individual bargaining,” Gene Upshaw, the NFLPA’s executive director, said the other day.

“The (Eighth Circuit) told our players that they couldn’t have both--that they would lose their antitrust rights as individuals if they asserted their union rights to bargain as a group with the owners.

“We had no real choice but to cease collective bargaining. If a free market is best for baseball players, for basketball players and for the businessmen who own NFL clubs, it is best for NFL players, too.”

In search of that market, the league’s 1,500 players boldly set sail this spring in uncharted waters.

It has been called labor’s story of the year and also football’s. For the first time in the U.S. labor movement, a union has voluntarily disbanded to further the pursuit of its members’ individual goals and rights--rights that every American presumably enjoyed long before the first trade union was organized.

If that, as an action, seems quaint, it hardly measures up to the reaction of the owners. Although they have been fighting the NFLPA for years, the owners were disquieted when the players decided to decertify. The owners have been trying to talk them out of it ever since.

In fact, the NFL has taken the players to court to try to force them to resume their old identity as a union.

The explanation for the owners’ new upside-down look at the NFLPA is that they need the union as an antitrust shield.

Or as the dissenting judge in the appellate panel’s 2-1 decision wrote: “The panel majority reasons that . . . as long as the (antitrust exemption) was at one time in (a collective bargaining) agreement, the immunity remains as the ‘product’ of (the) bargaining. . . .

“(That gives the NFL) an employer’s Shangri-La of everlasting immunity from antitrust laws.”

Plainly, an owners’ Shangri-La--heretofore only a fictitious paradise--could never have been a priority goal of the NFL’s union-that-isn’t-a-union. But in renouncing their collective bargaining rights, the players are taking a huge gamble.

“(It’s) an all-or-nothing poker game,” Business Week columnist Aaron Bernstein said. “(Decertifying) may be brilliant legal strategy, but it could undermine (the NFLPA) with its members.”

The NFLPA could even be replaced--by a sweetheart union, no doubt--if the league is successful in talking its more submissive players into forming a new association, as several clubs keep trying to do.

There’s some risk there--but the owners appear to be gambling even more spectacularly. For example, their annual draft of college players would be a gross antitrust violation, the courts have held, without the shield of the explicit NFLPA endorsement that expires in 1992.

The association has pledged not to renew its permission without a meaningful quid pro quo--some form of free agency--if, indeed, it isn’t already too late for a tradeoff.

“The Eighth Circuit has put us in the driver’s seat for the first time,” NFLPA research director Michael Duberstein said. “There’s no need for an NFL union any more, no justification. We’ve won the (war).”

First, clean socks and supporters, then the whole war?

Maybe.

OPERATING A UNION THAT ISN’T A UNION

One distinction between NFL players and owners is obvious when they come to bat financially. The clubs are all owned by multimillionaires--a half-dozen of them billionaires.

Whenever an antitrust action hits an NFL owner, 27 fellow millionaires and billionaires rise to his defense.

The NFLPA operates on an annual budget of hardly $4 million, which isn’t birdseed, true, though it wouldn’t buy the second home for a typical sports-franchise owner.

In the NFLPA, what does it buy?

Upshaw said his modest budget makes possible two things in particular--the leadership structure he heads, and the antitrust lawsuits brought against NFL clubs by pro football players.

To challenge an employer, Upshaw said, is always a traumatic experience for athletes, whose livelihood, a short one at best in the NFL, is in the hands of the men and women they’re suing. “The NFLPA, at the least, should finance the challenge,” he reasons, noting that victory or defeat for one is victory or defeat for all.

The process is costly but essential, according to Upshaw.

“It has proven absolutely impossible to reach (NFLPA) goals in collective bargaining (with management),” he said. “The only chance we have is in the courts.”

As for Upshaw’s other budget item, the NFLPA’s Washington headquarters is in a new, eight-story building on L Street near 22nd Street. It’s within walking distance of the White House and within lobbying distance of the Capitol. The Washington Touchdown Club is across the street.

NFLPA offices are on two floors connected by a private stairway installed by the landlord, at his expense, to lure the union in Washington’s competitive commercial real estate market.

“We’re in the fourth year of a favorable 10-year lease,” said Doug Allen, the NFLPA’s assistant executive director. “The lessor also (paid for) our kitchen, conference room and bathrooms, with a couple of showers. Our (25) staffers often work very early or very late.”

Most work on the crowded sixth floor in a labyrinth of little offices. On the seventh floor, Upshaw’s corner office is at the head of the stairs. Next door is his chief adviser, Dick Berthelsen, the association’s legal counsel and principal philosopher. Allen’s office is down the hall in the other corner.

Their key aides are research director Duberstein, two more in-house lawyers, Tom DePaso and Tim English, and public relations director Frank Woschitz, who also heads the NFLPA’s expanding retired players’ organization. His assistant is Dee Rauch.

In addition, there are accounting, licensing and insurance departments and, rising in importance, the regional department, which is charged with maintaining personal contact with the league’s widely dispersed players.

The NFLPA’s three regional directors--Clark Gaines, David Meggyesy and John Macik--are each assigned to nine or 10 NFL cities, and all are usually in the field, visiting with players on every team, hearing their complaints, measuring their attitudes.

So is Upshaw.

“The issues are so complicated now that they aren’t easy to understand,” Duberstein said, looking up from his computer. “The fact that so many players understand them well enough to support the (objectives) is due to Gene and the regional directors.”

The NFLPA hierarchy:

--Association power, Upshaw said, is held by the league’s veteran players and their board of directors.

The 28 members of the board, who were known as player representatives in the days of the union, are now called player directors, one to a club. The Raiders have chosen wide receiver Willie Gault, the Rams cornerback Jerry Gray.

--The NFLPA’s chief executive officer is the association president, offensive tackle Mike Kenn of the Atlanta Falcons.

--As chief operating officer, Upshaw, who is hired by the board of directors, hires the rest of the staff. Phones and fax machines in Kenn’s home and cars are regularly tuned to Upshaw’s office, home and hotel rooms.

--Most NFLPA policy-making, the players say, starts on the executive board with the association’s eight vice presidents--among them linebacker Ricky Hunley of the Raiders, defensive lineman Sean Jones and quarterback Warren Moon of the Houston Oilers and quarterback Dan Marino of the Miami Dolphins.

“We don’t do many things unanimously,” Hunley said. “But there’s a solid majority of players backing decertification and the other big issues. The owners who think that Gene Upshaw and Doug Allen pull us around by the nose don’t (understand) that in this (union), the members lead the leaders.”

FINANCING A UNION THAT ISN’T A UNION

From the day of the NFL’s first labor conflict, long ago, one central question has been continuously out there: Do the athletes really support their union?

Or, as labor columnist Bernstein put it recently, the bottom-line question in the NFLPA’s all-out push for free agency is whether Upshaw “can persuade his members to stand behind him.”

Sports fans still have trouble with the concept that football players--playing a child’s game for a living, and getting all that money for it--could find a reason to revolt against the owners of the clubs.

And most owners, of course, bred in a corporate environment far from the sweat and tears of a summer training camp, never will understand it.

In a league whose club owners are each getting an average of $32 million annually from television alone, the Establishment viewpoint is that the players, whose average annual salary exceeds $300,000, have been led astray by their leaders.

Making that point again at a recent news conference, Commissioner Paul Tagliabue, who was elected last year by the owners, told them what they wanted to hear when he said that among the players he has consulted, the sentiment is, “Save us from our union.”

Is that a majority judgment? What does the evidence show?

The most persuasive pieces of the evidence suggest that most players, as Hunley said, are solidly for Upshaw and free agency. Although there are some widely quoted exceptions, most players are in favor of the union-that-isn’t-a-union.

They show it in two ways:

--First, the athletes reelect Upshaw every chance they get.

Regardless of what some players may say in the presence of their employers, most, when committing themselves in the privacy of voting booths, support Upshaw and their player representatives.

“Surely that is self-evident,” general counsel Berthelsen said. “Nobody has (Upshaw’s) pulse of the players. If a majority of them disagreed with him, he and the rest of us wouldn’t be doing what we’re doing.”

--Second, the NFL’s players fund the NFLPA.

They do it in two ways, with dues payments and by authorizing Upshaw to use their names, autographs and pictures in the association’s group licensing program.

Under his leadership, licensing income has grown so extensively in the last three years that it has become the financial bulwark of the association.

Assistant executive director Allen, who has assigned four full-time employees to the program--making it one of the NFLPA’s largest departments--said: “We have active licenses this year with more than 50 companies and 64 products--trading cards, toys, a computer game, T-shirts, whatever. Three years ago, at the time of the (1987) strike, we only had three or four products.”

The biggest moneymaker last year was a Nintendo game, Tecmo Bowl, which, according to association spokesman Woschitz, helped push the NFLPA’s 1989 licensing gross income above $6 million, keeping finances well in the black. “And it’s still exploding,” he said.

From his new base in El Segundo, linebacker Hunley said the explosion was made possible by NFL players.

“They gave up some of their individual rights for the good of the association,” he said. “There are a lot of ways to show your support for an organization, but the best way is monetary. More than 90% of our players have signed off on licensing and authorized the (Washington office) to use their names, pictures and signatures on (NFLPA-endorsed) products.”

If licensing income is about to fund the players’ agenda in pro football--as it does in baseball, where trading-card royalties finance the union’s huge strike budget and everything else--it couldn’t have happened at a better time for the NFLPA.

Headquarters hasn’t realized as much in members’ fees since the teams quit collecting the union’s dues each week, subtracting from every player’s paycheck.

The dues checkoff is standard procedure in many well-run businesses and unions. It was long ago established that neither employers nor employees love to pay dues or taxes voluntarily. And in the 1970s, the NFLPA fought hard for the checkoff--giving up many other significant rights to get it.

Accordingly, some labor reporters called the NFL’s owners a mean-spirited lot a year or two ago when they unilaterally ended the dues-withholding mechanism--hoping, some critics charged, to bust the union.

Because football’s dues had earlier climbed to $2,400 annually, NFLPA dissolution seemed an authentic prospect for a spell. Who in his right mind is going to write out a $2,400 check for something as nebulous as union dues?

Happily for the association, its licensing royalties soon began to kick in. Dues were first shaved to $2,000 and then to $1,000.

And now, Allen said, the steady rise in the licensing revenue pool means that every player’s dues payment will continue to decline.

“The day isn’t far off when we’ll be able to rebate much of it,” he said. “Our goal is a 100% dues rebate, and we’ll get there.”

THE RESERVE SYSTEM: ITS SECOND CENTURY

In the 100th year of Dodger baseball, another sports institution is also having a centennial this summer. That is the reserve-option system. Or, as the NFL knows it, the reserve-option-compensation system.

The founders of the Dodgers and their peers on other 19th-Century baseball clubs came up with the idea one day, arbitrarily reserving a group of players to each club owner.

Then they passed a rule preventing any player from freely moving to any other club.

All these decades later, the system is still alive and well in a sport that borrowed it 70 years ago, pro football.

And it is this unique institution, the reserve system, that is still causing virtually all of the NFL’s labor trouble, splitting the owners and players into two angry camps.

In other sports today, the heavy hand of the 19th Century isn’t quite so heavy.

Those who, for example, play major league basketball and baseball have recently managed to chip away many of the hardiest of the ancient restraints. After all, it isn’t constitutional to keep U.S. taxpayers from living and working wherever their preferences lead them--unless, of course, their employers can produce an antitrust waiver.

Over the years, though, NFL players have had less luck than some athletes. They’ve been up against tougher and, on the whole, smarter ownerships than those in almost any other sport.

Thus, all of the NFL’s key 1990 players are still bound by the relevant 1890s restrictions that kept Brickyard Kennedy, for one, pitching for the Dodgers--with or without his consent--from 1891 until he departed 88 years ago this summer.

Such restraints have had no legal standing elsewhere in America before or since they were unilaterally imposed by their creators, the owners of six or seven National League baseball teams.

The shorthand term for the NFLPA goal is free agency , but what it means, simply, is that the athletes wish to be rid of a system that was designed to assure low wages for 19th-Century baseball players.

In the present fight--which originated with the impasse that led to a strike-lockout three years ago--the NFL’s club owners have one obvious advantage: The details and nuances of their conflict with the players are as numerous as they are tiresome.

The attention span of the average sports fan or reporter isn’t long enough, clearly, to give the contestants a real hearing.

For instance, the changes in reserve-system language, since 1890, might make it appear that NFL owners have lost some of the advantages they had when they could merely invoke the binding old option clause.

In practice, however, all NFL teams are so intimidated by the new clause--which provides a first-refusal apparatus plus compensation of up to two first draft choices--that only one or two football players have been able to get away from the clubs that own them, in the same sense that many baseball players get away every year.

Moreover, in pro football’s complicated Plan B market, the best 37 players on every club have been disowned of their hopes for freedom each year.

Unhappily for the athletes, most sports fans find all this a dreary subject. And so time seems to be on the side of the club owners, whose lawyers have perfected the science of antitrust-court delay.

Even worse for the athletes, they are struggling for a right that many will never win. Many will be out of football long before the last appellate judge gets around to the last test.

Upshaw, accordingly, spends some of each day wondering if he and the players should quit butting their heads against the owners’ wall.

As he sits at his Washington desk overlooking the bustle of L Street, Upshaw concedes that surrender would be the easy way out. It would be so much simpler to just take the increased pension money and other little benefits that the owners want to hand over in return for the antitrust exemption that would keep the NFL going on its 1890s chassis.

“I feel for the guys who are fighting so hard and paying so much for a principle that will help the next generation more than them,” Upshaw said.

There are, nevertheless, no indications of any retreat. To the contrary, as Upshaw notes, lifting the dead hand of the 19th Century remains the players’ No. 1 priority.

The association’s No. 2 executive, Allen, said: “(Upshaw) once told me that when he was a player, he personally knew every other player in the league. He’s aware of what they’re all thinking and vice versa.”

So the beat goes on.

THE NFL DEBATES THE NFLPA ON FREE AGENCY

What does the NFL have to say about all this?

As the league’s club owners contemplate the next four years with a $3.6-billion television contract, why do they continue to oppose a free market for football players?

“Our great concern is preserving competitive balance,” Wellington Mara, president of the New York Giants, said.

Mara is one of six members of the powerful executive committee of the Management Council, which is the league’s labor committee. Every owner is a voter on the 28-person council--a group that is merely the NFL in a different form. And the executive committee is their action arm.

“The Giants would survive if the players had free agency,” Mara said. “But the teams in smaller cities might not.

“If the players were all free agents, it would be hard--perhaps impossible in some cases--for Green Bay and Buffalo, say, to outbid Chicago and Los Angeles for talent.

“The (NFL) is a league with an artificial structure that we must have to protect competitive balance.”

The structure is the reserve-option-compensation system, which starts with the annual draft of college students. At the outset of their careers, all good young football players discover that the draft reserves them to a single NFL owner in an otherwise closed market. Later, the system encompasses the restrictions that keep the market closed to the NFL’s veteran talent.

“(That) is the structure that has made pro football so successful,” Mara said. “It would be a mistake to destroy it.”

In contrast, the NFLPA position is that free agency hasn’t harmed any sport that has given it a chance.

Fears that baseball’s free agents would gravitate toward the big glamour cities such as New York, Los Angeles and Chicago--destroying the competitive balance of the American and National leagues--have proved groundless, Upshaw said.

There were 10 different World Series champions in the first 10 years of baseball’s free agency.

Dan Rooney, president of the Pittsburgh Steelers, calls attention to the larger picture.

“Could Green Bay really compete with Los Angeles (in a free market)? That’s the issue,” Rooney said. “With total free agency, the teams that have brought pro football to a lot of smaller cities and markets wouldn’t be able to keep up. You’d destroy the fine competitive balance that the NFL has today.”

In Berthelsen’s view, the last couple of years have brought some compelling evidence about Green Bay’s ability to keep up.

“More players chose Green Bay than New York last year,” he said. “The Packers signed the most Plan B players--and immediately jumped from the cellar into title contention. Even stranger to some people, the team in the glamour capital, the Los Angeles Rams, lost more Plan B players than any other city except Houston.”

The present fight, both sides said, is over conditional rather than total free agency. According to Rooney, though, conditional free agency is like conditional pregnancy.

“If we gave them the right to be free agents after eight or 10 years in the league, they’d want to come down next time to six or four years, or three or two,” the Steeler owner said. “I’m not interested in a system that gets us on that road.”

The NFL has known but one year of partial free agency, 1976, when the contracts of 24 veteran players expired while the owners were appealing a court setback.

“If you want a pro football free-agent precedent, study the 1976 class,” Berthelsen said. “Only one player jumped to New York. An All-Pro fullback, John Riggins, went from New York to the Redskins. An All-Pro running back, Ron Johnson, went from New York to Dallas.

“Ahmad Rashad, an All-Pro receiver, and (one or two others) chose expansion teams, where there was no chance of winning. Eight of the 24 elected to go back to their old employers--including Freddie Dryer of the Rams. That’s the way free agency works.”

It is also clear that in recent years, NFL players have profited in the league’s closed market.

“To me, the point is that the league and the players have been very successful financially with our present structure,” Rooney said. “I’m not in favor of junking a system that works as well as this one.

“I feel strongly about this--very strongly: We’ve developed a system that produces a tremendous amount of money for the players.”

To NFLPA lawyers, that isn’t wholly relevant.

“Pro football is profitable because it is so popular--not because of its structure,” Berthelsen said. “The problem with the structure is that it subjects (each athlete) to the whims of the team that controls him. If the player were allowed at some reasonable point in his career to be free, he could match his skills with the team that needs him most, and he would have a longer career. It would be better for him, the team, the owners, and the fans.”