Delay of Game: Are NFL and NFLPA Facing a Head-to-Head Collision in 2021?

By Colin Rizzo*

Football season is in full swing, and despite recent media controversies, the NFL’s on-field product is arguably more entertaining than ever.[1] While fans today are thrilled that football is back, there is a possibility that in three years, viewers might have to fill their Sundays with something other than football.[2] Discussions around the League indicate that an NFL lockout in 2021 is imminent.[3]

The current NFL collective bargaining agreement (“CBA”) runs throughout the 2020 season and is set to expire in 2021.[4] Looking to future negotiations, Richard Sherman of the 49ers confidently stated that a lockout was “going to happen.”[5] Sherman is not alone in this belief, as National Football League Players Association (“NFLPA”) head DeMaurice Smith claimed a work stoppage is a “near certainty” when the CBA expires.[6]

Can the NFL and NFLPA Find Mutual Ground Before Its Too Late?

Many points of contention exist between owners and players, particularly fueled by the uneven distribution of the League’s record income.[7] Safety concerns will also play a large role in negotiations due to concussion related health problems.[8] Another driving force of player frustration is the seemingly arbitrary and unchecked disciplinary power of Commissioner Roger Goodell, leading to several high-profile lawsuits.[9]

An emerging issue in this battle is the League’s reliance on non-guaranteed contracts.[10] Almost every multi-year contract includes provisions allowing teams to avoid paying the full value of the contract.[11] While many factors contribute to this, a large problem is that the current CBA uses a convoluted salary cap system with several transactional conditions limiting the true amount of money netted by the players.[12] NFL players have the comparatively shortest career-span and highest risk of injury among the four major sports (football, baseball, basketball, and hockey), yet are the only ones without fully guaranteed contracts, placing them at the greatest financial risk despite having the greatest need.[13] This problem must be addressed soon to avoid litigation, as NFLPA labor disputes are the most likely of the four leagues to end up in court.[14]

Is Le’Veon Bell the Catalyst for More Lawsuits?

The perfect exemplification of all of these concerns is Le’Veon Bell, who is currently holding out this season following frustrations from failing to reach a long-term agreement with the Steelers.[15] Bell is in his second season under the Steelers’ franchise tag – another point of contention among players – and has refused to play this year to protect his long-term health for free agency.[16] Bell’s concerns seem validated by recent injuries to Earl Thomas and Jay Ajayi, who will likely lose value in their next contracts as a result.[17]

The turmoil between the players and the League could all result in arbitration next season if the Steelers decide to place the transition tag on Bell, which would allow them to match any free agent offer reflected by 120% of Bell’s 2018 salary.[18] Though Bell’s 2018 salary under this year’s franchise tag was $14.5 million, he has forfeited roughly $850,000 for each missed week, cutting his true earnings potentially by over 50%.[19]  The Steelers could argue that 120% should be calculated from the actual amount Bell earned, while Bell would claim it is based off the full value of his contract.[20] The value of the transition tag would likely come down to the definition of “salary,” however since this is uncharted territory for the NFL, there is really no industry standard to rely on during contract interpretation.[21] Bell left a lot of money on the table this season to ensure a substantial payday next year, so if the team tried to re-sign him for barely half of what he was slated to make this year, legal action would surely follow.[22]  

What Does the Future Hold?

With the convergence of all of these issues, players appear motivated and committed to achieving their goals in the upcoming CBA.[23] The previous CBA agreement also resulted in a work stoppage, but did not result in any missed games and was largely seen as a victory for owners.[24] However, the NFLPA is learning from its 2011 mistakes and has already begun preparing its players for the reality of a potentially lengthy lockout.[25] Further, recent bad publicity by the League will likely afford the player’s union more public support this time around.[26] The NFL also has to worry about the long-term image of the League, as its popularity is on the decline.[27]

Meanwhile, NFLPA President Eric Winston stated that he and the players are not concerned about the League’s future; they are focused on getting the best deal they can.[28] As of now, players appear more determined than ever to secure a CBA that meets their needs and eliminates many of the problems they have faced over the previous decade, and it certainty will not be an easy fight.[29] As fans watch this dispute play out in 2018 and beyond, only one thing is for sure – while the contracts may not be guaranteed, a 2021 lockout seems to be.[30]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2020, Villanova University Charles Widger School of Law

[1] See Kevin Patra, Total Passing TDs Through Four Weeks Smashes Record, NFL (Oct. 2, 2018, 11:09 AM), http://www.nfl.com/news/story/0ap3000000969333/article/total-passing-tds-through-4-weeks-smashes-record (showing all-time high in passing through first quarter of season, with several quarterbacks and teams starting off on record pace). 

[2] See Alex Hoegler, NFL Rumored To Have a Lockout In 2021, TheSportster (July 20, 2018), https://www.thesportster.com/news/nfl-lockout-2021-season/ (interviewing Todd Gurley, who warns fans that lockout could be looming when current CBA expires). 

[3] See Lorenzo Reyes, Richard Sherman: NFL Lockout ‘Going to Happen’ in 2021, USA Today (Sept. 6, 2018, 4:55 PM), https://www.usatoday.com/story/sports/nfl/49ers/2018/09/06/nfl-lockout-2021-richard-sherman/1215930002/ (offering statements from 49ers team representative Richard Sherman explaining that this labor dispute will ultimately lead to lockout). 

[4] See Adam Stites, NFLPA is Warning Players to Start Saving Money Now for a 2021 Lockout, SB Nation (May 30, 2017, 12:55 PM), https://www.sbnation.com/2017/5/30/15712404/nflpa-cba-nfl-lockout-2021-leverage-negotiations (providing terms and duration of current CBA, which was signed in 2011 and expires after 2020 season). 

[5] See Reyes, supra note 3 (“It’s going to happen, so it’s not like guys are guessing on that one.”).

[6] See Chris Gaine, Is the NFL Really Headed For a Lockout in 2021?, Complex (Sept. 13, 2017), https://www.complex.com/sports/2017/09/is-the-nfl-really-headed-for-a-lockout-2021 (noting that because CBA expires in March, players will be more willing to strike because they miss out on training camps). 

[7] See Vincent Frank, NFL Players Call For Guaranteed Contracts As Potential Work Stoppage Looms, Forbes (Jul. 5, 2018, 5:15 PM), https://www.forbes.com/sites/vincentfrank/2018/07/05/nfl-players-call-for-guaranteed-contracts-as-potential-work-stoppage-looms/#63ce33912b76 (showing that League’s $14 million dollar revenue is the highest among the four major sports, yet while profits have exponentially increased, salary cap has risen only incrementally). 

[8] See Gaine, supra note 6 (listing increased compensation due to health risks as another concern). 

[9] See id. (pointing to Ray Rice, Tom Brady, and Ezekiel Elliot suspensions as catalysts for this concern). 

[10] See Frank, supra note 7 (stating that complete overhaul of the League’s CBA regarding the salary cap is the only realistic way players can expect fully guaranteed contracts). 

[11] See id. (showing that Kirk Cousins’ offseason deal with Vikings was first multiyear contract in the League to include fully guaranteed money). 

[12] See id. (mentioning heightened injury risks and shorter career-spans as other justifications for non-guaranteed contracts). 

[13] See Dom Cosentino, Why Only The NFL Doesn’t Guarantee Contracts, Deadspin (Aug. 1, 2017, 11:38 AM), https://deadspin.com/why-only-the-nfl-doesnt-guarantee-contracts-1797020799 (illustrating 2010 record-breaking five-year contract of Donovan McNabb, which was voided after the first year with no remaining money going to McNabb). 

[14] See id. (showing it took a 1993 lawsuit to achieve NFL free agency, despite every other League having it for almost 20 years prior). 

[15] See Jason Fitzgerald, Explaining Le’Veon Bell’s Holdout: 3 Options for Steelers, 2 Choices for RB, SportingNews (updated Sept. 23, 2018), http://www.sportingnews.com/us/nfl/news/leveon-bell-contract-holdout-steelers-options-choices-update/12a8dl9dofk5u1o7r2mmzsgu3x (noting that Bell is under franchise tag for second straight year, denying him chance at free agency after failing to reach long-term extension). 

[16] See Jeremy Fowler, Le’Veon Bell Unlikely to Play Sunday; Agent Hints at Longer Absence, ESPN (Sept. 6, 2018), http://www.espn.com/nfl/story/_/id/24587466/leveon-bell-agent-pittsburgh-steelers-rb-protect-long-term-value (explaining Bell is unwilling to add wear and tear from another 400 touch season without financial security); see also Jeanna Thomas, The 2018 NFL Franchise Tag Explained in a 2-minute Read, SB Nation (updated Mar. 6, 2018), https://www.sbnation.com/2018/2/19/17017190/nfl-franchise-tag-explained-free-agency-2018 (explaining that franchise tag allows teams to maintain exclusive control over one player per year, paying them the average of top players at that position). 

[17] See Shalise Manza Young, Le’veon Bell Feels Earl Thomas’ Pain: ‘I’ll Be the ‘Bad Guy’ for ALL of Us’, YahooSports (Oct. 1, 2018, 11:29 AM), https://sports.yahoo.com/leveon-bell-feels-earl-thomas-pain-ill-bad-guy-us-152926946.html (expressing Bell’s sympathy towards Thomas’ injury, whose situation played out exact scenario that Bell feared).

[18] See Jason La Canfora, There’s a Possible Fight Brewing Between NFL and NFLPA Over Le’Veon Bell’s 2019 Status, CBSSports (Oct. 7, 2018), https://www.cbssports.com/nfl/news/theres-a-possible-fight-brewing-between-nfl-and-nflpa-over-leveon-bells-2019-status/ (reporting the Steelers’ intent to transition tag Bell, and that a arbitration is in the works). 

[19] See id. (explaining that Bell loses roughly $850,000 each week and can hold out as late as week 10). 

[20] See id. (showing range of value on transition tag from as high as $17.4 million to as low as $8.2 million). 

[21] See id. (noting that Bell’s case differs from past transition tag arbitration because it concerns defining salary rather than defining position). 

[22] See id. (noting NFLPA has considered this issue, but has not yet taken any action to resolve it). 

[23] See Reyes, supra note 3 (discussing Richard Sherman’s comments on the 2011 CBA, commenting that players do not intend on conceding any of the perks they won from the prior agreement). 

[24] See Stites, supra note 4 (“The 2011 lockout ended after 132 days, and most have since declared the NFL the big winners in the negotiation. With another labor dispute on the horizon, the NFLPA is trying to proactively teach the values of money management so it has more leverage for a longer fight.”).

[25] See id. (learning from 2011’s insurance plan that was insufficient to sustain holdout, the NFLPA is proactively telling players to start saving money so they won’t lose leverage). 

[26] See Gaine, supra note 6 (showing that publicity from concussion damage could get public on player’s side for player safety). 

[27] See id. (reporting eight percent drop in viewership from prior season). 

[28] See Chris Chavez, NFL Player’s Union President Eric Winston: NFL Lockout ‘Inevitable’ For 2021, Sports Illustrated (Aug. 22, 2017), https://www.si.com/nfl/2017/08/22/nfl-lockout-inevitable-eric-winston-players-union (showing that NFLPA does not share concern for long-term prosperity of NFL, and adding that labor dispute could “kill the goose that laid th[e] egg.”). 

[29] See Gaine, supra note 6 (explaining that owners have “natural advantage over players in negotiations” that allow them to usually win power struggles).  

[30] See Chavez, supra note 28 (quoting NFLPA director DeMaurice Smith as calling lockout “virtual certainty”).