The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "NFL players narrowly agree to adding regular season game."

On March 15, NFL players approved their new collective bargaining agreement. This new CBA includes many unprecedented changes to the NFL landscape. With 1,109 “yes” votes and 959 “no” votes, there is a clear divide between the NFL Players’ Association and its members as well as a divide between the players themselves.

Although most players have been outspoken about the terms of the CBA itself, a select few players have criticized how the NFL and NFLPA have proceeded through the bargaining process and eventual vote of the CBA. In fact, one player is seeking legal recourse against the NFLPA, alleging unfair labor practices.

The largest and most contentious change is the option NFL franchise owners will have to extend the regular season from 16 to 17 games. Between 2021 to 2023, team owners will need to review the logistics of extending the season and vote on whether or not to extend.

From the owners’ perspective, extending the regular season means more ticket sales, greater marketing deals, and an extra television broadcast. However, the extension of the regular season was the main reason why the CBA only passed by 60 votes.

Several players have publicly addressed their concerns about extending the regular season. For those who voted no, their position is that the increased benefits included in the new CBA does not equal the increased risk of injury they will take on by participating in another week of practice and competing in a 17th game.

The most significant financial benefit players will enjoy is an increase in their share of the league’s revenue. Starting in 2021, NFL players will receive a 48% share of all league revenue. This 1 percentage point increase from the previous CBA also has the potential to reach almost 49% if the NFL’s television revenue exceeds a certain amount.

Players will particularly enjoy their increased share of league revenue with the expansion of the NFL playoffs. Starting this upcoming season, the NFL playoff field will be increased by one team per conference. The NFLPA projects the playoff expansion will result in approximately $150 million in revenue.

Moreover, at the individual level, the average NFL player is financially benefiting the most from the new CBA. A majority of NFL players’ salaries are set at the league minimum. With the new CBA, players signing minimum-salary contracts will enjoy a significantly increased salary.

Salaries for players with less than one year of NFL experience will now receive no less than $610,000 compared to $510,000. Players with more than one year of NFL experience but less than seven will now earn no less than $675,000 compared to $585,000.

The CBA has also removed the difference for players with seven to nine years of NFL experience and 10 or more years. Now, any player with seven or more years of NFL experience will earn no less than $1.05 million compared to $810,000 and $910,000, respectively. For all three experience levels, minimum salaries will continue to be increased throughout the duration of the CBA term.

For a CBA to be accepted by the players, a long and thorough process is conducted between the NFL and the NFLPA to ensure the CBA reflects, at the very least, the voice of the majority of the members’ position. However, current NFL player Russell Okung claims the NFLPA’s conduct in this most recent bargaining process involved attempts to intimidate and silence the voice of its’ members.

Okung, who is also one of nine vice presidents of the NFLPA executive committee, has filed an unfair labor practice charge with the National Labor Relations Board against the NFLPA. Specifically, Okung claims the NFLPA violated sections 8(b)(1)(A) and (b)(3) of the National Labor Relations Act.

Section 8(b)(1)(A) makes it unlawful for labor organizations and their agents to interfere with union members’ protected rights. Okung offers four allegations to support his charge that NFLPA’s executive director DeMaurice Smith, other NFLPA staff members, and outside counsel hired by the NFLPA interfered with his and other members’ rights.

First, Okung alleges that he and other executive committee members were frozen out, and thus, were unable to fulfill their NFLPA constitutional role as the negotiating committee for the new CBA.

He next claims the NFLPA wrongly submitted a CBA offer to the NFLPA’s board of representatives after it was already opposed by the executive committee.

Third, Okung alleges the NFLPA attempted to bypass the board of representatives and forwarded the CBA offer to all NFLPA members for a vote.

And last, Okung asserts that the NFLPA threatened and discouraged Okung and other players’ from exercising their right to speak and retaliated against Okung for his support of NFLPA union members.

On this last point, Okung provided the following in his charge against the NFLPA: “Mr. Okung, a Vice President of the NFLPA’s Executive Committee, has in exercising his fiduciary obligation in pointing out failures of the NFLPA leadership to follow their own [c]onstitution and rules, been threatened with criminal prosecution and union sanction by NFLPA leadership and was subjected to an unprecedented investigation, specifically for behaviors that could not be construed under and circumstances as harmful.”

On its face, the allegations that Okung provided support a finding that the NFLPA is in violation of section 8(b)(1)(A) of the NLRA. Okung claims the NFLPA violated its own constitution and attempted to strong-arm the members’ most influential voices. Nonetheless, ample evidence must be provided for this charge to have merit.

Regarding section 8(b)(3), this subsection prohibits labor organizations from refusing to “bargain collectively.” Section 8(d) defines “bargain collectively” as performance of the mutual obligation of the employer and the union to bargain in good faith for terms involving wages, hours and other working conditions. Although this violation is often raised in charges, clear and convincing evidence of bad faith negotiations must be offered as evidence to succeed on this claim.

At this point, the NLRB will conduct an investigation and gather all evidence relating to the charge. Subsequently, the NLRB will review the case and determine whether there is sufficient evidence to demonstrate the violation charge has merit. If the NLRB finds in favor of Okung, a hearing would then occur before a NLRB administrative law judge. This extensive process has the ability to last several months.

Unfortunately for Okung, if he is entitled relief it will not be granted in the near future. Moreover, the outcome of this charge likely will not impact the validity or implementation of the new CBA. However, this lawsuit sheds an important light on the current state of the NFL’s labor relations.

Both the Okung charge and the voting results of the CBA demonstrate the lack of unity between NFL players and the disconnect between the NFLPA and its members. Regardless of whether Okung succeeds on his charge, the current landscape of labor relations in the NFL may need to be reevaluated.

If Okung offers sufficient evidence, the NFLPA will need to review the structure of its leadership. Even if the NFLPA successfully defends against Okung’s charge, the NFLPA will still need to reconsider its strategy. After ten months of negotiations, only an extremely slim majority was comfortable agreeing to the CBA. This disconnect will continue to fester if it is not addressed.

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