By Christopher R. Deubert, Senior Writer
The National Football League Players Association (NFLPA), as the union for NFL players, is responsible for negotiating the wages, hours, and terms and conditions of employment between NFL players and NFL clubs. The results of those negotiations are complex and lengthy collective bargaining agreements (CBAs) which set forth rules governing much of NFL club operations, including player contracts, free agency rights, the NFL Draft, salary cap, practice and game schedules, benefits, medical care, dispute resolution, and much more.
While the NFLPA has a history of pursuing litigation challenging the NFL’s rules on some of these issues, it also less noticeably often takes legal positions to protect the system it has negotiated with the NFL, even if those positions are adverse to players. Indeed, the scope of these positions was displayed in a recent case by a prospective NFL player agent, Henry Searcy, who challenged the NFLPA’s agent certification process.
NFLPA Background
The NFLPA has been representing NFL players since 1956 and negotiated its first ever CBA with the league in 1968. While players in MLB, the NBA, and the NHL all gained meaningful free agency rights in the 1970s through litigation and negotiation, NFL players did not. NFL player strikes in 1974, 1975, and 1982 failed due to a lack of solidarity among the players. Rather than hold out for free agency rights as part of CBA negotiations, the players accepted better benefits and pay.
The expiration of the 1982 CBA in 1987 marked a dramatic and litigious turning point in NFL labor relations. The players went on strike for 23 days during the 1987 season, during which time the NFL used replacement players. Between 1987 and 1993, the NFLPA, NFL players and the NFL engaged in multiple courtroom battles over the NFL system, particularly the share of revenues and players’ rights to free agency. In 1989, the players disclaimed the NFLPA as its official bargaining representative in order to bring antitrust claims. NFL play nevertheless continued during these years without a CBA.
In 1993, after several legal victories for the players, the NFL and the players settled the outstanding lawsuits as part of constructing a new, comprehensive CBA. The NFLPA also recertified itself as the players’ bargaining representative.
The 1993 CBA was groundbreaking and set the framework for every NFL-NFLPA CBA since. The players gained the right to unrestricted free agency for the first time in exchange for a hard salary cap. Players could become unrestricted free agents after five years of experience (now four) and clubs’ payrolls had to be within a designated range based on league and club revenues.
While there was litigation between the parties in 2011 after the expiration of the CBA, the union and league eventually agreed to a new CBA which reaffirmed the core structure of the league. That system continued in the 2020 CBA, which expires in 2031. The CBA has steadily expanded over the years, now running to 439 pages.
Drug Testing and Dispute Resolution
While the CBA is the core agreement between the union and league, they negotiate other agreements as well. Most specifically, they are also parties to a Policy of Performance-Enhancing Substances and the Policy and Program on Substances of Abuse. These policies today permit players found to have violated the policy to eventually appeal to an independent arbitrator.
This was not always the case. In the 2000s, appeals under these policies were exclusively the jurisdiction of the Commissioner or his designee (which was often NFL General Counsel Jeff Pash or a former NFL attorney such as Jay Moyer or Harold Henderson). Similarly, appeals for violations of the league’s personal conduct policy were solely within the authority of the Commissioner until the 2011 CBA imposed some rights to an independent appeal.
The Commissioner’s authority was never much of an issue until the clubs hired Roger Goodell as Commissioner in 2006 to replace the retiring Paul Tagliabue. Goodell considered his obligations to protect the league’s image to be paramount and imposed a variety of suspensions on players that were perceived as harsh or inconsistent with past practice by the players. For example, in 2007, Goodell suspended two players for eight games and Pacman Jones for the entire season following violations of the personal conduct policy. Four game suspensions for criminal charges became the minimum.
The Outside Lawyers
As the league increased its disciplinary efforts, understandably the players increased their legal representation. In the 2000s and into the 2010s, two attorneys had established themselves as regular and reputable defenders of NFL players – David Cornwell and Peter Ginsberg.
Cornwell had been an attorney at the league from 1987 to 1993 before establishing his own practice. Based on his experience representing NFL players, Cornwell was a finalist – and the perceived favorite by many – for the NFLPA Executive Director position in 2009, after the death of longtime Executive Director Gene Upshaw. Nevertheless, the position went to DeMaurice Smith, a Washington, D.C. litigator who had impressed the players with his oratory skills.
Ginsberg had been an Assistant United States Attorney in the Eastern District of New York in the 1980s before establishing himself as prominent criminal defense and civil litigation attorney. He entered the NFL world by successfully defending Dallas Cowboys Erik Williams and Michael Irvin against rape allegations in 1997. (Disclosure: I worked for Peter Ginsberg from 2010 to 2014).
Commissioner Goodell’s stronger hand came at a time when the NFLPA had been historically considered weak in its advocacy on behalf of players. Cornwell and Ginsberg filled a gap for players that questioned the NFLPA’s effectiveness, by regularly defending players disciplined under the personal conduct, performance-enhancing drug, and substance abuse policies.
The StarCaps Challenge to the System
As outsiders to the policies and structure agreed upon by the NFL and NFLPA, Cornwell and Ginsberg could attack the system if it meant advancing a player’s interests in a way that the NFLPA might not.
This issue first came to the fore in the “StarCaps” case in which Minnesota Vikings defensive linemen Kevin and Pat Williams, represented by Ginsberg, filed suit alleging that the NFL had violated duties to them by intentionally not advising players that a weight loss supplement known as StarCaps contained a banned substance. Most helpful to the players was the fact that a Minnesota state drug testing law known as DATWA provided employees with certain procedural protections with which the NFL admittedly did not comply. (Disclosure: I was part of the Williamses’ legal team during the appeals process).
The league’s defense was a common one – that the players’ claims were preempted by the CBA. The Supreme Court has held that claims brought by unionized employees are barred by the existence of a CBA where resolution of those claims is “inextricably intertwined with consideration of the terms” of the CBA. Instead, courts hold that such claims must be brought pursuant to the dispute resolution procedures outlined in the CBA, which typically means arbitration.
In the StarCaps case, the Williamses successfully argued that their DATWA claims were not preempted. The NFL was sufficiently disturbed by this result – and the idea that their drug policies could be subject to varying state laws – that it petitioned the Supreme Court to review the case. That petition was denied, but Minnesota subsequently amended DATWA to alleviate the NFL’s concerns.
Interestingly though, the NFLPA did not support the Williamses’ argument that they could bring legal claims outside of the CBA. The NFLPA instead restricted its arguments to challenging the results of an arbitration that had upheld suspensions against the players.
Ginsberg went on to defend players in other high-profile matters, including the “Bountygate” proceedings in 2012 in which New Orleans Saints players were accused of attempting to injure opponents in exchange for cash rewards (Disclosure: I was part of the players’ legal team), and Baltimore Ravens running back Ray Rice in 2014 concerning domestic violence allegations.
In both cases, the players challenged the disciplinary process set forth in the CBA as agreed to by the NFL and NFLPA. Consequently, one might have questioned the legal positions the NFLPA might take. Indeed, a federal judge overseeing litigation arising out of Bountygate requested the NFLPA’s long-time outside counsel, Jeffrey Kessler at Winston Strawn LLP, to submit a memorandum addressing whether he had a conflict of interest in representing some of the players involved while also representing the NFLPA.
Perhaps in response to these types of ongoing challenges, in a June 9, 2014 memo from the NFLPA to player agents, it required agents to “first direct” their player-clients to “consult with an NFLPA attorney about his case” before recommending the player to consult with outside counsel. The NFLPA’s stated purpose for the policy was to advise the player “about the merits of his case and the cost/benefit of paying for outside counsel to represent him.” Thus, the NFLPA instituted a process whereby players would have to consult with its attorneys before they could retain Ginsberg, Cornwell, or another attorney.
The Concussion Litigation
The NFLPA’s silence on preemption arguments was of particular notice during the consolidated class action litigation alleging that the NFL and its clubs had been negligent in their handling of player concussions, which began in 2011. The NFL argued that the former players’ claims were preempted by the CBAs. The NFL’s prospects of having the cases dismissed in their entirety was a driving factor behind a settlement reached in 2015 which has since paid more than $1.3 billion to former players and their families.
For several years, the NFLPA took no position on the players’ claims or the NFL’s defenses. Then, in 2014, it was also sued for allegedly having failed to sufficiently protect players from the risk of concussions. In response, the NFLPA adopted the NFL’s position – arguing that the players’ claims were preempted by the CBA. A court agreed and dismissed the claims. While the union’s legal arguments were meritorious, it was striking that they had adopted a legal position consistent with the NFL’s and adverse to thousands of their former members.
Other Legal Challenges
The NFLPA’s legal positions have come under scrutiny in other cases as well. In 2016, Pro Bowl offensive tackle Lane Johnson was suspended ten games for violations of the performance-enhancing substance policy. He filed a lawsuit against both the NFL and the NFLPA, alleging that the arbitration decision upholding his discipline was unfair. As to the NFLPA, Johnson contended that the NFLPA had violated its duty of fair representation by failing to adequately protect his interests during the process. Moreover, Johnson alleged that the NFLPA had colluded with the NFL to uphold Johnson’s discipline in retaliation for Johnson’s having publicly complained about the NFLPA. The court dismissed the claims as unsupported by the evidence, but Johnson’s allegations nevertheless raised questions.
The preemption issue was front and center again in a 2022 lawsuit filed by Aaron Patrick, a former Denver Bronco who had injured his knee in a game between the Broncos and Los Angeles Chargers. Patrick, after trying to make a tackle near the sideline on a punt, tripped over television cables and mats and collided with the NFL’s television liaison, the person responsible for coordinating commercial breaks. Patrick sued the NFL, the Chargers, ESPN, the stadium, and others for alleged negligence.
The NFL and Chargers argued that Patrick’s claims were preempted by the CBA. Patrick responded by arguing that tort claims like his were not subject to the grievance arbitration system set forth in the CBA. In support, Patrick cited and attached arbitration decisions from 1986 and 1988 in which arbitrators ruled that tort claims brought by NFL players against the NFL and its clubs could not be addressed in that forum. The NFLPA did not take a position on Patrick’s arguments despite knowing it was a major issue in the case. The court then ruled in favor of the NFL and the Chargers.
The NFLPA’s views of preemption were at issue again in a recent lawsuit brought by Henry Searcy. Searcy failed the written exam necessary to become an NFLPA-certified agent and then sued the NFLPA on various grounds. The NFLPA argued that Searcy’s claims were preempted by the CBA. While a district court agreed with the NFLPA’s arguments, in an August 6, 2024 decision, the Court of Appeals for the District of Columbia did not, holding that “[t]he CBA does not address the[] issues” raised in Searcy’s complaint and thus were not preempted by the CBA. Instead, Searcy’s agent efforts were controlled entirely by the regulations unilaterally set by the NFLPA. While Searcy lost on other grounds, it was remarkable to see the NFLPA take such a broad view of the preemption argument, the defense most commonly used by the NFL to stifle player claims.
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The NFLPA faces structural challenges. Its membership of more than 2,000 players changes rapidly as those players face short careers and extraordinary workplace challenges. Further, it must negotiate against the well-resourced NFL. It has made remarkable progress over the decades in negotiating for a system that compensates players well and provides them with leading benefits. Yet, the NFLPA has seemingly made the decision to take legal positions which protect that system, even if those positions support the NFL and are adverse to players from time-to-time.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
