Brady Vs. NFL: The End of Professional Football as Detroit Lions Fans Know It?

Pancho SmithCorrespondent IIMarch 28, 2011

Who's Got The Fans' Backs?

The most under-reported storyline in the current NFL labor battle is the impact that this dispute has on fans of the game. Fans have no legal standing in the courts in this matter, yet they are undoubtedly the most aggrieved party involved.

NFL fans constitute a very large class of people indeed. 111 million people watched Super Bowl XVL. Tens of millions of people play NFL fantasy football and follow the game in newspapers and magazines and on websites and TV during every week of the season and even between seasons.

Professional football is so popular that hundreds of millions of dollars of taxpayer money is spent to construct or upgrade stadiums to host NFL teams. Thousands of people and hundreds of local businesses depend on the revenue they earn from the fans who attend the eight home games that each team plays every year.

As the Orange Country Register points out, local tax districts often depend on the revenue generated by home football games, most of all in places where there are tariffs on tickets or parking spots to repay stadium costs.

The way things are set up in Foxborough, Massachusetts is not unusual for cities that host NFL stadiums: Revenue from the Patriots' stadium pays for big-ticket items such as school buses, school computers, public works highway trucks and fire engines.

As the next chapter in the future of NFL football is about to unfold on April 6th in the United States District Court in Minneapolis, Minnesota, team owners and the trade association formerly known as the National Football League Players' Association (NFLPA) will also be fighting it out in a higher court—the court of public opinion.

While a judge in Minnesota will hand a legal victory to one side or the other in the next phase of this standoff, football fans have the power to monetarily punish both the owners and the players. No judge can order fans to attend games, watch football on TV or their mobile devices or buy team paraphernalia and the jerseys of their favorite players.

It does neither side in this labor dispute any good to win in court if the $9.3 billion pie they are tussling over begins to evaporate because their fan base—who pay all the bills and salaries—decide that the game they used to love is no longer worthy of their continued investment of time and money.

It's happened before.

Major League Baseball still hasn't fully recovered from its 232-day 1994-95 strike and the cancellation of the 1994 World Series (even after the owners of MLB teams opened their books to the players union), and it never will.

It can happen again.


When the Only Tool You Own Is a Hammer, Every Problem Looks Like a Nail

On March 16, 2009, the NFLPA elected DeMaurice Smith—a former trial lawyer and litigation partner of a high power Washington D.C. law firm—as their executive director. Enter the Hammer.

DeMaurice Smith promptly saw nails instead of opportunities everywhere he looked. He wasn't trained to negotiate win-win agreements in good faith, he was trained to pound nails into the coffins of his opponents and bury them. And not unexpectedly, that's what he set out to do.

After two Collective Bargaining Agreement (CBA) extensions during 16 days of talks facilitated by a federal mediator, on March 11, 2011 the NFLPA abruptly broke off negotiations and decertified, paving the way for individual players to sue team owners in federal court in a class-action lawsuit accusing the league of conspiracy and anti-competitive practices.

Among others, the lawsuit was signed by Tom Brady, Drew Brees and Peyton Manning.

According to, after decertification "The players accused the 32 NFL teams of conspiring to deny their ability to market their services through a patently unlawful group boycott and price-fixing arrangement or, in the alternative, a unilaterally imposed set of anti-competitive restrictions on player movement, free agency and competitive market freedom."

The 52 page lawsuit spells out the details of what the players claim is a long history of NFL antitrust violations, including rookie salary limitations and the franchise and transition player designations that teams use to prevent players from selling their services on the open market.

According to USA Today, "The sweeping antitrust suit challenges the current lockout and a wide range of NFL rules and procedures that were part of the collective bargaining agreement that expired on Friday night [March 11], including the franchise tag, restricted and unrestricted free agency, and the draft."

Note that these are the same rules and procedures, blessed by the union in the last CBA, that have allowed owners to build a highly popular league that made so many of its players very famous and wealthy men.

If players do manage to force the owners to lift their lockout, it will only raise the question of which rules will govern the football activities that will result. If team owners impose a league-wide set of rules, they will be open to further charges of antitrust violations and more litigation.

The owners' only truly safe option is to operate as 32 distinct businesses, with no limitation on free agents, no salary cap, no salary floor and no draft. In other words, it would be the end of NFL football as we know it.

If that were to occur, parity between teams would disappear. Small market teams would perish. A handful of players would make a huge pile of money for a few years until the NFL imploded and the rest would earn much less than they did before they paid their lawyers to kill the proverbial golden goose.

Instead of continuing the steadily rising popularity of Super Bowl events (viewership totaled 111 million viewers for Super Bowl XVL—the highest-rated telecast in U.S. television history), future Super Bowls played by the next generation litigation-driven league would be lucky to draw the 50 million viewers that watched the last episode of M*A*S*H.

Triage, anyone?


Dollars and Sense

Fan expectations are simple: we want to see 11 highly talented, highly competitive athletes try to score on every play of every game, and we want to watch 11 highly talented, highly competitive athletes try to stop them from scoring on every play.

Fans don't mind if the money they spend on NFL football—even during hard economic times—contributes to a better football experience. We love the game. But many fans don't see how paying Drew Brees or Tom Brady an extra half-million dollars a year on top of the $15 million a year that they already earn makes the game any better.

The median household income in the United States is about $46,000 a year. According to the Sacramento Bee, during 2009, California police officers—who risk their lives on a daily basis—earned, on average, $92,817 a year, including overtime, incentive pay and payouts upon retirement. Firefighters earned, on average, $114,565.

USA Today has reported that the base salary for the lowest-drafted NFL rookie in 2010 was $325,000. The average player salary of the 1, 696 players on the league's active roster is about $2 million a year.

In the last several drafts, top rookies who have never played a down in the NFL were signed to contracts that guaranteed each of them upwards of $30 million over five or six years with the potential to earn double that amount during the life of their contracts.

According to, as of November, 2010, the average annual guaranteed base salary of the top ten highest-paid players in the NFL was $9.6 million.

It's pretty clear that NFL football players can hardly be considered blue-collar union workers worthy of proletariat sympathy. Their version of solidarity is spelled with a capital $.

No matter what you think of the individual owners, they have been successful stewards of the game fans love. They are responsible for sustaining and growing the game.

Unlike the owners, nothing players earn is reinvested back into the game. It all goes into their pockets and the pockets of the agents who represent them. They have no responsibility for the league operations their lucrative livelihoods depends on.

We often hear that the average player's career in the NFL lasts 3.5 years, although many player's careers span a decade or more. We get it. Players come and go.

Still, at a minimum of $325,000 a year, players will earn more money during that 3.5 year period than most people will make in a lifetime. And afterwards, these players can then take their (scholarship-paid) college degrees and NFL notoriety, move on and begin a "normal" career like the rest of us.

Meanwhile, someone has to stick around and provide the financing and continuity to keep the game going and growing. Those people are the owners.

If you visit any number of sports websites, you've probably noticed that fan sentiment in this labor dispute tends to tilt heavily in favor of the owners. It's a pretty safe bet that if it were up to fans to decide, they would vote overwhelmingly in favor of a permanent antitrust exemption for the NFL.


A Glimmer of Hope

On May 24, 2010 the United States Supreme Court ruled 9-0 against the NFL in a case involving joint licensing of the use of trademarks on clothing and other consumer goods that was brought by American Needle, Inc. under the Sherman Antitrust Act.

The NFL clearly interpreted their 1961 Sports Broadcasting Act antitrust exemption too broadly in this instance.

However, as pointed out by Mike Florio on

"At the tail end of the written ruling in American Needle resides language that would give the league a reasonable shot at winning an antitrust lawsuit on the merits."

Mike points out that the Supreme Court noted "The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions.

"Other features of the NFL may also save agreements amongst the teams. We have recognized, for example, that the interest in maintaining a competitive balance among athletic teams is legitimate and important

"...While that same interest applies to the teams in the NFL, it does not justify treating them as a single entity...when it comes to the marketing of the teams' individually owned intellectual property. It is, however, unquestionably an interest that may well justify a variety of collective decisions made by the teams."

In plain fan language, this means that it isn't necessarily a slam-dunk that the owners would lose an antitrust challenge for establishing league-wide rules in the event that a District Court judge in Minnesota orders the NFL to lift their lockout and resume football activities. But it would still be a potentially expensive gamble for the owners.


Winners and Losers

From a fan's point of view—given the current dynamics of the NFL labor dispute—the best short-term scenario would be for the courts to require the league to lift its lockout and for the NFL to obtain the court's blessing to impose a league-wide set of rules on the players until their dispute is settled at the bargaining table.

If this were to occur by mid-April, it would permit the resumption of a free agency and trade period before and after the scheduled late April draft. It would mean that a full 16 game regular season would be played, followed by playoffs and a Super Bowl minus any asterisk.

In this scenario, NFL fans would be among the winners. The game we love would be preserved for a while longer.

As usual, no matter what the outcome, the lawyers involved in this dispute would get paid huge dollars and be among the winners.

Team owners would win if the courts recognized the legitimacy of a broader variety of collective decisions made by the league.

And the players? Not so much. They will probably become even richer, but by leaving the bargaining table and running to the courts in an attempt to earn even more money, the players have jeopardized the long-term future of the sport that over 100 million people love by potentially radically altering its structure. Many fans don't believe that risk is worth the extra money the players might receive.

NFL players are employees, not partners. Police and firefighters are employees even though they risk injury on a daily basis. They don't earn a percentage of anything (i.e., a percentage of the value of the stolen goods they recover or the value of a building and its contents they prevented from burning down). They get paid a negotiated salary.

First-responders aren't featured on the cover of Madden Football video games. They aren't mobbed by adoring fans and asked for autographs, and they are not offered lucrative product endorsement contracts, speaking engagements or broadcasting jobs after they retire.

It's time for NFL players to put down the hammer. It's time for both sides to send their litigators to the sidelines and sit down at the bargaining table again. Neither the players nor the owners are bigger than the game fans love.

However, players can legitimately be blamed for being supremely selfish by attempting to screw up the structure of a very popular and successful league and arrogant in their attempt to relegate owners to the status of player ATM machines.

If Brady, Manning and Brees, et al. don't understand this, they would be wise to "pass the torch" to players who appreciate the extraordinary opportunities the NFL has given them and who want to continue to play in a viable, growing league run by people who love football, and not by mercenary lawyers who would eat their young for fat billing fees.

So far in the history of the NFL there have been over 200 sons who have followed in their father's footsteps and become players in the league. It would be a real shame if the current crop of players ruined the league for their sons and the game's 100 million-plus fans by turning the NFL into an American version of the dysfunctional European professional soccer system.


Football As We Know and Love It Doesn't Have To End.

The owners should remain sole stewards of the game. The league needs to be able to apply common rules that apply to all 32 franchises without the constant threat of costly and disruptive antitrust litigation. Every owner makes a significant monetary investment in their teams and they deserve a fair return on that investment.

Players deserve to be paid well as elite athlete/entertainer-employees. They already exercise significant sway over the way the league operates through the rules they agree to in their collective bargaining agreements. Their influence should continue to be determined at the bargaining table not in the courtroom.

Players should realize that if the NFL didn't exist they would have to pursue other careers like the rest of us. They should save their arrogance and aggression for the football field on game day. And by the way, it would be refreshing if they occasionally acknowledged appreciation for the opportunities for fame and fortune the NFL has afforded them.

Fans will be the ultimate arbiter of what's fair or foul in this dispute. We will ultimately determine whether the game has been improved or diminished by the outcome of this labor clash.

If the structure of the league is altered in a way that diminishes the quality of the game, neither the owners nor the players will have to worry about how to divvy up the eight figure revenue stream that the game has generated because it will quickly begin to dry up.

If the owners and players ignore the interests of the fans in this current brouhaha, the real question won't be "Who's got the fans' backs?" it will be "How do we get the fans back?" And the answer is likely to be "We can't. We had a good thing going and we screwed it up."


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