Why NFL players' union appears to have major leverage in negotiations ahead of 2020 season

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The New York Giants' Dalvin Tomlinson (94) celebrates a tackle against the Chicago Bears at MetLife Stadium on December 2, 2018, in East Rutherford, New Jersey. - Elsa/Getty Images North America/TNS

The NFL’s owners may be required to pay players their 2020 salaries whether they play games this season or not.

That could provide extra incentive for owners to want football this fall, but it also may give the NFL Players’ Association major leverage in negotiations on what football during the coronavirus pandemic would look like — if they are able to play the games at all.

The league and union are both working hard to find a safe solution to complete the 2020 season. One of the obvious questions for some players is what will happen to their money if games are cancelled or if they opt against playing due to health concerns.

And the answer is: they might still get paid anyway.

The reason is that there is no “force majeure” provision in the new NFL/NFLPA collective bargaining agreement or in the league’s standard player contract that governs the current season’s salaries.

“Force majeure” is language that would provide owners relief from fulfilling their contractual obligations in the event of uncontrollable and unforeseen circumstances, typically referred to as an “act of God” (or in this case, a pandemic).

The NBA’s owners will be able to gradually reduce players’ salaries if games in the Orlando bubble need to be cancelled, for example, due to the existence of a force majeure clause in pro basketball’s CBA.

There is language the NFL owners might use to launch a legal challenge if the union tries to flex its muscles and force them to pay for games not played.

Page 338 of the new CBA says a player will be paid “100% of his yearly salary under this contract in equal weekly or biweekly installments over the course of the applicable regular season, commencing with the first regular season game played by Club in such season.”

And article 19.2 of the NFL’s constitution says regular season games may not be postponed “unless said game cannot be played because of an Act of God or because of a state, federal or local prohibition.”

But sources do not believe this language authorizes the NFL’s owners to prorate or reduce salaries in the event that unforeseen circumstances cancel games or render them unsafe to play in a player’s eyes.

What this means practically is that the NFLPA would appear to have unique and massive leverage in their ongoing negotiations with the league on the protocols that will govern the 2020 season and on the long-term financial implications of this year’s losses.

Essentially, if the union has the protection of its players’ 2020 salaries no matter the outcome, that should help them stand their ground on not returning to play until the plans for the preseason, training camp, practices, games and testing look exactly as they want them to.

It should also give them leverage in negotiations about how to handle long-term salary cap implications on the league.

Page 82 of the CBA contains a “cancelled games” clause that calls for “good faith negotiations” between the league and union to adjust revenue projections and the salary cap “for the following League year” if revenue substantially decreases due to game cancellations caused by “a terrorist or military action, natural disaster, or similar event.”

This is force majeure language, but only as applicable to future revenues.

There were suggestions earlier this summer that the players would have to give back 2020 salaries in order to help offset long-term losses in the spirit of that cancelled games clause. But this is exactly the kind of issue where the NFLPA should be able to stand its ground in the absence of any force majeure clause threatening 2020 salaries.

Whether or not 2021 is impacted dramatically, in other words, the language of the CBA would appear to state that players still would be owed their 2020 salaries.

Now, that said, it is impossible to discuss the NFLPA’s leverage on this issue in a vacuum.

For every player under contract for the 2020 season, for example, there is a free agent who unofficially signed with his new team in March but is still waiting to complete a physical, sign officially and get paid his bonus money. Many free agents haven’t been able to do so due to coronavirus travel restrictions.

If the NFLPA were to squeeze owners on existing 2020 player salaries — with teams hemorrhaging millions this season already due to the reduction of ticket sales — the clubs in theory could threaten to not honor this spring’s unofficial free-agent agreements.

It is not clear, either, whether players’ bonus money is protected as clearly as their 2020 salaries appear to be in the CBA. The union certainly wouldn’t want to cut off its nose to spite its face.

And not every player will want to sit out or can afford to. Everyone’s situation is different.

Every season a player acquires a “credited season” toward his pension by spending at least three games on the now 55-man roster. A player also acquires an “accrued season” toward unrestricted free agency by spending at least six games on the 55.

A 2017 second-round draft pick such as the Giants’ Dalvin Tomlinson, for example, would need his fourth accrued season in 2020 to hit free agency as scheduled in 2021.

The MMQB reported Monday that the union is pushing all players to have the chance to sit out the year if they’re uncomfortable participating with “their contracts tolling for 2020.” Tolling a contract means it gets put on hold, but not reduced or cancelled.

So what the NFLPA could do with its leverage here is require the owners to pay the players their 2020 salaries in full but simultaneously allow the owners to delay some portion of those payments in good faith, given the immediate losses being incurred league-wide.

The NFL’s next lucrative TV deal is on the horizon in 2022, and in theory that should help the teams and the sport recoup losses and fulfill their obligations in a timely fashion.

For now, then, “force majeure” has not taken center stage yet in any public battle ground between the union and league. Their joint priority is to collaborate on finding a safe way to complete this 2020 season. However, the absence of a debate on this issue to date is all the more reason to doubt that football will be able to start on time, if at all.

The NFL and NFLPA have less than three weeks remaining until the first teams are due to report for training camp, and they’ll only be able to kick off if they agree not only on the many procedural hurdles they’re currently negotiating, but on this financial elephant in the room.

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What about the other leagues?

Major League Baseball has applicable language in its uniform player’s contract that allows the commissioner to suspend a contract when baseball is not played due to a “national emergency.”

The NHL’s standard player’s contract also provides for the reduction or cancellation of salary if “a state of war or other cause beyond the control of the League or of the Club” leads them to “suspend or cease or reduce operations” — though the NHL still committed to pay its players in full through the completion of their suspended season.

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