The union's leadership is determined by seniority, with the upper echelon composed of veterans whose financial stakes conflict with those of the rookies. For example, take the way that draftees are paid by their assigned teams. According to the current collective-bargaining agreement, each club is allotted a set amount of "rookie pool money" to sign its draft picks. (Here's last year's breakdown of pool money.) It benefits the veteran players who run the union to keep that pool small: Since the NFL maintains a hard cap on the total amount of money distributed to players throughout the league, less money for rookies means more for the old-timers.
Lawyers for the professional sports leagues argue that is a perfectly acceptable arrangement, as wages and benefits go up with seniority in many other industries. But pro football is not like other industries. According to the players association, the average NFL career lasts about three and a half seasons. That just about covers the term of service that a player must devote to the team that drafts him before he's eligible for unrestricted free agency.
These days, draft reform is a very low priority for the union, especially since any serious demands for change would probably require other sacrifices during the collective-bargaining process—such as lowering player salaries or allowing more restrictions on free agency. In fact, there's buzz that in the next agreement, the union will accept an even tighter wage scale for rookies.
Union-sanctioned drafts have been challenged on their own terms. After basketballer Leon Wood was drafted by the 76ers in the 1984 NBA draft, he declined to accept a one-year-contract offer that would have paid him $75,000, arguing that he shouldn't have to negotiate under a collective-bargaining agreement made by a union of which he was not yet a member. The courts ruled against him on the grounds that doing otherwise would undermine the labor negotiations between unions and employers in all industries.
The time for another challenge in the NFL may be near. At the end of the 2010 season, the league's collective-bargaining agreement will expire. If players and owners can't come up with a new agreement right away, any draft conducted without union support might be subject to all sorts of Yazoo Smith-style legal action. Even with a new agreement, the NFL draft system could still be vulnerable. The 2nd Circuit decision in the Wood case came with an intriguing endnote:
Wood has offered us no reason whatsoever to fashion a rule based on antitrust grounds prohibiting agreements between employers and players that use seniority as a criterion for certain employment decisions. Even if some such arrangements might be illegal because of discrimination against new employees (players), the proper action would be one for breach of the duty of fair representation.
In other words, those who wish to challenge the NFL draft in the post-Yazoo Smith era should think hard about their target. It's not the league. It's the union.
NFL retirees have already pressed the union for action on the league's pension and disability plan, and they've taken the players association to court for a better share of licensing revenue. Now future NFL players have a similar opportunity to make their voices heard. Negotiations over a new collective-bargaining agreement represent the best chance for them to voice displeasure over the drafting process, from age requirements to salary concerns. Of course, it will be tough to organize and motivate young, inexperienced athletes for such a challenge. But it's a great time to try. It's been almost 40 years since Yazoo Smith sued the league. Isn't it time that someone sued the union?
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