More of Mr. Smith in Washington

Nov 16, 2010

More Mr Smith Goes to Washington

Sports analyst, Evan Weiner, wrote a very detailed look at the current NFLPA/NFL situation in the newly-changed post-election landscape in Washington, DC. Should DeMaurice Smith have acted sooner when he had more friends in Congress? Will his efforts now be met with a cold reception with a new House? And why didn’t he take advantage of his friends and allies when he had a bigger advantage earlier?

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Reprinted below in its entirety with the permission of Evan Weiner and The Examiner (click on the poster to enlarge for printing — with apologies to Frank Capra!):

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DeMaurice Smith can create havoc on the NFL and House GOPers and the Washington Media

 

National Football League fans probably aren’t paying too much attention to what might happen once the Super Bowl rolls around. Some teams and their fans are gearing up for a December playoff run but in Washington, DeMaurice Smith is plotting strategy as National Football League owners and officials of the National Football League Players Association are about ready to face off in a much bigger game than the Super Bowl.

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The league’s collective bargaining agreement with the players nearly ends after the NFL Pro Bowl in Hawaii in February. The old CBA expires on March 3 but the real lockout for NFL customers and fans, if the owners and players don’t reach an agreement, could start in April with no mini camps and by July, there could be no training camps.  It is unclear whether the league can even conduct a draft if there is no CBA in place.

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The dispute is all about money. NFL players take about 59 percent of league-generated revenues and the NFL want to scale that back to 48 percent.

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If there is a lockout, NFL players and perhaps NFL retired players will be impacted as the owners do not intend to fund the NFL pension plan or pay for life insurance. The league no longer has to put money aside for that under the terms of the expiring labor agreement. The league will use that money for an owners’ lockout fund.

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Present and former players need to find out how the defunding of those programs will impact their lives.

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DeMaurice Smith, the political operative who served on President Barack Obama’s transitional committee, could spring into action and shake up not only the football industry, but members of Congress and the zombie Washington, DC/national media by going on a public relations tour which should include the most unlikely of places.

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A visit to that noted football fan’s radio show, Rush Limbaugh and other carnival barkers.

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Smith should bring with him a number of discarded football players who are suffering from brain damage or other physical ailments and start talking about the loss of benefits for these players and what happens if the NFL players actually lose their health benefits in the course of the lockout. He should also talk about the number of players in assisted living facilities and who might be paying for their care.

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Smith, the political insider, should appear before the GOP controlled House of Representatives and tell presumed House leader John Boehner of Ohio and Virginia’s Eric Cantor that you figure out what to do with my players if they lose their health benefits. After all, Smith should say, you want to repeal the new health care law and one of the provisions you would eliminate is that insurance companies could say no to my clients because of pre-existing conditions and all players have pre-existing conditions.

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Who will pay for their care?

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Smith would put a face to all of those with pre-existing conditions and put Congressmen Boehner, Cantor and all the others who want to repeal the health care law in a box. He would also force the Washington media, most of whom are probably planning the 2011 White House Correspondence Dinner, to examine the health care issue in a different light because the gladiators of Sunday—the players of the most popular sport in America—would been seen as advocates for health care as they do have pre-existing conditions.

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The only people reporting on discarded football players come from the sports media at this point.

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The Washington media would have to report on something other than polls and conservative right wing talk show hosts like Limbaugh, who have to actually face someone who is more articulate than they are, will be forced to have an honest, two-way conversation about health care. Smith should also hit the so-called cable TV news channels including FOX and MSNBC and get into a real dialogue instead of the usual in your face food fights that passes for news in these environments. He should appear on the Sunday talk shows and the network morning fares. He should engage in a full media blitz and take with him the “discarded” players.

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More than a handful of former players are collecting social security and using Medicare assistance to take care of their health needs because the NFL is not paying for medical insurance down the road for former players. Smith needs to point this out to Boehner, Cantor, Kentucky Senator Mitch McConnell and all the other members of the Senate and the House. It is a story that needs to be told and probably explained to the football crazy Washington insiders who appear at Washington Redskins home games because that is a place to be seen.

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Smith should start his tour during the NFL playoffs. If Smith reached out to the retired and discarded players, they would jump on the opportunity to educate the Boeheners, Cantors, McConnells and the Washington media on issues that affect “real Americans” like the ones politicians always talk about and the media always reports on.

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Smith can use some political leverage too. Elections have consequences that are often not reported by national or local media. With Barack Obama’s election in 2008, the National Labor Relations Board changed and because there is a Democrat in the White House, there is a good chance that Smith can eventually use the National Labor Relations Board to his advantage.

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Democrats are seen as pro workers while Republicans are seen as pro business and the NLRB reflects that.

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Smith might decide that the National Football League Players Association should decertify—although he runs the risk that another group of players might want to form a new association—-and file a complaint with the NRLB about the negotiations and see whether or not the NFL owners are engaging in fair collective bargaining negotiations.

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During the Bill Clinton presidency, the Major League Baseball Players Associations appealed to the National Labor Relations Board in 1995. The baseball players filed for injunctive relief under Section 10(j) of the National Labor Relations Act. Under the provisions of Section 10(j), the players sought a ruling from the National Labor Relations Board for injunctive relief and so they could go to a federal district court and ask for an injunction if a party is found to be negotiating in bad faith to preserve the status quo.

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The Major League Baseball Players Association got the NLRB to agree with them and the case ended up in the courtroom of the youngest justice sitting on the bench of the Southern District of New York. A judge by the name of Sonia Sotomayer was assigned the case.

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The 40-year-old Judge Sonia Sotomayer on a cold spring day in a packed courtroom at Foley Square in lower Manhattan back on March 30, 1995 issued an injunction against the owners and restored free agency and arbitration and ruled that the owners negotiated in bad faith.

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One of those Major League Baseball owners was George W. Bush. Sotomayer eventually was nominated to the United States Supreme Court by Barack Obama in 2009 and was confirmed by the Senate.

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In 2004, Judge Sotomayer upheld the NFL’s college draft rule that requires a player to serve three years in a college football program before being eligible for the league’s draft.

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In 2008, the minor-league Central Hockey League asked for injunctive relief under the Section 10(j) provision of the National Labor Relations Act in a dispute between Central Hockey League owners and CHL players. The CHL strike ended two days after the request on October 5. The players went back to work. It was the only time during the Bush years that a sports players association looked to the NRLB for help.

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Whether the Obama NRLB would take up Smith’s case, if an action was filed, is not known. But, during the Bush’ years between 2001 and 2009 there was only one “major league” sport job action. The National Hockey League owners locked out the NHL players in 2004-05 but the National Hockey League Players Association never sought out the National Labor Relations Board, possibly because the leadership knew that Bush’s NLRB was going to be less friendly to them than Clinton’s NLRB.

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Smith and the players are in a high stakes negotiation that is filled with politics. Smith is taking on 31 of the most powerful people in the world (Green Bay is community owned) with powerful political connections. Jets owner Woody Johnson is a major Republican fundraiser as is San Diego’s Alex Spanos. The guys on the other side of the table generally get their way and have powerful allies. Smith also has some leverage and if he was smart would use it to his advantage on behalf of his players and to educate the “American people” and the Washington media on contract negotiations, health care and political leverage.

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Evan Weiner

Evan Weiner, the winner of the United States Sports Academy’s 2010 Ronald Reagan Media Award, is an author, radio-TV commentator and speaker on “The Politics of Sports Business.” His book, “The Business and Politics of Sports“, Second Edition is available at www.bickley.com or amazonkindle. He can be reached at evanjweiner@yahoo.com

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9 Responses so far | Have Your Say!

  1. Dave Pear
    November 17th, 2010 at 8:51 am #

    Dave at Home
    For over 25 years, Gene Upshaw acted with vituperation towards his retired football brothers. Verbal abuse along with misapplying Federal laws and breaching his fiduciary duty will always be a large part of his legacy.

    Over two years ago, Upshaw’s replacement made numerous promises to retired players but nothing has changed.

    This blog was started almost 3 years ago to expose and make transparent the illegal NFL disability system that was designed and crafted by the Groom Law Group. This abomination that the NFL calls a disability plan has NO standard in any other industry and violates ERISA Law. With his 32+ years of experience, disability attorney John Hogan has pointed out the shortcomings of this plan repeatedly for YEARS but there’s still no response from the perpetrators.

    And The Groom Law Group is still the director of the plan and continues to represent the NFLPA, NFL and the Bell/Rozelle Retirement Board while NOBODY represents NFL retired players.

    No more rhetoric, fancy slogans or decals! Retired players continue to seek justice from a fraudulent system with subjective standards that change with the wind. When will someone step up and actually represent us?

    Regards,
    Dave & Heidi Pear

  2. George Visger
    November 17th, 2010 at 11:12 am #

    George Visger
    Dave,

    The problem is we ARE “retired.” (The term itself is laughable). Once the NFL sees you are can no longer generate revenue, they toss you to the sidelines like a piece of rotten meat, knowing full well there are thousands of young men chomping at the bit for their chance. We did the same.

    The coaches know this, the team Doctors know this, the NFL knows this and they hang it over your head everyday you play: “Suck it up. Can’t make the club in the tub.” Tuesday is cut day, you know.

    Another problem we have is our entire legal system is not based on integrity or fairness. The legal game is based on whose side can manipulate the facts enough in order to convince a jury of their peers (notice I said “their” peers, not ours) they are right. Or more right than the other side.

    Think of the OJ Simpson trial. Does anyone in America actually believe he was innocent? No, but the important thing is his legal representatives were able to cast enough doubt in the jurors’ minds, that they had no other recourse but to let him walk (at least the first time!).

    Dave, you are asking the near-impossible. For someone to step forward to represent us because it’s the right thing to do would be considered a conflict of interest by most attorneys. Right or wrong never plays into the equation, only how can I twist the facts to win, and how much are you willing to pay me to do so.

    If the Retired Players were a $9 billion dollar organization like the NFL is, we would have attorneys salivating to get involved.

    The Groom Law Group, De Smith and other law “experts” all know the rules; they’re just not forced to play by them like the rest of us. You’ve heard of the term “plea bargain.” It’s another way of attorneys saying, “You scratch my back and I’ll scratch yours and we both win. Let’s take the money and run and to hell with the truth and what penalty should rightfully be paid.” (John Hogan and others: Excuse me for including all in the same group but you all understand exactly what I am saying).

    My brother Mel who was killed last February, was an ex-ballplayer and former attorney for over 10 years. He told me a few years ago after he quit attorneying that he just wasn’t cut out to be that cutthroat to win at all costs. Good for you, brother. I was proud of your convictions and still am.

  3. Despite the fact I called the NFLPA DURING the ’81 Super Bowl season to talk to an attorney, as I was being told I could still play with a special made helmet to protect the plumbing they installed in my brain and down my neck, and felt I wasn’t being told the entire story.
  4. Despite the fact I had returned to the 49ers Doctors and my first neurosurgeon at Stanford ONE day before I left for Mexico on a fishing trip with brother Mel in ’82, complaining of headaches, irrational behavior, multiple arrests and losing my truck repeatedly in the prior 8 months since my first brain surgery.
  5. Despite the fact they did a CT brain scan on me, which clearly showed my ventricles were enlarged, thus the VP Shunt they had installed in my brain DURING the season was not functioning properly, and they still sent me to Mexico with their blessings.
  6. Despite the fact my brother Mel brought me home in a coma two days later when the shunt completely failed.
  7. Despite the fact I had two more emergency brain surgeries the next day, 10 hours apart and was given last rites.
  8. Despite my having to sue the 49ers for Workers Comp just to get those brain surgeries paid for.
  9. Despite the fact my Workers Comp case took nearly 4 years to settle, I had creditors on me for payment of brain surgeries #2 & # 3 and I was forced to take the stand and be grilled by the 49ers pencilneck attorney, as to what I did during the last day I practiced.
  10. Despite the fact my first attorney (referred by the NFLPA, by the way) let my statue of limitations expire.
  11. Despite the fact that I tried for nearly 5 more years to find a lawyer or law firm with enough integrity or male organs to take my case, which by then was a “Legal Malpractice” against the first attorneys who let my statue of limitations expire.
  12. Despite the fact I gave up on the potential lawsuit to get on with my life.
  13. And despite the fact I have had 6 more emergency brain surgeries since, constantly reminding me of all the wrong that the filthy, criminal NFL has gotten away with for decades; thus I’ve never been able to “get on with my life” since being injured at age 22 while playing for the NFL.
  14. And despite the fact I still don’t “qualify” for NFL benefits.
  15. I still believe that truth will prevail and justice will be served. If not now, then when this game of life is over.

    There are still good people out there and good law firms/attorneys with integrity. Someone will step forward. I just hope that with my memory, I will still be able to realize what’s going on.

    Maybe we should just hope to still be alive by then. Think of Mike Webster.

    I’ll go to war if anyone wants to lead us into battle. I have nothing to lose – I’ve already lost half my mind.

    George Visger
    Brain Damaged Wildlife Biologist/Motivational Speaker
    Visger & Associates Environmental Consulting

    SF 49ers 80 & 81
    Survivor of 9 NFL Caused Emergency VP Shunt Brain Surgeries
    Benefactor of ZERO NFL Benefits

  • Cody C. Jones
    November 17th, 2010 at 12:25 pm #

    Cody Jones - Rams
    Dave,

    You can represent yourself or you have to find some other way. Your blog has a negative attitude toward the NFL Alumni Association, NFLPA and the NFL and rightfully so in many cases. But I think as retired players maybe we have to infiltrate, not sit outside and wait. Retired players with the attitude of “When is someone going to represent us” will die waiting.

    I attended a meeting some time ago when the legendary Deacon Jones who echoed similar words, “We have no one to represent us.” He was stating that to Commissioner Goodell and then the NFL Alumni Association springs up. I talked with Harrison just a few weeks back: he thought they should stick with charities, Owner-backed, and even said Upshaw regretted his statement of non-representation of retired players, told the same of a meeting with the Commish.

    Dave, I don’t care who you choose but if we don’t join, we sit, we wait, we die. At least if some if us join, we don’t all have to join; we can call, talk, E-mail, hell – someone join in and be that viral member. I’m truly not advocating for any one group but rather for the cause of retired players, increased pensions and disability benefits.

    Maybe I’m looking at this too optimistically. But I feel like you have to try something.

    Cody Jones
    Los Angeles Rams
    1974 – 1982

  • Dave Pear
    November 18th, 2010 at 3:34 pm #

    Dave Pear
    Cody -

    We always appreciate your comments and ideas. I think that over the past 3 years of hosting this blog, we’ve done our best to stay focused on retired players’ issues and little else. We agree that staying engaged is very important but each of us has to make individual choices of who we want to work with. More and more of us continue to acknowledge that – while we have each made our individual choices of how to do this and who to join – in the end, we’re all basically working together towards a common goal. Agreeing to disagree from time to time is part of that process.

    I’ve made a personal choice to keep my membership in the NFLPA over the years just as others may also choose to belong to the PA as well as the Alumni – or none of the above. I decided not to join an organization that was funded by a $1 million interest-free loan from the NFL that is now over $400,000 in debt and is looking for another $1 million “loan” from the NFL all without making any serious headway for retired players. But if you wish to also join the Alumni, we’d sure like to hear about your impressions.

    While it sounds like someone may have tried to convince you that we complain too much about what’s wrong with everything, we still believe that it’s very important to openly identify AND discuss the problems BEFORE trying to address and fix them. We’ve heard from too many NFLPA chapter directors who have dropped out in protest after being told they were too “negative” when they wanted to bring up the serious issues of how to really start fixing retired players’ issues. Going to meetings to talk about your golf game or the good old days doesn’t fix the problems. It would be like a bunch of ex-smokers getting together every month and being told they can talk about everything else except the damage they’ve sustained from years of smoking and how they’ll be taken care of now. We can no longer continue to live in denial.

    In the next week, we’ll be making a post about some of these very issues you’ve mentioned in your comment as well as some other major announcements. Stay tuned.

    Dave & Heidi Pear

  • Cody C. Jones
    November 18th, 2010 at 6:40 pm #

    Cody Jones - Rams
    Dave,

    Thanks for the reply. I have joined the Alumni, not as a statement but to hear what’s coming form the horse’s mouth. I’ll be looking for upcoming material.

    Cody Jones
    Los Angeles Rams
    1974 – 1982

  • Burt Grossman
    November 19th, 2010 at 7:59 am #

    Burt Grossman
    Cody,

    With all due respect, the horse’s mouth hasn’t been a very reliable source, especially these horses. I would wait to see it in a new CBA before you actually believe. In this case, the horse’s mouth has been the same as the horse’s ass!

    Burt Grossman
    San Diego Chargers, Philadelphia Eagles
    1989 -1994

  • Cody C. Jones
    November 19th, 2010 at 10:10 pm #

    Cody Jones - Rams
    Very true, Burt, but I’m speaking of hearing what the NFL alumni Association Director has to say and being to verify the ‘he said, she said’ stuff. I don’t if you guys do but go over to some of the other blogs and read some of that stuff.

    I don’t know if any of you attended one of those meetings when the Commissioner was traveling around the country holding with retired players one or two years ago but if you did, what was the major concern? The one I attended, it was, “We as retired players have no one to represent us, no voice.” Then comes the Alumni Association.

    Cody Jones

  • Burt Grossman
    November 20th, 2010 at 7:48 am #

    Burt Grossman
    That’s where we differ. I don’t think the Alumni Association represents us. Much the same way I don’t think the 88 plan or Disability Plan service us.

    Burt Grossman

  • Cody C. Jones
    November 20th, 2010 at 1:23 pm #

    CodyJones
    Burt,

    Do you think the Alumni is just window dressing for the owners?

    The Disability Plan appears to be predicated on who you are. If you look to see who has received or has been approved for disability, it may reveal an interesting picture.

    Again, I’m not trying to advocate – just trying to understand as much as I can.

    Cody Jones