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Feb. 24, 2009

 

 

 

 

Valerie Thomas

Former NFLPA Employee

 

 

 

Who and what is influencing the direction of the NFLPA?

Corporate or Democratic Unionism

I read an interesting article in the Washington Post in May 2008 entitled, “A Leader, His Critics and a Union Divided.”  This article mentioned the term “corporate unionism.”   Other articles on this subject are a must read to get an understanding of how outside influences impact on your union.  http://www.washingtonpost.com/wp-dyn/content/article/2008/05/26/AR2008052601920.html

The NFLPA and AFL-CIO - The Federation of Professional Athletes (FPA) is the umbrella for the National Football League Players Association (NFLPA) and is an AFL-CIO affiliate.  In 1985 the late Gene Upshaw was elected to the executive council of the AFL-CIO, as a Vice President and served until 2008.  The following excerpt is part of a series of five articles about the direction of the AFL-CIO.

Corporate Unionism by Harry Kelber – September 6, 2004

…“The AFL-CIO, as presently constituted, serves as a model of corporate unionism, in which a group of labor leaders, acting like a corporation, treat unions as their collective property.  Big-time union leaders each have their own tightly-controlled fiefdoms. They regard union democracy as an outdated practice, even a luxury, in a global economy that requires labor leaders to act quickly and decisively.

If union members want to maintain their rights for the dues they pay into their labor organization, they will have to be aware of the symptoms of corporate unionism and learn how to fight it.

If labor leaders act as though they own the union and can do as they please with it, that’s corporate unionism.

If they can spend the union’s money freely on whatever they choose without the approval of the membership or the obligation to issue a financial report, that’s corporate unionism.

If they control negotiations with employers and make decisions about the terms of a contract, while denying any input from their members or allowing discussion and a fair vote on the final settlement, that’s corporate unionism.

If they suppress all criticism of their policies and actions and allow no voice for members with dissenting opinions, that’s corporate unionism.

If they become remote and inaccessible to their union members and develop life-styles and attitudes that are closer to that of the employers, that’s corporate unionism.

And if their prime objective is to get elected and re-elected until they are ready to retire, without developing new leaders that are capable of fighting for the needs of the members, that’s corporate unionism.

In the developing corporate culture, a union is only as strong as its leaders, not its members.”

“AFL-CIO leaders have three ways of dealing with critics: they can ignore them, co-opt them, or harass and fire then, especially if the critics are persistent and seem to gain popular support.”  http://www.laboreducator.org/corpunion1.htm

In search of the next NFLPA Executive Director

Vetting the Vettors

Reilly Partners (Bob Reilly and Dave Poulin) was chosen from a field of six businesses to spearhead the search for the next NFLPA Executive Director.  Pat Richter, a former NFL player was retained as a consultant.  Interim Executive Director and General Counsel Richard Berthelsen highly recommended this firm and consultant based on his experience and personal business connections. 

Mr. Berthelsen attended the University of Wisconsin Law School during the same period as past NFLPA Executive Director Ed Garvey.  Pat Richter and Berthelsen attended undergraduate school at the University of Wisconsin as well as the University of Wisconsin Law School.  Dave Poulin is a former professional hockey player and Pat Richter’s son also played in the NHL.

In 1971, Ed Garvey recruited Berthelsen to the work at the union two (2) years after he had graduated from law school and after having only two (2) years of legal practice in Wisconsin.  The University of Wisconsin Law School has State diploma privilege and its law school graduates can be admitted to practice law in Wisconsin without having to take the bar exam.

In 1983 Berthelsen became the NFLPA General Counsel.  He is mainly a sports labor lawyer who participates in arbitrations, not a leading trial attorney in court cases. 

Berthelsen was twice (2005 and 2007) considered as a candidate and finalist for the position of the Executive Director of the National Hockey League Players Association (NHLPA).   In 2007 Reilly Partners was the search firm that considered him as one of the top three finalists for the NHLPA position. 

Berthelsen established the Workman’s Compensation panelists, many of whom have longevity with the NFLPA.  The Workman’s Compensation panelists receive referrals and the lists of NFLPA financial advisors as well are shared with the NHLPA and other sports groups. 

Berthelsen has access to personal and confidential information on all potential candidates; he has visited NFL teams during elections for player team representative positions and he has made recommendations to the Executive Committee and Board of Player Representatives during the selection process.  Workman’s compensation attorneys visited the teams during the 2008 player representative elections.

For decades outside attorneys and other large, expensive law firms, managed by General Counsel Berthelsen, have made millions dollars from the NFLPA and Players Inc. 

The Inner and Outer Circles

The current NFLPA President is Kevin Mawae (2008-2010).  The four past Presidents are:  George Martin (1988-1989), Mike Kenn (1989-1996); Trace Armstrong (1996-2004) and Troy Vincent (2004-2008).  The names of the Executive Committee and Player Representatives can be found at www.nflpa.org

Past President Attorney Tom Condon (1984-1986) represented and/or was advisor to the late Gene Upshaw and past NFLPA president, Trace Armstrong.  Condon represents many interests of the Federation of Professional Athletes (FPA), including the Retirement and Disability Board.  Condon previously worked for IMG and is currently with the Creative Artists Agency.

Trace Armstrong currently works for Creative Artists Agency (CAA).  It was reported that Condon is possibly advising Armstrong on his candidacy.

Attorney Jeff Kessler has been a legal advisor to IMG, CAA and the NFLPA.   Kessler is advising Berthelsen about the selection process and it has been rep

orted that he has attended search committee meetings.  Is he also a paid consultant?  If so, why?

Attorney Kessler’s son, Andrew Kessler, has worked for IMG and CAA with Tom Condon and Trace Armstrong.

 John Madden has been represented by IMG Vice President Sandy Montag.  IMG and CAA represent players in NFL contract negotiations and endorsements.

Attorney Joseph “Chip” Yablonski, outside counsel, has represented the NFLPA for over 25 years in business and employment matters.

 

 

NFLPA Constitution Ignored

In 1989 the NFLPA decertified as a union.  In 1993 it recertified to union status and in 1994 Players Inc. was established.  Since 1993 the NFLPA Constitution has been ignored and retroactively amended. 

The Executive Director is an at-will employee who is elected then hired by the Board.  In 1993 an employment contract was negotiated with the Executive Director for a seven (7) year period (1993-2000).   In 1995 an Executive Committee member raised concerns about the length of the contract and was, reportedly, met with a personal verbal attack.  This was done over a legitimate business inquiry.

The NFLPA Constitution requires that elections be held every three (3) years yet allows for the employment contract to be negotiated less than or beyond an elected term.  These two sections of the Constitution are in direct conflict, obfuscations.  When was the Constitution amended to allow contracts to be negotiated more or less than the elected term?  After the action?

By paying the Executive Director beyond election years, the power of future Executive Committees and Board Reps is usurped, making changes very difficult, and financial liabilities beyond services provided (guaranteed contract). 

General Counsel/Interim Executive Director, Richard Berthelsen, has suggested that the next Executive Director should be someone who can serve long-term (“10 years” was mentioned).    Other player representatives are entertaining this concept.

If you decide to elect another leader in 2012 and give him a contract that exceeds his elected term, will you have to pay for the balance due on a 10-year employment contract?  Will you find yourself in litigation over the contract terms?  Who will pay the legal fees?

Will players be excommunicated because they demand accountability?  The decisions that you will be making could tie the hands of the next three generations of players, their power could be usurped and elections could become obsolete.

The U.S. President is elected to a four-year term and can serve only two consecutive terms or 8 years.  The Unites States of America has elections that take place during times of war, peace and economic crisis. 

The NFLPA is, in no way, more important than the highest position and protector of our nation. 

 

 

 

Building a better union

The call is for transparency in the selection process.  However, transparency can have two meanings:  (1) clearly having nothing to hide, abiding by the rules or, (2) clearly letting stating that you don’t know what is best for the union and no power to do anything about it. 

The NFLPA could be headed toward a “corporate takeover” by your own actions or inactions - the precedence you are establishing right now.  Who are your candidates’ affiliates? Trace Armstrong, DeMaurice Smith, and Troy Vincent.  What is their proposed agenda?  Status quo?  Corporate?  Democratic Unionism?  Change? 

As time moves forward the players must not forget the past – the foundation of the NFLPA - and all of the positive things that have developed.  Active and Retired players, even if they are separate entities, must take responsibility for the direction of the NFLPA and ensure that the issues of past, present and future players are given the utmost consideration and are resolved.

Now more than ever the structure of the NFLPA needs to be clearly defined by the players.  The next NFLPA Executive Director will serve a three year term from 2009 to 2012 and the current Executive Committee will only be in place until March 2010.

There is frequent turnover of players in the NFL – almost 1/3 every year and Team Player Representatives are elected each year or replaced as needed because of cuts, trades, or as a result of career ending injuries.

The objective of the union is to protect the integrity of the Collective Bargaining Agreement (CBA) as it relates to the league, the teams, and the players as a group.  Negotiations serve to address concerns and modify the CBA.

However, the Association must serve those who financially support its existence – the players.  Although dues check off was obtained in collective bargaining, and ensures the operation of the NFLPA, it is not to be taken for granted to whom the elected and hired staff serve.

The NFLPA should be an active advocate for the players, taking action,  initiating studies on injuries, concussions, health/safety, pension, disability, medical coverage, discipline – conduct, fines, diversity and taking action to resolve inconsistencies.  This must be done before the issues are merely addressed as public relation problems and subsequently receive band aid solutions or disappear from the radar screen.

The active and retired players must hold the elected Board members and Executive Committee responsible to direct the mission of the organization.  Bad decisions could be disastrous and take away the power of the players, future Executive Committees and the Board of Player Representatives.

Legal technicalities might be the basis of the recent appeal of the retired players’ lawsuit but it cannot reverse the conclusions that the jury made, based on testimony and evidence, about NFLPA management and its business practices. 

Censorship and punitive disciplinary actions against Player Representatives, Executive Committee members and Retired Players by its own advisors could become a way of silencing and maintaining control and instituting fear of an organization that you helped build and support.  You must not allow people to create issues to exploit and fill their pockets at the expense of providing benefits to its members.

Confidence in your leadership is necessary and the lack thereof will implode your organization.  You must demand professionalism with integrity and accountability.  You must do what is best for the players, not just the teams, the league or the game.  This is why the negotiation process is called Collective Bargaining.

In 2011, if there is an impasse in CBA negotiations, NFL players could be locked out.   

Do not allow self-promoting and outside influences to build a foundation in your head.  If you do, you might as well give them permission to use your Home Depot credit card to purchase and use your tools;  build your house; make you pay to furnish it; and, lock you out.

Valerie J. Thomas

 Thrice locked out (1988, 1997, 2003 and continuing)

Former NFLPA employee

 

 

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