Friday, July 22, 2011

My God…When Will it End?

Despite the positive indicators on both sides of the NFL Lockout, as I write this on Friday, there is currently no labor agreement.  This whole thing has been a mess from the start, and I do think that both sides are to blame somewhat.  Right now, though, the blame lies squarely with two parties in the process.

The players.

And the lawyers.

Let me explain.  The players didn’t receive a final draft of the document allegedly until right before the owners’ vote last night.  Speaking from experience, this is likely the fault of the lawyers from both sides, in a pretty bald-faced attempt to pile up billable hours for bonus purposes, but more on that later.  What is ridiculous is that somebody on the players’ side read the document, saw that some minor things had changed, and events unfurled like this:

/someone reads completed document, notices minor changes.

//players blow up twitter with fantastic stories about how there are bloody 12” machetes sticking out of their backs.

The whole thing is a bit ridiculous, and speaks to some of the dangers of twitter.  It’s a fantastic resource for getting information quickly, but it’s also a great way for misinformation to spread organically, like a wildfire, though twitter is set up in such a way that there aren’t any potential firebreaks other than someone with more “social proof” (like a Peter King) stopping the rumors in their tracks.  Unfortunately, this didn’t happen, as most of the media seem to be fanning the flames, despite nothing being reported about what exactly was “changed” in the deal.

Here’s why I don’t think the owners are at fault on this one: if these changes are so egregious, why hasn’t anyone come out and given at least one example of a materially-changed term?  What more-than-likely happened is that overworked, grunt lawyers on both sides have been exchanging language back-and-forth between pots of coffee and crushed-up Adderall around the clock for a few days now.  At some point, there were probably some minor changes made to the wording for legal purposes.  I have no way of knowing exactly what those changes were, but experience tells me that they were probably relatively minor, “Cover-Your-Ass” type things that would have to be included in any ten year deal.  Is it possible that someone made a mistake along the way?  Sure.  It happens.  As meticulous as they are, lawyers still make mistakes, especially when they haven’t slept for two or three nights, as was probably the case in this deal.  But I think that whatever changes were made to the agreement are being blown completely out of proportion.

Here’s where it breaks down on the players’ side: someone heard “changes,” and instead of seeking out more information from De Smith or someone else equally in the know, they decided to go public with whatever limited information they had.  This is pretty irresponsible of whomever did it (especially if it’s a lawyer or part of the management team), but it’s out now, and it is what it is.  At least Kevin Mawae is trying to minimize the damage now by saying that it’s not such a big deal after all, and there still may be a player vote tonight.  Still, to show such paranoia in these kinds of high-stakes negotiations could be interpreted as a sign of weakness by the players; it’s perhaps more dangerous to cry wolf in this situation if they are ultimately wrong, as such a claim (if unproven) significantly undermines the business acumen of the players as a whole, all because a few guys got a bit trigger-happy on twitter.

The real culprits, though, are the lawyers.  I think it’s far more likely that there was a breakdown in communication somewhere in the negotiation process between the NFLPA attorneys and their clients.  You can’t put it solely on the lawyers; maybe De Smith told them he needed to get some shut-eye, and not to bother him unless it was of “crucial importance.”  I’ve had clients make similar requests before, only to later blow up at us as a negotiation ploy.  What I do know is that lawyers love billable hours.  They are the lifeblood of the vast majority of law firms.  More time “tweaking” the document, or in this case, reviewing it for “nefarious activity” by the owners, means more billable time.  Many of these attorneys charge up to $1,000 per hour for their time, with even first-year associates at the kind of firms both sides are using billing out at over $400 per hour.  You don’t think that putting a team of ten-or-so lawyers on it for another 8-12 hours means some real cash for the firm?  Please.

The lawyers for the owners, though, are similarly guilty.  Apparently, they didn’t complete the document until the “eleventh hour,” right before the owners’ meeting last night.  This also reeks of trying to pack as many hours onto their bill as possible, though, to be fair, their team was probably also horribly overworked and going on adrenaline/chemical stimulants.  They should have completed the document ahead of time so that both sides had more of a chance to review it, and to curb all of this paranoia, “he-said, she-said,” before it started. 

Again, it’s possible that the sides were drafting up until the last minute, but here’s why I don’t think that’s true: bonuses in the legal world are often based off of billable hour targets, i.e. you bill 2200 hours, you get $15,000 in bonus.  With such large teams of lawyers working on this deal, it’s entirely possible that one or two lawyers on either side decided that they were going to squeeze some more billables out of this for bonus purposes, and became "difficult" to try to stretch out the process.  Ethical?  No way.  But practical?  You know it.  I’ve seen it happen on deals that I worked on before—there’s no other explanation for some of the petty behavior exhibited by lawyers in the closing minutes of negotiating a deal.    

In the end, the players shouldn’t  feel so “betrayed,” and the owners should have made sure that the players got the actual CBA document a little bit earlier, and controlled their team of lawyers a bit more.  If it comes to light that the owners were actually trying to pull something on the players later on today with tangible evidence, I’ll be the first one to apologize.  But from my own experience, I think what’s really going on is the perfect storm between second-or-third-hand knowledge, and overworked, over-billing lawyers.

Now, can we please get something done here so that we can get back to football?

Questions?  Comments?  Thought I quit being a lawyer months ago?  E-mail the Blogmogger team at

No comments: