Players union head pummeled by all sides
BEVERLY HILLS, Calif. — He used to do pushups outside the courtroom, 10 or 15 in his suit, enough to lift his heart rate but never so many that anyone could see him sweat. On the other side of those doors was a fight, always a fight, and DeMaurice Smith wasn’t an attorney. He was a warrior.
It’s a different time now, but the world is still filled with judges, and on this springtime Thursday, Smith is pacing outside a private room at the Beverly Hilton. It’s the site of the NFL Players Association’s annual Rookie Premiere, a gathering of the top 40 draft picks, and on the other side of a sliding door are some of the sport’s most powerful agents, a group deeply divided about Smith’s performance as the NFLPA’s executive director.
“A strong leader,” super-agent Drew Rosenhaus says afterward.
“A joke,” another agent will say after requesting anonymity out of concern of retaliation by the union.
A former trial lawyer, Smith has led the NFLPA, the world’s most robust professional sports union but the one also most likely to chew off its own tail, since 2009. He’s best known as a prominent face of the 2011 lockout, the longest in league history, and as the NFL commissioner’s adversary-in-chief.
“I know Roger Goodell wanted to be here tonight,” Smith joked to the crowd at the union’s 60th anniversary gala in 2016, “however lying, cheating and stealing is a full-time job.”
A savage and unnecessary attack, perhaps, at the NFL commissioner — or maybe Smith needling his counterpart, is precisely part of his job. And that’s the thing about Smith: Most everything about him, and his job performance over the past decade, can be credibly debated — and, often, it is.
On one hand, he oversaw the end of the lockout and the resulting collective bargaining agreement, an important piece of sports legislation that led to key advances in player health and safety along with the fairest revenue split ever between NFL owners and players. But was Smith, who had virtually no experience in sports or labor law before taking the country’s most high-profile job in sports labor — two years before ratifying a document that guaranteed management would receive 53 percent of revenue over the next decade — fleeced by the league’s billionaire owners?
“He’s very sound. He knows the game, he understands economics, he’s very intelligent,” says one of those owners, the New England Patriots’ Robert Kraft. “I like him a lot.”
The NFL has indisputably been the country’s richest and most influential sports league for decades. But though players run the ball and make the tackles, owners’ leverage has never been seriously threatened. Strikes have failed, contracts remain nonguaranteed, and there’s no doubt who holds the power.
Which leads to another debate about Smith: Is he a blustering rabble-rouser leading an unwinnable charge, or is his refusal to cede any ground, his reluctance to peacefully coexist with his adversaries, to evade conflict — even, occasionally, against the 2,000 men he represents — precisely what the union needs at a time when players’ voices are stronger than ever?
“I just remember thinking, like: ‘You don’t have to fight everybody,’” said a former member of the NFLPA’s executive committee, the 11 current and retired players who help steer the union’s direction and work closest with Smith. “You don’t have to fight us.”
On this day at Rookie Premiere,
Smith sits at the head of the table and launches into an opening statement. There’s a war coming in 2021 between players and league owners, he warns, likely another work stoppage, and that means the temporary drying of a bountiful cash cow. He insists the agents must convince their clients, whose salaries average about $3 million but whose careers generally span about three seasons, to start savings accounts “no later than tomorrow” in advance of a strike or lockout.
Smith finishes, and several agents ask questions about other issues facing the NFL: gambling, medical marijuana, declining attendance. Most of his responses funnel back toward 2021, even as there’s increasing hope that a new labor agreement might be in place by the end of this year.
“Look, that fight is coming,” Smith nonetheless says, and even now, it’s debatable if he’s being stubborn or cautious.
A new hand goes up, and the agent asks why they’re even discussing this. It’s two years away, and everyone in the NFL has it better than ever. Shouldn’t the focus be on peace, not conflict? If Goodell were to call tomorrow and offer to extend the current CBA, the agent asks, wouldn’t Smith accept?
“[Expletive] no,” he says without hesitation. “Now, that’s just me.”
Knowing his opponent
Not long after being elected in March 2009, Smith met Goodell at a brasserie in the District of Columbia. The dinner was cordial enough, Smith recalls, but at the end, Goodell slid across the table a lapel pin in the shape of the NFL’s red, white and blue shield. Smith, 55, still sees the gesture, ostensibly a welcome to the league, as condescending.
“I’m kind of wired to be combative,” Smith will admit, and following the meal he did what he does: He ruminated, fortified his defenses, vowed to never be taken advantage of.
His first act was to order a now weathered copy of Political Prisoners in America, a 1973 book written by Charles Goodell, Roger’s father and a former U.S. senator who lost his career and reputation because he’d spoken publicly against the Vietnam War, defying his political party and the wishes of President Richard Nixon.
Smith studied the memoir as a handbook for the NFL commissioner’s influences and motivations, the ideas and fallout that shaped him, and over the years he’d highlight passages and revisit certain pages. For a while, he carried the book to Upshaw Place, the NFLPA’s headquarters in Washington. Smith’s predecessor, Gene Upshaw, was a Hall of Fame offensive lineman who then ran the union for 25 years, before dying of pancreatic cancer in August 2008. For better or worse, Upshaw ran the NFLPA like a family business; more important, he had presided over two decades of labor peace with former NFL Commissioner Paul Tagliabue, a former attorney who had cross-examined Upshaw during the Oakland Raiders’ antitrust lawsuit in the early 1980s.
In the early part of Upshaw’s tenure, the NFL was a trade organization run by millionaires — not a corporate titan whose roughly $15 billion in annual revenue would put it in the top half of the Fortune 500. Back then, an NFL executive is famously quoted as having told Upshaw, the league was the ranch and players were “cattle,” an ultimately replaceable asset.
When there was a player uprising, it was usually a disaster; the 1987 strike ended after 24 days and multiple stars crossed the picket line. So maybe it was natural that Upshaw and Tagliabue, recognizing the league was on the verge of staggering growth, agreed it was better to go along and get along.
“War is pointless,” Tagliabue says he and Upshaw decided, though the men faced accusations from both sides of being too cozy. “We had to build something together.”
Tagliabue retired in 2006, and was replaced by Goodell, an NFL lifer who had been groomed for decades to become commissioner and the league’s unilateral authority figure. When Upshaw died, a search firm scrambled to find a few outside-the-box candidates who might stand up to the commissioner.
At the time Smith was a partner and corporate lawyer at Patton Boggs, a powerful Washington law and lobbying firm, with ties to Barack Obama and his Attorney General Eric Holder. Smith recalls engaging with the search firm but assuming he had no chance because his football experience was as a cornerback at his Maryland high school. But that outsider status placed him among four finalists gathering in Hawaii to make final pitches.
Smith had compiled a 300-page manifesto he’d call a “war plan,” and he told players they needed a leader unafraid of conflict. A great battle was on the horizon, he’d tell them, and as an attorney he didn’t avoid taking a case to trial; he relished it, arguing about 150 cases before a jury. Smith closed with an impassioned plea: Players must take NFL owners seriously about their threats of a lockout, the first since 1970.
“You need to have a guy who doesn’t bluff,” Smith recalls, and though some voters remained unsure how to correctly pronounce their new leader’s name — it’s duh-MORE-iss, though usually he goes by “De” — he was the right man for the time.
Almost immediately, Smith’s talks with Goodell were strained. Tensions were further inflamed in 2010, when the league office hired former union President Troy Vincent, Upshaw’s right-hand man and considered by many to be his likely successor. Smith still considers the move out of bounds for the NFL and views Vincent as a turncoat.
Smith suggests Goodell, despite his reputation, actually possesses little real influence on the league’s agenda. Calling the commissioner, Smith says, usually leads to Goodell reaching out to a key franchise owner — often Kraft or Dallas Cowboys owner Jerry Jones — so if Smith wants to resolve something, he might spend 20 minutes talking with Goodell and three hours directly lobbying an owner.
Smith insists he respects Goodell as an opponent and that their relationship has “evolved.”
Business-like approach
As Smith settled in, he found himself constantly under attack, and the most serious threats often came from inside his own building.
When he was introduced to his new colleagues, some confronted Smith with questions about representing Halliburton, the controversial oil company, and why a union leader — meant to be a man of the people — sent his kids to private school. Other employees complained about their new working environment. The NFLPA hired a half-dozen attorneys from Washington law and consulting firms, instituted biannual performance reviews, required departing employees to sign nondisclosure agreements.
Smith does not deny that his NFLPA feels less like a family operation and, with billions of dollars and political influence on the line, more like a pressure cooker.
“That’s the way a business is run,” he says.
Smith occasionally struck some as aloof or defensive, in particular when it came to his inexperience in football and critics’ opinions escalated following the 2011 lockout. Smith correctly predicted the work stoppage, and even now he suggests the experience was valuable for players: a painful lesson in how far owners are willing to go.
But perception of what players gained in the CBA has aged poorly. One influential NFL agent suggests that Smith was such a ham-fisted negotiator that when he sat down at the bargaining table, owners were willing to offer players 55 percent of total gross revenue. When the agreement was finalized, players received just 47 percent.
According to offer sheets and other documents made available by the NFLPA, that total revenue, which is what players had access to before 2011, isn’t the same as all revenue, which represents their cut now. The 2006 labor agreement, which is now seen as unusually generous to players, allowed owners to take considerable deductions before players could access their share. Those exemptions totaled about $500 million; in 2011, they’d grown to $1.1 billion.
The current CBA merged those items, eliminated the deductions, and gave players a minimum 47 percent of all revenue over the life of the deal — a smaller slice of a considerably larger pie. The new pact also mandated the league overall to spend at least 95 percent of the salary cap (individual teams must spend 89 percent of their budgets) over four years, reduced hitting in practices and improved post-retirement benefits.
According to executive committee members in the sessions, Smith was creative and resolute — but four months into the lockout and with training camps approaching, some players were increasingly anxious about missing paychecks.
“We didn’t have any leverage, frankly,” says a former player directly involved in negotiations, adding that he didn’t want to sign what would become the current CBA. “We were only going to continue to lose leverage.”
The player says he feels better about the deal now than he did in July 2011 and that Smith led the union to the best deal possible under the circumstances.
Many agents and players, including former San Francisco 49ers offensive lineman Alex Boone, were convinced Smith had blown it. Owners spiked Goodell’s annual compensation from $11 million in 2010 to a $108 million over the first three years of the new CBA.
It didn’t help that Smith can come across as a hyper-academic Beltway creature, refusing to simplify his language even when explaining advanced economics.
“A lot of guys were pissed about it, and here’s this fast-talking lawyer from D.C., and I thought: ‘This [expletive] guy, he’s all over the place,’ ” Boone says. “I’ve been in rooms with De where guys have gone after him, like really tried to cut him open.”
After running unopposed for a second three-year term in 2012, Smith had become so polarizing by 2015 that eight finalists were on the ballot to unseat him.
“A referendum on the leadership,” says Belser, one of those finalists who gave up his 11-year union career in part to challenge his boss. “I wanted to leave and end my tenure at the players’ association with my reputation and credibility. Because it was eroding every year.”
Facing Goliath
One morning last month, Smith was part of an NFLPA contingent that took the train from Washington to New York. Smith sat in the last row of the first car and busied himself, preparing and contemplating what he’d say during a meeting with the NFL’s Management Council Executive Committee.
The union has engaged in four negotiating sessions with owners over the last two months, to negotiate a new labor deal. There’s hope for progress; that a war might be avoided.
“The environment and mood is a lot better today than it was last time,” says Kraft, a member of the committee.
Colleagues can’t help wondering, if there’s an agreement in place months before the CBA expires in March 2021, whether Smith might be disappointed, wondering if he should have asked for more, if he should have fought harder.
“You have to prepare for the worst,” he’ll say, and earlier this year he pulled an old book off his shelf. It was Goodell’s Political Prisoners in America, though this time he flipped through it as a reminder to himself that principle is a virtue, but one with consequences.
So on this morning in early June, he’s rehearsing, reading, considering the angles and his arguments’ weak points before the doors open at a midtown Manhattan law office. He wants a more balanced share of all revenue for players, though at what cost? He says an 18-game regular season is a “nonstarter” and that he won’t sacrifice players’ health and safety for a more lucrative split. Perhaps there’s opportunity for players to receive a larger percentage of stadium payouts, for minimum salaries to increase. There’s language regarding guaranteed contracts to think about along with practice squad pay.
There are, in other words, walls to fortify even if the worst never comes.
“When you go in there, you’ve got to be prepared to fight the sharks,” says Boone, who once hated Smith before getting to know him. “At the end of the day, you’d better have the meanest shark fighting for you.”