In recent years, the word “collusion” has come up in various contexts. As used with respect to the NFL, collusion typically means owners coordinating their business practices in ways not permitted by the Collective Bargaining Agreement or the law.
The CBA permits coordinated practices for the player workforce, because the NFL and the NFL Players Association have created a “multi-employer bargaining unit.” Specific rules like the salary cap and the draft would violate the antitrust laws, but for the existence of the union. (That’s why the union’s first move in the 2011 lockout was to shut down operations and to sue the NFL for violation of the antitrust laws.)
As it relates to things the teams are permitted to do by the CBA (e.g., give players fully-guaranteed contracts), an agreement among teams or a directive from the league (usually, the Management Council) to refrain from doing such things becomes impermissible collusion.
So how does it happen? Well, it potentially happens four times per year, when the owners meet. NFLPA executive director DeMaurice Smith said during an October appearance on #PFTPM that the union refers to those quarterly ownership meetings as “collusion meetings.”
It’s no different than the CEOs of McDonald’s, Burger King, Wendy’s, Taco Bell, Subway, Long John Silver’s, KFC, and every other fast-food (good food quickly) restaurant meeting four times per year to compare notes on how they’ve been doing business and how they’ll be doing business. These are competitors, not partners. Any effort to, for example, cap wages or restrict employee movement from one good-food-quickly restaurant to the next would be an antitrust violation.
For the NFL, it’s a little more complicated. The 32 owners are both partners and competitors. As it relates to the things the CBA allows each of them to do, they are competitors. If they partner up and agree not to do those things (e.g., if they refuse to give out fully-guaranteed contracts), they are illegally colluding.
As it relates to Lamar Jackson, the seeds of collusion (if any) were planted last year, with the blowback the Browns experienced for giving quarterback Deshaun Watson a five-year, fully-guaranteed contract. Multiple owners spoke out against the deal, a stunning move that gives credence to collusive behavior. Later in the year, the NFLPA filed a grievance alleging that the owners were colluding to keep “certain quarterbacks” from receiving fully-guaranteed deals.
It’s no surprise, then, that multiple teams have preemptively slammed the door on pursuing Jackson. If they never engage him in negotiations, they never have to say “no” to his request for a fully-guaranteed deal. Which means that there’s never a parade of teams that refused to give Lamar a fully-guaranteed deal.
While the failure of any team to pursue him (if that’s what happens) would be proof of collusion, more evidence would likely be required than that to show that the decision was coordinated and not coincidental.
It’s similar to what happened several years back, during the shunning of Colin Kaepernick. His grievance gathered enough evidence to result in a seven-figure settlement. While that’s peanuts when spread among 32 teams, the NFL would have fought like hell if the NFL believed it would have won.
So as free agency begins, the subtext becomes whether evidence of collusion can be harvested if/when Jackson is ignored. It would be far easier to harvest that evidence if Jackson had an agent interacting with teams.
Maybe, for this reason, the NFLPA should consider nudging Jackson to hire an agent. Apart from the fact that it’s currently (and has been) in Jackson’s best interests to do so, it’s now in the union’s best interests to have an agent pounding the pavement for a potential contract offer for Jackson, since it will be easier to develop know-it-when-you-see-it proof of collusion if/when the agent keeps pestering team after team after team and getting nowhere at all.
Regardless, it will never be easy to prove collusion conclusively. The teams are smart enough to not create paper trails. And they don’t need to, not when the owners get together at least four times per year to potentially collude not through texts or emails or phone records but through conversations that happen behind closed doors and/or during cocktail-party harrumphs and guffaws while holding a drink in one hand and a small plate of hors d’oeuvres in the other.