Fate of the Union: What the NFLPA Can Learn From the Fight of '77

Compared to their NBA and MLB cohorts, NFL players have it rough. Their short careers in a violent sport include nonguaranteed contracts and restrictions on free agency—and owners have always had the upper hand. For one forgotten moment four decades ago, though, the union had the NFL on the ropes ... and blew it. With players once again readying for labor war, the lessons of that battle matter more than ever.

Illustration by Tim McDonagh

There should be a plaque commemorating the day in December 1976 that Ed Garvey walked into room 1507 of the Madison Hotel in Washington, D.C. A bronzed wingtip, maybe, set down among the busts in Canton somewhere near Pete Rozelle’s head. This was a meeting of lawyers, which in itself wasn’t so remarkable—after maybe the T formation there is no more quintessential alignment in big-time football than one lawyer sitting across from another. But this one was a little different. History was in motion the day Garvey, the executive director of the NFL Players Association, came to the Madison. The meeting marked the beginning of the end of maybe the best hope to reshape the basic structures of professional football.

Then as now, the players’ compensation was out of step with the game’s prosperity. Then as now, their job protections were insufficient amid the violent uncertainty of the sport. But jock empowerment was in the air, and in ’76 the NFL players had the wind at their backs. Federal judges had spent the previous two years throwing the Sherman Act at the NFL. One judge had called the draft “a per se violation of the anti-trust laws.” Another said the restriction imposed by the Rozelle Rule—whereby the commissioner compelled teams that signed free agents to compensate a signee’s former team, thus smothering the market and free agency with it—was “so clearly contrary to public policy it is illegal.” A third took aim at both, calling them “patently unreasonable and illegal.” The players were chattel. The owners were monopolists. The NFL was a criminal cartel. The federal judiciary had all but flown the Goodyear Blimp over the Meadowlands to declare as much.

If there was ever a time for something radical to happen, it was now. The NFLPA for years had operated from a “paternal sufferance position,” in the pungent phrase of John Gordy, a Detroit Lion who once served as the union’s president. After Garvey came aboard in ’71, the players grew feistier, finally striking in the summer of ’74. “Freedom issues,” as they came to be known, were at the heart of their demands: everything from a ban on “psychological and personality testing” and an easing of training-camp curfews to trade-veto rights for veterans, the elimination of the commissioner’s disciplinary authority, and the end of the Rozelle Rule. No freedom, no football was their slogan that summer.

In a narrow sense, that strike failed: The players returned to work without concessions from the league. Garvey would admit later that it had been poorly conceived. But as a body the players had found a moral language for their grievances, and at last there was a comprehensive strategy for taking on the owners to match the comprehensive dominion they extended over their workers’ lives. As Garvey sat down with an NFL negotiator to begin carving out a new contract, a more equitable league seemed possible. Freedom itself was on the table.

The meeting isn’t much remembered today, in large part because the players did not win any freedom in the talks that ensued. It would take another 16 years and two more strikes for that to happen. But some of the 1977 deal has lived on in the dynamic between the league and its workers, who at the moment are readying for a stoppage of one kind or another in 2021. What happened in ’77—and more important what didn’t happen—is a lesson in power, in how the players get theirs and the owners get theirs, and in what it would really take to bring the fullest sort of freedom to the business of pro football.

In the fall of 2018, Pittsburgh Steelers star Le’Veon Bell decided not to play football for a season rather than accept something called a “franchise tag tender” worth $14.5 million—a lot of money, but significantly less than a star athlete in his prime could expect to make in the NBA or MLB. Bell was 26 years old at the time, entering what would have been his sixth season in a league where a running back is lucky to make it into his third, and to that point he had never had a chance to negotiate a deal on the open market. This is accepted as an unremarkable fact of life in the NFL, and Bell was thrown in the stocks for having dared seek a salary commensurate with his value.

There is a whole dizzying language now governing the business of euchring men like Bell out of their money. The “franchise tag” is a designation, born in the 1993 CBA, that binds a player about to become an “unrestricted” free agent—the redundancy is telling—to his team. The jargon serves to cover up the continuities between the modern NFL and an era in which the suppression of player mobility was more frankly administered.

Bell was staging a one-man protest along the same moral terrain as the ’74 strike: No freedom, no football. In March he wound up signing a four-year, $52.5 million contract with the Jets, of which a reported $25 million is guaranteed. He’d found the market softer than anticipated, evoking another bit of ye olde NFL—the tradition of owners punishing uppity players.

By nature and by design, the sport takes power away from the men who play it. The great football historian Michael Oriard points to two “fundamental truths” of the game. One is that careers are short. There is little incentive for anyone to give up a chunk of his time in the NFL for a strike when he probably won’t last four seasons in all. And the other truth is that one player matters less to a football team than to a basketball or baseball team. Those basic features conspire to make things “a little more tenuous, a little more uncertain” for the players, who become a little more likely to “settle for less than they otherwise might be able to demand.”

Garvey was aware of the bind the players were in, of how both the built-in and imposed uncertainties of the job could send cracks running through the solidarity of his membership. Especially after the ’74 strike failed, Garvey’s priority was to create security for everyone. Above all, this required making the union whole. While the players talked soaringly of “freedom,” he spoke pragmatically of “dignity.” What he wanted was a contract “directed toward the weakest members of our bargaining unit,” as he would later describe the deal.

The thing people say about Garvey, who died in 2017, is that he was a trade unionist, the very phrase meant to join him to a certain corner of American history as if with a brazing torch. His vision of the union wouldn’t have been out of place on the shop floor of Wisconsin Steel. “The Wobblies on the field” is how Oriard describes it.

Oriard, a former NFL player who lost his job after striking in ’74, says Garvey’s idea of player solidarity was “quixotic and visionary.” He saw his constituency as the rank-and-file. This was at once instrumental and ideological. He needed the league’s middle class to preserve the union, but his political sympathies lay with them anyway. To Garvey, the stars were “semi-monopolists.” A star has “always been able to use the system to his advantage,” he once told an interviewer for a project about collective bargaining in sports, the audio of which can be found in Cornell University’s Kheel Center for Labor-Management Documentation and Archives.

The 1977 agreement, signed in March of that year, did bring tangible gains. The deal gave players a bump in benefits and an arbitration board for their grievances, and the league relented on some of the smaller freedom issues. Most significant, all 1,400 or so players now had to pay union dues. What good would those favorable court rulings have been without resources to enforce them?

But Garvey had won these concessions by bargaining away what the players had won in the courts. The draft, toppled in theory by Yazoo Smith’s lawsuit, was restored. And the Rozelle Rule, dispatched by John Mackey’s lawsuit, was replaced with a complicated system that still effectively penalized teams for signing free agents. By ’81, the market had so frozen over that even Walter Payton couldn’t get an offer.

Garvey had given away “the holy grail,” says James Quinn, who was lead counsel in Freeman McNeil’s landmark 1992 antitrust lawsuit against the league. “I loved Ed—he just didn’t focus on the importance of free agency . . . he was focused on trying to improve the benefits for all the players—pension, disability, improving the base salaries, the kinds of things, if you were a steelworker, you would be focused on.” To Garvey free agency meant “only the quarterbacks and running backs would get a lot of money,” Quinn says. It meant splitting the union.

Richard Berthelsen, a lawyer for the NFLPA in ’77 and later its interim executive director, insists free agency just wasn’t winnable. Why? “You’ve got a bunch of billionaires who don’t want to give it to you,” he says flatly.

Out of some mix of pragmatism and ideology, Garvey treated freedom largely as a means to an end rather than as a maximalist principle around which to organize. In so doing, he shrank from an idea the players have long eloquently articulated. There was John Mackey in 1974, inveighing against the “decent men” who accepted slavery for too long, thundering, “You cannot pay me enough for me to allow you to sell me or trade me.”

“Do you think a system that gives a backup player a million dollars is unfair?” an NFL attorney, Frank Rothman, asked McNeil at trial. The running back’s lawsuit would set the stage for the liberalized if baroquely regimented free agency of today. He was a backup by the time he’d put his name on the lawsuit—a Garvey sort of guy, no one’s idea of a monopolist.

McNeil replied, “Do you think a system that gives a player money instead of his freedom to choose is unfair?”

It was a star, ultimately, who ushered in the NFL’s era of provisional freedom: Reggie White, the defensive end, who put his name on the class-action lawsuit that sought free agency for about 280 players. “This is the football equivalent of the Emancipation Proclamation,” White said then. The suit led to the 1993 settlement, which introduced “unrestricted” free agency for veterans. Owners and coaches would court White; the Browns’ Art Modell, who a few decades earlier spoke of his players as “boys” who should be grateful for their $10 per diems, gave White’s wife a $900 leather coat. White wound up signing a $17 million deal with the Packers that made him then the third-highest-paid player in league history.

Garvey was long gone from the NFLPA by this point, having resigned in 1983. Who knows how things would look today if he’d won free agency for the players in 1977. The union would almost certainly be in a stronger position. The players would have reaped a greater share of the TV money that rained down on the league in the ’80s. The disastrous strike of 1987—during which the league fielded scab players, and the networks happily broadcast scab football, a formidable alliance of interests set against those of the players—would not have happened.

Garvey’s error was in viewing stars as a trouble to be contained rather than as a force for prying apart the status quo. “We’ve come to grips with an important problem,” he said not long after the ’77 deal had come together. “That is, what do you do if a few people are getting all the money and the majority of people aren’t getting much?” But free agency, introduced in the midst of the TV bonanza, improved everyone’s lot. At the low end of the scale, as economists Michael A. Leeds and Sandra Kowalewski have found, pay and performance came into better alignment after ’93—underpaid players enjoyed better bargaining power.

The current CBA expires after the 2020 season. Guaranteed money will probably be the main freedom issue under dispute. The dollar amounts are different, but the essential logic of league labor relations remains the same: The NFL is a racket—all those federal judges said so—that the players themselves have to legitimize every few years by sacrificing some share of their freedom. If the NFLPA’s members want to alter their fundamental relationship with the league, they’ll have to do what Garvey would not: put the stars at the front of the fight. “In the NBA, LeBron James, Chris Paul . . . they’re at the forefront,” Michael Bennett, then a backup player rep for the Seahawks, told ESPN The Magazine in 2016. “There’s no Peyton Manning standing up for the rest of the players. He’s a great player, but what has he done for the league?” And in turn those stars will have to back up the rank-and-file. No stars, no freedom.

There’s a tendency to see the history of labor relations in the NFL as a series of discrete, big-ticket affairs, like Super Bowls with briefcases: ’74, ’77, ’87, ’93, ’11. But close one eye and the history starts to look like an unbroken argument about self-determination, from John Mackey to Freeman McNeil to Colin Kaepernick to Le’Veon Bell. Garvey changed the game for the better. He’d performed the hard, radical task of making the owners and the fans see the players as workers. But he’d left unfinished the job of making them see the players as humans.

• Question or comment? Email us at talkback@themmqb.com.