DeMaurice (“De”) Smith is the Executive Director of the National Football League Players Association (NFLPA), the union for professional players in the National Football League (NFL). Under Smith’s leadership, the NFL players negotiated a historic 10-year collective bargaining agreement (CBA) with NFL owners in August 2011. The new CBA achieves unprecedented benefits for players, including new health and safety protocols in effect throughout the season and into retirement. Prior to his work with the NFLPA, Smith was a trial lawyer and litigation partner in the Washington, D.C. offices of Latham & Watkins and Patton Boggs. Before his tenure in the private sector, Smith served as Counsel to then-Deputy Attorney General Eric Holder (now United States Attorney General) in the U.S. Department of Justice.
On Monday, June 9, 2014, Smith made time for a special visit to participate in a luncheon executive chat at the Chicago law offices of Winston & Strawn. The conversation, which benefited the youth educational programs of LINK Unlimited, was essentially Part II in our discussion on the business of professional football (click NFLPA @ Met Club Chicago to read Part I). After a light lunch, an estimated 75 executive guests enjoyed our ongoing discussion about doing business with the world’s richest sports league, race relations in sports and issues of player health and safety. Here is an edited transcript of Smith’s responses to five major topics of inquiry:
1.) Crockett: Pro basketball has been praised for its no-tolerance policy in the Donald Sterling case. The NFL seems prepared to ban racial slurs on the filed but has been more tolerant of racially insensitivity off the field. How do you feel about how the NFL handles race?
Smith: Yes, the NFL is a $10 billion a year business. It’s commoditized, and sold and packaged. But the essence of why our fans love our sport is for the beauty of sport. When it comes to race relations and tolerance of ideas, it seems to me that what we want to accomplish is that nobody should be in the business of trying to intentionally hurt, harm or slur anyone. From an NFL union standpoint, I don’t believe at looking at this episodically. It’s not a Donald Sterling issue or a Michael Sam issue or a slur issue. It’s what do we want to accomplish while our guys are playing the greatest game and making sure that we do not intentionally inflict harm or derision on anyone. Is that a player issue? No! It’s a league issue. If anyone is going to be trained on issues of tolerance and acceptance it has to be everyone, from the ball boy to the team to the kicker to the QB to the coach and GM and to the owner.
We are only two years away from a General Manager asking a player during the rookie combine about whether he likes girls or whether another player’s mother was a crack addict. That didn’t come from players, that came from a GM and that GM wasn’t punished. When you fast-forward to the issues (of racial discrimination and bullying) that we had in Miami, suddenly the league says, now we have a problem. No, you had problem two years ago that you didn’t handle in a comprehensive way. So the real question is how do we go about comprehensively approaching this? Do we want to just sell tickets and make sure people watch the game? Or do we a want to make sure our sport and our business is handled in a manner that would make all of us proud? That is a conversation that I don’t hear coming from the National Football League offices. But it seems to me that is where we should be.
2.) Crockett: Do you feel the racial over tones in the aftermath of Seattle Seahawks’ star Richard Sherman’s NFC Championship victory rant were fair?
Smith: Let’s first say first that Richard Sherman is a person that attended Stanford, and didn’t just play football but excelled academically while he was at Stanford. People like to put players in boxes. I don’t want any of our men to be two-dimensional men. Football is what they do, it is not who they are. There is not a time in Richard Sherman’s life where he is out of control. Don’t get it twisted. And for me, his interview on the sideline was phenomenal.
Smith: Because there is football as watched and football as played. And I will tell you they play this game on a level that none of us can imagine. I love that because the competition is so high, the athletic ability is so high. The margins between winning and losing are so slim. So if a reporter wants to parachute onto the field seconds after that game is over, you will be exposed to football as played. America can’t be in a world where all of a sudden you want to parachute onto the field and find out what our players mindset is to play the game, and then all of a sudden be offended because you are now exposed to the reality of where football is. I take the same view on injuries. Everyone that plays this game understands that they are going into a game where they could be seriously hurt. If you spend time in an NFL locker room before a game, you will see fear and angst and concern. But they love the game and they will go play because they can overcome that and harness that. That is the beauty of the sport.
You can’t say I want to watch people play but not think about their exposure to injuries. You can’t say I want to love the game but not think about injuries or healthcare or insurance or workers compensation. Because then, you are making our men less than they really are. Our men are not gladiators. The core philosophy of a gladiator in that roman coliseum was that people would cheer on the death of those that were considered somehow less than them. Our men are not less than our fans. And I don’t let them call themselves gladiators. So when you think of Sherman expressing himself, it’s time for us to embrace the true beauty of what this is. It’s a beauty that comes from physical competition.
3.) Crockett: So should we be able to put a microphone into a players face seconds after the game?
Smith: I don’t mind it. This is the game as played. It cheapens the beauty of the game if you can sanitize it. I love every grunt and roar. Therein lies the beauty of the game. If we are able to put our players in a box and say that is something they do, then you are allowed not to think about a whole range of other issues.
Crockett: What do you mean? Can you give us an example?
Smith: Take Kain Colter, at Northwestern University, who decided to attend Northwestern because he wanted to be more than a player, he wanted to be a pre-med student. He also decided to lead a movement to see if he and his teammates could unionize. Why does this player decide to kick off a fight against the NCAA even when he knows it will not be decided when he is around to benefit from it? Because he is a leader. Regardless on where you come out on the issue of players being paid or not paid, Kain and his teammates made a decision that they want to sit down with the university and talk about medical injuries and get the degree that they are promised. I’m not willing to put college athletes in a box and say, you should feel lucky to just play football. That is not fair to them. They are young men and women who actually want to be invested in their future as student athletes, and that seems to be something we would want to applaud.
4.) Crockett: What is your view on how the National Labor Relations Board should come down on this issue of players as unionized employees?
Smith: Our board of player reps voted in 2010 to support players and their efforts toward unionization of college athletes. I’ve gone on record saying this is right. Here’s the one fact that compels the need for them to be able to uninize: The NCAA came into being around 1906. Since then, have we solved the problem of college athletes being hurt and not having medical coverage? No. Have we solved the problem of having them be able to obtain their degree in a reasonable way while they are playing big-time college athletics? No. Coaches can go anywhere after they are subject to NCAA violations. If the coach leaves, does the player get to leave? No. Coaches have routinely over-recruited players. Coaches say, I have five scholarships and you are lucky No. 7, and if you want to leave you have to stay out a year. All of those problems have been around since 1906 and the NCAA has either been unwilling or unable to solve them. So here comes s group of athletes that says, we think we should have a voice. Don’t tell me that they are wrong.
Crockett: Why are the problems not being addressed?
Smith: They way the NCAA works is the NCAA head is picked by college presidents, not athletes. Who has the incentive to solve the problem? The head of the NCAA? No. I love the slogan is we stand behind every student. I believe the next sentence should be, to push them off a cliff. If they truly stood behind every player we wouldn’t have players who have medical injuries that are not covered or players who unable to get their degree. I love college basketball and March Madness, but if you went on Google and searched the grad rates of those college student athletes it would be embarrassing. If anyone wants a true picture of the NCAA, read author Taylor Branch’s article in the The Atlantic on the NCAA. The whole term “student athlete” is a legal fiction created by lawyers to make sure student athletes couldn’t sue if they got hurt, but also to ensure that you never had to pay them. They are not called students and not called athletes. They created “student athlete” to make sure that they would never fall into a category where they could demand to get paid or seek workers compensation for their injuries.
5.) Crockett: Speaking of injuries, you’re establishing a legacy based on preserving safety for NFL players. Explain your theory on the “Economics of Safety” in the NFL.
Smith: The NFL model is a simple model. Players trade their physical and mental ability to play a game for compensation. But at the end of the day what is that compensation model? If you are compensated financially with just money, but medical injuries are not paid that is a bad compensation model for a player. So to me the economics of football from a player’s perspective has to be an economic model that takes into consideration that every player plays on average just 3.1 years. And the injury rate in the NFL is 100%. That is not the Players Association numbers. Those are the League’s numbers. Two years ago there were 4,500 injuries in the NFL. We only have 1,500 players. The economics of injury is something that we really focused on in this CBA. We were able in the CBA to move the cost structure to a point where you are appropriately compensated for both what you are giving to the game and what you are suffering from the game. My goal as union head is to make sure the players get more out of football than football gets out of them. Over the last 100 years the NFL has done an extremely good job of getting more out of our men than they get out of football. Under the new CBA virtually anybody in the league that wants to go back to school and get their degree after they finish playing can do so for free. If you have a degree and play for three years, you can go back to school and get a graduate degree for free. Those are economic issues that players should be as invested in as what their free agent deal is going to be.
Crockett: The truth is, players don’t necessarily leave the game with the bank account that they ought to have. How are you addressing this through plans to defer compensation so the players can plan for their livelihoods after football?
Smith: Our guys get 16 game checks. It’s not a 52-week cycle. And for virtually every one of our guys this is their first job. My first job was at Jerry’s sub sandwich shop. On that first job you learn about your relationship with the corporation, and that they may not be thinking of you all the time. At a young age, you learn what FICA is, I think it’s very tough on our young men when their annual salary comes in 16 game checks and they stop getting paid in January. You don’t get another check until September. So we have thought about deferred compensation, moving to a 52-week pay period.
Every year $5 billion worth of wealth comes to the players in the National Football League. Virtually none of our players comes from wealth, and many come from the opposite of wealth. I want the best for them, but a $5 billion year transfer of wealth means that every year we are in a wheelhouse for transformation to take place among a number of families. And if we fail to do that we have failed as a group of men, fathers, sons, brothers, and leaders. That’s what I spend my time in the locker rooms talking about.