Dolphins Bullying Scandal Worsened by Labor Regulation

Neither Martin nor Incognito are free to seek a job with another team.

On November 6, NFL Commissioner Roger Goodell appointed New York attorney Ted Wells to “investigate possible misconduct in the [Miami] Dolphins' workplace and prepare a report that will be made public.” The “possible misconduct” centers around veteran Dolphins player Richie Incognito, whom the team suspended indefinitely on November 3 after ESPN reported allegations that Incognito harassed fellow player Jonathan Martin to the point where Martin left the team. Subsequent reports have painted Incognito as a bully who, possibly acting on orders from Dolphins coaches, attempted to “toughen up” Martin through a combination of hazing, threats, extortion and racist insults. Incognito has denied any misconduct. Whatever the outcome of the Wells investigation, the Dolphins affair has once again focused public attention on the NFL's unusual labor system.

Football pundits have largely confined their discussion to the “culture” of the locker room—debating, for instance, whether Martin should have physically confronted Incognito rather than leave the team. Others, like sportswriter Will Leitch, argue the locker room is no different than any other workplace. “If a private company is abusing its employees,” Leitch wrote, “or providing an unsafe or hostile work environment, that's against the law.” Leitch added that laws and “persnickety” human resources policies are in place precisely to “protect those who need protecting.”

Of course, the NFL is hardly a lawless dystopia. The league maintains hundreds of regulations governing every aspect of player conduct—down to the type of socks that must be work on game-day—crowned by a 318-page collective bargaining agreement (CBA) with the NFL Players Association (NFLPA). The CBA, in fact, is a critically overlooked component of the Dolphins story.

If Martin was, in fact, the victim of abusive conduct from a fellow employee—and possibly his supervisors—why were his only apparent options to walk away from football entirely or challenge Incognito to a fight? As Yahoo Sports Radio host Steve Czaban observed, “Only because of the NFL's 'rights system' did Martin not have the choice any other person would have in the professional world—to simply quit and go work for another more 'evolved' company than the 'Miami Dolphins Football Inc.'” This “rights system” is built into the CBA. Martin can refuse to play for the Dolphins. But he can't seek employment with another NFL team unless and until the Dolphins release him. And even then, he must “clear waivers,” meaning any other NFL team can claim the remainder of Martin's existing Dolphins contract.

And keep in mind, Martin's only NFL option coming out of college was to sign with the Dolphins. The team claimed exclusive “rights” to Martin with its second-round draft pick in 2012. The draft is another part of the CBA-based labor system, one designed to artificially suppress competition for new players.

Free Market “Closed Shop” vs. Government Labor Cartel

Many libertarians see nothing wrong with the NFL's labor system. Even in a pure free market, employers and unions could enter into “closed shop” agreements like the NFL's CBA. But as we all know, professional sports hardly exist in a free market. The NFLPA itself holds a government-sanctioned monopoly over all current and future NFL players. Indeed, Martin was not even a union member when the NFLPA signed the current CBA in 2011.

More importantly, in a free market any closed shop would face competition from new entrants seeking to exploit the incumbent's labor restrictions. There's little risk of that with the NFL given that most of its infrastructure is subsidized by government. This includes not just stadiums built with billions in taxpayer financing, but also player development, as most NFL players are the product of college football programs subsidized by state-run universities.

There's also the perverse incentives created by federal antitrust law. The collective bargaining process creates an exemption from antitrust law. Without that exemption, most NFL labor policies, such as the draft, would be deemed illegal. Now, that's hardly a libertarian outcome. But consider the NFL's position. The more rules and restrictions they can stuff into the CBA, the lower the risk of future antitrust lawsuits. Thus, the exemption encourages the NFL (and the NFLPA) to centralize as much of its labor policy as possible.

That means there's little motive to experiment with more flexible labor policies. Individual teams can't offer employee incentives or enforce discipline in any way that conflicts with the CBA. When there are workplace disputes like the Dolphins situation, the bureaucracy acts not to “protect” employees, but to ensure nothing disturbs the government-granted authority of the league and its monopoly labor union.

Commissioner Goodell's appointment of an outside investigator in this case is little more than an exercise in public relations. Both the NFL and the NFLPA have an acute interest in preventing Martin from taking his grievances outside their closed labor system. The union is an especially precarious position. Many of its members—including most of the Dolphins locker room—have publicly sided with Incognito.

Unions are not inherently anti-libertarian. But their collectivist nature under U.S. labor laws often put individuals at an enormous disadvantage. Whatever collective bargaining benefits Martin may enjoy as a member of the NFLPA do not outweigh the restrictions on his ability to get out of what he considers an intolerable working environment. The same may hold for Incognito, who could still turn out to be the innocent victim of a media-fueled railroading by NFL management. 

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  • John||

    Only because of the NFL's 'rights system' did Martin not have the choice any other person would have in the professional world—to simply quit and go work for another more 'evolved' company than the 'Miami Dolphins Football Inc.'”

    That and the fact that he signed a contract, a decent portion of which was guaranteed in the form of a signing bonus. Some needs to explain to Reason and this guy that contract employment is not the same as employment at will. Professionals in any field who sign contracts are often have noncompete clauses in their contracts, which is really all this is.

  • Libertymike||

    Too bad about signing the contract.

    Do you think that the principle of adhering to contractual terms is the only issue here?

    That one side, a socialist construct which has bilked billions from taxpayers and is party to a collective bargaining, closed shop labor regime, matters not?

    That the socialist construct is not satisfied with bilking billions from the taxpayers, but wants the taxpayer to finance the cost of enforcing the closed shop, matters not?

    If a player signs a contract with an organization which is not a socialist construct which has bilked the taxpayers out of billions and does not have a collective bargaining closed shop regime, then, yes, the contractual provisions rule.

  • John||

    I am all for not building these assholes stadiums. But even if that stopped, there would still be contracts and there would still be a union and one pro football league.

    Not all markets function the same way. In the professional football market, brand loyalty is paramount. People in New York want the Jets or Giants. They won't just switch to another team like they will other products. That makes it basically impossible to start a rival league. There have been two examples of rival leagues not dying. Both, the old AFC in the 1950s and later the AFL, involved bringing football to growing cities that were not being served by the NFL. Two things about that. First, there are no cities large enough to support a professional team that do not already have an NFL team. So there is not open markets to build a league in. Second, those leagues both ended up merging with the NFL

    The nitwit economists who pine for rival professional leagues either don't understand that not all markets operate the same or they don't understand this market. There will never be rival leagues. The NFL will always have an effective monopoly. And that is no big deal since having a monopoly on pro football is not having a monopoly on entertainment and thus do have to compete just not with other leagues.

  • ||

    First, there are no cities large enough to support a professional team that do not already have an NFL team.

    Really? Los Angeles? San Jose? Milwaukee? Portland? Columbus? Louisville? Austin?

    The concept of NFL as monopoly mystifies me. It's like saying, "I want to work on Windows operating systems, so Microsoft has a monopoly on software development." There ARE other athletic leagues- ask Elway or Deion or...

  • John||

    Other than LA, none of those cities are supporting a team. Milwaukee is essentially the home town of the Packers. That is where the Packer fan base is. Portland is way too small. Austin is too close to Dallas and Houston. And Columbus and Louisville are right on top of Cincinnati.

    And yes, there are other athletic leagues and other forms of entertainment if you don't like what the NFL has to offer. It is not a monopoly that really means anything.

  • ||

    Austin is farther from Houston than Baltimore is from Philadelphia. It's farther from Dallas than Philadelphia is from New York. Portland seems to be big enough to support an NBA team. Milwaukee has an MLB team and an NBA team...

  • John||

    Milwaukee is owned by the Packers. Austin is owned by the Cowboys. The distance is small for Texas. But even if you say Austin and LA, you need more than two teams.

  • ||

    Since I lived in Austin and I now live not too far from Milwaukee, I can personally attest that you're full of shit. Austin is Longhorns Only. Milwaukee is part Vikes, part Pack, part Bear.

  • Loki||

    Los Angeles? San Jose? Milwaukee? Portland? Columbus? Louisville? Austin?

    What John said wrt LA being the only viable large market.

    The best bet for a new league would be to go after small markets with no existing NFL or major college teams nearby and be content with being viewed as a "minor league" similar to what the old CBA (Continental Basketball League) was before they became the NBADL (Developmental League). Which would mean they wouldn't really be "competing" with the NFL in any real sense.

    That said if someone were to start such a league with at will workplace rules it could be interesting to see how it plays out.

  • Bryan C||

    Noncompete clauses are often not enforceable. If this were actually a noncompete clause then it could be challenged as such, and the NFL would probably lose.

  • Libertymike||

    Exactly!

    This is exactly what I have argued for years on these here pages.

  • The Late P Brooks||

    There's also the perverse incentives created by federal antitrust law. The collective bargaining process creates an exemption from antitrust law. Without that exemption, most NFL labor policies, such as the draft, would be deemed illegal. Now, that's hardly a libertarian outcome.

    No kidding.

    Fuck the NFL.

  • RBS||

    I'd argue that the breathless talking heads in the MSM who desperately want to find bullying in every aspect of American life have made this "scandal" much worse than it should be.

  • Libertymike||

    Perhaps they should focus upon the bullying of collective bargaining, closed shop labor regimes.

  • RBS||

    That would require someone to do some actual research and maybe think about what they say/write. Clearly this is too much for the MSM.

  • KPres||

    I'm also noticing the race angle is surprisingly muted. I guess being a pussy now has more victim value than being black?

  • OneOut||

    No one is forcing Martin to play football for the Miami Dolphins. Martin is perfectly free to change jobs anytime he wishes.

    It just can't be in the NFL. He willingly signed a contract agreeing to NFL rules. Just because he may no longer want to abide by the rules doesn't mean the rules should be changed.

    I'm sure he has a very marketable degree to fall back on.

  • RBS||

    Well, I'm pretty sure he actually graduated from Stanford. On the other hand it appears his degree in "Ancient History."

  • John||

    Exactly. He can work anywhere he wants. It is just that no one but the NFL will pay him seven figures. Oh well, I can work anywhere I want too, but in contrast the NFL won't be paying me seven figures.

  • BMFPitt||

    There is plenty to complain about with taxpayer subsidies of sports, but NFL player movement rules have nothing to do with the government. This article is an embarrassment.

  • The Late P Brooks||

    NFL player movement rules have nothing to do with the government.

    Pay no attention to that anti-trust exemption behind the curtain.

  • John||

    So if we got rid of the anti-trust exemption, rival leagues would just pop up? Doubtful. And if they did it would be because the government stepped in and made the NFL support their competitors not because the market demanded such.

    Since when do Libertarians love anti-trust law? Anti trust law is totally anti-market and dare I say "statist".

    People are free to start pro leagues and have. Remember the FFL or the XFL? Those leagues just didn't make it because the market for pro football is driven by fan loyalty and thus very hard to break into. When people root for laundry, selling them new laundry is not the same as selling a new Toyota to a Ford owner.

  • Loki||

    Since when do Libertarians love anti-trust law? Anti trust law is totally anti-market and dare I say "statist".

    True, but why should the NFL (or any other professional sports league) get an exemption? If shitty laws applied to everyone equally maybe, just maybe, there wouldn't be as many shitty laws on the books. As it is it seems the government carves out too many special exemptions, whether it's anti-trust exemptions for sports leagues or Obamacare waivers for administration cronies or whatever, rather than change or abolish shitty laws and regulations.

  • Loki||

    rather than change or abolish shitty laws and regulations.

    ...or simply not pass shitty laws in the first place.

  • John||

    Maybe they shouldn't. But understand that when you say they shouldn't you are saying that the DOJ should stop in, sue the NFL and make them support the creation of a rival league. That is what would happen if you got rid of the exemption.

    That is fine and all. But please don't argue against the exemption and tell me how you want the free market.

  • Libertymike||

    In the interests of making full disclosures here, you could rightfully accuse me of being a hypocrite (or a dumbass) because my wife and I spend thousands, every year, going to NFL games, in different venues.

    The damn NFL even makes money off fans like me who do not root for laundry. Yes, John, you are right about the brand loyalty and laundry for almost all fans. Yet, there is a small sliver of the NFL's customer base, who, like me, pay because we love the product.

  • John||

    I love the product too and generally don't watch the NFL, outside of my membership in one of the laundry cults, because they have shit on the product so much. The NFL doesn't care about their product and consistently screws over their fans by doing shit like having Thursday night games with teams on short weeks knowing the product is going to be terrible.

    But here is the problem Liberty Mike. The NFL knows their customers. They know their customers are not people like you and me who understand and appreciate the game but instead cheap beer guzzling fantasy football degenerate morons who have little understanding of the game an little appreciation of it being well played. They don't care that the Thursday night games are horrible. They only care that AP got two touchdowns and what that does for their fantasy teams. Hell most of them don't even watch the games anymore and instead just mindlessly watch the red zone channel.

    That said, the market is what it is and it doesn't owe me in particular the kind of product I want.

  • ||

    I doubt rival leagues would pop up, but I would bet that rival unions would.

  • BMFPitt||

    So the government not getting involved = the government getting involved?

  • ||

    When it grants special privileges to one group at the expense of others then yes, that's the government getting involved.

  • The Late P Brooks||

    He can just start his own league if he doesn't like the NFL!

  • The Late P Brooks||

    So the government not getting involved = the government getting involved?

    Professional sports leagues are the poster children for laissez faire capitalism!

  • John||

    No they are not Brooks. But if they were, there still wouldn't be more than one football league. If anything the anti-trust exemption is one of the most free market things about them.

    Sure, they get welfare in the form of stadiums. And that should stop. But not building them stadiums wouldn't end the draft or make it any easier to start a rival league.

    It is their league. They like having a draft. And they have paid for the privilege via a collective bargaining agreement. I am quite sure the players would love to get rid of the draft too. But they don't because they like the extra money they get by agreeing to it better.

  • wareagle||

    spare me the labor law bullshit. Pro sports is, by nature, a collective. The league is only as strong as its weakest franchise. That's one reason behind things like the salary cap and looser free agency. No one wants a handful of teams competing for the Super Bowl, a batch of perennial losers, and a pile of mediocrity in between.

    Teams don't try to rob others of market share; they just chase wins that, in turn, fuel ticket and paraphernalia sales. TV revenue is equal, teams frequently go from bad to good or the opposite from one year to the next, and no one is trying to put someone else out of business or lobbying the league for special privileges. Pro sports is not the real world in that sense.

  • John||

    ^^THIS^^

    It is not 28 franchises. It is a single corporation running an entertainment enterprise. The only reason they pretend they are 28 different companies is because of all the anti-trust bullshit. Get rid of anti-trust law and they could be honest.

    They think the best way to run a league is via a draft and salary cap and such. Why that decision bothers so many people is beyond me.

  • BMFPitt||

    They're a cartel. And there's nothing wrong with that, it's the best way to run such things.

  • John||

    Some sorts of markets are conducive to such. But the thing is that their monopoly only extends to football. They still have to compete for dollars with other forms of entertainment. So they can't just raise their prices to infinity, they can't just totally piss on their product or people will stop watching football and find something else to do with their time and money.

    So their monopoly is effectively meaningless.

  • ||

    You don't even have to be as broad as "other forms of entertainment." There's other providers of professional athletic entertainment (e.g., NBA, MLB, Lingerie Leaugue, MLS).

  • Bryan C||

    But when a cartel has the means to prevent another cartel from existing, then that is a problem.

    For the time being, they are 28 franchises. Either do as you say, and eliminate that legal fiction or make it real, and allow the teams to manage their own affairs. Players could contract directly with the franchise of their choice, and would be free to choose whether or not they want to join a union. That seems fair.

  • ||

    But when a cartel has the means to prevent another cartel from existing

    But it doesn't. There's all sorts of other pro sports cartels.

  • bassjoe||

    California has a relatively unique law that declares anti-competition clauses presumptively void, whether or not that contract is to be governed under the laws of any other jurisdiction (this is pointed to as a major reason Silicon Valley exists as it allows for relatively free movement between tech firms). I wonder if any pro athletes that want to leave their teams in California have ever considered challenging their contracts under that law...

  • Jazzizhep||

    So, I take it you are all for the government stepping in and mandating that if you don't like the contract you willingly signed, we will force your employer to accept your new terms because we don't think you should have signed it in the first place? Hey, what's next--the gov't forcing an employer to not hire someone because the two parties agree to a salary that the gov't says it is not acceptable? Ohhh....wait....forget about it.

  • Deputy Van Halen||

    There is no free market or libertarian message to be gleaned from this.

  • ||

    There is in that the government shouldn't be subsidizing this mess in the first place by building them stadiums.

  • Car Scanner||

    ... This is very interesting.

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