Photo by Rich Graessle/PPI/Icon Sportswire via Getty Images
Icon Sportswire via Getty Images
Since 2023, the NFL Players Association (NFLPA) has released annual Team Report Cards in which the union, based on a survey of its player members, grades the 32 NFL clubs on their treatment of families, food, support staff, travel, training facilities, coaches, and ownership. Teams receiving poor grades have expressed their displeasure with the reports. Consequently, the NFL has filed a grievance against the NFLPA arguing that the Report Cards violate a provision of the collective bargaining agreement (CBA) in which the parties agreed to try to “curtail… criticism” of each other. Such a provision is questionable under the National Labor Relations Act (NLRA).
The NLRA’s Statutory Protections
The NLRA is a 1935 New Deal-era law intended to provide protections to employees while stabilizing labor relations in support of the country’s economic recovery from the Great Depression. At its core, the NLRA enables private sector employees to unionize and requires employees and employers to bargain in good faith concerning employee “wages, hours, and other terms and conditions of employment.”
In addition, under Section 7 of the NLRA, employees have the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Supreme Court has interpreted this provision as a broad right of employees to communicate freely with each other about workplace issues and to share information relevant to their employment conditions. The NLRA further prohibits employers from interfering with employees’ exercise of these rights.
During the Biden administration, a National Labor Relations Board (NLRB) staffed by a majority of Democratic appointees, took expansive views of what might constitute unlawful interference by an employer with employees’ Section 7 rights. Among other developments, non-disparagement and confidentiality provisions in employee separation agreements were significantly curtailed. In recent years, employer policies and practices on confidentiality and social media have also raised concerns under Section 7.
The CBA’s Protections
Section 6 of Article 51 (Miscellaneous) of the NFL-NFLPA CBA provides in full:
Public Statements: The NFLPA and the Management Council agree that each will use reasonable efforts to curtail public comments by Club personnel or players which express criticism of any club, its coach, or its operation and policy, or which tend to cast discredit upon a Club, a player, or any other person involved in the operation of a Club, the NFL, the Management Council, or the NFLPA.
This provision first appeared in the 1970 CBA between the parties and has been virtually unchanged ever since.
The NFL is arguing that the NFLPA’s Report Cards violate this provision. It brought the grievance only after the NFLPA rebuffed the NFL’s requests that the Report Cards stop being published.
The Report Cards frequently give teams and their owners an “F” in various categories and are regularly accompanied by additional critical reporting with quotes from players (often anonymized). The NFLPA’s stated purposes for the Reports Cards are to inform players about their respective working conditions and to promote improvements by the clubs. Indeed, Jordan Mailata, an NFLPA player representative with the Philadelphia Eagles, claimed that teams have invested $200 to $300 million in their facilities in response to the Report Cards.
The Report Cards seem to be an obvious expression of the players’ rights under Section 7 of the NLRA. The question then is how do the players’ exercise of those rights square with the prohibitions in the CBA.
The Supreme Court has held that unions can waive protections under the NLRA and other federal employment laws, so long as the waiver is “clear and unmistakable.” Circuit Courts of Appeal have interpreted this direction strictly, suggesting in certain contexts that the CBA should explicitly identify the statutory provision being waived.
It seems highly questionable that the provision in the NFL-NFLPA CBA is intended as a clear waiver of players’ rights to engage in concerted activity for their mutual aid and protection. In which case, it is difficult to harmonize the restrictions in the CBA with the protections under the NLRA. This seems to be just one of the issues that an arbitrator is going to have to decide, with the NFL reportedly requesting an expedited hearing before the next Report Cards are issued in February 2026.
