NFLPA acknowledges lack of force majeure clause in CBA

There are plenty of aspects of the Collective Bargaining Agreement that benefit the NFL. There is one provision, or lack thereof, that could significantly benefit the NFL Players Association in the event that there’s no football season in 2020.

The NBA’s CBA has a so-called force majeure provision, which has resulted in an agreement that players will take less money moving forward to compensate the league for games that ultimately will be lost to the pandemic. The NFL’s CBA does not have a force majeure clause.

NFLPA executive director DeMaurice Smith confirmed that fact during a Wednesday videoconference with reporters.

“We don’t have a provision,” Smith said. “It’s clear under the CBA. . . . We’re bound by a contract [and] certainly it has provisions in it that are different than other sports, and that’s just a fact.”

It’s a fact the works in favor of the players in the event that negotiations occur regarding when, where, and how 2020 games will be played, because the NFLPA has the ability to take the position that, regardless of whether any, some, or all games are canceled, the players are due to receive their full salaries.

Smith also pointed out that “it’s clear what happens under the CBA in the event of cancellations.”

He’s referring to this provision that appears on page 82 of the 2020 CBA, under the heading “Cancelled Games”: “If one or more weeks of any NFL season are cancelled or [All Revenue] for any League Year substantially decreases, in either case due to a terrorist or military action, natural disaster, or similar event, the parties shall engage in good faith negotiations to adjust the provisions of this Agreement with respect to the projection of [All Revenue] and the Salary Cap for the following League Year so that [All Revenue] for the following League Year is projected in a fair manner consistent with the changed revenue projection caused by such action.”

This provision applies to the setting of the salary cap for next year, not for the current year. So, basically, the “Canceled Games” clause creates a mutual obligation to negotiate a salary cap for 2021 based on the revenue losses in 2020. This means that, in theory, the players can indeed expect full payment for 2020, with the understanding that the negotiations culminating in a 2021 salary cap will be influenced dramatically by the fact that the teams had no revenue but still paid full salaries to players in 2020.

Regardless, the absence of a force majeure provision gives the NFLPA significant leverage when it comes to the inevitable negotiations regarding the shape and the contours of the 2020 season. And the fact that the players arguably would be entitled to full pay even if no games are played will give the union a significant voice when deciding the strategy for playing games this season.

If that seems harsh to the league’s interests, there are two realities to consider. First, the league will surely develop an argument that it won’t have to pay players in 2020 if there’s no season (despite the absence of a force majeure clause). Second, this is the deal that the league negotiated. Time and again, fans and media shrug in response to provisions that impair player interests and blame the union for not agreeing to a deal that contains better terms. If the league has to pay the players for 2020 due to the absence of a force majeure clause, that’s something that could have been avoided when hammering out the deal.