NFLPA executive director DeMaurice Smith talks player discipline, protests and Roger Goodell
‘I know I might break the internet by saying some positive things about Roger’
DeMaurice Smith, executive director of the NFL Players Association, and I have known each other since 2008.
During my time as a player, he and I worked together for several years. And we had countless conversations — most were pleasant, some were contentious — but never a conversation like Thursday’s interview.
We discussed Ezekiel Elliott and player discipline and protests during the national anthem, and he said things about NFL commissioner Roger Goodell that I didn’t expect.
This morning I read reports that researchers can now identify CTE (chronic traumatic encephalopathy) in the brains of living people. What does this mean for the game and players?
I think the first thing is to just admit and embrace what we have for a number of years, that traumatic brain injury and the long-term impact on cognitive ability is something that is tied to football. And the longer the league denied that, the longer it took for everyone to not only adopt changes in work rules but to commit themselves to the science to try to prevent it and to try to treat it. So as far as impacting on football, that isn’t the first focus for me, and certainly I don’t think it should be the first focus of the union. I think the primary focus should be what’s going to be the impact on the people who do this for a living. How can we understand it better? How can we decrease the risk, and how can we treat those who are affected?
How do you think the union and the league together have advanced player safety?
I think when it comes to work rules, I would give the union an A on what we did to change exposure to head injuries. I think the league responded to our overtures on how to decrease exposure, and not only in preseason during training camp but also during the regular season. I think the league did a good job responding to our demand for sideline concussion experts and mandatory protocols. And I think the league has done a good job, not a great job, when it comes to research. And that’s the only reason I think that they have done a good job and not a great job, because they seem to be beleaguered every now and then with questions about the autonomy of their research and the overall integrity of those that they’re working with. I think we are all better off if the league is transparent with their research initiatives. And I think that the NFLPA has been incredibly transparent and frankly has led the way on addressing this issue in a comprehensive way.
The league can spend research dollars, they can put out shiny pamphlets on NFL health and safety. But that rings hollow if you are still denying players workers’ compensation, if you challenge players in court, like they did in the case of Ben Utecht back over whether he was entitled to neurocognitive benefits. And if you continue to thwart the union’s ability to gain access to critical documents within the league office about how they were handling the issues of painkillers. So I don’t think that you can get a stellar grade on concussions or anything related to health and safety when the union still has to file grievances over documents that directly impact the health and safety of our players. And that’s just a question of leadership.
Will you and the league encourage active players to undergo CTE tests?
Well, I can’t speak for the league. All I can say is we believe in protecting the health and safety of our players, and inextricably tied to that is making sure that every player is aware of their own health and safety status. But, first and foremost, you know every player in every locker room this year heard us emphasize how important it is for players to understand, be aware of and be empowered to take care of their own health and safety. And that’s why we have the electronic medical records. That’s why players don’t have to pay to get their medical records. That’s why they could get a free second opinion. That’s why we have procedures under the CBA [collective bargaining agreement] to hold doctors accountable.
So recently there have been some high-profile issues with the concussion protocol. What did you do when those issues came up, and have you been satisfied with how the league has responded?
Yeah. I mean what we try to do, contrary to popular belief, is to resolve issues in a way that involves negotiation if we think that there is a violation of the concussion protocol. The first thing that we do is call up the doctors that are involved in the process and try to understand what happened. When that doesn’t work, or if we believe or find out that the protocol has been violated and we believe that the team or the league is not providing us with all the information, we do what our union has to do. We file a grievance. And so that would certainly give them the perfect system because there’s no such thing as a perfect system. But if the league fails to comply with what we believe are its duties and responsibilities, if we can’t resolve it through negotiation, we’ll resolve it through a grievance.
How well has the league addressed issues related to painkillers?
I always start off with the history. The Drug Enforcement Agency (DEA) actually conducted search warrants on several NFL teams a few years ago. The league hasn’t disclosed to the union what the results of those search warrants were. They haven’t disclosed to the union what procedures they have put in place to ensure compliance going forward. We learned through another lawsuit that lawyers and doctors met with the Drug Enforcement Agency. There were allegations and a complaint that the league was going to nonetheless ignore the recommendations of the DEA. And there were some statements from trainers who felt that they were at a competitive disadvantage if they didn’t provide more painkillers to players. So the paradigm that the union is in is that the league almost never decides to comply.
The league tends to decide to fight first and comply only when and to the extent that they have to, so we have to file a grievance against the league to obtain those documents. We have asked Dr. [Lawrence S.] Brown, who actually works for both the league and the union, to provide all of the documentation that shows the aggregate amount of painkillers dispensed by the league over the last few years. So far, even though he is our employee, he has refused to do so. So we will continue to negotiate. But when we get to the point, and we’re just about there now, where he continues to not oblige the contractual duties he has to the players of the National Football League, we will seek legal remedies to get the information and the aggregate information that the union is entitled to have.
If the team medical professionals themselves admit that they allow competitive advantage to enter into their decision-making process with regard to the players’ health and safety, what does that say about the treatment that players can expect from their team medical professional?
It is disturbing anytime you read an allegation like that. Does it mean that it’s every team doctor? No. But it was clear in the complaint filed by former players. What that tells the union and what that tells me is that while I think many of the team doctors do a fantastic job, you still need to have procedures that ensure transparency. No. 1, ensure that the players are treated as patients first. And second that as the employer, like any other employer in the country, that the employer honor its obligation to create as safe a workplace as possible. And again, we work with the league in order to make sure that they honor those obligations when we believe that they haven’t, or if they refuse to provide documents to demonstrate that they have, the union’s only recourse is to file a grievance or to seek other legal remedies.
When do you expect the league’s attitudes to change with respect to marijuana?
I think with respect to the painkilling aspect, we formed a committee last year not so much just to look at the issue of medical marijuana or derivatives of marijuana like CBD [cannabidiol]. To just focus on the substance to kill the pain and not what’s causing the pain is not the right way to approach the issue.
So, stepping back one step. Our job is to figure out exactly what is causing chronic pain in our players, because I do believe that chronic pain is as important an issue as concussions. And the medical literature make it clear that continuous exposure to chronic pain leads to everything from abuse of substances, depression and other long-term health consequences.
So, while a certain segment of players might experience concussions and an even smaller group might experience long-term consequences from concussions, virtually every player lives with chronic pain. And so the pain committee’s job is to try to understand its causes, come up with systemic ways to decrease chronic pain. And then also to look at the issue of alternative treatments like medical marijuana but also whether this issue with painkillers has led to increased risk of long-term cognitive issues, because there is a tremendous amount of medical literature that suggests that the combination of head trauma plus opioids or NSAIDs [nonsteroidal anti-inflammatory drugs] can have a dramatic and very negative impact with the long-term health of someone who’s injured.
So are you saying that chronic pain is as significant as CTE?
Yeah, I would put them on equal footing because both of them have long-term and significant consequences for people whose job duties expose them to injuries.
And what I try to remind people who aren’t in the game of football is that, unlike when someone gets hurt at a regular job, the injuries in the National Football League are not an accident. Injuries in the National Football League are the foreseeable consequences of their job duties. So we have a job where the injury rate is 100 percent and because the injuries happen on the job and they’re work-related, it becomes extremely difficult when to expect long-term insurance care for those injuries because they are work-related, so the method that we have adopted in this country and in other countries for centuries is that the employer is responsible for the medical care related to workplace injuries. And the league has never said as the employer they will be responsible to provide medical care for the injuries that players suffer at work.
And the day that the league lives up to its obligation like every other employer in the country is a day that I think the game gets better. Players will have far more confidence in the league, and we can be in a bit of a world where we can be the example for how workplace injuries should be treated in America. But we’re not there.
Do you foresee a future when CTE is no longer an issue in football?
No. I said no so emphatically because while there is certainly a lot that we know about CTE, there is a lot that we don’t know. But one thing we do know is that the repeated exposure to head trauma has a significant chance of resulting in long-term issues. So unless we come up with a “cure” to something we don’t fully understand, it seems to me that the only thing that you can do is try to decrease the exposure and try to lessen the chance, but most importantly to ensure that those who do suffer from it receive the medical treatment that they are entitled to from their employer.
In light of the recent developments in the Ezekiel Elliott case, how do you feel about the union’s progress with regard to player discipline?
Well, I mean, you were at the negotiating table in 2010 and 2011, so I’m not telling you anything you don’t know. The two owners who vigorously opposed neutral arbitration were Jerry Jones and Robert Kraft.
So, with star players from both teams serving suspensions in the last couple of seasons, have they changed their positions now?
They haven’t invited me to that meeting yet. The reality is in bargaining we raise neutral arbitration as a change. And Roger [Goodell] and I had further discussions about arbitration after 2011, and I felt that we had a deal with respect to appointing a neutral arbitrator who had some football experience. That deal got taken off the table. So we are left with the system that the league imposes. And what we’ve seen from everything from bounty [scandal] to Elliott is they can’t fairly operate their unfair system in a consistent way.
So, specifically on Elliott, why drop the appeal now?
We pursue cases with the effort of making sure that the player doesn’t miss games. Once the Court of Appeals ruled that they weren’t going to grant an injunction that had the possibility of preventing him from missing games, we were in a world where he was going to miss games even if we pursue the appeal. So at that point we felt that we had exhausted any meaningful litigation to keep him on the field.
How do you assess the union’s efficacy in defending players like Elliott and [Tom] Brady?
We’re a union, so we don’t make any apologies for defending the rights of our players, and we believe that this is a flawed system. Neutral arbitration is a better system. Up until this point, the majority of NFL owners apparently aren’t interested in a neutral arbitration system. So the job of the union is to fight the unfair operations of the league’s system.
But how effective do you think the union has been at doing that?
I don’t think anybody looks at the NFL system and gives everybody who is involved with that system, from the commissioner to their investigators to their advisory panel, a passing grade.
And what about the grade the union should receive?
The job of the union is to fight for its players, and that’s what we do. I don’t think anybody questions whether we will go to the mat for our players.
So how do you justify spending large sums of money in defending players against the penalties levied by the league?
Well, first we don’t use any dues money to operate the union or to pay legal bills.
And the league goes into these fights with far more resources than we do, and they have a history of making a judgment that the union is going to give up. I’m not sure it’s in the best interest of all players if our union decides that it’s only going to spend X amount on one player, Y amount on another player. If you believe that you were being unfairly treated and you know that your union was designed to defend players to the end without it costing any player any money, you would have a rightful expectation, both under the law and as an employee, that your union is going to exercise its duty to defend you whether we are fighting for a player’s right to medical service or whether we’re fighting an appeal of a fine or whether we’re defending a player who believes he has been unfairly disciplined.
You would say that it’s been worth it considering the fact that the players do in most cases end up serving suspensions?
You never know the outcome of these cases until they’re over. And so if you remember the bounty [scandal], players weren’t suspended. Ray Rice got his suspension reversed, and Ben Utecht got his medical benefits. The job of a union is to stand up and fight for his players, and I mean I can certainly read a stupid comment by Troy Vincent who says that the union should stop spending players’ money on legal bills. But he was a former NFLPA president like you were, so he knows we’re not spending players’ money. I would expect someone who was a former union president to understand the duty of a union to represent its players. We will continue to fight. I mean, who would expect 32 billionaires to give you anything?
You mentioned Troy Vincent — does his union background allow you to have a better relationship with him than others in the league office?
I have a relationship with Roger Goodell. I don’t think it’s important for me to have a good relationship with anybody other than Roger and the owners.
What is your personal perspective on the anthem demonstrations? And what has been the union’s role with regard to anthem demonstrations?
My father was drafted into the Marine Corps in 1951 off of a sharecropper’s farm in Danville, Virginia, which obviously at that time was in the heart of the Jim Crow South, so I have a very personal and deep appreciation for people like my father who went to serve their country at a time when you can make the argument that the country wasn’t necessarily serving them. But he went like thousands of men and women went, and he went like thousands of people of color went, and he went at a time where he was one of the first group of Marines to integrate the Marine Corps, so I take offense to people who want to cast the protest as being unpatriotic.
With respect to the protest, I think Roger has done a very good job of being responsive to the voices of the players that have met with him and owners. I think he’s done a good job of facilitating those discussions. And while I’m not privileged right now to release a lot of the details, I think he has done a good job being responsive to those players who are looking for the systemic involvement of the league and the teams in working with players to address social issues and injustice issues in their community. And I know I might break the internet by saying some positive things about Roger, but the reality is he has done a good job of working with the owners and coordinating a comprehensive response that involves working with players on both the funding and engagement.
How involved has the union been in facilitating the meetings between the league and the Players Coalition led by Malcolm Jenkins and Anquan Boldin?
The union’s job is to always try to build the best process to achieve whatever goals. So it’s important for the union to make sure that the meetings include players who want to be a part of the process, that they include owners to hear directly from the players, that the process is one that is collaborative and deliberate. This has been, as we all know, a series of protests that was started not by the union but by the authentic voices of several groups of players. Our job is to make sure that those players have a voice and that the process is one that respects them and leads to something tangible. And I will do nothing other than that. I would just commend all of the players who have taken valuable time during their days off to either come to D.C. or come to New York or have conference calls in order to put action behind their protest.
And I think that’s something that distinguishes not only these players. What distinguishes Roger from those who simply want to pass judgment and declare that there’s some sort of magical time for people to be obedient.
What can you tell me about what the league and the players have agreed to do?
I want to be careful, because I know the players are still discussing the specifics with the league, but I’m cautiously optimistic about what the league has proposed with respect to funding initiatives that are aimed at social change and involving owners’ resources in the efforts that players have in their respective teams.
Can you be any more specific?
The only reason why I’m being a little cagey is, like I said, the union’s role here is to facilitate the process. The players have done a great job of articulating what they believe should be the specific focus. And I think that it is important for them to finalize their conversations with the league rather than it be a union issue.
Do you think that anthem posture will be something that will be in the next collective bargaining agreement?
I don’t know. If the league wants to bargain over anything, the union takes the view that it will always engage in conversations. I don’t know the answer as to whether the league wants to bargain over those issues. I do think bargaining over workers’ compensation, bargaining over increasing the accountability of team doctors, I think that there are a lot of issues that we should bargain over before we get to what happens on the sidelines before a game.
Did the president’s comments help or hurt the players’ cause?
I only focus on where our players are and what’s in their best interests. That’s it.
I know that players don’t agree on everything, so what have you done to help facilitate this progress while not alienating any of the players who may feel offended by anthem protests?
A large part of my role is to teach, and we sometimes forget that the composition of our locker room are relatively young men. The teaching part of this is teaching them that protests are quintessentially American.
Whether it was women protesting for the right to vote, people of color protesting for equal rights, athletes who have protested, from Muhammad Ali to John Carlos and Tommie Smith, there is a history of protest in this country. This country was founded on protest from a tyrannical king, so there is nothing un-American about protests.
The second thing is to sometimes remind people who those protesters were. For example, I know that Jim Brown had a conversation with players in the locker room and in Cleveland. I showed them a picture of Jim Brown sitting side by side with Muhammad Ali surrounded by NFL players like Bobby Mitchell, but it’s important sometimes to put things in historical context.
And the last thing I told the players was, if you look around, our locker rooms are incredibly diverse when it comes to everything from socioeconomic background, current economic status, race, religion, geography, school, and the fact is discussions about inequality, race and injustice have been going on in our locker rooms all year. And what I’m proud of is those conversations have been happening in a far more respectful way than what you would see at town meetings across the country.
And I think that’s partially because, as players have said, when you respect the people that you are working with and you can’t unfollow them or unfriend them or turn them off, you listen respectfully even if you disagree. You respect that person’s opinion. And have a good conversation. And I think that’s something that is sorely needed in our country right now.
What is the league’s expectation of the players? Do they expect them to lower their fist and stand for the anthem?
I don’t know what their expectation is, and I haven’t had that conversation.
What does this moment mean for the future of your relationship with Roger Goodell?
I think Roger’s done a good job of bringing players and owners together on this issue. And we have a good working relationship. We certainly don’t agree on everything, but I think it’s important to disagree in a respectful way and to do our best to work together.
How would you characterize your trust level for Goodell, and has this experience improved it?
The union can’t afford to blindly trust the league. That’s not what any union does with management.
Has Goodell’s public contract squabble impacted your working relationship?
Not at all.
Do you think Roger deserves a contract extension?
That’s not for me to decide.
Do you mind if we end with some rapid-fire questions? Short answers, please.
How have you changed?
I am more patient.
What is your 40 time?
4.3 … on a bike … downhill.
Do you think Kap [Colin Kaepernick] will ever be on an NFL roster again?
I hope so.
What do you say to the criticism that the union hasn’t done enough to support Kaepernick?
We have been following the direction of Kaepernick’s agent.
Do you think the players would be better off with a different commissioner?
That is not for me to answer.
Do you think the owners would prefer a different union executive director?
What do you find hard communicating to the players?
You meet with all the teams throughout the season, what are the players talking about?
Improving the welfare of practice squad players. Increasing their access to benefits.
On HBO’s Real Sports, when Bryant Gumbel asked you if you intended to stay on as executive director, you hesitated. Why?
Because it isn’t up to me. I serve at the pleasure of the players. I certainly intend to stay.
If Roger were a receiver, could you cover him?
I’d shut him down.