Employment & Labor Insider

EDITOR’S NOTE: A version of this article was previously published on Forbes.com.

Since 2023, the NFL Players Association has released annual Team Report Cards in which the union, based on a survey of its player members, grades the 32 teams in the National Football League 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. As a result, the NFL has filed a grievance against the Players Association arguing that the Report Cards violate a provision of the collective bargaining agreement in which the parties agreed to try to “curtail… criticism” of each other.

But the legality of that provision is at least questionable under the National Labor Relations Act.

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 staffed by a majority of Democratic appointees, took expansive views regarding what might be unlawful interference by an employer with employees’ Section 7 rights. Among other things, non-disparagement and confidentiality provisions in employee separation agreements were significantly curtailed. Employer policies and practices on confidentiality in the context of social media have also raised concerns under Section 7.

As of today, the NLRB has one member, a Democrat, and no quorum. However, once it is built back up (if ever) with a Republican majority, we anticipate that the Board will take positions that are more employer-friendly. Even so, it is not clear that a more employer-friendly Board will change its position on this issue.

The NFL agreement

Section 6 of Article 51 (Miscellaneous) of the collective bargaining agreement between the NFL and the Players Association states as follows:

Public Statements: The [Players Association] 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 [Players Association].

This provision first appeared in the 1970 contract between the parties and has been virtually unchanged ever since. 

The NFL argued that the Report Cards violated this provision of the contract and asked the Players Association to stop publishing them. It brought the grievance only after the Players Association rebuffed those requests.

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 stated purpose of the Report Cards is to inform players about working conditions and promote improvements by the clubs. Jordan Mailata, a Players Association 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 does the players’ exercise of those rights square with the prohibitions in the contract.

The U.S. Supreme Court has held that unions can waive protections under the NLRA and other federal employment laws, as long as the waiver is “clear and unmistakable.” U.S. Courts of Appeal have interpreted this direction narrowly, suggesting in certain contexts that the contract must explicitly identify the statutory provision being waived.

It far from clear that the provision in the NFL-Players Association contract validly waives players’ rights to engage in concerted activity for their mutual aid and protection. 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.