- Mike Triplett, ESPN Staff Writer
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METAIRIE, La. -- This much we know: If the New Orleans Saints and free agent Jimmy Graham don't reach a long-term agreement in the next three weeks, then the Saints will use the franchise tag on him. And that will almost certainly set off a groundbreaking battle over whether Graham should officially be considered a tight end or receiver.
But who will win that battle? That's anyone's guess.
Count longtime former NFL general manager Bill Polian among the many observers who consider this debate too close to call.
"That would be an arbitrator's decision, and I wouldn't have any idea what he would decide," said Polian, who now works as an analyst for ESPN.
Polian, however, does think it could serve as an incentive for both sides to find common ground before it ultimately reaches a hearing date.
"In the end, you'd obviously like to reach an agreement without setting a precedent," Polian said. "There's an old saying that when you put an issue in hands of a third party, then there's a possibility that neither side is happy with the result."
Here's how the process would work: If the Saints franchise Graham as a tight end, he and agent Jimmy Sexton could then file a grievance through the NFL Players Association, claiming that Graham should be considered a wide receiver instead. Then the decision would be in the hands of a neutral third-party arbitrator agreed upon by the NFLPA and the NFL Management Council.
Obviously a lot would be riding on the arbitrator's decision. The difference in a one-year franchise tender between tight ends and receivers this year is projected to be around $6.7 million vs. $11.5 million (though it hasn't been finalized yet).
More importantly, the ruling will give one side much greater leverage in the long-term contract negotiations.
As Polian said, there are two reasonable schools of thought the arbitrator would have to weigh:
1. The union will argue that it's a "black and white" issue, that Graham lined up in the slot or out wide for 67 percent of his snaps last season. And according to the NFL's collective bargaining agreement, the franchise tag designation is based on the position "at which the Franchise Player participated in the most plays during the prior League Year."
2. The Saints' counter-argument would be that it's part of the modern tight end's job description to line up in a variety of positions, including on the line, in the slot and out wide. Although Polian said Graham isn't a "traditional tight end," he said most teams now differentiate between blocking tight ends and receiving tight ends.
According to ESPN Stats & Information, Graham was one of 11 tight ends in the NFL last year who lined up more than 50 percent of the time at those traditional receiver positions. Only three of them were full-time starters. But the other two were Atlanta's Tony Gonzalez (67 percent) and San Diego's Antonio Gates (52 percent) -- which is noteworthy since those two players have always been considered as tight ends for the purposes of determining franchise-tag salaries.
Other starting tight ends who blur the line between tight and receiver include Tampa Bay's Timothy Wright (49 percent), Cleveland's Jordan Cameron (49 percent), Carolina's Greg Olsen (48 percent), Green Bay's Jermichael Finley (47 percent), St. Louis' Jared Cook (47 percent), New England Rob Gronkowski (47 percent), Chicago's Martellus Bennett (46 percent) and Indianapolis Coby Fleener (46 percent).
In recent years, free agent tight ends Finley and Cook threatened to fight the same battle -- but they ultimately weren't franchised.
In 2008, Baltimore Ravens outside linebacker Terrell Suggs filed a grievance to be considered as a defensive end. But before an arbitrator ruled, all parties made an agreement to split the difference between the two salaries and consider him a defensive end-linebacker. However, the language in that deal made it clear that it pertained only to Suggs and not to any future issues.
Polian didn't offer an opinion on whether the Saints should try to avoid letting this case reach an arbitrator. He said each team and each case is different. And he said the NFL Management Council would also weigh in with counsel on what the legal issues are, what precedents might be relevant, etc.
Polian added that a looming hearing could put pressure on both sides to get a deal done – like with any labor negotiation.
But that will be easier said than done in this case. The only thing harder than determining Graham's official position will be settling in on his fair market value.
Graham, who has averaged 90 receptions, 1,169 yards and 12 touchdowns over the past three years, is expected to become the highest-paid tight end in NFL history, surpassing the $9 million per year the New England Patriots gave Gronkowski in an extension two years ago. However, Graham could push for more than $10 million per year, more in line with what top receivers make -- especially if he wins the franchise-tag battle.
One way or another, these two sides should make history at some point this offseason.