UPDATE: The hearing occurred this morning. A decision is expected within a week.
Another day, another off-the-field matter involving the Saints. On Wednesday they face a grievance by their best player, quarterback Drew Brees, regarding clarification of a CBA issue relevant to his long-running contract negotiation.
The Saints, supported by the NFL, and Brees, supported by the NFLPA, will square off in Philadelphia in front of arbitrator Stephen Burbank, who has recently ruled for the NFL against the Cowboys and Redskins regarding cap penalties and against the NFLPA regarding bounty suspensions.
At issue is interpretation of the franchise tag language in the CBA, important in setting a data point in the negotiations between Brees and the Saints, a negotiation I continue to expect to be completed by the second week of July.
Brees is currently saddled with the franchise tag. He played in 2005 under the tag with the San Diego Chargers. Were Brees to not reach agreement with the Saints and play in 2012 under the tag, the Saints certainly would consider tagging him again in 2013. Brees has filed a grievance to determine what salary number would be applicable under that scenario.
According to the CBA, the 2013 tag for Brees would be a different amount depending on whether it was the second time or third time he played with the tag. If it’s a second tag, it would be for $19.64 million, which is 120 percent of this year’s $16.37 million. If it’s a third tag, it would be for $23.57 million, 144 percent of this year’s $16.37 million.
The Saints claim a 2013 tag would be the second tag, because the Saints have tagged him only once, this year. Brees says a 2013 tag would be his third tag, because the Chargers tagged him in 2005.
Here is the only language on the issue in the CBA, from Article 10, Section 2(b), which is certainly not clear:
“Any Club that designates a player as a Franchise Player for the third time ….”
From the language, it is ambiguous whether “any club” means the same club or the potential for more than one club. It is also confusing whether this means “the third time” under this CBA or the third time in general.
The language in this section goes on to provide an example for 2014, from which one can infer that the CBA means three tags under this CBA, but even this is far from clear.
It is curious that with all the experienced and high-priced lawyers on each side drafting this document, it was not done with more precision. However, this is what happens when the people drafting a working document about football are not the people actually using the document for negotiating player contracts.
So now it is up to Burbank to do the work of the lawyers and figure out what was really meant. One could surmise that after two recent decisions in favor of the NFL, he may balance the scales on this decision, but that is mere speculation. My sense is the language will be interpreted against the wishes of the primary drafters of the language, although it is not clear which side that is.
The importance for the present -- and stagnant -- negotiations between Brees and the Saints is whether Brees’ compensation over two years of tags would be $36 million under one interpretation or almost $40 million under another. The two-year level potentially sets a floor for negotiations on guaranteed money, certainly a sticking point in these negotiations. The $4 million difference may not seem like much in a negotiation involving tens of millions, but for a negotiation that has been plagued by inertia, a ruling here may be critical for movement.
The franchise tag is another issue in the CBA that, when negotiated, did not seem prominent, as it affects only a handful of NFL players a year. However, with lower tag amounts for all players due to a new calculation and now the situation with Brees, it has become a more important issue than perhaps ever.