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A little more than a year ago, the NFL's owners and players made a labor agreement that saved the 2011 season and was supposed to begin a decade of labor peace. It may be peace, but it's the NFL's own version of peace.
The players and the owners are still arguing about everything. They're arguing about small things like changes in the injured reserve rule and the trading deadline. They're battling in court cases about bigger things such as bounties and concussions. And they're battling in yet another court case, a possible blockbuster, over the players' claim that the owners are guilty of a $3 billion collusion conspiracy.
There has never been much doubt that these two sides do not like each other, but the collusion dispute demonstrates the surprising level of acrimony between players and owners that prevails even after they managed to agree on a 10-year collective bargaining agreement on Aug. 4, 2011.
|In 2010 the Cowboys spent their way to a 6-10 record.|
The players, for example, state in court papers filed this week that the owners installed and "fraudulently concealed" a salary cap for the 2010 season even though they had agreed that it was to be an uncapped year.
Why would the owners attempt so dastardly a deed? The owners' action, the players insist, was "the product of their historical and apparently never-ending belief that they are above the law." The statement is a not-so-subtle reference to the decades of court battles between players and owners that began in the 1970s, when the fledgling NFLPA was under the leadership of John Mackey and Ed Garvey and the NFL was led by commissioner Pete Rozelle and his then-attorney, Paul Tagliabue.
The owners are equally righteous, suggesting in their legal briefs that "it is simply incredible for the NFLPA and its counsel" make any claim of collusion after the players agreed "not once but twice" in the settlement a year ago that they would never make such a claim.
In the fog of legal rhetoric that has enveloped these disputes for nearly 40 years, it's difficult to determine who is right. But there are some things that are clear. There is, for example, no question that the players and the owners agreed that the final year of their previous labor agreement would be an uncapped year. Instead of a payroll maximum ($128 million in 2009) and a payroll minimum ($108 million) that applied to each team, the market for player salaries would be wide open in 2010. The provision was supposed to be an incentive to make a new agreement as a way of avoiding the uncertainties of an uncapped year. But no new deal was reached.
During the offseason prior to 2010, the players noticed that only one of 216 restricted free agents received an offer sheet from another team, but they also noticed that salaries seemed to be edging upward.
It was not until March 2012 that the players found what they view as solid evidence that, according to their court papers, "confirmed the existence of the conspiracy" to limit team payrolls to only $123 million for the 2010 season. The evidence first came in the form of what appeared to be a harmless reallocation of the salary caps of the Cowboys and the Redskins.
Two weeks later, when third-generation owners John Mara of the Giants and George McCaskey of the Bears (both of them lawyers who should know better) decided to discuss the reallocation, the players discovered that "the owners had conspired and then entered into a secret collusive agreement" to limit salaries for 2010.
The reallocation was to punish the Redskins for spending $103 million more than the secret cap and the Cowboys spending $53 million more than the cap. Two other teams, the Raiders and Saints, also spent beyond the $123 million secret cap, but were not penalized.
Describing the uncapped season as a "mere one-year loophole," Mara, the chairman of the league's powerful Management Council, told ESPN.com's Dan Graziano that teams were told, more than once, to be careful in their spending.
What the Redskins and the Cowboys did, Mara said, "was in violation of the spirit of the salary cap. They attempted to take advantage of a one-year loophole, and, quite frankly, I think they're lucky they didn't lose draft picks."
A couple of days later, McCaskey added fuel to the fire with a statement to the Chicago Tribune: "It's very important that everybody plays by the same set of rules. If they tell people what the rules are, they all have to play by them."
Graziano wrote with considerable prescience that the union and its lawyers would read Mara's comments, understand their importance instantly, and decide to challenge the owners for what they did during the uncapped year.
If there was a collusion conspiracy and the players lost the $1 billion in increased salaries -- had all the teams spent as freely as Dallas and Washington -- then they will collect triple damages under the terms of the old labor contract.
The NFL and its attorneys do not seem to be worried about the players' claim, and they have some reason for their confidence. As part of the new 10-year collective bargaining agreement signed in August 2011 after the uncapped season, the players union signed a document known as a "release" and agreed to another legal paper known as a "stipulation to dismiss."
|The players' claims hinge in part on comments made by John Mara.|
In the release, which is a contract between the players and the owners, the players promised not to pursue any claim against the NFL "including without limitation collusion with respect to any [season] prior to 2011." That would appear to bar the claim the players are now making.
In addition to the release, the players promised in the stipulation to dismiss that they agreed to the "dismissal of all claims, known and unknown, whether pending or not including asserted collusion with respect to the 2010 [season]." That would appear to be a second bar to the claim the players are now making.
The release and the stipulation to dismiss are bad enough for the players, but the owners have more. Any claim for collusion, according to the union contract that governed the 2010 season, must be made within 90 days after the players first suspected a conspiracy. In March 2010, as players and owners began to work on contracts for the 2010 season, players union chief DeMaurice Smith told Jarrett Bell of USA Today, "I find it interesting that in a sport that prides itself on competition among teams, you see almost a uniform decrease in payrolls. Virtually all of them are down."
Those statements from Smith, the owners say, were enough to trigger the 90-day period within which the players must make their claim. With considerable glee and emphasis, the attorneys for the owners state that the claim, filed on May 23, was "more than 500 days too late."
Smith's attorneys replied that "neither Smith nor anyone else could possibly have known in March, the first month of the 2010 season calendar, whether club payrolls would increase or decrease that year." Payrolls for 2010 actually increased, the players contend, supporting their assertion that they could not have known of the collusion possibility during the 2010 season.
The players contend that the first time they had any reason to suspect collusion came in March, when Mara made the statements that seemed to acknowledge the collusion. They filed within 90 days of Mara's statements.
The players should be able to duck the 90-day filing requirement, but they will have more difficulty with the release and the stipulation to dismiss.
The players' principal hope is to persuade U.S. District Court Judge David Doty in Minneapolis that they could not have released claims that they did not know they had. They are also offering technical arguments on both documents, but it is difficult to escape what appear to be waivers and dismissals of any claims of collusion for the 2010 season.
The attorneys for the players will emphasize to Doty that the NFL is asserting that there was no collusion but that two years ago the players knew all about something that did not exist.
The owners are looking for a quick dismissal of the collusion claim, but it is not likely to happen. Even with the release and the stipulation, the players will be able to pursue their claim into the phase of litigation in which documents are exchanged and depositions are taken.
It's undoubtedly a coincidence, but the next skirmish in the battle over the uncapped year comes on the afternoon of Sept. 6, less than 24 hours after the Cowboys, who were caught exceeding the supposedly collusive cap, open the NFL's 2012 season in prime-time against the Giants, whose owner revealed the collusive cap. In the NFL's version of peace, the games will continue even as the owners and players battle over billions of dollars.