- Andrew Brandt
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Here we go again. On the day following dismissal of claims made by the Redskins and Cowboys that they were unfairly docked $46 million of cap room, the NFLPA has taken up the charge, filing a collusion claim against the NFL.
As background, the previous CBA required that in its last year -- 2010 -- there would be no salary cap in exchange for certain restrictions on players. One such restriction required six years of service time for free agency instead of four, resulting in more than 200 players being relegated to restricted free-agent (RFA) status. Interestingly, the NFLPA previously filed a collusion claim regarding the lack of RFA activity in 2010, a claim settled as part of the overall 2011 CBA settlement.
Although the uncapped year did not result in unfettered cash spending by the Redskins and Cowboys, there was abnormally high cap spending by the two, taking advantage of maneuvers to roll future cap amounts into the uncapped year.
The penalties levied on the Redskins and Cowboys for these maneuvers appeared to have the approval of NFLPA leader DeMaurice Smith, a fact noted in the dismissal of their grievance by arbitrator Stephen Burbank on Tuesday. However, that consent was allegedly forced and is one of the main points of Wednesday's litigation. Let's examine:
The NFLPA claims the NFL and its owners conspired and agreed to a "secret cap" during the uncapped year complete with "rules" such as (1) a $123 million-per-team spending limit, and (2) "serious consequences" for over-spenders. The union contends that 28 teams -- excluding the Cowboys, Redskins, Raiders and Saints -- honored this conspiracy, violating the stipulation and settlement agreement (SSA) from the 2006 CBA.
As to timing, the NFLPA claims it didn't discover this conspiracy until March 12, 2012, when punishment was meted out to the Cowboys and Redskins. The NFLPA directly cites media statements made by commissioner Roger Goodell and Giants co-owner John Mara acknowledging the implementation of "rules." The NFLPA suggests that these comments not only prove the existence of a cap but a conspiracy to lower player costs.
The union seeks up to $3 billion: $1 billion in actual damages plus a penalty of two times this amount.
In negotiating the new CBA, the NFL prioritized shedding itself from oversight by player-friendly Judge David Doty.
The NFLPA argues that, since the terms of the 2010 uncapped year fall under the SSA, Judge Doty retains jurisdiction over any action brought pursuant to the settlement. The groans you hear are from the legal department at 345 Park Avenue, seeing a case brought by its least-favorite lawyer, Jeffrey Kessler, in the forum of its least-favorite judge.
The NFL has denied any wrongdoing, adamant that, according to league spokesman Greg Aiello, "there is no claim." The league will attempt to dismiss the case, arguing that under the Brady v. NFL dismissal the NFLPA released all claims "then known or unknown" relating to the SSA.
Further, the NFL will contend that language in the new CBA forbids the NFLPA from bringing this lawsuit. Specifically, Article 3, Section 3(a) provides: "The NFLPA ... covenants not to sue or to support financially or administratively ... any suit or proceeding ... against the NFL with respect to ... collusion with respect to any League Year prior to 2011."
That language seems clear. The NFLPA will argue that it is inapplicable due to recent circumstances and evidence that came to light as a result of the Redskins/Cowboys grievance. About that grievance ...
Kessler told me Wednesday that it is "pure coincidence" that this lawsuit is filed the day after the dismissal of the grievance. I find that, well, coincidental.
The NFLPA argues that it was "forced" to agree to the Cowboys/Redskins penalties in exchange for the NFL agreeing to the NFLPA's request for a cap number not below last year. This appears to be the crux of the case, as if the union is saying, "The NFL coerced us to sign off on the Redskins/Cowboys penalties or it would give us a bad cap number."
This statement suggests that either (1) the NFLPA, under the new CBA it had negotiated, was facing a cap number below the 2011 number based on the calculation it had agreed to, and/or (2) Smith was coerced with strong-arm tactics that imply a sinister aspect to the NFL's negotiation tactics. Something doesn't fit here. Smith and his advisors are experienced in negotiations and multiparty agreements; to now suggest they were browbeaten into hastily signing off on the Redskin/Cowboys penalties seems curious.
What happens now?
The NFL will attempt to dismiss this case and hope that, like the dismissal of the Redskins/Cowboys case, it has put the uncapped year truly behind it.
In the event the case isn't dismissed, the discovery process will delve deeper into statements by Goodell, Mara and others about the existence of unwritten rules that restricted player costs. Courtroom football will continue, with parsing of untold number of statements, documents, emails, etc., that could be construed as collusive.
If the NFLPA can prove that recent revelations changed the legal dynamic regarding the new CBA, its collusion lawsuit might have legs, writes Andrew Brandt.