We recently explained that the language of the Collective Bargaining Agreement most likely prevents the Redskins from recovering any portion of defensive tackle Albert Haynesworth’s signing bonus (the $5 million paid in 2009 and/or the $21 million paid in 2010) based on his failure to show up for last week’s mandatory minicamp.
In light of Sunday’s Special Master ruling arising from the Dolphins’ effort to squeeze $15,000 out of two undrafted free agents who decided not to play pro football, Haynesworth’s position has gotten even stronger.
In fact, he potentially will be able to hold out of training camp without ultimately having to repay any portion of his signing bonus money.
Haynesworth reportedly plans to show up for training camp because the CBA authorizes the forfeiture of 25 percent of the signing bonus allocation applicable to the current year in the event of a holdout. Given Sunday’s ruling, however, Haynesworth could be able to hold out without owing anything other than the daily fine in the amount of $16,000 and change per day.
In the case involving the two Dolphins players, the contracts contained broad forfeiture language, much broader than the CBA contemplates: “In the event Player fails or refuses to report to Club, or fails or refuses to practice or play with Club at any time for any reason including Player’s suspension by the NFL or Club for Conduct Detrimental or suspension for violating the NFL Policy and Program for Substances of Abuse, Personal Conduct Policy, Policy on Anabolic Steroids and Related Substances, or leaves Club without its consent during the duration of the above league years, then player shall be in default. In the event of Player’s default, upon demand by Club, Player shall immediately return and refund to the Club any of the Bonus previously paid by Club and Player shall relinquish the right to receive any unpaid Bonus in the proportionate amount set forth below.”
The Dolphins then balanced that overly broad term with a “savings clause” aimed at ensuring that the forfeitures permitted by the CBA would be enforced if (when) the language in the contract is nullified: “To the extent any of the terms set forth above are deemed unenforceable under the Collective Bargaining Agreement, as amended by the 2006 CBA extension agreement, any forfeiture by Player under this Agreement shall be the maximum amount permitted by the terms of this Agreement and the Collective Bargaining Agreement, as amended.”
In the Haynesworth case, the contract contains similar, but not identical, language that sweeps far more broadly than the CBA permits: “In the event Player fails or refuses to report to Club, or fails or refuses to practice or play with Club at any time for any reason whatsoever including, but not limited to, voluntary retirement and incarceration, Player’s injury as a result of a breach of Paragraph 3 of the Contract or as a result of participation in hazardous activities which involve a significant risk of personal injury and are non-football in nature, including but not limited to, water or snow skiing, surfing, hang gliding, bungee jumping, diving, sky diving, rock or mountain climbing, race car driving as driver or passenger, riding a motorcycle, motor bike, all-terrain or similar vehicle as driver or passenger, or Player is suspended by the NFL or Club for Conduct Detrimental, or Player is suspended for violating the NFL Personal Conduct Policy, or if Player makes any public comment to the media, including but not limited to the newspaper, magazines, television, radio or internet that breaches Player’s obligation of loyalty to Club and undermines the public’s respect for the Club, Club coaches, or Club management under Paragraph 2 of Player’s NFL Player Contract and Article LV, Section 6 of the Collective Bargaining Agreement or Player otherwise breaches the Contract during the duration of the above contract years, then Player shall be in default (‘Default’) of this Contract.
In the event of Player’s default, upon demand by Club, Player shall immediately return and refund to the Club any of the Bonus previously paid by Club and Player shall relinquish the right to receive any unpaid Bonus in the proportionate amount set forth below.”
As to the “savings clause,” Haynesworth’s deal includes language virtually identical to the terms of the Dolphins’ contracts (collusion, anyone?): “To the extent any of the terms set forth above are deemed unenforceable under the Collective Bargaining Agreement, as amended by the 2006 CBA extension agreement, the remainder of the terms shall remain in full force and effect and any forfeiture by Player under this Agreement shall be the maximum amount permitted by the terms of this Agreement and the Collective Bargaining Agreement, as amended.”
In the Dolphins case, Special Master Stephen Burbank found that the “savings clause” would not cure an overly broad forfeiture clause. If that same reasoning applies to Haynesworth, he may hold out without risk of forfeiting any bonus money.
The NFL surely would seize upon language in the recent ruling pointing to the reality that undrafted free agents lack bargaining power, and thus must accept whatever terms the teams foist upon them. Haynesworth hardly occupied that same position.
But if every team uses those standard terms in veteran free-agent deals, too, the player had no real bargaining power as to those terms, even if he’s being paid $100 million over seven years. Thus, it’s possible that the key language from the most recent ruling would apply to Haynesworth: “[T]he fact that these players could have been made to forfeit their signing bonuses pursuant to valid forfeiture provisions should be considered in light of the facts that agents may not protect players (particularly Undrafted Rookies) from overreaching and that the Dolphins made a strategic choice to use language known to violate the SSA and CBA and to rely on the Special Master to rewrite the offending provisions if they were challenged. Without reference to other situations where a savings clause may be effective, in these circumstances and given the language of Section 9, I decline to do so.”
It remains to be seen whether Haynesworth will be willing to gamble with big money hoping that his case is another case in which the “savings clause” would not be effective. Thus, if Haynesworth is considering the possibility of holding out, he should consider seeking a declaratory judgment prior to the launch of training camp regarding the question of whether the Redskins would be permitted to recover bonus money, or whether he can hold out without risking a forfeiture.
Though the NFLPA would be placed in the difficult position of advancing an unpopular cause and the NFL undoubtedly would bring out the P.R. cannons if the union tries on behalf of a very unpopular player to obtain the ability to violate his contract without consequence, it’s a straightforward matter of contract application and interpretation — and the NFL set the table for this possibility by picking a fight with a couple of slappies over $15,000.