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NFLPA contends Article 3 of new CBA doesn’t apply to collusion case

NFL And Players Resume Mediation Getty Images

Wednesday’s conference call regarding the NFLPA collusion suit against the NFL touched on many issues regarding the case.  One important wrinkle appears in the new CBA, at Article 3, Section 3(a).

Here’s the full, unedited language of the provision:

“The NFLPA on behalf of itself, its members, and their respective heirs, executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit or proceeding (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFL or any NFL Club or any NFL Affiliate with respect to any antitrust or other claim asserted in White v. NFL or Brady v. NFL, including, without limitation, any claim relating to the 2011 lockout, any restrictions on free agency, any franchise player designations, any transition player designations, the Draft, the Entering Player Pool, the Rookie Compensation Pool, Total Revenues (‘TR’) or television rights fees with respect to any League Year prior to 2011 , collusion with respect to any League Year prior to 2011 , or any claim that could have been asserted in White or Brady related to any other term or condition of employment with respect to conduct occurring prior to the execution of this Agreement. For purposes of clarity, this release does not cover any claim of any retired player.”

The lawyers in the crowd instantly will recognize this as standard language that releases claims.  It’s always written broadly to ensure that all claims are encompassed — including any claims that were asserted and any claims that weren’t asserted but that could have been asserted.  In this case, the release specifically covers all claims made in the White and Brady antitrust lawsuit, along with “any claim that could have been asserted in White or Brady related to any other term or condition of employment with respect to conduct occurring prior to the execution of this Agreement.”

During Wednesday’s conference call, NFLPA outside counsel Jeffrey Kessler explained that, in his view, the new collusion claim based on an allegedly secret $123 million salary cap in 2010 couldn’t have been made in the White or Brady case because the NFLPA didn’t know about it.  Kessler also contended that the case law on controversies of this nature will support his position.

The NFL undoubtedly will argue that the phrase “could have been asserted” doesn’t require actual knowledge of the facts on which a claim that wasn’t asserted could have been based.  The league will claim that a collusion claim based on overall team spending in the uncapped year of 2010 “could have been asserted,” and that the claim therefore was waived as part of the new CBA.

It’s another threshold issue about which the parties surely will fight in front of Judge David Doty, with all appeals funneled to the U.S. Court of Appeals for the Eighth Circuit, which has a reputation for being conservative and pro-business.

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40 Responses to “NFLPA contends Article 3 of new CBA doesn’t apply to collusion case”
  1. rpiotr01 says: May 23, 2012 5:30 PM

    Step 1. Doty sides with players. De Smith buys large, diamond encrusted dollar sign to hang around his neck.

    Step 2. NFL appeals, wins. Goodell and Jeff Pash clink champagne glasses, then return to the Eagle’s Nest to plan new league rules mandating players wear diapers and Nike brand individual tooth pads.

    Step 3. Fans crawl out of their caves just in time for training camp, stretch… yawn… watch a couple practices and b!tch about this year’s second round pick who just tweaked a hammy.

    And on and on it goes.

  2. stats5 says: May 23, 2012 5:31 PM

    Kessler doesn’t seem like the brightest bulb in the box. However, the phrase “For purposes of clarity, this release does not cover any claim of any retired player” at the end of that provision in the settlement agreement would appear to leave the door open for the NFLPA to pursue this case on behalf of any player(s) that retired either before or after the settlement who claim they were damaged by the collusion during the 2010 league year.

  3. gweez76 says: May 23, 2012 5:32 PM

    No chance of PA with Mara out there.

    Mara came into this world naked. He inherited everything he’s ever gotten.

  4. angrycorgi says: May 23, 2012 5:33 PM

    These agreements aren’t “ironclad” anyway. Judges have thrown out broad protection agreements such as this in the past, citing that one party acted subversively during/prior to the agreement. This is exactly what happened here, as the meetings to curtail spending happened secretly and illegally without NFLPA knowledge. The judge has full power to turn this portion of the agreement on its head, since the NFL has acted in bad faith.

  5. dolphinsrule65 says: May 23, 2012 5:33 PM

    Kessler=billable hours folks, that is all this is about,nothing about nothing.
    HE personally signed off on the CBA, and signed off on the redistrabution of the cap money, now he claims, I had no idea!…Lawyers now we know why god created snakes first, he needed practice.

  6. wwwfella says: May 23, 2012 5:45 PM

    is it me or is it weird that the league hasnt actually denied it they simply are saying they dont have the right to sue?

  7. wlubake says: May 23, 2012 5:56 PM

    How about the waiver of: “collusion with respect to any League Year prior to 2011″.

    That seems to hit the nail right on the head. I’m pretty sure 2010 was prior to 2011. Also, I’m sure this current suit for collusion would qualify as a suit for collusion.

  8. billybats says: May 23, 2012 6:00 PM

    Want to know what this is REALLY about? Hint: Kessler’s old law firm recently blew up, so he has moved to a new firm, and is under serious pressure to bring in new business as part of that deal.

    Surprise! New billable hour business arrives for Kessler, courtesy of DeMaurice “Jackie Chiles” Smith. Ol’ DeMaurice is not the sharpest tool in the shed.

  9. clear2me says: May 23, 2012 6:04 PM

    I’m tired of all the legal crapola that’s going on with the league this off season, sue him, sue them, sue everybody. When can we put all this aside and actually talk football? It’s Pro Football talk, not Pro Lawyer Talk isn’t it?

  10. bhindenemylines says: May 23, 2012 6:06 PM

    I work with the courts and lawyers everyday, and can tell you that nothing is ever a given in a court of law. I have had cases where a defendant has signed a statement, and then later in court their attorney’s response is “yes, my client signed it, but they were mistaken”, and the judge throws it out.

    Makes no logical sense at all, but logic had no place in court.

    This is going to come down to who has the best lawyers and who wants to spend the most $$$.

    The court is going to have build a new building to store all the paperwork for this case.

  11. wlubake says: May 23, 2012 6:06 PM

    gweez76 says:May 23, 2012 5:32 PM

    No chance of PA with Mara out there.

    Mara came into this world naked. He inherited everything he’s ever gotten.

    ____________________________

    John Mara went to college and law school. He spent 12 years practicing law before joining the Giants. It’s not like he’s Tommy Boy.

    Not to mention, he’s darn good at his job, as evidenced by the two Lombardis won under his watch (he took over in 2005).

    You don’t choose the family you are born into, but you can determine how you build upon your birthright.

  12. msand13 says: May 23, 2012 6:07 PM

    Goodell and Smith: Two idiots playing a highly-publicized game of chess. Stick to checkers, boys.

  13. kchoya says: May 23, 2012 6:09 PM

    @angrycorgi:

    “This is exactly what happened here, as the meetings to curtail spending happened secretly and illegally without NFLPA knowledge.”

    And you know this how?

  14. mike83ri says: May 23, 2012 6:11 PM

    The NFLPA…releases and covenants not to sue…against the NFL…any claim relating to… collusion with respect to any League Year prior to 2011…

    It then goes on to say:

    “OR” any [other] claim that could have been asserted in White or Brady.

    The ‘asserted’ line isn’t a condition of the previous exclusions, it’s an additional type of suit above and beyond collusion. If the NFL could prove that a claim COULD have been part of the White/Brady claim, it’s not allowed.

    TLDR version: This is just stupid politics.

  15. truthfactory says: May 23, 2012 6:31 PM

    … The lawyers keep rackin up the Bills, which racks up the owners bills, which gets passed on to the fans.

    As always, the only “winners” here will be the lawyers… But what else would you expect when the head of thr NFLPA was a lawyer. Its in his blood to sue for everything… What a shame…

  16. jakek2 says: May 23, 2012 6:32 PM

    As an attorney, I won on the EXACT issue that the NFLPA will be arguing.

    The operative words in a release such as this are “waiver of claims now known OR UNKNOWN”. I don’t see the “OR UNKNOWN” part in the clause.

    The fact that this language is not in there but the NFLPA waived a crap load of other claims would lead a reasonable reader to fairly presume that the NFLPA intended to only release those claims that are specifically enumerated. In fact, with the months of bargaining that took place, it’s also fair to presume that the NFLPA expressly kept their “unknown” collusion claim. As long as they can prove the claim was “unknown”, they will succeed. Surely, they will survive summary judgment and the case will proceed through discovery which the NFL MUST AVOID!

    What also supports the NFLPA is that there were teams of lawyers on both sides that prepared the agreement. If the NFL wanted unknown claims waived, it would have inserted that language and the NFL cannot now claim, “well…that’s what we meant”.

    There Judge Doty….I just saved you 4 months worth of work. To the pro-owner yahoos….sorry to whizz in your corn flakes.

  17. FinFan68 says: May 23, 2012 6:36 PM

    They are not even parsing words here. The NFLPA is flat out saying that the agreed upon stipulations in the CBA do not apply…because they no longer want them to. In a just/logical world, the judge would read that paragraph in the CBA and immediately toss the suit. But, lawyers will argue anything if there are billable hours to be charged to wealthy entities and a wealthy adversary to sue.

    I wish these BS claims could be mitigated simply by making any party AND their lawyers responsible for all court AND defense costs (including reasonable/average legal fees) for frivolous suits. There would be a lot fewer legal suits if the lawyers were on the hook as well for wasting everybody’s time with a frivolous lawsuit.

  18. FinFan68 says: May 23, 2012 6:45 PM

    jakek2 says:
    May 23, 2012 6:32 PM
    As an attorney, I won on the EXACT issue that the NFLPA will be arguing.

    The operative words in a release such as this are “waiver of claims now known OR UNKNOWN”. I don’t see the “OR UNKNOWN” part in the clause.
    ~~~~~~~~~~~
    Funny, I didn’t notice the part where the league used the term “known” either. It simply lists the circumstances under which the NFLPA cannot sue…and what they are suing is a verbatim example of what is listed. There may be some legal technicality mumbo jumbo that you can point to but common sense says the NFLPA is doing something they legally agreed not to do. No matter how you cut it, it still is shady, unethical and lacks integrity–but it is driven by lawyers so…

  19. jakek2 says: May 23, 2012 7:00 PM

    Finfan68 – the “whether known or unknown” is standard release language found in most general releases. The fact that this language is missing from clause 3 tells me that the parties specifically bargained certain claims to remain intact.

    This language is not “mumbo jumbo”. It’s language that basically starts the parties with a clean slate from the date of the agreement.

    If you were hit by a fed-ex truck, they wouldn’t pay you a cent unless this language was in their release because they wouldn’t want you coming back in 5 years asserting a claim for a brain hemorrage that just manifested itself. Same thing here. The fact that the language is missing has several legal consequences.

    Nothing shady or unethical about it. It’s capitalistic bargaining at its best. Isn’t that what folks like you are always clamoring for??

  20. flannlv says: May 23, 2012 7:15 PM

    This is pretty interesting. The NFL and NFLPA are arguing both sides of the release in different situations. In the Vilma matter, the NFLPA is arguing the NFL waived any right to discipline players for conduct prior to August 2011 and in this instant matter the NFL is arguing the release of claims applies to collusion.

    Clearly the two sides wanted to play the 2011 season, but there are other issues the sides seem to want to continue to litigate.

  21. wlubake says: May 23, 2012 7:26 PM

    FinFan68:

    The problem is that courts generally read these waiver clauses pretty strictly against the party who benefits from the waiver. You have to expressly provide for each type of claim to be waived. Some jurisdictions have case law supporting that you have to state that unknown/undiscovered claims are waived.

    jakek2 assumes that Doty has caselaw in his jurisdiction that backs up the reasoning jakek2 used in his argument. However, this can vary by jurisdiction, and federal courts often have mandatory authority which differs by circuit.

  22. jameslongstaffe says: May 23, 2012 7:31 PM

    I am just disappointed:( The NFL is a league of teams, owners & players, it is a multi billion dollar industry & it is nothing but stupidity to fight against each other. I guess that is the power of money & ultimately greed. The day I feel sorry for Daniel Snyder or Jerry Jones is never. Just having lots of money does not mean anything to me. I prefer people that have actual problems & hopes, than some arrogant millionaire.

  23. oncall0599 says: May 23, 2012 7:33 PM

    I miss the days when the most important battles in the NFL were the ones fought on the field…not in the courtroom, and when the most popular person in the league was a player…not a commissioner. Also makes me miss the harmony we had between Tagliabue and Upshaw.

  24. slowclyde86 says: May 23, 2012 7:54 PM

    msand13 says:
    May 23, 2012 6:07 PM
    Goodell and Smith: Two idiots playing a highly-publicized game of chess. Stick to checkers, boys.

    I would agree with that characterization as to Smith, but how so Goodell? He crushed the union soundly at every step and the league is more popular and successful than it has ever been. I get that some fans don’t care for him (especially NO, Dal and DC), but objectively speaking he has destroyed smith on any board you want to reference.

  25. cliffordc05 says: May 23, 2012 8:01 PM

    I am sure that Kessler has assured the union that they have a rock solid case. Of course it will require hours and hours of research to back up the claim. Kessler’s personal bias against the league and his demonstrated ineptitude as a lawyer and negotiator will be on display once again.

    Kessler is the epitome of ‘why we hate lawyers’.

  26. racksie says: May 23, 2012 8:15 PM

    So the NFLPA is asserting that Dean Wormer put them on double secret probation?

  27. madczyk says: May 23, 2012 9:00 PM

    So if the Redskins (which is more likely) or Cowboys for that matter renegotiate deals and sign this years free agents to back loaded deals (changing or creating contracts to have the bulk of there money in salary in later years instead earlier or in the form of a bonus) and if they made the “salary” guaranteed is that going to also be a “violation of the spirit of the rules”? Because they are wink wink nod agreeing with players to give them money in years they will have more cap space? Rules have no spirit, they have no grey. It can be hard to tell if an act broke a rule, but rules alone are cut and dry. They can be broken or they can be upheld, if they do not exist they cannot be broken.

  28. djstat says: May 23, 2012 9:18 PM

    I hate Kessler

  29. stayclassyasheville says: May 23, 2012 9:20 PM

    Only 105 days until kickoff!!

  30. karlton2 says: May 23, 2012 9:37 PM

    jakek2 says:
    May 23, 2012 6:32 PM

    As an attorney, I won on the EXACT issue that the NFLPA will be arguing.

    The operative words in a release such as this are “waiver of claims now known OR UNKNOWN”. I don’t see the “OR UNKNOWN” part in the clause.

    The fact that this language is not in there but the NFLPA waived a crap load of other claims would lead a reasonable reader to fairly presume that the NFLPA intended to only release those claims that are specifically enumerated. In fact, with the months of bargaining that took place, it’s also fair to presume that the NFLPA expressly kept their “unknown” collusion claim. As long as they can prove the claim was “unknown”, they will succeed. Surely, they will survive summary judgment and the case will proceed through discovery which the NFL MUST AVOID!

    What also supports the NFLPA is that there were teams of lawyers on both sides that prepared the agreement. If the NFL wanted unknown claims waived, it would have inserted that language and the NFL cannot now claim, “well…that’s what we meant”.

    ————————————————–

    I’m a lawyer too; we’d have fun arguing this matter on oral arguments.
    :D

    Firstly, the ‘Four Corners’ doctrine cuts against your argument. While it doesn’t specify ‘unknown’ errors, it also doesn’t specify ‘known’ errors. What it does specify is “any antitrust or other claim asserted in White v. NFL or Brady v. NFL, including, without limitation…”.

    “Any claim, without limitation”, encompasses both known and unknown claims. Had it simply stated ‘known’ claims, I would agree with your position, but as written, it’s inconsistent with the text.

    As the NFL will surely agree with what I believe to be the plain and literal meaning of the agreement, the NFLPA is effectively attempting to argue a unilateral mistake, which I predict the NFLPA will ultimately be held responsible for.

  31. voyager6 says: May 23, 2012 9:44 PM

    Gee, if the NFL loses, doesn’t this mean they have to give the Redskin and Cowboys fine money back and then have to REDUCE the salary cap in 2012 as the fine is what allowed De Smith to get re-elected by having essentially the same cap in 2011 as in 2010?

    If so, this seems to likely backfire on the players.

  32. tomsd1 says: May 23, 2012 10:19 PM

    And to be fair – that may have been on the thread about wearing thigh/hip pads.

  33. fullbagg says: May 23, 2012 10:23 PM

    I love the fact that the Blowhard Mara opened his piehole and ran his mouth. THAT is the direct evidence. And forget the Cowboys, Redkins, ect….. Think of all the teams that purposely underpay the product on the field. Its just a joke. They are making money, which is fine. But think of how Maryland taxpayers payed for the Ravens staduim. They charge damn near what Snyder charges. Think they don’t pockect the cash? I hope they pay it through their a…. nose!

  34. sdisme says: May 23, 2012 10:57 PM

    The NFLPA will argue that Collusion was still in force when the owners took a vote at the March Owners meetings. Obviously after the CBA.

  35. tomsd1 says: May 23, 2012 11:20 PM

    There is no such thing as an exact issue. This contract was negotiated by two high powered legal staffs over months – and that is very complex. Or a Judge may say – very simple – the contract language rules.

  36. ajpurp says: May 23, 2012 11:22 PM

    Judge Doty is most likely to find against the NFL, the 8th circuit appeals will absolutely reverse based on this language. I’ve had so many contract and business issues arise in which (a) the district or circuit does not have a ton of case law on these issues because their laws have made major corporations leave the states because they are very negative and mos moved to DE for reasons that are pointless here and (b) have used the 8th circuit on major pro-business arguments because it is insanely favorable to corporations as is Delaware and the 3rd because they want corporations to incorporate there. The 8th circuit appeals will no question uphold this language if it gets there.

  37. sdisme says: May 23, 2012 11:44 PM

    Color me crazy… but

    The NFLPA is using Article 3 section B to state the Saints players shouldn’t be punished for actions prior to the CBA

    and

    The NFL is using Article 3 section A to state the NFL shouldn’t be punished for collusion prior to the CBA.

    – Maybe article 3 should just be removed now from the CBA.

  38. treesloth16 says: May 24, 2012 12:05 AM

    It’s funny how Goodell waits until after the NFLPA signs the CBA to enforce the salary cap punishment. Goodell most likely knew all the details by then, but did not release it to the NFLPA.

    Goodell is one sneaky dude. I don’t think I’ve seen a commissioner that is so divisive.

  39. shzastl says: May 24, 2012 1:55 AM

    It’s black letter law that one cannot release an unknown claim

  40. tomsd1 says: May 24, 2012 7:30 AM

    Hey – what’s the old maxim: If the law is on your side – argue the law: If the facts are on your side – argue the facts.

    Now I only go back about 40 years in the profession – but IMO – there is rarely such a thing as a “black and white”/open and shut case when it comes to major contracts. Way too many “interpretations”, and way too many high paid lawyers to render their omnipotent opinions.

    Somebody is always bitching about what was or was not included, the “plain meaning”, the intent of the parties, yada yada yada.

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