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.