As the dust continues to settle on Wednesday’s surprising move by the NFLPA to allege that the NFL engaged in collusion during the uncapped year of 2010, one point is becoming more and more clear.
Someone failed to slam the door, or failed to keep the door open, on the possibility of a belated claim that the NFL teams secretly agreed to an unwritten salary cap during a season in which there wasn’t supposed to be one.
It’s a point that sports lawyer David Cornwell, head of the NFL Coaches Association and documented critic of the current NFLPA leadership, raised with PFT this morning. Either the NFL and its lawyers failed when drawing up the relevant paperwork in August 2011 and March 2012 to ensure that the NFLPA wouldn’t be able to make a future claim for pre-2011 collusion, or the NFLPA and its lawyers failed when drawing up the relevant paperwork to leave the door open for a collusion case if/when evidence arose that the teams had secretly agreed to a salary cap in the uncapped year.
Without question, this will be the first battle in the new collusion war. Did the NFLPA fail to preserve the collusion claim, either when agreeing to the new CBA last year or when agreeing to penalize the Redskins and Cowboys this year? In turn, did the NFL fail to take all steps necessary to defuse the collusion claim, either in the CBA paperwork or in the 2012 amendment to the labor deal that penalized the Redskins and Cowboys for, essentially, refusing to engage in collusion?
The outcome will either kill the collusion case, or make it so strong that the NFL will be squeezed into paying a bunch of money to the players — or making a bunch of concessions that weren’t made during the CBA process, such as shifting all appeals away from Commissioner Roger Goodell or ensuring that the regular season never will expand from 16 to 18 games, and that the preseason never will shrink from four games to two.
The broader question is whether the party that loses this key opening skirmish will then hold accountable the folks who failed either to preserve the collusion claim or to defeat it. As Cornwell explains it, the “collusion case boils down to either [NFLPA executive director DeMaurice Smith or NFLPA outside counsel Jeffrey Kessler] committed malpractice by including collusion in the release or [NFL Commissioner Roger Goodell or NFL general counsel Jeff Pash] did by not including it.”
The bigger risk, in our view, falls on Goodell and Pash. When lawsuits are resolved, the presumption is that all past claims, asserted or not, will be extinguished forever and the parties will move forward with a clean slate. But the paperwork, which routinely is prepared by the party that was sued, needs to contain the right language to make all claims, asserted or not, go away.
From the NFLPA’s perspective, there’s nothing to lose, other than the goodwill of the league office. If, however, it turns out that the NFL failed to ensure that the slate was indeed clean, the NFL owners will demand a full and complete explanation.
And they will be flabbergasted.