Contrary to popular belief, Monday’s ruling in Bounty Grievance No. 2 has yet to release Stephen Burbank from currently active service to the NFL and NFLPA. Last week, ESPN’s Chris Mortensen reported that the NFLPA filed a grievance regarding the question of whether the Saints would have to pay quarterback Drew Brees 120 percent of his 2012 salary or 144 percent of it under the franchise tag in 2013.
The May 29 request from lawyer Jeffrey Kessler, a copy of which PFT has obtained, argues that use of the franchise tag by the Saints on Brees in 2013 would trigger the higher tender, on the basis that it will be the third time the franchise tag has been applied to Brees.
It’s a difference of more than $3.9 million in 2013.
The filing came four days after Jason Cole of Yahoo! Sports flagged the issue. The timetable for a hearing and an eventual resolution isn’t known, but Kessler has requested that the issue be expedited.
For those of you (there may be two or three) who are interested in the potential issues that will be raised, you are cordially invited to continue reading.
The most immediate problem with the grievance is that the dispute isn’t, as the legal types would call it, ripe, because the amount of Brees’ 2013 franchise tender isn’t relevant until 2013. Though Kessler explains that the disagreement over Brees’ 2013 franchise tender is affecting negotiations on a long-term deal, concern that the Saints have dug in on their position as to what the tender would be in 2013 when making multi-year offers doesn’t compel a resolution now.
If the Saints use the franchise tag on Brees in 2013 and their interpretation is incorrect, Brees will be entitled to nearly $4 million more in 2013. For 2012, the question has zero bearing on Brees’ compensation.
Apart from whether the issue regarding 2013 pay should be resolved before 2013, the language of the CBA doesn’t seem to support the argument that the 144-percent tender applies when a player is tagged for the third time in his career, even if he has only been tagged once or twice by his current team. Kessler argues that the key phrase in Article 10, Section 2(b) — “Any Club that designates a player as a Franchise Player for the third time” — isn’t specific to one team because the CBA uses the word “a” instead of “its.” But that may not be enough of a difference to expand the phrase “for the third time” beyond the team that currently holds the players rights. If the calculation were driven by the number of times a player had been tagged during his career, the language easily could have been crafted to make that more clear, with wording like, “If a player is designated as a Franchise Player for the third time.”
Also cutting against Brees’ argument is a separate portion of Article 10. Section 15(c) sets forth the procedure the season after a player sits out the entirety of a season under the franchise tag. In the next league year, the franchise-tagged player is subject to compensation of only a first-round pick and a third-round pick, and the exclusive tag cannot be used. Then, Section 15(c) says this: “If such a player is designated as a Franchise Player for a third time, the terms of Section 2(b) above shall apply.”
It’s a subtle point, but reading Section 15(c) in conjunction with Section 2(b) points to a conclusion that the analysis is based on use of the tag by the team, not on the total career use of the tag on the player.
That interpretation also meshes with a key portion of Section 2(b) that never will be relevant to quarterbacks. In 2006, the CBA was amended to dissaude teams from squatting on one player for more than two straight years by escalating the franchise tender to quarterback money when the tag is used the third time. That’s how linebacker Karlos Dansby escaped Arizona after two years under the franchise tag. Under Brees’ argument, however, Dansby would be entitled to quarterback money the first time the Dolphins would use the tag on him. That outcome doesn’t seem to mesh with the spirit of the franchise tag.
Of course, and as usual, what I think doesn’t matter. Burbank will have to resolve this one, subject to review by the Appeals Panel. The best news for the Saints remains that, if Brees is worried about the amount of his franchise tender in 2013, he must be planning to show up in 2012, even if he doesn’t get a long-term deal.