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Brees seeks ruling from Burbank on 2013 franchise tender

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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.

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20 Responses to “Brees seeks ruling from Burbank on 2013 franchise tender”
  1. JaminJake says: Jun 7, 2012 4:06 AM

    I wonder when “spiritgate” will die out.

  2. brewcitybummer says: Jun 7, 2012 6:29 AM

    I can’t wait to see how this Saints season plays out on the field. But I will be doing so with my tv on mute. If I hear Brian Billick try to make concise statements about the Saints issues during a game my head may explode.

  3. explosionsauce says: Jun 7, 2012 6:49 AM

    Team player indeed

  4. kvanhorn87 says: Jun 7, 2012 7:41 AM

    The article was very good up until the last paragraph. He has no intention to play. He is trying to punch a hole in their contract negotiation basis alone. It has no argument about 2012. If they are calculating his long term contract compared to the average of franchising him 3 straight years, his argument is that they are using the wrong numbers.

  5. kvanhorn87 says: Jun 7, 2012 7:42 AM

    It is mostly about franchise tag cost for 2013 and 2014.

  6. anarchopurplism says: Jun 7, 2012 7:49 AM

    There’s your explanation Brees

  7. txxxchief says: Jun 7, 2012 7:59 AM

    This one of the many things for which Drew needs an explanation.

  8. saints25 says: Jun 7, 2012 8:15 AM

    not true>>>>>>>>>>>>>>>>>>>>>>>>

    Kristian: Brees and Saints have only “minor details” left

    WWL.com Reporting
    WWL Saints Sideline Reporter Kristian Garic is reporting that the New Orleans Saints and quarterback Drew Brees are very close to getting a long-term deal done.

    “As early as Friday morning… or at the latest by Monday,” Garic said a contract could “very possibly” be signed.

    He says, “The two sides have really closed the gap, and it may be just minor details at this point.”

    Garic reports it will be in the neighborhood of $20 million dollars for the first two years.

    “It is going surpass Peyton Manning’s average of $19.3 million dollar annually.”

    He says it will be a five year deal.

  9. saintsly says: Jun 7, 2012 8:18 AM

    Language can be a funny thing. Especially if it cost you 3-4 Million dollars because of “One word”. So, be careful what you say and how you say it…………………

  10. reclinerqb says: Jun 7, 2012 8:24 AM

    I bet the NFL wins this one too….I don’t understand how they seem to get their way like a spoiled kid EVERY SINGLE TIME!! Even though in a lot of the NFL vs “The World” arguments, common sense would seem to dictate that the NFL should be defeated. They openly collude, suspend players without evidence, uphold suspensions with still no evidence (helps that the Supreme Ruler/Dictator Goodell is the arresting officer, judge, jury, bailiff, court reporter, executioner, mortician, grave digger, funeral priest and historian…which in all my college auditing courses, having 1 person with that much power, especially in one “process” is a big time NO-NO), and really just do whatever they want, whenever they want and nobody holds them accountable. Us fans are so enthralled with this game, we allow them to treat us like….well whatever they want….which is usually bad. The NFL’s entire system (off-field) goes against EVERYTHING we have been taught growing up and we continue to just huff and puff while ultimately do nothing, while I feel the very foundation of the sport we love so much is being chipped away….

  11. sj39 says: Jun 7, 2012 8:25 AM

    To me, Brees seems like on over-rated whiney little b!tch.

  12. electionconfidential says: Jun 7, 2012 8:30 AM

    It’s all about Drew. Can you imagine what it must be like to be married to this spoiled brat?

  13. eagleswin says: Jun 7, 2012 8:36 AM

    reclinerqb says:
    Jun 7, 2012 8:24 AM

    —————————

    Maybe you can sue. I’m sure DeMaurice Smith is looking for a few more plaintiffs.

    What I don’t understand is why you aren’t more upset with the NFLPA. They signed off on the system which gives Goodell the power he has. They signed off on the language of the CBA. They signed off on everything in exchange for more $$$$.

    Go ahead and direct your anger at the NFLPA. The real culprits. There’s nothing they’ve done that doesn’t have the NFLPA’s signature on the bottom line.

    I guess it’s PC to blame the owners/Goodell for everything.

  14. cappa662 says: Jun 7, 2012 8:46 AM

    Looks like the players signed a crappy deal.

  15. northlawhodat says: Jun 7, 2012 8:49 AM

    Wait till the season starts and that spoiled brat is scorching your team all the while being the highest paid qb!

  16. chris6523 says: Jun 7, 2012 9:00 AM

    I bet the NFL wins this one too….I don’t understand how they seem to get their way like a spoiled kid EVERY SINGLE TIME!! Even though in a lot of the NFL vs “The World” arguments, common sense would seem to dictate that the NFL should be defeated. They openly collude, suspend players without evidence, uphold suspensions with still no evidence (helps that the Supreme Ruler/Dictator Goodell is the arresting officer, judge, jury, bailiff, court reporter, executioner, mortician, grave digger, funeral priest and historian…which in all my college auditing courses, having 1 person with that much power, especially in one “process” is a big time NO-NO), and really just do whatever they want, whenever they want and nobody holds them accountable. Us fans are so enthralled with this game, we allow them to treat us like….well whatever they want….which is usually bad. The NFL’s entire system (off-field) goes against EVERYTHING we have been taught growing up and we continue to just huff and puff while ultimately do nothing, while I feel the very foundation of the sport we love so much is being chipped away….

    ______________________________

    For the most part, they get what they want because it abides by their CBA. They obviously colluded in ’10, but seems at least possible that the players gave up their right to sue for that in the ’11 CBA. As far as Goodell and his role as judge, juror, prosecutor, and what have you, I seem to recall a ton of people saying Tagliabue was way too lax on player behavior.

    Last, they get away with it because the vast, vast, vast majority of fans really don’t care about these sort of details. For some people, the NFL seems to be the biggest reality show in the history of TV. For most, it’s just something to watch on the weekends come September. I’m a big NFL fan, and I really don’t care about 95% of the crap that could be categorized as labor/management issues.

  17. gridironmike says: Jun 7, 2012 9:01 AM

    Before any more haters want to spew their vitrolic bile on this non-topic, please read saints25′s post above. This story is irrelevant. The deal is on the verge of getting done, and will be done by Monday at the latest.

  18. gadzod says: Jun 7, 2012 10:19 AM

    New Orleans should just keep him on the franchise tag. He won’t play, they go 1-15, and they can draft Matt Barkley at #1. Now you can sign Brees, and whenever he’ done, you have your future.

  19. CKL says: Jun 7, 2012 10:29 AM

    Use of the franchise tag is one issue the players should have fought more over in the CBA (I feel it’s unfair to players to keep tagging them, and would have restricted it to twice total, ever), along with the appeals process. They didn’t. Too bad for them they were more interested in fewer padded practices, etc. Take your medicine now, guys. I am convinced Kessler wants to destroy the NFL.

  20. izzylangfan says: Jun 28, 2012 12:16 AM

    What Brees could do is sign the franchise tag contract this year. Announce that he will give the Saints 8 games to sign his deal. Play the first 8 games (or what ever the number is to qualify for a full year of service). Then cease playing until the Saints sign and the league approves the deal he wants. Then the Saints will have his franchise number on the cap this year and and the bigger franchise number next year and won’t be able to get it off their cap unless they decline franchising him next year. I think power plays by players are back in vogue and they only really work for a few of the elite – to which Brees belongs.

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