The NFL’s new regular season opens on September 5 in New York. The next day the league and the NFLPA will be fighting over an old wound in Minnesota.
In advance of the September 6 hearing regarding the union’s effort to reopen the settlement agreement that ended the 2011 lockout and the litigation that went along with it, the NFL has filed a brief opposing the notion that the league had a “secret salary cap” in the supposedly uncapped year of 2010.
The 22-page document, a copy of which PFT has obtained, makes the point that we made when the NFLPA filed the collusion claim earlier this year: The players are trying to advance legal theories that the players expressly and affirmatively waived when the lockout ended.
The NFL focuses primarily on the settlement of a pair of antitrust lawsuits (one filed by Reggie White and other in the 1990s and one by Tom Brady, Drew Brees, and others in 2011) as the “end of one historic era . . . and the beginning of another.” The league also argues that the players “agreed -- not once, but twice -- to put an end to all claims of any kind” arising under the lawsuits that were pending at the time the collusion allegedly occurred.
The league further explains that, even if the claims hadn’t been waived, the NFLPA waited too long to assert them, pointing to the deadline for filing the claims -- 90 days after the NFLPA “should reasonably have discovered” the violation. The league believes that the NFLPA should have known enough in 2010 to assert that collusion was occurring. (Of course, if the NFLPA had done so at the time, the NFL would have called the claim frivolous, or worse.)
As we’ve explained in the past, the settlement of any lawsuit usually includes a broad waiver of any claims that were made or that could have been made. The parties are resolving all of their differences and moving forward with a clean slate. Here, a claim that the NFL wasn’t treating the uncapped year as an uncapped year could have been made, and arguably should have been made, in 2010. By striking a comprehensive settlement agreement in 2011, the claim for collusion that allegedly happened in 2010 necessarily was forever waived.
Of course, that result hinges now on Judge David Doty agreeing that the paperwork contains the right language to slam shut the door to his courtroom. If Judge Doty finds that the NFL’s lawyers ultimately failed to concoct a big-word salad that properly waived the collusion claim (and if the ruling survives the appeal process), the NFL’s lawyers who were responsible for this won’t be the NFL’s lawyers for very much longer.
All that said, the NFL still has a problem. Like Judge Berrigan in the bounty cases, who has publicly criticized the fairness (or lack thereof) of the league’s discipline process against players like Saints linebacker Jonathan Vilma, Judge David Doty could say at the hearing, “The NFL engaged in collusion in 2010, and if there’s any way I can legally hold them liable, I will.”
The arguments made by the NFL in its written submission should prevent a bad outcome. But it won’t prevent the bad P.R. that would come from a public declaration by a federal judge that the NFL (as it appears, and as we’ve reported) told the teams not to take full advantage of the uncapped nature of the uncapped year. Even if the NFL manages to avoid liability for collusion, all sorts of bad things can happen when a federal judge concludes that a billion-dollar business has engaged in illegal labor practices of a fairly significant nature, especially in light of the fact that there are always a handful of folks in Congress who would be inclined to call a hearing on a high-profile topic like this.
Even though the NFLPA claims the players didn’t realize collusion had occurred until after the Cowboys and Redskins challenged the decision to strip salary cap space from the two teams in 2012 due to their failure to abide by the unwritten cap rules in 2010, the NFLPA at least should have known in 2010 that collusion possibly was happening -- and the NFLPA definitely should have known when asked to sign off on the cap penalties that something was fishy.
Instead, the NFLPA gladly agreed to the cap penalties, because the NFLPA at that time desperately needed the NFL to agree to tinker with the salary cap in order to ensure that the team-by-team spending limit would climb, not drop, from 2011 to 2012. (That fact alone should may any judge, no matter how potentially biased or partial, find in favor of the NFL.)
No matter how this one turns out, someone is going to look bad. The NFL’s lawyers will look bad for not properly sealing off the players’ ability to claim collusion after the fact, or the NFLPA’s lawyers will look bad for not filing a collusion claim in 2010 -- and for agreeing to the cap penalties in 2012, if Judge Doty points that out in a way that prompts enough players to ask the NFLPA tough, direct questions about that strategy and the underlying reasons for it.
Either way, Judge Doty likely will be generating sound bites that will reflect poorly on the NFL regarding the issue of collusion in the uncapped year -- and that will set the stage for even more acrimony the next time the CBA moves closer to its expiration date.