After a bailiff cries “all rise” and Judge David S. Doty strolls, marches, and/or glides into his Minneapolis courtroom the morning after the Giants host the Cowboys in the first game of the regular season, the NFL and NFLPA will get their first glimpse into the predispositions of the jurist who’ll decide whether or not the union’s surprising claim of a “secret salary cap” in 2010 may proceed.
It was a surprise because the claim came well after 2010 ended, and after the new CBA presumably wiped the slate clean between the league and the players, erasing all pending legal issues including any collusion claims that could have been made based on actual or perceived restraints on spending in a year that was supposed to have none. (Technically, the labor deal imposed a handful of limits in 2010, such as restrictions on the free-agent signings by the teams finishing in the final eight from 2009.)
It was a surprise also because the NFLPA had signed off on cap penalties imposed on the Cowboys and Redskins, penalties which revealed that the two teams were being punished because they didn’t comply with the “spirit” of a salary cap that didn’t exist. The union agreed with the penalties because the union desperately needed the NFL likewise to agree to a number-fudging that would allow the NFLPA to avoid the kind of reduction in the salary cap from 2011 to 2012 that would have been awkward, to say the least, as executive director DeMaurice Smith’s re-election approached.
Now that the billable hours have hit the fan, Judge Doty will have to decide whether he’s more persuaded by technicality, or by equity.
As framed by the NFLPA in its final written submission, a copy of which PFT has obtained, the players claim that the NFL didn’t do enough to engineer a release and waiver of claims for past collusion when the new CBA was finalized and all pending litigation was concluded in 2011. Apart from whether the documents drafted by the parties contained the right magic words to make the claims for collusion in 2010 disappear, the NFLPA has advanced an intriguing argument based on the nature of class actions. (Try to stay awake on this, please. If it helps, the link on “magic words” goes to a Bugs Bunny cartoon.)
The union smartly argues that claims made on behalf of a class of litigants can be extinguished by court order only. And so the union claims that, by not ensuring that Judge Doty would officially wipe out the collusion claims, the collusion claims weren’t wiped out.
If Judge Doty agrees, it will mean that the league’s lawyers screwed up.
Balanced against that technical application of the rules is fairness and common sense. Regardless of the specific words or procedures used by the parties, the idea was to hit the reset button on all legal issues between the parties. The league made concessions and the players made concessions and now the players are trying to avoid one of the concessions they made. Some judges would decide, quickly, that such an outcome simply isn’t fair.
Compounding the potential for a finding that the NFLPA is pushing for a fundamentally unfair outcome is the fact that the players gladly signed off on cap penalties that necessarily exposed the existence of collusion in 2010 in order to get something the NFLPA needed — a higher salary cap in 2012. It’s unseemly, to say the least, for the NFLPA to now try to use that which it gave up to get a high cap number as the basis for seeking billions in collusion damages for allegedly depressed spending in 2010, especially since it should have been obvious to anyone paying attention that something fishy was going on.
Did the NFL engage in collusion in 2010? Yes, in our opinion. Should the NFLPA has done something about it in 2010? Yes, in our opinion. Is there something that doesn’t feel right about the NFLPA agreeing to the cap penalties that made the collusion crystal clear and then suing for collusion? Absolutely.
But what we/I/anyone else thinks doesn’t matter. Judge Doty will provide the first official word on the issue. And if Doty agrees that the collusion case may proceed, look for the NFL try to appeal that decision immdiately, arguing that if the next level in the federal court system sees it the NFL’s way, there’s no reason to spend the time and money associated with developing the evidence that would prove collusion.
Even though that evidence should be fairly easy to find.