With Patriots tight end Aaron Hernandez facing double murder charges from an incident occurring before he signed a long-term deal that paid a $12.5 million signing bonus, the team surely will do whatever it can to try to recover as much of the money as possible.
As explained Thursday, their decision to cut him makes that effort much more difficult. The Patriots should have retained his rights (like the Falcons did from 2007 through 2009 with Mike Vick), which would have allowed them to recover up to $10 million in signing bonus money, if Hernandez ultimately was unable to play from 2013 through 2016 due to incarceration.
CBS Boston has offered up a different take, based on a January 2013 report from former agent Joel Corry. Said Corry at the time: “Hernandez’s contract contains a clause where he represents and warrants that there weren’t any existing circumstances when he signed his deal that would prevent his continued availability throughout the contract. Committing or participating in a double murder should meet this standard. There’s another clause explicitly stating that the Patriots wouldn’t have entered into the contract except for Hernandez’s representations.”
The language cited by Corry doesn’t appear in the Standard Player Contract, which means that (if the report is accurate), the Patriots and Hernandez separately agreed to that language. Even so, the presence of the language doesn’t mean that the Patriots will be able to recover bonus money in a way that conflicts with the terms of the Collective Bargaining Agreement.
Paragraph 21 of the Standard Player Contract states that, if the player’s contract conflicts with the CBA, the CBA prevails. And the CBA sets forth the exclusive procedure for obtaining a forfeiture of money paid to the player.
At Article 4, Section 9, the CBA spells out the circumstances that allow money to be recovered. A “forfeitable breach” happens when a player under contract, for one of several reasons (including being in jail), fails to show up for work. If the Patriots hadn’t cut Hernandez, and if he had been unable to show up for work from 2013 through 2016, they could have recovered up to $10 million of his $12.5 million signing bonus.
But they cut him. By cutting him, they lost the ability to recover any of his signing bonus based on his failure to show up for work in any of the five years of the contract that the bonus covered, at $2.5 million per year.
The language Corry mentions, if it’s indeed in the contract, shouldn’t matter. The CBA takes precedence.
And if the Patriots push the issue of the contractual language too aggressively, they’ll at some point invite more pointed questions from the media and fans about why they gave Hernandez a $12.5 million signing bonus without knowing everything there was to know about whether Hernandez had done or would do something that would keep him from working by virtue of his employment in a state-run license-plate factory.