With hearing looming, NFL responds to collusion claim


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.

26 responses to “With hearing looming, NFL responds to collusion claim

  1. Honestly, the NFLPA looks bad regardless. I don’t think the NFLPA should’ve filed collusion charges in 2010. If they had, we would’ve lost the whole year and I still don’t think they would’ve won.

    What makes it worse is filing it this year, after explicitly signing away their rights to file a collusion claim on the penalties. I mean, seriously, the NFLPA signed away the right to file for straight up cash.. Now that the cash has been received and spent they want to double dip.

    DeSmith is the worst thing to ever happen to professional football other than Jeffrey Kessler.

  2. Judges Doty and Berrigan do not even pretend to be unbiased or impartial. They are both liberal, labor advocate judges. It is a shame and a sham that our judicial system allows and even encourages this climate for important litigation.

    That being said, the number of lawsuits presently active against the NFL is sickening and indicative of a group that feels they have become so rich and powerful that they are above the law and have long ago forfeited their integrity.

  3. This more than any thing is why I know the Redskins are sweeping NYG. That criminal owner Mara stole our cash on the eve of Free Agency and seeing him angry as the Skins STILL beat his overrated team will be sweet brother!

  4. norseyapper says: Aug 17, 2012 10:28 AM

    Judges Doty and Berrigan do not even pretend to be unbiased or impartial. They are both liberal, labor advocate judges.
    Yeah, what we need are more conservative corporation advocate judges – other than the ones already on the Supreme Court, of course.

  5. Your’re right someone will look bad – for now two people look really bad:

    1. De Smith for agreeing to the cap reductions without understanding what they meant or what the NFL was doing.

    2. John Mara – Looks really bad. Not just for pursuing the cap reductions but for going to ESPN and admitting to the “secret cap” thus admitting collusion. Keep in mind that the NFLPA has already used Mara’s quotes to support their leagal claims.

    While De Smith is no brainiac – Mara comes off looking even worse for giving up the goods to ESPN.

  6. cleminem757 says:
    Aug 17, 2012 10:22 AM
    I don’t see where the NFL is even denying collusion. All I see is them saying the nflpa is too late to challenge it now. Tsk tsk.


    The owners have no need to defend themselves against a collusion claim until it is established that the NFLPA is able to file a collusion claim.

    If, extremely doubtful, it is ruled that the NFLPA can pursue collusion claims, then the NFL will defend them.

    Just like the judge in the Vilma case waxing poetic on areas which she has no jurisdiction. The NFL has no desire to feed the negative media.

  7. Hard to know who to feel sorry for: The NFLPA and its incompetence? or the NFL who is obviously engaging in unlawful collusion? Strictly from a Union point of view, the NFLPA has no real incentive to become very good because its poorest union members make hundreds of thousands of dollars a year.

  8. both sides are going to come out looking bad. From the looks of it, much like the Vilma case, the law is on the NFL’s side, but ethics say otherwise. I could see some Congressman getting involved here.

  9. Judge Doty is more by-the-book than people think, and isn’t afraid to dismiss legally erroneous claims. Here, the procedural legal issue precluding the NFLPA claims is as clear as glass — the two prior settlement agreements and accompanying court orders dismissed all claims that were brought or could have been brought in the lawsuits. This action is a complete waste of attorney fees.

  10. So John Mara screwed the Redskins because he knew that he could, and Roger Goodell let him do it.

    Redskins fans will not forget this for a long, long time.

  11. dennisatunity –
    I guess you can’t feel good about anyone. At best the union is incompetent for agreeing to the cap reductions without questioning them or understanding them.

    … but for Mara and the other 29 owners that engaged in collusion there is a slew of characterizations that stand up to the sniff test, those include dishonest, two-faced, immoral, etc.

    Even if the owners cannot be held liable now the union should consider the collusion next time there is a labor negotiation.

    And the Owners should consider putting a muzzel on Mara – because he has made all future negotiations very tenuous before they have even started and for really no good reason other than a short term benefit for his team.

    I expect business leaders to be visionaires and to see the big picture. Mara’s blunder has exposed himself as bitter and small minded.

  12. I’m no lawyer, but shouldn’t punishing the Redskins/Cowboys for not abiding by the secret-salary cap born out of collusion constitute grounds for a NEW charge of collusion? Shouldn’t this also extend the window for filing based on the reasonable timeframe of discovery for collusion?

    Why do we need to go to the origin of the violation? That seems rather silly. How could the NFLPA reasonably discover collusion occurred to create an unofficial salary cap when no one knew otherwise until the Redskins and Cowboys were punished for violating it?

  13. “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.”

    Hey Mike (or any other lawyers),
    Does the discovery of new evidence reset filing deadlines? My question comes from the penalties faced by the Skins and cowboys earlier this year and their ratification from the owners(perhaps also outside of 90 days, can’t remember).

  14. That’s what happens when the PA has and keeps De Smith as their “leader”. He should have been fired before the lockout last year. The players just don’t get it.


  16. I don’t see how the league’s argument washes. Unless the League told the union about the secret salary cap before the union agreed not to sue for past transgressions, the league was not negotiating in good faith.

    Typically, in order for an agreement that provides immunity for past acts to be valid, those acts must be disclosed prior to the agreement. If they are not, that constitutes deception, and agreements based upon deception are not valid in court.

  17. Even player-friendly Judge David Doty has to rule in favor of the NFL, knowing that if he doesn’t, his initial ruling would be overturned in Appellate Court. I’m wondering if Maurice Smith really passed the bar exam and in which state(s)? He’s totally clueless.

  18. santolonius says:Aug 17, 2012 10:29 AM

    The NFL is just smooth sailing under Roger Goodell. The owners must be very pleased.

    I appreciate the sarcasm but something had to be done to take the asylum back from the inmates. Rookies were getting paid $25-$50 million and busting out of the game in 2 or 3 years. It was ridiculous. All that money left the game.

    When Commissioner Goodell initiates actions to make the NFL safer he’s chastised for “woosifying” the game. Yet the NFL is facing multi-million dollar litigation over concussions. The owners know that they need Roger Goodell. The man is saving the game and saving the players from themselves.

  19. winskins says:Aug 17, 2012 11:30 AM

    So John Mara screwed the Redskins because he knew that he could, and Roger Goodell let him do it.

    Redskins fans will not forget this for a long, long time.

    Uhhh, you have it backward. The Redskins tried to screw the other teams and got caught. So sad.

  20. Now, maybe this is just completely off-base, but I could care less about who went over a “secret salary cap” in an uncapped year. If a team wanted to give every major FA $50 mil 1-year deals in order to buy a ring, so be it. What bothers me is the teams (who were punished) that used the cap to create/dump contracts that they couldn’t have in a capped year, therefore creating a competitive advantage for themselves in a a capped year, like this one.

    I believe the league has every right to maintain the competitive balance that is so important to this league, and prevents large market teams from running the game, like they do in MLB and the NBA.

    So I guess it is up to each person to believe what they want to believe. Did Goodell punish teams for exceeding an unofficial salary cap, or is he merely addressing a competitive imbalance created through manipulation of the salary cap system that was not in play in a given year?

    You can say that it was there right to do so, as agreed in the collective bargaining agreement….but I would then ask you whether these owners were actively blocking potential agreements that would have prevented a lockout in order to take advantage of this situation. Considering the actions of Dan Snyder in FA over the years, can you really say with complete confidence that this uncapped year was not in his long-term plans for years?

    Anyway, that’s what I think, for whatever it’s worth. I don’t like cheaters, regardless of how they do it, and this was cheating to me, even if others don’t see it as such.

  21. So let me get this straight… The NFL is telling the NFLPA that the slate is clean upon agreement to terms in 2011 so nothing the owners may have done prior matters. But, the owners go penalize teams for what happened in 2010?

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