CBA has an early termination provision for collusion

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Earlier this week, outgoing NFLPA president Domonique Foxworth had a pointed message for anyone who doesn’t like the Collective Bargaining Agreement negotiated in 2011.

“You got a problem with it?  F–k you,” Foxworth said.

Former NFL player Sean Gilbert has a problem with it.  And Gilbert has said that he has a plan for pulling the plug on the 10-year package, if he becomes the next executive director of the NFLPA.  But Gilbert has to date declined to elaborate on how the deal can be scrapped.

The answer could be in Article 69, Section 2 of the labor deal, titled “Termination Due To Collusion.”

“If at any time the conditions of Article 17, Sections 16(a), (b), or (c) are satisfied, the NFLPA shall have the right to terminate this Agreement,” the CBA states.  Article 17 deals with collusion, and if collusion can be proven via the findings of a System Arbitrator, subject to appeal to a three-person panel, the NFLPA can scrap the agreement.

To prove collusion, the NFLPA would have to show that teams, through its employees, entered into “express or implied” agreements among each other to limit individual team decision making in one of five ways:  (1) whether to negotiate or not negotiate with a given player; (2) whether to submit or not submit an offer sheet to a restricted free agent; (3) whether to offer or not offer a player contract to any player; (4) whether to exercise or not exercise a right of first refusal; and (4) coordination among the teams regarding the terms or conditions of employment to be offered to any player for placement in a contract.

The procedure for establishing collusion becomes complicated and convoluted, but the biggest challenge relates to proving it.  Surely, it has happened; the cap penalties imposed two years ago on the Cowboys and Redskins arose from their refusal to participate in collusion regarding the uncapped year.  The challenge would be to prove that it’s still happening, in one of more of the ways listed in Article 17.

The best evidence of it would come from proof of the league or specific teams chastising other teams for certain tactics when negotiating player contracts.  If, for example, the Browns get dressed down next week at the league meetings for signing Bengals restricted free agent Andrew Hawkins to an offer sheet, that would be proof of collusion.  (Hawkins became the first player to change teams under an unmatched offer sheet since running back Mike Bell in 2010.)

Still, how would collusion be proven?  Ideally, the NFLPA would need testimony from a former team or league-office employee who has no interest in returning to the industry and who can credibly blow the whistle on collusive practices.

The answer to the question of why Gilbert has been tight-lipped about his strategy for scrapping the deal likely comes from Section 17 of Article 17, which places a 90-day limit on pursuing an effort to terminate the agreement based on collusion.  The 90-day period begins to run on the day “the player knows or reasonably should have known with the exercise of due diligence that he had a claim.”  If Gilbert says too much about his strategy, the players who would be filing a claim for collusion after Gilbert is elected (if he’s elected) would face an argument that they should have known about the possible claim long before Gilbert got the job.

All of this presumes that the players would even want to scrap the current deal.  Now that the salary cap is spiking, criticism of the contract may subside.  Still, the ongoing silence from the owners — who were openly complaining about the prior CBA not long after it was signed — suggests that the deal is a very good one for them.  Which could mean that, at least financially, it’s not as good as it could be for the players.

That said, the players got the best possible deal under the circumstances they faced in 2011, when the owners were determined not to get a win but a blowout.  For the players to secure a win (via antitrust litigation that extremely viable but time consuming), missing paychecks became necessary.  The players weren’t willing to do that.  So they had to use the litigation process to leverage the best possible arrangement short of losing regular-season games.

Gilbert’s candidacy ultimately may turn on the question of whether enough players (or, more accurately, player representatives) want to scrap the current deal with six seasons remaining on it.

15 responses to “CBA has an early termination provision for collusion

  1. Either side has potential to get a better deal than the deal that was struck. It just depends on how bad you want it, what tactics you are willing to employ, and if you want to travel those rough waters to accomplish a victory against the opponent. This is a wild deal with messy negotiations and a lot of things wrong with it that make it possible to modify the deal so that it actually could be better for all parties involved (except Goodell as my plan doesn’t create the same level of revenue for him). And as long as there is potential to make the pie even bigger, then there’s also potential for a new discussion as to how that new money should be split as well as tapping into the previous pie of money for a redetermination as well. Each coming year there is going to be more people that surface that start to identify ways that they feel they are getting screwed and surely the next CBA will be a much better version than this one that was a better version than the last.

  2. The PLAYERS signed off on the deal so if they get screwed it is b/c they hired poor negotiators.
    I hope that the owners have provided themselves with every type of protection imaginable b/c w/o the owners there is no NFL, and no market for the specific talent that these players have.

    Go owners!

  3. The Players were already dumb enough for giving up “A BILLION DOLLARS” by going with the NFL against the Redskins and Cowboys in CAPGATE for a few extra million in cap space.
    Do not look for the Players to be smarter. They seem to be dumb jocks.

  4. PS- After giving up a potential windfall of a Billion Dollars in triple anti-trust damages for Capgate, the Player then went on to vote to keep on the very person who screwed them of all this money- DeMauris Smith.
    Maybe it was all those hits to the head to all the players.

  5. I think I speak for all Dallas and Skins fans when I say that I hope that, at the very least, John Mara is somehow hurt by whatever comes about.

    I wish nothing but the worst for that slimeball for his actions in the penalties against the two teams.

  6. Please, make the CBA go away. Then the owners can do whatever they want and the players can’t do anything.

    No CBA, player contracts are pretty meaningless.

  7. It is not “fair” that some players are “more fortunate” than others and make more money, therefore I propose that the salaries of the top 40% of every roster be reduced by 50% and that money given to those players in the lower 40% bracket.
    This way there is “fairness” amongst players and salaries should all be exactly the same.

    What? You disagree? But this is EXACTLY what the NFLPA and the players are all about…fairness and equality. They force this premise on the owners so they should be forced to follow the same rules.

  8. The players are the game. Without them, there is no game.

    If you don’t believe that, ask yourself who would pay to watch Jerry Jones do anything?

  9. Who exactly is getting screwed here? The owners are making more than ever, the league can’t rake in $$$ fast enough, and the players are getting ginormous contracts.

    The only players who could complain are those in their rookie deals – and they have only the veteran players to blame for that maneuver.

  10. Here is an idea. Pay every player the same amount, league minimum, and then people that truly appreciate the game for the game will stay.

    I only say this because these players get handed every thing they could ever want and still don’t appreciate it, or want even more.

    If you take the issue (money) away, then you solve the problem.

    I’d still play the game for league minimum, or even I don’t know 45,000 a year (american average income).

    They are playing a game. I love football more than anyone on the planet, but these guys don’t realize how good they have it.

  11. Pro owner boot lickers are pathetic. No wonder modern day robber barrons rape this country, they’ve tricked all the stupids.

  12. There’s no such thing as collusion, its just a fallacy created when players expectations don’t reach an equilibrium with the market rate.

  13. It is all fun and games until some one doesn’t get a pay check, then it gets real. No player in his right mind would give up any of his game checks for a strike. Players have a limited time in the NFL, Once there, you must get every game check you can get your hands on. The NFL is not set up to help college players or older EX NFL guys, it is set up to pay those who play that week, and that week only, and you do not get paid sitting in front of the Team office while on strike.

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