Category Archives: NFLPA

Why Was Ndamukong Suh’s Contract Restructured? A Legal Look At His Fine Appeal

Since 2010, Ndamukong Suh has been building a reputation for his brand of football in the NFL.  Unfortunately, it’s a reputation that has proven costly to Suh.  Most recently, Suh was fined $100,000 by the NFL for an illegal block on Minnesota Vikings center John Sullivan in the Detroit Lions’ regular season opener.  The fine marks the highest fine imposed by the NFL against any player that did not involve a suspension.

Shortly after the fine was announced, Suh stated that he would appeal the fine with the assistance of his agents.  What does the appeals process look like?

The basis for the fine against Suh and Suh’s subsequent appeal comes from the NFL’s collective bargaining agreement.  Article 46, section 1 (b) of the collective bargaining agreement provides the league with the authority to levy fines or suspensions against players for unnecessary roughness on the field with respect to an opposing player.

In order to levy a fine or suspension for unnecessary roughness, the NFL must send written notice of the action to the player and NFLPA.  In this instance, the fine was announced a mere two days after Suh’s block of Sullivan.  Notably, prior to enforcing a fine exceeding $50,000, the NFL must meet with the NFLPA’s executive director.  Given the size of Suh’s fine, what that means, is that in this case, DeMaurice Smith knew that the fine was coming before Suh did.

After the written notice is provided to the player and the NFLPA, the player or the NFLPA has three business days to file a written appeal of the fine or suspension, should they object to it.  In this case, Suh filed an appeal.

What kind of arguments can Suh raise on appeal?  Again, the collective bargaining agreement outlines the appeals process.

One argument that Suh and his team may raise as a basis to reduce the fine, is that the fine is excessive.  However, to make this argument, Suh must assert that the fine is excessive when compared to his potential earnings for the season.  Suh is currently signed to a five-year, $68 million contract.  While that is definitely a hefty amount of change–and probably limits his ability to successfully argue that the fine is excessive–an off-season move by Suh may improve his case.

In March 2013, Suh restructured his contract with the Lions to free up salary cap space for the team.  Under the new terms of his contract, Suh will earn $630,000 in base salary this season.  This is compared to the $12.15 million in base salary he was set to earn prior to his contract being restructured.  Suh will still earn the $11.52 million difference in base salary, however, it will be spread out over three years in the form of a signing bonus.  Thus, one has to wonder if the restructuring of Suh’s contract was done not only to lessen his load on the Lions’ salary cap, but to also provide his agents and legal team with a more plausible argument that fines against Suh are excessive.

Given Suh’s history on the field, it will be interesting to see what the NFL does with respect to his appeal.  Will the league make a statement that contrary to what Suh has said on the record, he needs to change his style of play?  Or, will the league reduce his fine?

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How NFL Draft Picks Affect An NFL Team’s Salary Cap

As the names of young men are called from the podium on the Radio City Music Hall stage tonight, draft experts and team’s front offices will consider how their picks will impact their team’s salary cap.  The 2013 NFL salary cap is set at $123 million.  The rookies a team drafts and subsequently signs to a contract will have salaries that will be counted under their respective team’s salary cap.  Given this, an understanding of the salary cap and the role rookies’ contracts play in it is important going into the NFL Draft.

First, one must consider how the NFL arrives at its salary cap.  The salary cap is a collectively bargained amount that is a percentage of what the NFL calls “all revenues.”  Article 12 of the NFL collective bargaining agreement defines what is considered “all revenues.”  Essentially, “all revenues” equals gate receipts + copyright royalties + concession revenues + parking revenues + local advertisement and sponsor revenues + internet operations and program sale revenues + novelty revenues + NFL Ventures revenues + barter income + equity instruments + revenues related to stadium releases based on non-NFL activities + recoveries under business interruption insurance policies + expense reimbursements from government entities + proceeds from rights to receive.

After accountants determine the “all revenue” number, that amount is subdivided into three categories to calculate something called the “player cost amount.”  We’ll discuss the “player cost amount” in greater detail below, but it is one factor used in calculating the NFL’s salary cap.  The three sub-categories that “all revenue” is divided into are:  league media, NFL Ventures/postseason and local all revenue.  Specific revenues that make up “all revenue,” as calculated above, are put into each of the three buckets.

Once “all revenue” is subdivided into the three buckets, “player cost amount” is calculated.  “Player cost amount” equals 55% of league media all revenue + 45% of NFL Ventures/postseason all revenue and 40% of local all revenue.

Accountants also calculate the amount of benefits teams pay to players.  These benefits include:  pensions, insurance, injury protection, workers’ compensation, preseason per diem accounts, travel expenses for offseason workouts, rookie orientation program expenses, postseason pay, medical costs, moving and travel expenses, severance pay, annuity programs, tuition assistance, minimum salary benefits, performance based pools, health reimbursement accounts, payments to players suffering from dementia, legacy benefits and the neuro-cognitive disability benefit.

The salary cap can be calculated once the values described above are determined.  The salary cap amount equals the “player cost amount” for the year – the projected benefits for the year divided by the number of teams in the league for the given year.

Once the salary cap is determined, teams must begin working to comply with the salary cap.  The collective bargaining agreement defines salary as “the compensation in money, property, investments, loans or anything else of value to which an NFL player. . . is entitled to. . . but not including benefits.”  Teams must comply with the salary cap on the first day of the league year.  No team can exceed the amount of the salary cap.  Additionally, the new collective bargaining requirement requires each individual team to spend at least 89 percent of the salary cap’s limit.

While a team must comply with the terms of the salary cap, there is a sub-category of the salary cap that relates especially to rookies.  Teams must not only be under the NFL salary cap, but they cannot spend an amount greater than the “rookie compensation pool.”  The rookie compensation pool was a term negotiated during the course of the most recent collective bargaining negotiations, which essentially limits the amount of money all NFL rookies can earn during the course of their first four seasons in the NFL.  Each year, the NFL designates an amount for the total rookie compensation pool and teams are told, based on their draft slots, how much money they get from the pool.  Teams are given enough from the pool to pay players at least the NFL minimum salary ($405,000 in 2013) plus, if applicable, bonuses based on a sliding scale depending upon a player’s draft spot.  Thus, teams must work to comply not only with the salary cap, but to ensure that the contracts they offer rookies are within the limits of the rookie compensation pool is applicable to their team.

Upon drafting a rookie, a team is charged with that rookie’s salary under its cap space immediately.  The amount charged to the team is the minimum active list salary.  This year, that amount is $405,000.  For each rookie a team signs, this amount will count against its cap space until the player, the team waives the player or the player remains unsigned through the tenth week of the regular season.  If the player is signed, the amount of cap space taken by the rookie could increase, as bonuses or incentives may be included in the player’s contract.  If the player is waived or unsigned, the $405,000 will not count against the team’s cap space.

The fact that only the minimum active list salary counts against a team’s salary cap space upon drafting a rookie is notable.  There are a handful of teams that have very limited salary cap space presently available.  Thus, if these teams had to add in bonuses they plan on paying rookies at this point, they would be over the salary cap.  Furthermore, it is also of note that only the salaries of a team’s top-51 paid players count against the team’s salary cap during the off-season.  Thus, teams have a fair amount of time to cut players, renegotiate contracts or make trades to get under the salary cap before all players’ salaries count against the cap when the NFL season begins.  It is for this reason that although drafted by a team, most rookies do not sign contracts until later in the summer or after training camp.

While the NFL salary cap is a complicated topic which takes years of training to understand, the basis of it and how it impacts a team’s rookies is relatively simple.  Given this, it will be interesting to watch and see when teams actually sign their rookies and the amount of bonuses they receive.

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NFL Injury Report: Rob Ninkovich’s Hip Injury

Each week, will analyze one NFL player’s injury.  Sports Medicine doctor, Dr. Mandy Huggins (Twitter:  @HugginsMD), will provide medical analysis of the injury.  Alicia Jessop will then break down some of the contract ramifications of the injury.

Dr. Mandy Huggins’ Medical Analysis

New England’s Rob Ninkovich made Patriots fans worry last Sunday when he left the game with a hip injury. He had to be helped off the field and did not return to the game. Recent reports, however, have indicated that the injury is not serious and he strained muscles in his hip. Unfortunately, it’s difficult to break down this injury with such a vague report, but it leads one to believe that Ninkovich will be able to return for the playoffs, especially with a bye week. He may be moving more gingerly than normal, however, as the muscles around the hip are critical for every movement he will make, such as sprinting, lateral movements, and sudden starts and stops.

Alicia Jessop’s Contract Analysis

In 2011 Ninkovich signed a two-year contract extension worth $4 million.  It marked the second time that the Patriots signed him to a two-year contract extension, the first coming in 2009.  Given this, it appears that the team is committed to him as a linebacker.  Furthermore, because it does not appear that he will miss any games because of this injury, his place on next season’s roster is as safe as it can be for an NFL player.

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The Logic Behind Paul Tagliabue’s Saints Ruling

Nearly nine months after the NFL announced it had evidence demonstrating that the New Orleans Saints engaged in a pay-for-play program, former NFL commissioner Paul Tagliabue overturned the suspensions of four players allegedly involved in the program.  In making his determination, Tagliabue acknowledged that three of the four players engaged in “conduct detrimental to the league” and that current NFL commissioner Roger Goodell could have punished this conduct with fines.  However, Tagliabue’s decision to overturn the players’ suspensions appears to rest heavily upon his findings that it was team personnel and coaches who were at the helm of the pay-for-play program, rather than players.

Tagliabue’s findings are notable, because they were likely determined by a logic that was dictated by his professional background.  Tagliabue is an attorney.  It was likely Tagliabue’s legal background and a legal doctrine learned during the first year of law school which likely guided him in reaching his decision today. 

The doctrine which Tagliabue likely relied upon is called respondeat superior.  Under the theory of respondeat superior, an employer is responsible for the actions of an employee that are performed within the employee’s scope of employment.  Respondeat superior allows a third-party wronged by the acts of the employee to commence legal actions against the employee and its employer.  Arguably, the actions allegedly committed under the alleged pay-for-play scheme occurred within the scope of the Saints players’ employment.  Tagliabue likely found that unless Saints coaches and personnel were allegedly encouraging the players to engage in the pay-for-play program, that they would have been unlikely to have done so themselves.  While using respondeat superior as an approach to decide the case before him would have arguably allowed Tagliabue to find both the Saints personnel/coaches and players liable, it appears that Tagliabue found that the players were merely just following their principals’ orders.

Tagliabue’s findings today present some concerning possibilities.  By vacating the players’ suspensions in their entirety, Tagliabue arguably sent the message that players do not need to fear suspensions when they follow their coaches’ orders–regardless of how dangerous those orders might be.  This possible precedent is somewhat scary, as coaches may recognize that they can push the limits when it comes to what they ask players to do, and only risk their own career stability.  Arguably, this in and of itself would prevent most coaches from engaging in the type of behavior that allegedly occurred in New Orleans.  However, for those whereupon the pressure to win is great enough, today’s ruling might give them enough of an incentive to move forward with dangerous plans.

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Reducing Off-Season Arrests of NFL Players

It is no secret that the off-season arrest of its players is an issue facing the NFL.  The most recent player arrest came on August 11, 2012 when Chad Johnson was arrested in Florida in a domestic battery case.  Earlier in the summer, former Detroit Lions player Aaron Berry was arrested for a second time during the NFL off-season on handgun charges.  While their cases differ, one thing is similar between Johnson and Berry’s situations:  both of their teams released them.

While the Dolphins released Johnson and the Lions released Berry, the issue remains that under the terms of the NFL-NFLPA collective bargaining agreement, there is no clear-cut way for NFL teams to fully address the rising problem of off-season arrests.  The CBA allows Roger Goodell as NFL commissioner to levy fines and suspensions for “conduct detrimental to the integrity of the game of football.”  Additionally, it allows individual teams to fine players up to one week’s worth of their salary or to suspend them without pay for four weeks for conduct detrimental to the club.  While some may argue that the existence of these penalties within the CBA should be enough to curb player arrests, these penalties are clearly not serving as a big enough deterrence given the high number of off-season arrests.

As noted above, the CBA only allows for fines and suspensions to be imposed for detrimental conduct.  By adding a term to the CBA allowing teams to release a player from their rosters for detrimental conduct, the NFL could drastically reduce the number of off-season arrests.  While both the Dolphins and the Lions released Johnson and Berry nearly immediately after their respective arrests, the fact of the matter is that the terms of the CBA did not allow either team to release the players for their arrests alone.  Rather, each team had to rationalize the players’ releases upon additional factors, such as their on-field performance and inability to fit into the team’s system of play. 

A provision within the CBA allowing teams to release players for detrimental conduct would allow teams to skip the public facade seen in the Johnson and Berry cases and cut straight to the chase:  Some teams do not want players on their rosters who cannot abide by the law.  Furthermore, and perhaps more importantly, addition of such a term would send a message to NFL players that the league does not condone criminal activity.

Addition of a term allowing a player’s release for being arrested would face strict opposition and scrutiny from the NFLPA.  Likely, the NFLPA would argue that addition of such a clause violates players’ due process rights.  However, if the NFL provided players with a hearing prior to their release, their due process rights would arguably be upheld.  Nonetheless, in future CBA negotiations, the NFL could send a strong message that off-season arrests need to be curbed by requiring the NFLPA to at least negotiating on this issue.  At a minimum, the NFL should consider increasing the penalties that a team can assess for conduct detrimental to the club under future CBAs. 

NFL fans and spectators of the game recognize that off-season arrests are an issue plaguing the league.  Going forward, the NFL needs to take proactive steps to ensure that its players are properly educated as to the risks involved with arrests and must also enact stiffer penalties to serve as a deterrence.

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Why Do 8 Top-Rookie NFL Prospects Still Not Have Signed Contracts?

By:  Danielle Blanchard, Ruling Sports Intern (Twitter:  Elle087)

Under the new collective bargaining agreement (CBA), NFL rookies and their agents may not negotiate things such as escalators like they could in the past. The new face of the NFL rookie contract is very standard; the financial terms are virtually locked in, and there is very little left to negotiation.   All that remains to negotiate is whether first-round picks will get three or four years guaranteed and the extent of that guarantee.  Ultimately, this means that the rookie will have a minimum of three to four years at a certain salary, the salary amount usually varying depending on the players draft round and number, which is guaranteed.  If these new rookie contracts are so standard why do the top eight draft picks still have unsigned contracts?

The deal breaker for these eight rookies right now is something called offset language.  Offset language is a contract term which states that if a team releases a player (per a number of potential reasons, including poor performance), the unpaid money they guaranteed him in the contract is offset by money he will potentially receive from another team when they pick him up.  An offset language clause is something that teams optimistically want included in a contract for any player, but especially for rookies who have yet to show their true NFL potential (or lack thereof).  To explain in more detail, under a standard contract, since the salary is fully guaranteed for the duration of the contract term, even if a player is not performing at the expected level and is released by the team, the player will still get paid their original guaranteed salary.  Additionally, with an absence of offset language in the contract, if a new team picks up the player upon release, the old team will still have to honor the player’s guaranteed salary.  This leads to a “double dipping” of sorts, because the player will now receive his original guaranteed salary in addition to the salary offered by the new team.   For example, assume a team guarantees a rookie $40 million over three years and they pay the player $30 million of it before the player is released and subsequently picked up by another team who offers the player $50 million over the next 3 years (including a year of the original contract).  With the absence of offset language in the contract, the rookie could potentially make $90 million over a five year span.  However, with offset language present, the rookie would receive $80 million, $50 million from the new team and $30 million ($40 million – $10 million offset) from the old team.

Teams are eager to get this language into their rookie contracts to avoid paying out large sums of salary money for players who don’t live up to their potential.  Vernon Gholston is a prime example of why teams are fighting for offset language in rookie contracts.  Gholston was picked sixth in the 2008 draft by the New York Jets and later released for poor performance.  Soon after, he was acquired by the Chicago Bears and was being paid by both teams until his original contract with the Jets expired (Gholston has since been released from the Bears also).

An interesting fact that’s key in this year’s top players’ negotiations with their respective teams is that Luke Kuechly, the ninth overall pick by the Carolina Panthers, is the only rookie drafted in the top ten that has a signed contract- his contract has no offset language.  This is important primarily because it has now set a precedent for the first eight overall picks in their negotiations with their respective teams. Luke Kuechly has given picks one through eight more leverage in the bargaining process, which will allow them to enter negotiations with the confidence that if the ninth pick didn’t have offset language in his contract, clearly more sought after, top draft picks should not either.

The entire conflict is about setting a precedent, agents want big name athletes as future clients, and these clients want to hear that their agent can get them the best contract –meaning no offset language.  On the other hand, the teams want to establish that the players they release cannot double dip, and that if a player does live up to the expectation that landed them their respective (frequently giant) contracts, they should not benefit as a result, especially when another team has acquired the player and is paying them a new salary.  Herein lays the dilemma.

Precedent seems to be on the side of the players’ and their respective agents, however.  In 2011, there was no offset language in the contracts of the top ten picks.  I spoke with Tom Mills of Ascent Sports, who is an agent for various professional football and baseball players, and his sources suggest that the tenth, twelfth, and thirteenth picks do not have offset language in their signed contracts, but that the eleventh pick as well as picks twenty through twenty-five are still unsigned.   This means that, even in the contracts for rookies from this year’s draft, the earliest pick who has been subject to offset language in a contract is Michael Brocker, the fourteenth pick.   Mills is of the opinion that the players’ and their agents will get their way and the teams will forfeit the use of offset language primarily banking on the leverage of Luke Kuechly’s (ninth pick) contract.

With most training camps just a week away, the contracts need to be signed, both sides are motivated to close the deals, and each have valid reasons regarding the presence of offset language in the contracts.  It should be an interesting week.

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Will Roger Goodell’s Motion To Dismiss Jonathan Vilma’s Lawsuit Be Granted?

In May, suspended New Orleans Saints linebacker Jonathan Vilma sued NFL commissioner Roger Goodell for defamation as a result of statement made by Goodell in the course of the NFL’s investigation into the Saints’ alleged bounty program.  In Louisiana, defamation is “the malicious publication or expression … of anything which tends to expose any person to hatred, contempt or ridicule, or to deprive him of the benefit of public confidence or social intercourse.  On July 5, 2012, Goodell filed a motion to dismiss Vilma’s defamation lawsuit.  Goodell’s motion argues that Vilma’s lawsuit should be dismissed under Rule 12 (B) (6) of the Federal Rules of Civil Procedure, or alternatively under Louisiana’s Anti-SLAPP statute.

Rule 12 (B) (6) Arguments

Under Rule 12 (B) (6) of the Federal Rules of Civil Procedure, a complaint may be dismissed if it fails to state a claim upon which relief can be granted.  Under Rule 12 (B) (6), a judge considers the facts alleged in the original complaint to be true.  If the facts alleged within the original complaint do not include the grounds upon which a plaintiff is entitled to relief, but rather, merely state the elements of the laws the plaintiff alleges were violated, then the complaint can be dismissed under Rule 12 (B) (6).

In raising his 12 (B) (6) motion to dismiss, Goodell makes two arguments:  1.  That Vilma’s claims are preempted by Section 301 of the Labor Management Relations Act and 2. Vilma only plead conclusory allegations on required elements.

First, Goodell argues that Vilma’s defamation lawsuit constitutes a state-law claim which requires interpretation of the NFL-NFLPA collective bargaining agreement.  As such, Goodell asserts that Vilma’s lawsuit is preempted by Section 301 of the Labor-Management Relations Act.  Goodell argues that the lawsuit requires the interpretation of the CBA, because the CBA governs the terms and conditions of Vilma’s employment as an NFL player.  Included in the terms and conditions set forth under the CBA, is that Vilma could be suspended for conduct that Goodell as commissioner finds to be detrimental to the NFL or football as a sport.  Goodell’s motion asserts that the statements made by him which Vilma alleges were defamatory and the actions allegedly taken by him which caused Vilma emotional distress, were made during the course of an investigation and suspension brought forth by Goodell under the power granted to him under the CBA as NFL commissioner.  Given that Goodell argues that the allegedly defamatory statements made by him were made under this context, he claims that evaluation of Vilma’s defamation lawsuit necessarily involves interpretation of the NFL-NFLPA CBA.

Additionally, because Goodell argues that the CBA contains a “no-suit” provision which prevents players and the NFLPA from suing the NFL and its teams, Goodell argues that the lawsuit must be dismissed pursuant to Section 301 of the Labor-Management Relations Act.  Goodell’s motion asserts that “The law is completely clear that employees may not resort to state tort. . . claims in substitution for their rights under the grievance procedure in a collective bargaining agreement.”  Goodell’s motion notes that the CBA allows for binding dispute resolution procedures, rather than lawsuits, to be brought by the NFL or NFLPA and players when a dispute arises.  As such, Goodell asserts that Vilma’s lawsuit is improperly brought.

In his second argument in favor of Vilma’s lawsuit being dismissed under Rule 12 (B) (6), Goodell argues that Vilma failed to plead more than conclusory allegations on required elements.  First, Goodell notes that because Vilma is a public figure, he was required to plead the additional element of “actual malice” under his defamation claim.  For public figures to allege a cause of action for defamation, they must allege that the defendant made the statements with actual malice.  According to Goodell, in his complaint, Vilma only alleged that “Goodell’s Statements were made with reckless disregard of their truth or falsity and/or with malice.”  According to Goodell, Vilma did not allege how Goodell’s actions constituted actual malice.  As such, Goodell argues that the defamation claim must be dismissed due to Vilma’s failure to plead the claim with specificity.  Similarly, with respect to the intentional infliction of emotional distress claim alleged by Vilma, Goodell asserts Vilma was required to state the claim with particularity.  Here, Goodell alleges that Vilma merely alleged that Goodell’s conduct with respect to the statements made by him during the course of the bounty investigation were “extreme and outrageous.”  Goodell alleges that this allegation did not meet the specificity requirements to state a cause of action for intentional infliction of emotional distress.

Anti-SLAPP Statute Arguments

Anti-SLAPP statutes exist to prevent plaintiffs from filing strategic lawsuits against public participation (“SLAPP” lawsuits).  Louisiana’s anti-SLAPP statute allows a defendant to file a motion to strike lawsuits “arising from any act of [the defendant] in furtherance of the [defendant’s] right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue.”  The defendant can bring this motion to strike the lawsuit so long as the plaintiff has not established a probability of success on the claim.

The benefit to filing an anti-SLAPP lawsuit in Louisiana, is that upon the filing of the motion, a stay of discovery is granted.  This is crucial here, as in this case, Vilma and the NFLPA have continuously asserted that the NFL has withheld evidence of its findings related to the bounty program from them.  Arguably, Vilma initially filed his lawsuit to engage in the legal discovery process, whereby he would gain access to at least some of the NFL’s evidence.  By filing the anti-SLAPP lawsuit, the NFL at least temporarily held off Vilma and the NFLPA from accessing its evidence.

Upon the filing of the anti-SLAPP lawsuit, Goodell faces the burden of showing that Vilma’s claims arise from an act in furtherance of the exercise of his right of free speech in connection with a public issue.  As such, Goodell will have to show that the bounty program was a public issue.  Given the vast popularity of the NFL and the recent widespread concern over concussions and other injuries sustained by NFL players, this arguably will not be a hard burden for Goodell to meet.

If Goodell meets the burden of proving that the bounty program was a public issue, Vilma must demonstrate the probability of success on the merits of his claim.  If Vilma failed to state a claim upon which relief can be granted, based upon the Rule 12 (B) (6) analysis above, then this may be an issue.  However, if a judge finds that Vilma’s claims do not fall under the NFL-NFLPA CBA, or that Vilma failed to plead his claims with specificity, then Vilma will be able to demonstrate the probability of success of his claim on the merits.  This would mean that Vilma’s lawsuit would not be dismissed under the anti-SLAPP lawsuit.

Will the motion to dismiss be granted?

Overall, Goodell’s motion raises solid legal arguments.  Arguably, the simplest arguments raised by Goodell–that Vilma failed to plead his claims with specificity–may be his strongest.  In reviewing Vilma’s lawsuit, it does not appear that he specifically raised allegations of actual malice–as is required of public figures–in his defamation claim.  On top of the simple specificity argument raised by the motion, Vilma’s legal team may face hurdles in arguing against the notion that this case does not involve the interpretation of the CBA or that this matter is not one of public interest.

However, remember that the lawsuit is being held in Vilma’s home court, as it was filed in the United States District Court for the Eastern District of Louisiana.  Given that the New Orleans Saints have largely helped in the reemergence of New Orleans’ economy since Hurricane Katrina hit, there is the possibility that the court will grant Vilma some judicial leniency.  As such, the possibility exists that Goodell’s motion to dismiss will be denied.  However, unless Vilma’s legal team can overcome the deficiencies outlined above, it is my guess that the motion to dismiss will be granted.

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NFL Punishment of the Seahawks for Off-Season Workouts: CBA Implications

By:  Richard Braun, Ruling Sports Intern (Twitter:  @RicBraun)

On Monday, the Seattle Seahawks became the first team to be punished by the NFL under the new collective bargaining agreement for excessive contact during organized team activities (OTAs). As a result, the Seahawks were docked two scheduled OTAs plus a workout day on Friday.

Article 22 of the new CBA deals with minicamps, and there is a strict prohibition against live contact during these OTAs. The CBA states that “there will be no contact work (e.g., “live” blocking, tackling, pass rushing, bump-and-run) or use of pads (helmets permitted) at minicamps.” The NFL did not specifically say what happened, but ESPN’s Mike Sando attended some OTAs in Seattle and reportedly did not notice any live contact that was different from other minicamps. Ross Tucker also tweeted that most teams practice at a similar pace as the Seahawks. While it is likely that a Seahawks player told the NFLPA about the infraction, the NFL monitors all teams during the offseason to ensure adherence to the rules. Each team is required to film all on-field activities during minicamp so that it can be used as evidence in the event of a complaint. The NFL must have felt compelled to look at the tape, and they determined that coach Pete Carroll’s practices were too tough.

The CBA has specific guidelines regarding how OTAs can be conducted that go beyond restricting any live contact. Mandatory veteran minicamps, like those taking place now, cannot last longer than three days, and two-a-day practices are only allowed during two of the three practice days. Further, players may not be on the field for more than two-and-a-half hours for one practice. Each club may only hold one mandatory veteran minicamp. Any violation of these rules subjects the team to fines or the forfeiture of OTA days.

In response to the NFL’s finding that the Seahawks violated CBA provisions related to off-season workouts, Pete Carroll hoped that the NFL would give teams more specific guidelines as to what is and what is not permitted in offseason workouts. While such things as live blocking and tackling are prohibited, these prohibitions arguably do not cover the gamut of contact that is at play in the sport of football. Football is obviously a physical sport by nature, so players are going to run into each other at some point in time. There are countless different types of contact which can take place during a given NFL practice. The line between live contact and not live contact is not specified in the CBA beyond those few examples above.  Given the issue surrounding the Seahawks’ off-season workout activities, this is clearly problematic as it does not appear that teams fully understand the types of contact they are limited to during off-season workout activities.

While this is the first time that a team has been punished for its off-season workout activities under the new CBA, similar punishments have been assessed in the past. In 2010, both the Raiders and the Ravens were docked OTA days for unspecified violations during their offseason programs. Similarly,  the violation committed by the Seahawks would also have been a violation under the previous deal, as the prior CBA likewise prohibited the use of pads (besides helmets) and live contact.  In the end, losing three days of practice in June will not hurt the Seahawks all that much.  Nonetheless, it should serve as notice to every other NFL team as to what sort of conduct is disallowed under the new CBA.  Moreso, though, if the Seahawks’ practices are indeed similar to every other team in the league, then either the NFL needs to enforce its policies more consistently or provide clear and specific guidelines about the types of contact that are prohibited.

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The NFLPA’s Lawsuit Against the NFL for Collusion

On May 23, the NFLPA filed a lawsuit against he NFL in the United States District Court for the District of Minnesota, Reggie White, et. al. v. National Football League, et. al.  The lawsuit comes after the conclusion of previous litigation that the NFLPA and NFL were parties to.  The relevant previous litigation is a final consent judgment entered on August 20, 1993 and a Stipulation and Settlement Agreement entered into most recently on August 8, 2006, and which has previously been amended.  The final consent judgement and Stipulation and Settlement Agreement were the result of the conclusion of lengthy antitrust litigation brought by NFL players against the NFL that stems from the early 1990s.   

The NFLPA asserts that it is bringing this lawsuit to enforce the Stipulation and Settlement Agreement, which both the NFL and players agreed to pledge their best efforts to implement with good faith and fair dealing.  Section 1 of Article XIII of the Stipulation and Settlement Agreement provides in relevant part that,

“No Club. . . shall enter into any agreement. . . with the NFL or any other club. . . to restrict or limit individual Club decision-making as follows:  (e) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract.”

Section 2 of Article XV of the Stipulation and Settlement Agreement provides that:

“Neither the parties hereto, nor any Club. . . shall enter into any agreement. . . which includes any terms that are designed to serve the purpose of defeating or circumventing the intention of the parties as reflected by (a) the provisions of this Agreement with respect to. . . Salary Cap.”

According to the NFLPA, the Stipulation and Settlement Agreement required the 2010 season to be uncapped.  As such, the NFLPA argues that the NFL and owners agreed that they would not collude to circumvent the uncapped year by creating a secret salary cap.  However, the NFLPA alleges that the NFL and its owners created a secret salary cap of $123 million for the 2010 season. 

According to the NFLPA, it only learned of the existence of the secret 2010 salary cap in March 2012, when New York Giants owner John Mara, who chairs the NFL Management Council Executive Committee, made comments about penalties imposed as a result of four teams’ spending during the 2010 uncapped season.  According to the lawsuit, four teams exceeded the 2010 secret salary cap:  the Redskins (allegedly exceeded the cap by $102,833,047.000; the Cowboys (allegedly exceeded the cap by $52,938,774.000; the Raiders (allegedly exceeded the cap by $41,914,060.00) and the Saints (allegedly exceeded the cap by $36,329,770.00).  Subsequently, the Redskins and Cowboys have had their salary cap amounts limited by the NFL for upcoming seasons. 

While the lawsuit alleges that four teams did not abide by the secret salary cap in 2010, it alleges that the remaining 28 teams did comply with the secret salary cap.  As such, the NFLPA is asserting that NFL players were damaged by at least $1 billion.  The NFLPA estimates that this $1 billion in damages equates to the amount that the players could have received in salaries had the teams not colluded to create a secret salary cap in an un-capped year.  Additionally, the NFLPA is seeking at least an additional $2 billion in damages, because it claims that under the Stipulation and SEttlement Agreement, the players are eligible for damages in the amount of the compensatory damages ($1 billion) plus two-times that amount.

Ultimately, the lawsuit alleges three counts:  Collusion in violation of Article XIII of the Stipulation and Settlement Agreement, Breach of Section 2 of Article XV and breach of the implied covenant of good faith and fair dealing.  As noted above, the NFLPA is seeking $3 million in compensatory and non-compensatory damages, as well as attorneys’ fees, costs, interest and other relief that the court deems just and proper.


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NFL Votes to Require Players to Wear Full Pads in 2013

Today, NFL owners voted to require players to wear thigh and knee pads in games beginning in 2013.  The decision was reportedly made to bolster NFL Commissioner Roger Goodell’s safety initiative. 

Under the 2011 NFL Rulebook, players were not required to wear thigh and knee pads during games.  Rather, in the 2011 Rulebook, the NFL recommended that players wear hip, thigh and knee pads.  The Rulebook states that wearing these pads will “. . . reasonably avoid the risk of injury.”  Additionally, the 2011 Rulebook provided that the decision to wear pads is left to the player, unless individual team policy states otherwise.  Thus, in interpreting the recommendation made in the 2011 NFL Rulebook, it appears that teams could individually require players to wear full-pads during games.

Reports indicate that the NFLPA will challenge the NFL owners’ decision to require thigh and knee pads beginning in 2013.  The NFLPA will challenge this measure by filing a grievance with an arbitrator.  In its grievance, the NFLPA will likely assert that requiring players to wear thigh and knee pads is an issue related to working conditions.  A collective bargaining agreement is the document that outlines the terms of the working conditions between an employer and employee.  Thus, the NFLPA in its grievance will argue that any changes related to the types of pads an NFL player is required to wear during games should have been negotiated into the new collective bargaining agreement.

This argument which will likely be raised by the NFLPA poses a serious issue for the NFL and the arbitrator which will hear the case.  As noted above, the NFL and NFLPA entered into a new collective bargaining agreement in August 2011.  The new collective bargaining agreement has a contractual duration of ten years.  As such, if the NFLPA’s argument is upheld, the parties will not be able to negotiate the wearing of full-pads by players until 2020.

From the NFL’s perspective, this is clearly problematic.  Currently, the NFL is a defendant to numerous suits filed by thousands of former players resulting from concussions sustained by them during the course of their NFL careers.  A large measure of these lawsuits allege that the NFL did not take proper precautions to protect players from danger on the field and likewise, did not educate them fully of the risks of playing football.  Here, it is likely that the NFL fears that similar lawsuits could arise in the future, if it does not take action now to ensure that players are fully protecting their bodies by wearing thigh and knee pads.

Arguably, this is a proposal that the NFLPA should be on board with.  The NFLPA states that its mission, in part, is to “. . . confirm our willingness to do whatever is necessary for the betterment of our membership.”  Here, certain members of that membership–in particular, running backs and wide receivers–argue that playing with full-pads slows them down, and as such, limits them from performing on the field to the best of their ability.  Although the NFLPA argues that the NFL has not presented it with a study showing that players sustain less injuries when playing in full-pads, it is not hard to imagine that more padding on a player equates to less injuries sustained by said player.  Thus, in this instance, the NFLPA must determine whether it is bettering its membership by allowing several of its members to gain more speed, while risking injury to all of its members.

Overall, given the current climate wherein thousands of former NFL players have sued the NFL for injuries they allegedly sustained while playing the game, the NFLPA should table its grievance, as an arbitrator will likely find in favor of the rule proposal adopted by NFL owners.

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Filed under NFL, NFLPA