Redskins, Cowboys could go “nuclear” over cap mess

SB, I think we're sorta getting what your are saying. The problem is that all parties involved here are subject to rules. Some outlined in NFL Bylaws, some in the relevant CBAs. The arbitrator has specific authority granted by the current CBA. This same person was also the arbitrator granted specific authorities under the old CBA but that is now irellevant. He cannot expand his authority without the consent of the parties involved so he cannot under any legally theoretical notion rule as to whether what we did was a violation unless the current CBA allows for him to handle such a question. He can rule as to whether what has been done now, the punishment, was allowable under the current CBA. That's it.

SB, I think we're sorta getting what your are saying. The problem is that all parties involved here are subject to rules. Some outlined in NFL Bylaws, some in the relevant CBAs. The arbitrator has specific authority granted by the current CBA. This same person was also the arbitrator granted specific authorities under the old CBA but that is now irellevant. He cannot expand his authority without the consent of the parties involved so he cannot under any legally theoretical notion rule as to whether what we did was a violation unless the current CBA allows for him to handle such a question. He can rule as to whether what has been done now, the punishment, was allowable under the current CBA. That's it.

Understood. But one would think if this was a violation of the "old CBA" then the punishment should have come from whatever is permitted by the Commish or Exec Committe at that time. Even if they decided to go back and punish for something 2 yrs ago it should still fall under whatever CBA was in place at the time. If the rules were similar and the same people could duel out the same punishments then fine. No matter who the Arbitrator is should be able to look at the issue considering the CBA that was in place at the time. Hopefully if this is the case and the Arbitrator see's there was no actual rule or law or whatever in place to cover said infraction can he deem the punishment wrong or innapropriate?

If the question is do they have the right to punish under the new CBA? maybe maybe not. However they (according to Hoop) met with the NFLPA to make an addendum to the current CBA which would allow a punishment for said action then went out and punished for it. This is another aspect I think is innapropriate. The Commish/and Exec Committee should have looked at what was done and decided if the two teams violated any rule/law under the CBA that was in place at the time and if they did then what was the standard punishment for that type of infraction. Where I think the Arbitrator comes in is the Commish/Exec Committee sat down and thought yea this is wrong somehow, then looked at the CBA that was in place at the time and couldn't find a rule against it and couldn't find a punishment against so they use the current CBA (so it sounds) for an old infraction. This is where I'm hoping the Arbitrator steps in and says you can't do that. This new CBA was not in place at the time and the rule was not in place at the time so no punishment is warranted and the CAP space returned.

And the truth shall set us free. You have finally gotten to my over all point. There should be no punishment for the creative manipulation of the CBA if it was not against the rules of the CBA that was in place at the time. The league should be saying wow clever now let's close the loop hole with an addendum that the NFLPA can agree to and move on.

Yes, in principle, and in most walks of life.

However, this is a small private club of very competitive men that have decided they need to have a strong Commissioner with broad powers to keep the 32 of them rowing in the same direction.

They gave this Commissioner specific powers to punish Clubs for what he - in his sole discretion - believes is detrimental to the League and adversely affects competitive balance.

Right or wrong, whether he uses it fairly or unfairly, the 32 owners have given specific power to the Commissioner to impose certain penalties in that situation. He doesn't have to prove it to anyone - that's what "in his sole discretion" means.

In this case, he apparently warned them not to try to find loopholes in advance.

The only reason the Skins have arbitration as a recourse at all is that he tried to impose a different - lighter and probably more relevant - penalty than what he is authorised to impose.

You keep repeating this point that there were rules in place that showed NFL and NFLPA agreement on this, but I think you are way way off base in this part. The mere fact of a bulleted list does not show broad agreement on a principle, instead it shows specific negotiated agreements probably worked out through a lot of horse trading. If both parties wantes to show general agreement there are two simple ways, probably more, that they could have done that. One would be to write a general policy statement that said something to the effect of " no contract shall be enacted in the an uncapped league year that is determined to violate a general competitve balance" and then use the list as specific examples, or to add an elastic clause at the end of the list that said "and other contract devices as the commissioner may determine" or something along those lines. The fact that there is a well defined and specific list shows that there were specific valid tools that were invalid only during a period when the league faced an uncapped year. It is convoluted at best to assert after the fact that all such contract devices were subject to unwritten and precocious rules.

Your best points come when you expound on the procedural points and the arbitrator's role. If the league is ever forced to present your theory of implied agreement I imagine the NFLPA would be up in arms denying to their very core.

That's a fair argument. However, I'm not making the argument that the NFLMC and NFLPA agreed on how to handle that exact situation.

I'm only presenting it as evidence that the NFLPA wasn't opposed to the principle of restricting how much salary cap hit could or couldn't be dumped into an uncapped year.

The original argument was that keeping teams from dumping cap hit into an uncapped year constitutes illegal collusion. I'm only saying that it's probably not collusion if the NFLPA agreed to multiple rules that seem to intend to accomplish the same thing.

Ahhhhh .... now I get what you're saying. Sometimes I am slow on the uptake. A good question and one beyond my immediate knowledge, it is more labor relations specific: What redress is available to a wronged party of an expired labor agreement? My gut is "too bad, so sad" b/c the governing agreement no longer exists. At the same time, and if that were the case, it might lead to some improper results.

The problem is that the League punishing Clubs doesn't violate any CBA, old or new.

If the players disagreed with the punishment, they would have an obviously strong case to say the NFL can't unilaterally modify the salary cap.

As for timing, surely someone could sue the NFL for actions that violated a (now-expired) agreement that existed at the time.

As for the CBA, both parties agreed in the 2011 version not to sue each other or assist suits that fall under the previous CBA (emphasis added):

Section 3. Releases and Covenants Not to Sue:
(a) The NFLPA on behalf of itself, its members, and their respective heirs,
executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit or proceeding (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFL or any NFL Club or any NFL Affiliate with respect to any antitrust or other claim asserted in White v. NFL or Brady v. NFL, including, without limitation, any claim relating to the 2011 lockout, any restrictions on free agency, any franchise player designations, any transition player designations, the Draft, the Entering Player Pool, the Rookie Compensation Pool, Total Revenues ("TR") or television rights fees with respect to any League Year prior to 2011 , collusion with respect to any League Year prior to 2011 , or any claim that could have been asserted in White or related to any other term or condition of employment with respect to conduct occurring prior to the execution of this Agreement. For purposes of clarity, this release does not cover any claim of any retired player.

(b) The NFL, on behalf of itself, the NFL, and the NFL Clubs and their
respective heirs, executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFLPA or any of its members, or agents acting on its behalf, or any member of its bargaining unit, with respect to conduct occurring prior to
the execution of this Agreement.

Which is why I believe the Arbitrator has been asked to step in. I also somewhat understand what Hoop is saying about the Arbiture only having a specific job between owners and players but if what the Redskins and Cowboys was unique and a punishment applied then perhaps this would be something new and unique for the Arbiture to oversee as well owner vs owner. I can see the Arbiture stepping up and saying this has never happened before but this will be my duties also.

The arbitrator can't unilaterally decide to expand his own authority than the CBA gives him. While he's at it, maybe he could mandate that the Cowboys play in pink uniforms.

Understood. But one would think if this was a violation of the "old CBA" then the punishment should have come from whatever is permitted by the Commish or Exec Committe at that time. Even if they decided to go back and punish for something 2 yrs ago it should still fall under whatever CBA was in place at the time. If the rules were similar and the same people could duel out the same punishments then fine. No matter who the Arbitrator is should be able to look at the issue considering the CBA that was in place at the time. Hopefully if this is the case and the Arbitrator see's there was no actual rule or law or whatever in place to cover said infraction can he deem the punishment wrong or innapropriate?

If the question is do they have the right to punish under the new CBA? maybe maybe not. However they (according to Hoop) met with the NFLPA to make an addendum to the current CBA which would allow a punishment for said action then went out and punished for it. This is another aspect I think is innapropriate. The Commish/and Exec Committee should have looked at what was done and decided if the two teams violated any rule/law under the CBA that was in place at the time and if they did then what was the standard punishment for that type of infraction. Where I think the Arbitrator comes in is the Commish/Exec Committee sat down and thought yea this is wrong somehow, then looked at the CBA that was in place at the time and couldn't find a rule against it and couldn't find a punishment against so they use the current CBA (so it sounds) for an old infraction. This is where I'm hoping the Arbitrator steps in and says you can't do that. This new CBA was not in place at the time and the rule was not in place at the time so no punishment is warranted and the CAP space returned.

The problem is the arbitrator doesn't have the power to do that. If the Skins want someone to do that, they would have to sue the League in civil court.

If the Commissioner had taken away draft picks, the matter could probably end up in criminal court - for inciting riots over the loss of RGIII.

By the way, HAPPY RGIII DAY EVERYBODY!! Today's the day.

Just a note: on page 287 of the 2011 CBA there is this paragraph
20. WAIVER AND RELEASE. Player waives and releases: (i) any claims relating to the 2011 lockout; (ii) any antitrust claims relating to the Draft, restrictions on free agency, franchise player designations, transition player designations, the Entering Player Pool, the Rookie Compensation Pool, or any other term or condition of employment relating to conduct engaged in prior to the date of this Agreement; and (iii) any claims relating to conduct engaged in pursuant to the express terms of any collective bargaining agreement during the term of any such agreement. This waiver and release also extends to any conduct engaged in pursuant to the express terms of the Stipulation and Settle-ment Agreement in White. This waiver and release does not waive any rights player may have to commence a grievance under the 2006 CBA or to commence a grievance or other arbitration under the 2011 CBA.

It is out of context from a club against league grievance like the salary cap issue, but I only did a quick word search, not a reading of the whole bloody thing. My point (and to SBXVII's contention) is that it's highly unlikely that clubs would just throw out all ability to file grievances, or resolve disputes from the 2006 CBA, and instead wrote some language to allow a team to seek some form of mediation in case a said dispute did arise.

Then there is this from the 2011 CBA:

ARTICLE 14 ENFORCEMENT OF THE SALARY CAP AND ROOKIE COMPENSATION POOL
Section 1. [...]
Section 2. Circumvention: Neither the parties hereto, nor any Club or player shall enter into any agreement, Player Contract, Offer Sheet or other transaction which in-cludes any terms that are designed to serve the purpose of defeating or circumventing the intention of the parties as reflected by the provisions of this Agreement. However, any conduct permitted by this Agreement shall not be considered to be a violation of this Section.
Section 3. System Arbitrator Proceeding: Any individual player or the NFLPA acting on that player’s or any number of players’ behalf, the NFL, and any Club may bring a proceeding before the System Arbitrator alleging a violation of Article 7, Article 12, Article 13 or Article 14, Section 2 of this Agreement. Issues of relief and liability shall be determined in the same proceeding. Other than as set forth in Article 7, the complaining party shall bear the burden of demonstrating by a clear preponderance of the evidence that the challenged conduct was in violation of such Article.
and
Section 2. Circumvention: Neither the parties hereto, nor any Club or
player shall enter into any agreement, Player Contract, Offer Sheet or other
transaction 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 Total Revenues,
Salary Cap, Entering Player Pool, and Minimum Team Salary, and (b) any
other term and provision of this Agreement. However, any conduct permitted
by this Agreement shall not be considered to be a violation of this
provision.
I found interesting the bolded part, and again, with limited knowledge of the complexities, this part would seem to confirm and strengthen the 2 teams' argument that the salary cap reductions can NOT be tied to actions which the league had already approved.

Hoophead, I would say that this language, present in both CBA's, specifically contradicts your contention that the use of the voidable option clause somehow can be vaguely attached to the well-defined list of options disallowed during an uncapped year.

I might argue if I were the NFL that the what we call "punishments" are no such thing. They are a re-apportioning of unfairly gained cap space.

I don't agree with that load but I am guessing the NFL will present the "adjustments" as such.