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19 Feb 2007
by Mike Tanier
Wilber Marshall was the first player ever slapped with the franchise tag. He was also the first player to get ticked off about it. Marshall's challenge to the franchise designation and football's newborn free agency system threatened an agreement that promised to usher in an era of labor peace and end a decade of work stoppages and lawsuits. It also touched off a four-month trading saga that featured multiple deadlines, harsh words, secret phone calls, late-night faxes, and intervention by the commissioner.
In 1992, free agency as we know it did not exist in the NFL. Major league baseball players won the legal right to negotiate with other teams once their existing contracts expired in the mid-1970s, but the NFL Players Association wasn't as strong as the baseball union. After a preseason lockout in 1974, NFL owners instated a plan that forced teams to pay compensation if they signed a free agent from another franchise. The ransom was steep -- a first-round draft choice -- so few free agents changed hands. The players battled to change the system during the 1982 and 1987 strikes but made little progress.
After the 1987 strike, the Players Association changed its approach, de-certified itself as a collective bargaining entity, and allowed individual players to challenge the league's free agency system in court. The owners sensed danger and instituted Plan B free agency: teams retained refusal/compensation rights for 37 players on each roster, leaving the rest to test the open market. Plan B free agency satisfied no one, and several players successfully challenged the system in court. Few big names changed hands under Plan B. Ironically, one of them was Wilber Marshall, who was lured away from the Bears with a five-year, $6-million deal in 1988.
By the end of the 1992 season, both players and owners knew that a new settlement was necessary. The league had been operating without a collective bargaining agreement for five years. Players were winning major court battles, and the antitrust case Reggie White v. NFL threatened the league's entire salary system. When commissioner Paul Tagliabue met with lawyers for owners and players that season, everything was on the table: free agency, a salary cap, even the abolition of the draft.
On January 6th, 1993, the Players Association and team owners agreed to a collective bargaining agreement that would bring free agency to the NFL. For the players, free agency came with two catches: a salary cap, which would take effect in 1994, and a new set of refusal-compensation designations that would severely limit the bargaining power of a handful of the league's top free agents. The most notorious of the new designations was the franchise tag: teams could offer an otherwise unrestricted free agent a one-year contract for a modest raise and take him completely off the open market. It was a shrewd gambit by the owners, who wanted to prevent salaries of top players from escalating as sharply as they had in baseball and basketball. But one right-of-refusal player per team was much better than 37 per team, so players accepted the compromise.
The CBA still had to go before a federal judge, but there was business to conduct while the players and owners waited for legal approval. Just days after the Super Bowl, a few weeks after the CBA was ratified, teams found themselves with a new off-season decision: to tag or not to tag. Facing a strict February 28th deadline to designate franchise players, owners and GMs hustled to comprehend and apply the new rules.
The first player to be unofficially tagged was Reggie White. A report surfaced in Philadelphia on February 18th indicating that the Eagles planned to name White as their franchise player. There was just one catch: White, a name plaintiff in an antitrust suit against the NFL, was granted absolute free agency as part of the CBA. Eagles owner Norman Braman hoped that by tagging White he would receive compensatory draft picks. At any rate, the Eagles delayed for several days before officially tagging a player whose rights they had already lost. On February 23rd, the Redskins officially tagged Marshall, a 31-year-old linebacker coming off a 138-tackle, six-sack, Pro Bowl season.
Other teams followed suit. The 49ers tagged Steve Young. The Buccaneers tagged tackle Paul Gruber. The Chiefs tagged defensive end Neil Smith. A total of 10 players were franchised in 1993, including two (White and safety Tim McDonald of the Cardinals) who weren't truly bound by the designation.
The Redskins were a team in transition when they franchised Marshall. Joe Gibbs left after the 1992 season, turning the reins of one of the league's most successful franchises of the previous decade over to Richie Petitbon. The Redskins had multiple free agents on their roster, including big names like Art Monk, Gary Clark, and Mark Rypien, any of whom could well have been franchised. They also planned to go shopping: they had their eyes on White or, if the Eagles superstar was too expensive, Saints defensive end Wayne Martin. But Marshall was a high-priority player who had made $1.3 million in 1992 and would only cost the Redskins about $1.6 million as a franchise player. It made sense to keep him off the market. "Retaining Marshall's rights means that if he plays for anyone next season, it will be the Redskins," Richard Justice wrote in the Washington Post the next day.
Or maybe not. On March 2nd, Marshall became the first player to formally object to the franchise tag when he filed a memorandum in federal court asking judge David Doty (who on February 26th gave preliminary approval to the CBA) to abolish the designation. "We think this is not a fair or a reasonable position into which Wilber should be forced," agent Richard Bennett said. A hearing date was set for April 16th. By then, all ten of the players who were franchised would file objections. Just days after it was first used, the franchise tag became the most reviled guaranteed pay raise in all of sports.
While Marshall waited for his day in court, the Redskins tried to trade their disgruntled linebacker. Buddy Ryan, Marshall's defensive coordinator for the 1985 Bears who was now coaching in Houston, lobbied hard to bring Marshall to the Oilers. In late March, the Redskins and Oilers agreed in principal to trade Marshall for a first-round pick, but Marshall's salary demands -- he wanted the Oilers to sign him for $3-million per year -- would upset his new team's salary structure. Ray Childress, the Oilers star defensive tackle, was demanding a raise from the $950,000 he earned in 1992, and he wouldn't take kindly to a new multi-millionaire in the locker room. Free agency was rapidly changing the economics of the game, and everyone wanted some of the action. Trade talks stalled.
On April 16th, Justice Doty heard the complaints of Marshall and 73 other players who filed objections to the new collective bargaining agreement. Attorney Jerry Goldman argued that the franchise tag was a "fundamental injustice" to a player like Marshall who could negotiate a large salary on the open market. "This is the same thing as being an indentured servant," he claimed. Other non-franchise players, including Rypien, objected to the CBA because they weren't given adequate time to understand the new rules and adapt to the new marketplace. Redskins tight end Terry Orr expressed his concerns in football terms: "We knew what the play was, now you audible." Jim Quinn, arguing for the Players Association, countered that less than two percent of players filed complaints and that salaries among free agents increased 140 percent in just weeks under the new system. "Has anyone from the NFL or the players association gotten notice from the president's office as a thank you for jumpstarting the economy?" Doty joked to Quinn, an indication that the judge sympathized with the newly re-certified Players Association.
Doty announced that he would finalize his decision in late April, then delayed for a few more days while negotiators fine-turned some of the language of the CBA. On April 30th, he gave final approval to the agreement, franchise tag and all, issuing a 115-page decision that called the CBA "fair, reasonable, and adequate." He called the objections of Marshall and the other franchise players "extremely limited in scope" and indicated that overall market conditions favored them. Marshall and his lawyers immediately planned an appeal. Meanwhile, the Redskins resumed trade talks with the Oilers, who tellingly didn't select a linebacker in that weekend's draft despite a glaring need at the position.
The Oilers upped their offer for Marshall to a first- and a fifth-round pick. Redskins GM Charley Casserly gave the Oilers permission to formally negotiate with Marshall, who threatened to holdout for an entire season rather than play for the Redskins. On May 6th, Marshall met with Oilers brass for six hours to hammer out a contract.
But while the Oilers and Marshall were talking, the league and the NFLPA were tweaking the CBA in anticipation of Marshall's appeal. The "franchise tag" was redefined: a team could sign away another team's nonexclusive rights franchise player for the price to two first-round draft picks, while the soon-to-be-called exclusive rights franchise player would receive the average of the top five salaries at his position calculated at the end of the signing period, not the end of the previous season.
The change in language made a big difference at a time when free agency itself was causing salaries to soar, and it softened the blow of the franchise tag somewhat. The price for retaining exclusive rights for Marshall rose from $1.6 million to about $2.17 million, and the Redskins (and other teams) were given until June 15th to up their offers or allow their franchise players to speak with other teams.
The Redskins were eager to get a decision done before they were forced to increase their offer to Marshall. Casserly gave the Oilers a May 21st deadline to sign Marshall or he would void the trade. When May 21st arrived, the Oilers and Marshall were $150,000 apart. Casserly gave the Oilers another day, but they could not close the gap between $2.75 and $2.9 million for one year. The so-called deadline came and went, but Casserly did not object to the fact that the Oilers kept their offer on the table. In fact, the Oilers issued their own deadline: sign by June 3rd or they rescind their contract and trade offers. "I don't understand what constructive purpose it serves," agent Richard Bennett said of the second deadline.
The evening of June 2nd arrived, and everything came unglued. Oilers owner Bud Adams decided that Marshall wasn't worth the money, draft picks, and hassle. The Oilers called the Redskins and voided the trade. Marshall's agent called the Oilers and accepted the $2.75-million contract. At about the same time. Uh-oh.
The late-evening events of June 2nd were among the strangest in the history of professional sports contracts. According to the Oilers, they called the Redskins at 9:40 p.m. CDT to void the trade offer. At 10:05 p.m., they called Bennett and withdrew the contract offer. At 11:40 p.m., a fax from Bennett accepting the contract terms arrived at Oilers offices. The Oilers had long-distance phone records to back up their timeline. Bennett countered that his fax was the binding document that ratified the trade. "It's not really very complicated," Bennett said the next day. "Last evening, Wilber directed me to accept their offer. I did so by fax to the Oilers' offices. Those two acts constitute a contract. It's irrefutable. It's contract law 101.''
The Redskins immediately filed an appeal with Tagliabue insisting that the Oilers uphold the terms of the deal. A war of words erupted. Bennett and the Redskins accused the Oilers of trying to leverage additional picks out of the deal, and Bennett promptly filed a $7.9-million breech-of-contract suit on Marshall's behalf. Tagliabue waited until late June to hear all sides of the argument.
In the course of 10 hours of meetings with the commissioner on June 30th, all of the dirty laundry of June 2nd got an airing out: after Oilers executive Steve Underwood called Casserly at 9:40 p.m., Casserly called Bennett to warn him that the deal was about to fall apart. Bennett didn't trust Casserly's information (he thought it was a negotiation tactic), but Casserly offered to have the Redskins pay the $150,000 difference if Marshall accepted the Oilers offer. Bennett then faxed his acceptance at about the same time that Underwood called him to withdraw the offer. Casserly's interference and financial offer were deemed "improper" by Tagliabue, who rebuked the Redskins sharply in his decision. Casserly and the Redskins paid dearly for invoking the commisioner's wrath: instead of a first- and fifth-round draft choice, they would receive a third-round pick in 1994 and a fifth-rounder in 1995.
The Redskins fumed about the decision. "This is a problem with him," an unnamed team official said of Tagliabue in the Washington Post "He wants everyone to be equal in this league. He's tired of the way we dominate the NFC East and is going to do anything possible to hurt us." But Marshall seemed happy to end what became a four-month contract squabble. "I'm not bitter," he said. "You'll have to ask the Redskins why they did what they did. But I know this is going to be exciting. It's something different. It has been tough the last few months, but this is a career move. It's a business move. The Redskins had an opportunity to keep me here and decided not to do it. I don't know exactly the reason."
Marshall was appeased. The franchise tag, in a slightly modified form, survived its first challenges. Labor peace was achieved.
Marshall played just one forgettable season with the Oilers. Knee and ankle injuries slowed him at the start of the year, and the Oilers started the season just 1-4 despite a star-studded roster. "Linebacker Wilber Marshall was just what the Houston Oilers needed: another money-motivated, impact individualist whose 30th birthday had already come and gone," a Washington Times columnist wrote in good-riddance tones in late October. The Oilers rebounded to win 11 straight games, but Marshall recorded just 37 tackles and two sacks in 10 games. He followed Buddy Ryan to Arizona in 1994, but he was playing out the string, and he was out of the league after the 1995 season.
The Redskins, a 9-7 in 1992, dropped to 4-12 under the inept Petitbon. The team signed Carl Banks as a cheaper alternative to Marshall, but Banks was past his prime and lasted just one season. The team never managed to acquire White, Martin, or the other top free agents they targeted, and several of the in-house players they signed for the 1993 season, including Rypien and Monk, were gone by 1994.
The franchise tag, of course, is still with us, as is the resentment that still festers almost 17 years after Marshall and others stood in a Minneapolis courtroom and challenged the designation. A tagged linebacker will earn over $7 million in 2007, an impressive figure. But superstars who are slapped with the tag still feel the same way Marshall did when he was told in 1993 that he was off the market. Somewhere, a deep-pocketed team is offering more money, or a longer deal, or a better bonus, and the player's contract with his current team has run its course. Far from "fair, reasonable, and adequate," the franchise tag prevents a player from earning his full market value. Ironically, it leaves him disenfranchised, unable to determine his future and determine his own career path, at least for one year.
Over the last few days, big-name players like Lance Briggs, Asante Samuel, and Dwight Freeney have been franchised. Over the next few weeks, these players will grumble over million-dollar deals, haggle over long-term contracts, threaten holdouts, or lobby for trades. It's easy to forget how all of this started: as a mad scramble in the winter and spring of 1993 to comprehend and interpret new rules, a threatened peace, and a last-second change to the most sweeping bargaining agreement in sports history. It's also easy to forget the harsh realities of 1980s football economics: strikes, replacement games, Plan B free agency, and endless lawsuits. A good compromise is one that satisfies no one, but when players, fans, and owners consider the alternatives, the franchise tag doesn't seem so bad.
And no matter how controversial or contentious contract talks become in the next few months, we probably won't see any deals that come down to a midnight fax, a clandestine phone call, or Solomon-like intervention by the commissioner. The franchise tag may be hated, but it's now established, and no new Marshall appears poised to challenge the establishment anytime soon.
52 comments, Last at 17 Jul 2007, 10:02am by Mark Corsino