Writers of Pro Football Prospectus 2008

23 May 2012

NFLPA Files Collusion Claim Against NFL

According to court papers filed in Minneapolis today, the NFLPA is alleging that a secret $123 million salary cap was enforced during the 2010 season.

Posted by: Rivers McCown on 23 May 2012

95 comments, Last at 01 Jun 2012, 10:36pm by Mr Shush


by Drunkmonkey :: Wed, 05/23/2012 - 4:13pm

ProFootballTalk has done a great job of breaking down exactly why this is probably going to get thrown out before it even makes it to a judge. I don't understand why the Union is really upset about this. First of all, by signing the CBA, they waived their right to sue about this kind of thing. Secondly, while the most free-spending team in the NFL might be losing money, history shows they will find a way to dole out the money.

by Dean :: Wed, 05/23/2012 - 4:31pm

"by signing the CBA, they waived their right to sue about this kind of thing."

Have they really? It seems to me that this is part of what will be litigated. I'm not a lawyer, I certainly can't say.

What makes me suspect The Owners will be OK is this – the owners aren’t stupid. But yet for them to be found guilty, they have to have been GALACTICALLY stupid. Not to collude – we know that happens – but to be so obvious about it that the players actually have a case. And yet, here we are, and in this case, it sure looks like the owners just might have been that dumb. They’re usually much smarter than this. That's why I have to think there's some point of law that I don't know that will get them off the hook.

by Will Allen :: Wed, 05/23/2012 - 4:56pm

PFT says the CBA contains the following......

“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 . . . collusion with respect to any League Year prior to 2011.”

.....and this is before the NFLPA agreed to the reuction of the Cowboys and Redskins caps reductions.

I would have had a lot of sypathy with this suit, had it been filed a year ago. Now, if this suit is allowed to go forward, it means the language in a signed contract is meaningless.

by Independent George :: Wed, 05/23/2012 - 4:57pm

I... wow.

Sounds to me like the players have cause to file suit against the NFLPA for sheer incompetence.

Their attorneys actually agreed to this?

by Will Allen :: Wed, 05/23/2012 - 5:02pm

Hell, the NFL could conceivably successfully sue the NFLPA for breach of contract, based on that language.

by sundown (not verified) :: Wed, 05/23/2012 - 5:36pm

These players unions are almost comical in how poorly run they are. The NBA players are employing most of Billy Hunter's family meanwhile the NFL players "leadership" signs away their rights to sue and then almost instantly decides they should sue. The kicker is how they also okayed the punishments to the Cowboys and Redskins which is about this exact thing. Total incompetence.

by Will Allen :: Wed, 05/23/2012 - 5:49pm

Billy Hunter is a flat-out criminal, in my view.

by Will Allen :: Wed, 05/23/2012 - 5:56pm

It really made a difference for the baseball players that when they formed their union, they went out and hired a guy, Marvin Miller, who had cut his teeth in the steelworker union battles.

by doktarr :: Fri, 05/25/2012 - 5:48pm

Wow indeed. That's just dumb. Looks like this is going nowhere.

If I were Dan Snyder and Jerry Jones, though, I would sue the league. They were within their rights to do what they did in the uncapped year.

I'm sort of amazed that the penalties assessed against the Redskins and Cowboys didn't get more attention on this point. Those penalties are essentially an admission by the league that they were enforcing a de facto salary cap that year.

by Dean :: Wed, 05/23/2012 - 4:58pm

I hadn't read that post at PFT yet when I originally posted.

My popcorn is ready.

by tuluse :: Wed, 05/23/2012 - 5:35pm

If something is illegal you can't just put in a contract and then everything is fine.

As an extreme example, the NFL couldn't say that players have to become slaves to Rodger Godell if they fail a drug test.

by DavidL :: Wed, 05/23/2012 - 5:43pm

True, but probably irrelevant to this case, as the Supreme Court recently upheld contract clauses forbidding litigation. That wasn't an employment case, but it also didn't deal with a negotiated contract, where the aggrieved party had a much stronger opportunity to get the offending language excised.

by sundown (not verified) :: Wed, 05/23/2012 - 5:43pm

True up to a point but all kinds of rights can be signed away in a legal agreement. The example that jumps to mind is how Maurice Clarett lost his suit over the NFL's age restrictions because the courts held that the union could sign away players rights about that, even those of players like Clarett who weren't even part of the union.

I doubt that clause would be part of the CBA if it had no legal meaning.

by tuluse :: Wed, 05/23/2012 - 5:45pm

Well we're about to find out.

I have no idea if the NFL can actually enforce this contract or not, but I do know companies put stuff in contracts that wouldn't be upheld all the time. Just read your average EULA for any software about 1/3 of that thing is junk that a court would laugh at if they actually tried to enforce.

by sundown (not verified) :: Wed, 05/23/2012 - 5:51pm

A key difference being you didn't have a team of high-priced attorneys helping draft the software agreement. The players attorneys helped draw up the CBA and approved of everything prior to the players signing it. If they let junk clauses that would be laughed out of court make it into the final agreement, it speaks very poorly of them.

by White Rose Duelist :: Thu, 05/24/2012 - 10:46am

I'm pretty sure software companies do in fact use attorneys when writing those things, in some cases very expensive ones. It's not that unusual to put an unenforceable clause in a contract like that. If you can convince the player / software user that they don't have a right before it gets to the courts, it doesn't matter whether or not they actually have said right.

This is also why most contracts have a clause that is basically "If any part of this contract is invalid, the rest is still good." It lets them put in the garbage terms without nullifying the pieces that are legal.

by Will Allen :: Thu, 05/24/2012 - 11:19am

Software agreements usually don't involve the software user employing highly skilled attorneys to negotiate each provision, over several weeks or months, with the software manufacturer.

by Scott C :: Fri, 06/01/2012 - 8:01pm

Enterprise software can often have exactly that sort of negotiation. Imagine WalMart purchasing $50M worth of software from Oracle...

by Mr Shush :: Fri, 06/01/2012 - 10:36pm

I'd rather not. The sheer ubiquitous awfulness of enterprise software makes me prefer never to think about it at all.

by Will Allen :: Wed, 05/23/2012 - 5:45pm

That is a poor analogy, given there are Constitutional amendments which prohibit slavery. If the government wishes to sue the NFL on antitrust grounds, they can certainly do so, because you are correct, illegal is illegal. The contract prohibits the NFLPA from doing so, however.

by c0rrections (not verified) :: Wed, 05/23/2012 - 6:43pm

In a suit for damages I would think so.

by zenbitz :: Thu, 05/24/2012 - 8:12pm

but could they be sentenced to be his Butler?

by drobviousso :: Wed, 05/23/2012 - 6:18pm

"any antitrust or other claim asserted in White v. NFL or Brady v. NFL"

Oh, who the hell wrote this. If I wrote it, I'd be given a little bit of a talking to and told not to make sloppy errors*. Are they talking about any antitrust claims in general, or any antitrust claims ... asserted in White or Brady?

*Don't let my sloppy message board posts fool you. If I was being paid to write clearly here, I would spend the time to do so.

by RickD :: Thu, 05/24/2012 - 1:18pm

Right after the point you quote is:

" including, without limitation . . . collusion with respect to any League Year prior to 2011."

I think the allegation would be covered by "collusion with respect to any League Year prior to 2011."

by Anton Sirius (not verified) :: Wed, 05/23/2012 - 4:18pm

What a coincidence that this comes just after the league slapped down the DAL/WAS complaint about their cap hit... well played, NFLPA, well played.

by Independent George :: Wed, 05/23/2012 - 4:45pm

Can someone please explain the legal arguments in layman's terms? Because I really don't understand this.

What I gather is:

1. The league most certainly colluded on a $123 M salary cap.
2. But the league says that was ok, because the NFLPA agreed to the collusion.
3. But NFLPA says they only agreed the collusion because otherwise, the NFL would have colluded to produce an even lower illegal salary cap of $113 M than the higher illegal salary cap of $123 M they wound up instituting.

Which makes absolutely no sense to me.

by Dean :: Wed, 05/23/2012 - 4:57pm

That sounds about right. But again, there's a big difference between proving something in a court of public opinion (we all know...) and a court of law. We all believe the collusion happened, but that doesn't mean the NFLPA can prove it.

Getting back to your point, the rest of the case is as follows...

The NFL says the case should be dismissed because the NFLPA agreed not to sue in exchange for some salary cap revisions last year. The NFLPA says that they have a court order from Judge Doty - who is no friend of the owners - which trumps last years agreement. Predictably, the NFL disagrees. But here's the irony... ...the NFLPA claims they have this, but nobody's seen it. Vilma in reverse!

by AnonymousBoob (not verified) :: Tue, 05/29/2012 - 2:15pm

I think the penalties against Washington and Dallas make proving collusion pretty damn easy. The question, as others have pointed out, is if the NFLPA waived the right to seek damages for any colluding during the uncapped year.

by Will Allen :: Wed, 05/23/2012 - 5:00pm

It's worse than that, given the CBA ratified, prior to the NFLPA agreeing to the cap reduction on the Redskins and Cowboys, has specific language in which the NFLPA promises to not sue the NFL on antitrust grounds for any behavior prior to this year. I'd kind of enjoy a successful antitrust challenge to the NFL. I really hate it when people ignore the plain language of contracts, however.

by OmrothLol (not verified) :: Wed, 05/23/2012 - 4:51pm

Oh shit the owners "conspired to collude". That's like double collusion.

by Kyle D. (not verified) :: Wed, 05/23/2012 - 4:57pm

Or did they collude to conspire?

In legal terms I believe it is called "double dog dared to collude and conspire the collusion."

by erniecohen :: Sun, 05/27/2012 - 7:33am

Actually, they're very different things. Collusion is the owners working together in an illegal way. Conspiring to do this means agreeing to do it, even if nobody does anything. So they are saying that the owners agreed to collude, but maybe none of them did (WAS and DAL being teams that obviously got F's for their "colludes well with others" grades).

by Will Allen :: Wed, 05/23/2012 - 5:17pm

This really smells to me like a highly paid union president trying to protect his credibility, in the view of the union members, after getting outnegotiated, because he either did not want to, or could not convince his membership to, go through the pain of an extended work stoppage as the antitrust issues were litigated. So instead, he agrees to some bad (to the union) language in the CBA, and further codifies it by agreeing to a supplement which takes cap space from two teams, and then tries to litigate through the back door, by claiming that the language in the CBA should be ignored.

I'm not feeling any charity towards the NFL these days, given that I still pay some taxes in Minny, and the stadium strongarm kind of makes me sick. I really, really, really, hate it, however, when people claim that the documents they put their name to can be ignored.

by Independent George :: Wed, 05/23/2012 - 5:26pm

I'm starting that if I could get my hands on an NFLPA email distribution list, I should write them asking for help smuggling my family members out of Nigeria, and then retire happily.

by sundown (not verified) :: Wed, 05/23/2012 - 5:46pm

Billy Hunger already did this with the NBA players. But instead of asking for help, he just hired them and had the players pay for it. Much more respectable that way.

by tuluse :: Wed, 05/23/2012 - 5:37pm

Given the reaming that the NBA union got, I thought Smith did an excellent job.

by Subrata Sircar :: Wed, 05/23/2012 - 5:25pm

Speaking of stadiums, the NBA's Golden State Warriors are moving to a new arena in SF. The current plan appears to be the city/port-authority leases them the land for $1/yr while the team spends ~$100M to clean up the area (it's a crumbling port/pier that's used for parking) and then the team builds the arena with private money:


If this is correct, SF will once again get something better than what they have now for little more than the opportunity cost of doing something else with the area.

Compare this with the 49er's new stadium plans and the Giants stadium, and one can't help but feel that SF's city officials have their sh*t together and Santa Clara's should be run out of town on a rail.

by Will Allen :: Wed, 05/23/2012 - 6:07pm

I will make an idle prediction that Judge Doty allows the suit to go forward, whereupon he'll be reversed on the appellate level, and the Supreme Court will decline to hear the matter.

by Karl Cuba :: Wed, 05/23/2012 - 6:50pm

Double post, I hate ipads

by Karl Cuba :: Wed, 05/23/2012 - 6:49pm

I'll begin by stating that I am in no way an expert on USA legal matters. However, the CBA negotiations were conducted under the stress to both sides of loss of income. The NFL clearly should not have entered into the collusion that they clearly did in the last year governed by the last CBA. This will have illegally put more pressure on the NFLPA in the negotiations.

I am astonished that the NFL thought that they could get away with collusion to hold down player compensation during an uncapped year. I'm even more amazed that they felt that they could get away with punishing teams for violating an illegal cap without remonstrations from the players's union.

This issue should not be viewed as the NFL versus the NFLPA, it should be seen as the owners versus the players. As I said earlier, I am not an expert but the owners have violated the previous agreement in the run up to the last negotiation. Their position today might well be legally sound but from my layman's perspective they have at the very least misbehaved in a moral fashion. We cannot know at his stage whether or not the players would have achieved a more advantageous result in the negotiations.

As a fan all I have to say is a pox on both their houses, I hope this doesn't result in a cessation of play and 'FIRE ROGER GOODELL'.

by BaronFoobarstein :: Wed, 05/23/2012 - 8:11pm

Yes, it's pretty obvious the NFL owners colluded to hold down pay. But what makes you think that the NFLPA didn't get more money than they otherwise would have by agreeing not to sue over it? They signed an agreement not to sue, and there's no way for outsiders to know what reasoning and compromising took place surrounding that agreement. They may have wrung a few million more per year per team out of the fact in which case suing now is trying to get paid twice. Or they may have not noticed the collusion and gotten nothing, in which case shame on the owners (and also the NFLPA negotiators).

by Noah Arkadia :: Thu, 05/24/2012 - 1:33pm

Besides, it's not as if the owners colluded to force the players to work for peanuts. Or as if they even enforced a lower cap than existed before. The league has very sound competitivity rules in place and it doesn't strike me as immoral to try to uphold them even when they legally shouldn't do so. It might be illegal, but not immoral.

It's closer to immoral to me to sign a contract and then immediately do what you agreed not to.

We are number one. All others are number two, or lower.

by justme_cd :: Thu, 05/24/2012 - 3:20pm

I don't understand your point at all. The owners had an agreement with the NFLPA to have an uncapped year. If the owners made a secret agreement on a cap in an uncapped year, they made two conflicting agreements. The immoral part isn't that the teams did what they agreed not to do, or even necessarily that the owners upheld the secret agreement: the immoral part is that the other 30 teams even made the secret agreement in the first place. I can't tell if you're trolling.

If you're saying it was immoral for the two teams to do what they agreed not to do, how is it not immoral for the other 30 teams to do what they agreed not to do
(i.e. have a secret salary cap)?

by Dean :: Thu, 05/24/2012 - 8:56pm

I thought the point was fairly clear. If I understood correctly, the point is that it's not immoral to act in your own self-interest. It may in fact be illegal, but it can be one without the other. You might not agree with the point, but the point itself seems clearly stated.

by justme_cd :: Thu, 05/24/2012 - 11:31pm

Heh, further proof of my poor communication skills. I guess we have the same understanding of his post, but I was trying to say I don't understand how he came to that conclusion.

Should have been: "I don't understand your [logic] at all."

by Dean :: Fri, 05/25/2012 - 8:43am

Fair enough.

And again, it comes back to the basic question of morality - much of which is opinion based. In a larger sense, I do think that you CAN break the law, act in your own self-interest, and not be doing anything immoral.

For a simple example, I'll offer speeding. If I'm driving on the interstate in a city and the posted speed limit is 55, but the road is empty and I urgently need to use the bathroom, so I'm going 90 to try to get home that minute early - which might prevent some embarassment in this case - that's certianly illegal. In many states, that wouldn't just be speeding, it would also be reckless driving. I will suggest that the act would certainly be illegal, but I would suggest there is nothing immoral about it.

That doesn't mean that the owners are also acting in a moral fashion - merely that it's possible.

As to the owners morality, I suppose your opinion depends on how pure you like your capitalism, but going further flirts with Rule #1, so I'll stop there. Ultimately, though, it's not a question or morality, but a question of law. To that end, my popcorn is ready.

by justme_cd :: Sat, 05/26/2012 - 2:51pm

I agree with what you say. However I wasn't originally trying to comment on ethics at all, but instead wanted to question Noah's logic.

He seemed to argue it was immoral for the Cowboys and Redskins to do what they "agreed not to do," but in the same post he argued it was not immoral for the other owners to do what they agreed not to do. Why is breaking an agreement immoral in one case and not the other? Seems like poor logic.

After re-reading Noah's post I may be misunderstanding him.

by RC (not verified) :: Fri, 05/25/2012 - 9:27am

"Yes, it's pretty obvious the NFL owners colluded to hold down pay"

Why is that clearly obvious? Several teams went way over the number we're talking about.

Some teams spending less doesn't mean there was a conspiracy.

by morganja :: Wed, 05/23/2012 - 6:53pm

I understand, perhaps incorrectly, that the language quoted above preventing the NFLPA from suing at all was not allowed by the judge and only applies to the specific issues in front of Judge White.

If that is the case, than what we have here is:

1) Absolutely crystal clear evidence of collusion;
2) The NFL saying don't sue us for this clear breach because we snuck it past you already. No take backs.

3) The agreement not to sue does not apply.

I also wonder if any language that agrees not to sue also applies to other parties.

by Will Allen :: Wed, 05/23/2012 - 7:32pm

I believe that will be the NFLPA's position. I doubt it will work. It was obvious two years ago that there was collusion. The NFLPA should have sued on that basis at that time. They didn't like the risk involved, so they signed a CBA with language which will likely greatly inhibit their ability to litigate (the NFL would have been nuts to agree to a CBA which did not have such a provision, since their entire goal was to end antitrust litigation), and now they are going to try to get in the locked house via an open window. Well, it's a mostly free country, so they can try, but I will be surprised if they prevail on appeal, even if they get this in front of their favorite judge, David Doty, and he rules in their favor.

by apk3000 :: Thu, 05/24/2012 - 7:39am

If the owners do end up losing, I'll find it highly amusing that because Dan "The Devil" Snyder didn't want to accept 36 million in salary cap reductions for being an idiot to sign Albert Haynesworth, he'll end up paying a much bigger chunk in collusion damages.

by Bowl Game Anomaly :: Thu, 05/24/2012 - 8:17am

Sorry to burst your bubble but I imagine Snyder will be immune from collusion charges being that he didn't participate in collusion.

by apk3000 :: Thu, 05/24/2012 - 8:31am

IANAL, but I'm pretty sure the lawsuit does not exempt the four "collusion agreement violating" clubs, the fact that they didn't abide by the agreement fully does not mean they didn't "collude" to hold down salaries. And I doubt any judgement against the NFL won't get applied equally either directly or indirectly ("oh hey, everyone's TV share is getting cut thanks to that lawsuit").

by sundown (not verified) :: Thu, 05/24/2012 - 12:18pm

That's downright funny that Snyder could be hammered for failing to collude and then also be on the hook for part of the damages for the collusion. Couldn't happen to a nicer guy.

by Bowl Game Anomaly :: Fri, 05/25/2012 - 8:53am

I am also NAL, but in the unlikely even that the Skins are not dropped from the lawsuit when the evidence is presented that they violated the conspiracy to collude and are forced to pay damages, wouldn't that mean that they get their cap space back since the punishment would have been illegal?

by Will Allen :: Fri, 05/25/2012 - 9:03am

So Dan Snyder gains the right to send 50 million to the next Albert Haynesworth? Now, THAT'S funny!

by RickD :: Thu, 05/24/2012 - 1:22pm

He may not have colluded, but did he conspire to collude?

by Noah Arkadia :: Thu, 05/24/2012 - 1:38pm

Conspired to collude, then immediately colluded not to conspire to collude (with the Cowboys), which makes him guilty both of colluding and of failing to collude while in fact conspiring to do so.

We are number one. All others are number two, or lower.

by Anonymously (not verified) :: Wed, 05/23/2012 - 6:54pm

News flash: the owners' lawyers are much better than the players' lawyers.

by Independent George :: Thu, 05/24/2012 - 10:32am

This goes beyond one side's lawyers being better. The NFLPA apparently won the Bluth family's lawyers after an extended bidding war.

by Eddo :: Thu, 05/24/2012 - 10:49am

Barry's very good.

by rageon :: Thu, 05/24/2012 - 1:17pm

We should have know something was up when the players were instructed to review the final draft of the proposed CBA at the Bob Loblaw Law Blog.

by tuluse :: Thu, 05/24/2012 - 1:40pm

What a pro.

by Kal :: Thu, 05/24/2012 - 3:24pm

They've made a huge mistake.

by Aaron Brooks Go... :: Thu, 05/24/2012 - 11:32am

There's long-term, short-term, and middle-term thinking.

There's utility in a lawsuit which is cheap to prosecute, expensive to defend, and which keeps up player pressure on the NFL. Keep in mind, when 6000 players are suing the NFL for gross negligence, keeping lawsuits like this in the news has PR value -- "look at how these guys are continuing to try to screw us over".

by sundown (not verified) :: Thu, 05/24/2012 - 12:27pm

That may be their thinking, but PR value doesn't have any monetary value for the players. Every person on earth could be on their side and it'd change nothing for them. In fact, they are so tied to the owners financially that any public effort to go after the owners, say with a boycott or something, would directly hurt the players. This is the same fallacy they display in every disagreement they have with the league--the idea that hurting the league somehow helps them.

I'd also question whether any lawsuit of this level could be "cheap" to prosecute. It will cost the players as much to push ahead as it does for the NFL to defend unless their attorneys are far cheaper--which would imply they're not nearly as good.

by Will Allen :: Thu, 05/24/2012 - 12:39pm

Also, there is the possibility that if the lawsuit is tossed, the league could follow up and sue the NFLPA for breach of contract, and collect damages. Now, I think that might be a dumb thing for the owners to do; kicking dirt on the corpse can be shortsighted when you intend to have a long term business relationship. It is possible, though.

by Aaron Brooks Go... :: Thu, 05/24/2012 - 2:31pm

"This is the same fallacy they display in every disagreement they have with the league--the idea that hurting the league somehow helps them."

If the players never opposed the league, they'd still be making $60k a year and working day jobs in the summers.

In a larger view, the product for sale is not the NFL. The AFL, and to a lesser extent the USFL, showed that. The product is professional football. The players do not need the NFL itself -- if the NFL dissolved today, by tomorrow there would be a new league. There's too much consumer demand for anything else.

by chemical burn :: Thu, 05/24/2012 - 5:55pm

Uh, don't you think that allowing the players to focus on playing full-time (and not work summer jobs) in addition to attracting the highest level of athlete to consider football rather than pursuing a career other professional sports increased the quality of play and seriousness with which NFL football was taken and, therefore, increased fan interest in the game and owner profits - i.e. helped the owners not hurt them? Unions frequently have huge, macro-sized benefits for the companies willing to take the long view and not just indulge in short-sighted greed...

Also, if you think that dissolving the NFL wouldn't create a power vacuum which would then be filled by a many competitors offering a wide variety of products including several of dubious quality and that the "best" or "new true" pro football league wouldn't take half a decade or more to sort itself out, then I think you don't understand the way "brands" or "products" work.

If we had to choose between the XFL, Arena League and the USFL, I'm sure what would win, especially if none of them had enough money or power to bring most of the superstars to their league (which they most likely wouldn't.) If Brees and Rodgers go to Arena League while Brady goes to the USFL and Vick to the XFL, what becomes the legit league? What if XFL can get a team in L.A., but not Chicago or Philadelphia, while Arena League has NYC and... Jacksonville, Buffalo and San Diego? What happens to fan pride and team legacies? While these things are getting sorted out, Brady misses getting paid for the last few years of his career, Rodgers coasts through his prime playing for a league that folds or the colleges decide to use the opportunity to re-write their rules in a way that has the side-effect of screwing the Pro Leagues or the colleges goes all-in on a relationship with the one fans like least. Players need the NFL just as much as the owners, almost certainly more because of the limited window of opportunity for their careers. 5 years is nothing to a billionaire's money-making life, but it's an athlete's entire career.

by tuluse :: Thu, 05/24/2012 - 6:01pm

I think he meant the American Football League, not the Arena Football League.

by chemical burn :: Sat, 05/26/2012 - 12:19am

I understood - I was just throwing out theoreticals. And, obviously, there's nothing even half as successful as the AFL at this point, so there's no comparison there. The closest thing the NFL has to competitors are things like the CFL and Arena League. The AFL's success 4 decades ago doesn't have much relevancy at this point considering there's currently nothing like AND the NFL itself was a fraction as successful as it is now - if anything, the examples he gives reinforce my point...

by BaronFoobarstein :: Sat, 05/26/2012 - 1:32pm

I think NCAA Football is the NFL's biggest competitor for fans' attentions. They also very much need one another.

by Aaron Brooks Go... :: Tue, 05/29/2012 - 10:54am

I think both NCAA football and NCAA men's basketball could survive the death of their professional leagues. I suspect men's ice hockey and women's basketball could as well. Women's basketball already survives without a competent professional league.

It's worth pointing out that football became popular before it became good.

And yes, there is a feedback between the NFL being lucrative and the product being good. Most of this is the TV contract. However, the NCAA has TV contracts as well. The NFL is rich because football is amazingly popular in the US, and the NFL has the best product. But that's not guaranteed, and had Al Davis won his argument back in the 1960s, the NFL might be dead today, and the AFL would be in a protracted war with its membership.

by MFurtek (not verified) :: Thu, 05/24/2012 - 9:48am

I don't agree that the NFLPA "should have known" that collusion was occuring. It wasn't until the NFL actually penalized and submitted hard evidence against the Redskins and Cowboys in their arbitration case that they were wholly aware of collusion going on.

I certainly hope the lockout agreement didn't waive this type of claim either; since at the time the CBA was signed there was no hard evidence of collusion. Furthermore, I'm not familiar with the statute of limitations... is it 2 or 3 years (or 5?) in the jurisdiction they signed.

by Will Allen :: Thu, 05/24/2012 - 11:25am

Since they had already alleged collusion, it's pretty hard to argue that they had no way of knowing.

(edit)I've got to add on that the reason I'm sort of hoping that the suit is dismissed, despite not having any warm feelings whatsoever for the owners, is because if parties cannot end disputes or conclude negotiations with agreements, that have clauses which each party can be extremely confident will preclude any further litigation for past behavior, then getting parties to settle is going to be a lot harder. I think that would be a very bad thing in our society.

by Jimmy :: Thu, 05/24/2012 - 11:25am

I have no idea if a simlar thing exists in the US but isn't there an important difference between suspicion/alleged infraction and discovery of said infraction. You might supsect a lot of things, it would be unreasonable to expect a plaintiff to litigate every single one without full discovery of the infraction. Or am I just blowing smoke?

by Will Allen :: Thu, 05/24/2012 - 11:47am

Not at all, and this gets very complex, because each state and Federal District will have different applicable case law as to what language needs to be used to cover the instance of evidence which is unknown to all parties at the time a settlement is reached. Reading what is available publicly, however, the agreement refers to "any" possible claims, and in the layman's world, "any" encompasses all possibilities. To me, the most important principal to uphold here is that parties to a dispute or negotiation can enter into agreements that have provisions which allows any party to be supremely confident that if they do settle, the war is over, and past behavior will no longer be subject to litigation. Otherwise, getting people to settle their disputes just got a lot harder, and I cannot see how that in any way serves the public interest.

by morganja :: Thu, 05/24/2012 - 5:19pm

I understand your point. But I think there is also the point that this sort of thing will make parties less likely to enter into agreements in the first place if the other party has an incentive to lie or withhold pertinent information and then gain legal protection for those acts.

I think one question that should be asked is 'Do parties to a contract have a duty to divulge pertinent information that they are aware of to the other party?'

What justification would there be for the negative?

by Will Allen :: Thu, 05/24/2012 - 5:35pm

No party is forced to sign a contract which contains a provision which prohibits litigation for past behavior, and the existence of such a provision is tacit evidence that there may be unknown (to one party) past behavior which would be worthy of a suit, in the absence of such a provision. If the party has, as it's highest value, the option to litigate such matters, then they should not sign a contract with such a provision. If they decide that the other terms are good enough to make things tolerable, however, then they should be able to sign a contract with such a provision, and the party they are negotiating with should have confidence that the provision is enforceable. There are quite often more important things to do than to fight in court, and as long as both parties can agree to other terms, they should also be able to agree to promise to no longer sue each other for past acts, even if all the acts are not fully known to all parties.

by CoachDave :: Thu, 05/24/2012 - 12:31pm

As someone said earlier...this feels like a CYA move by Smith and the NFLPA.

by morganja :: Thu, 05/24/2012 - 4:58pm

It seems to me that a party has the duty to explicitly disclose 'possible claims' during the negotiation. It's not as if the NFL was not aware of their secret agreement to collude when they made the contract. A better argument could be made that if things came up that they weren't aware of then this agreement prevented a lawsuit on those items.

Otherwise we are dealing with fraud. This isn't a minor point. There is generally a buyer-beware built into contracts. But there is also an assumption that the parties are not lying to each other or attempting to defraud each other. If these sorts of things are allowed, than it is a legal defense of fraud, which is not what we want our legal system to be doing.

At the basic level we are asking the question 'is this what the parties agreed to?' One party is thinking they are agreeing to one thing while the other party, due to failing to disclose pertinent information, is agreeing to something else.

That is not a valid contract. I see plenty of room for a judge to say because you withheld this pertinent information, this clause is invalid.

Contract aren't meant to be used to trick others. They are meant to formalize an agreement.

by Will Allen :: Thu, 05/24/2012 - 5:22pm

I would argue that the word "any" is an all-encompassing term, and people should refrain from signing a document which contains the term "any" if the prospect of being bound by an all-encompassing term is something they are not willing to abide by. There really is no sense in anyone settling disputes if the parties can't be confident that a promise to not further litigate past behavior, known or unknown, is not enforceable. May as well litigate to nth degree first, subject your negotiating partner to a full discovery process, before reaching any settlements.

by morganja :: Fri, 05/25/2012 - 2:26am

Which is exactly what you are advocating. Do you really think that it is a beneficial legal position that every single agreement have to be completely vetted through years of discovery with the burden on the parties uncovering the other parties lies and deceptions?


1) The NFL colluded in violation of the CBA and federal law.

Do you have a disagreement with that fact?

2) The NFL knew they were violating the law and the CBA and did not disclose this fact in the negotiations. Rather they specifically lied about it.

Do you disagree with this fact?

3) The entire argument of the NFL is that despite the fact they lied and deceived, that the agreement prevents the union from suing.

Do you disagree with this fact?

Therefore you are arguing that lying and deceiving about the facts during a negotiation can lead to a valid contract.

I disagree with this assessment.

A valid contract is a formalization of an agreement. If one party is lying to the other then they are agreeing to two different things, and therefore not agreeing to the same thing.

Is there some specific consideration that is clearly compensation for agreeing to forgo all claims even those based on lies? What is that consideration? Is it an extra $10 million a year in salary caps? Is it a candy bar? What did the players get?

by Will Allen :: Fri, 05/25/2012 - 3:40am

People engage in deceit in negotiations with great frequency, and I do mean with great frequency. Whether the deceit will void a contract (by the way, feel free to cite anything in the new CBA in which the NFL makes a misrepresentation) depends on a lot of factors. It most likely won't in this instance, especially since the NFLPA's lawyers signed an additional document when they signed the new CBA, which read.....

"The parties stipulate to the dismissal with prejudice of all claims, known and unknown, whether pending or not, regarding the Stipulation and Settlement Agreement (‘SSA’) including but not limited to the claims asserting breach of the SSA related to (i) television contracts and broadcast revenues; and (ii) asserted collusion with respect to the 2010 League Year, excepting only the pending claim filed March 11, 2011 relating to an alleged rookie shortfall on the part of the Philadelphia Eagles.”

Yes, the NFLPA is going to try to argue that this document has no weight, due to a technical interpretation of how the dismissal was recorded in the court's docket. Even if this gets in front of Doty, and Doty concurs with this semi-ridiculous technical interpretation, it is extremely unlikely that this will be upheld on appeal, because doing so would set a very bad precedent; that nobody could ever be sure whether a litigation war was over, even when all parties stipulated that it was. Believe it or not, that is a more important principle than making sure all illegal behavior is litigated.

You seem to be confusing past collusive behavior by the NFL with a fraud in the current CBA. The two are not synonymous, and if they were the NFLPA would be, in a straightforward mannner, alleging that the NFL had perpetrated a fraud in the document, instead of relying on technical interpretation of how items were entered in the court's docket.

Finally, I am truly puzzled that you seem to imply that the NFLPA was too dense to grasp what it meant that the NFL asked that they sign a stipulation like the one I quoted. Such a request is almost as obvious as hiring a skywriter to announce, "Hey, dummies, we've been colluding, and we are not going to sign a new CBA, and have a season, unless you stipulate that you won't sue us for collusion!"
The idea that the NFLPA was unaware of the NFL's behavior is just laughable. They had a choice to make; accept the terms negotiated in the new CBA, or fight a legal battle. Why must they be viewed now as children, unable to be allowed to make choices for themselves?

by morganja :: Fri, 05/25/2012 - 4:20pm

I understand and agree with your point. It is important just to wash everything clean and start anew. I'm just concerned with the other side of that coin, parties essentially defrauding the other.

There is also the context of this particular agreement. This isn't an agreement made between two parties in a free market. The NFL has already established that they will break a contract whenever they feel they can get away with it and do not negotiate in good faith. They exist due to a myriad of government exceptions, 'relationships', subsidies and collusions and all the hallmarks of crony capitalism. In a free market, this would never come up.

So in one sense, the NFL is asking for exceptions to the general rules for themselves, but that other parties must abide by the rules which don't apply to them.

Of course when the NFL counsel chooses to make asinine statements concerning the issue in public, they lose all sympathy and credibility.

""The union's claims have absolutely no merit and we fully expect them to be dismissed."

NFL spokesman Greg Aiello also said: "There was no collusion. There was no agreement. These claims are totally unfounded."

I know he's a lawyer but there is zero doubt as to whether there was collusion. They are disputing the union's right to sue. I think that clear, outright lies concerning obvious facts by public spokesmen or lawyers deserve stocks and lashes.

by Will Allen :: Fri, 05/25/2012 - 4:58pm

No, the NFL is not asking for exceptions, or at least the request was never granted. The NFLPA could have litigated to the hilt, in an effort to fully expose the wrongdoing they suspected the NFL of, and then tried to collect damages for said wrongdoing. The NFLPA, for better or for worse, decided to not take that course. The NFLPA is now asking a court to blatantly ignore a written and signed stipulation. No matter how awful a bunch the NFL owners are, a court cannot grant such a request without doing grave damage to the legal system as a whole; do you really want a court system where judges can, based on how poorly they view a party to a dispute, simply disregard signed contracts when the judge deems fit?

(edit) I should add that now that I've thought about it, it strikes me as extremely unlikely that Smith and his lawyers actually believe they have much of a chance to prevail, and I don't think Smith would waste thet much money doing legal work on such a slim chance. The fact that he is out speaking to the media in detail on the matter seems to indicate that this is part of public relations/political strategy in which he is going to try to raise the specter of Congressional or DOJ attention, in order to make the owners uncomfortable, and eventually extract some more concessions from them. If so, that's pretty smart, even if that is not a sure-fire strategy, either.

by BaronFoobarstein :: Fri, 05/25/2012 - 3:58am

Was there a CBA in place when the collusion occurred? Not that that's an excuse to collude, but it means they couldn't have been violating a CBA at the time.

As for a specific consideration that's just not how contracts work. A contract is one monolithic atomic thing. The parties make a single agreement. It doesn't itemize "because you and A we get B, and because we want C you get D." The two parties "traded" big sets of things all at once. One thing the NFLPA traded away was their right to sue. Maybe if you had the minutes of the negotiations you'd know, but then again maybe not since there's no reason why the reasons for giving up something must have been spelled out explicitly.

In any case I wouldn't want that to have any weight legally except maybe when a dispute over the intent or meaning of some part of the contract is raised.

by Mr Shush :: Fri, 05/25/2012 - 5:27am

Pretty sure there was indeed a CBA in place - the collusion occurred during the uncapped season stipulated in the previous CBA as being triggered by an opt-out.

by Will Allen :: Fri, 05/25/2012 - 11:13am

Yes, the old CBA was in place. However, the fact that party B hasn't admitted to violating an old, soon to expire, or expired contract, doesn't mean that party A can get out of the provisions contained in a newly negotiated contract. The validity of a new contract is not dependent on all violations of an old contract being discovered or admitted to.

(edit) For example, if Party A has a contract to perform services for Party B, and Party B was supposed to buy an annuity for Party A, in addition to pay a salary, and Party A suspected that the annuity was not purchased, the fact that the annuity was not purchased would not render a new contract invalid, and if that new contract contained a provision that A could not sue B for failing to fufill the terms of the old contract, then A has to make a decision; to continue to work for B, under the terms of the new contract, or to litigate in an effort to force B to perform on the old contract. The fact that party B was pondscum in regards to the old contract doesn't mean a fraud has been perpetrated in the new contract.

(edit 2) Good grief, did I need my caffeine this morning. Hopefully, my As and Bs have been put in the right place now.

by jds (not verified) :: Fri, 05/25/2012 - 10:30am

I miss Gene Upshaw.

by dryheat :: Sat, 05/26/2012 - 4:17pm

I miss Buck Henderson, Union Buster

by erniecohen :: Sun, 05/27/2012 - 8:20am

I'd love to go into court and claim unrefusable consideration as grounds for claiming durress in signing a contract.

by dbostedo :: Sun, 05/27/2012 - 1:11pm

Wouldn't duress in signing lead to a voiding of the entire contract?

by dryheat :: Tue, 05/29/2012 - 7:45am

It's a good question. There's usually a clause in contracts that signifies all parties are entering said contract freely...or as an attorney might say, this clause says that nobody's holding a gun to your head...

I always found such clauses worthless additions in practicality.

by dbostedo :: Tue, 05/29/2012 - 6:39pm

But if someone actually HAS a gun to your head, wouldn't you sign it anywa... wait... that means... hold on... Ohhhhhh. Gotcha.