Will Washington and Dallas get their cap money back?

[Captain Offense]

I know that we do not have all of the details, so until the entire picture is fleshed out it is hard to come down hard on it. What I have heard so far though sounds like this scenario:

It is an "uncapped year" - which is a misnomer since there were poison pill provisions in anyway (but I digress). The League tells everybody that there are no limitations in place RIGHT NOW but there will be a CBA at some time and there will be provisions to deal with deals outside of the "cap"-like philosophy. Two teams go off the reservation (because they can at that point) and the League signs off on them because they are permitted at that time. The CBA is done and the NFL and the players agree to the retroactive smacking provision that is now at issue. If you were warned that this might be part of the new CBA and went your own way, were you then surprised? Or did you feel that the players would never agree to that term? Or were you advised that it would never stand up to a challenge?

This is how I understand it. Redirect my analysis if there are pieces that are not correct.

[GOTA]

I know that we do not have all of the details, so until the entire picture is fleshed out it is hard to come down hard on it. What I have heard so far though sounds like this scenario:

It is an "uncapped year" - which is a misnomer since there were poison pill provisions in anyway (but I digress). The League tells everybody that there are no limitations in place RIGHT NOW but there will be a CBA at some time and there will be provisions to deal with deals outside of the "cap"-like philosophy. Two teams go off the reservation (because they can at that point) and the League signs off on them because they are permitted at that time. The CBA is done and the NFL and the players agree to the retroactive smacking provision that is now at issue. If you were warned that this might be part of the new CBA and went your own way, were you then surprised? Or did you feel that the players would never agree to that term? Or were you advised that it would never stand up to a challenge?

This is how I understand it. Redirect my analysis if there are pieces that are not correct.

I think that's pretty close but there are a couple of key points.

1. Even though it was an uncapped year there were all sorts of limitations built into the expired CBA that every team complied with. It wasn't a complete free for all where teams could push everything into that year and then come out of this with expensive players that didn't count for much cap space in future years. If you look at the articles that Ravor wrote at the time, which are probably archived on this site, you can see how teams still had to function within a set of guidelines. So there were significant limitations.

2. The NFL warned teams at the time not to do things beyond the agreement that was in place. They then approved these deals because they complied with that agreement. It was a on the record approval but an off the record 'you shouldn't have done that'.

Does the NFL have the right to punish teams who complied with the rules but didn't comply with the strong suggestions made by the league? That's what we'll find out.

[Ravenswintitle]

It's Washington that really got hit hard with $36M taken away. I believe it was because they cleared the Albert Haynesworth money from their books.

Dallas got a $10M hit allegedly for this

The contract at issue for the Cowboys is the six-year, $54 million extension the team gave receiver Miles Austin that included an unprecedented $17 million base salary when it began in 2011.

I also read somewhere (but can't find it now) that the money distributed to the other teams did not include the Saints or Raiders because they had minor infractions.

Very strange situation with lots of millions at stake

[srobert96]

I think that's pretty close but there are a couple of key points.

1. Even though it was an uncapped year there were all sorts of limitations built into the expired CBA that every team complied with. It wasn't a complete free for all where teams could push everything into that year and then come out of this with expensive players that didn't count for much cap space in future years. If you look at the articles that Ravor wrote at the time, which are probably archived on this site, you can see how teams still had to function within a set of guidelines. So there were significant limitations.

2. The NFL warned teams at the time not to do things beyond the agreement that was in place. They then approved these deals because they complied with that agreement. It was a on the record approval but an off the record 'you shouldn't have done that'.

Does the NFL have the right to punish teams who complied with the rules but didn't comply with the strong suggestions made by the league? That's what we'll find out.

There is a lot of unknowns. It really depends on what the new collective bargaining agreement looks like. It also depends on what the agreement is among owners as to the power and latitude the league has to impose penalties. There may a vague rule that governs franchises around trying to gain a competitive advantage. It would allow the nfl to cover things that may or may not be covered under specific rules. While on the surface it looks bogus the rules for governing the NFL are different than a typical business. The other owners voted to approve the punishment and the NFLPA approved the punishment and that may be enough.

[GOTA]

There is a lot of unknowns. It really depends on what the new collective bargaining agreement looks like. It also depends on what the agreement is among owners as to the power and latitude the league has to impose penalties. There may a vague rule that governs franchises around trying to gain a competitive advantage. It would allow the nfl to cover things that may or may not be covered under specific rules. While on the surface it looks bogus the rules for governing the NFL are different than a typical business. The other owners voted to approve the punishment and the NFLPA approved the punishment and that may be enough.

That's enough as long as it doesn't leave the confines of the NFL. Once it becomes a legal issue then you are dealing with something bigger. I'm not sure it will get there though. That's why they are trying to deal with this through an arbitrator. If both sides agree to go with what he says it won't go any further than his decision.

There is a time factor though for his decision. The Cowboys do not have enough money for their rookie pool. They are counting on this ruling or else they will clear some cap space. My guess is they will take the tag off of Anthony Spencer if that happens. The Redskins still have $8 million in cap space so is doesn't really effect them.

[KidSampson]

Because the Commish said not to, or in other words collusion.

Without collusion, the NFL couldn't operate the way it does. Every time these 32 separate entities/corporations make a decision as if they were a single entity, it's collusion. They colluded when they decided that Nike will be the sole provider of NFL jerseys. Otherwise, each team could have their jerseys made by a different company. Throwing out the term collusion now means absolutely nothing, because the league could not operate if the teams didn't collude.

[Trackmaster]

I think that many people are forgetting that this is a private corporation (albeit a non-profit) and not the government. People often tend to make this mistake when referring to by-laws and procedure. The government has to work by certain constitutional restrictions, and allow for appeals and checks and balances, but corporations and organizations really don't. In this case, I think that it hinges on the Commissioner being able to use his discression and judgement in the best interest of the game. Most of the fans out there don't really understand that because of the way that they think about how the government would handle things, but with a company, it's different.

Granted, it was stupid of them to approve the contracts, but I don't think that this will be the silver bullet that wins the Girls and the Landorvians the case. They probably approved the contracts because they didn't know how the two team's cap would look at the time, and how the future cap would look.

In my opinion, it wasn't really a punishment at all. A punishment would have been a fine, loss of draft picks, or suspension. This was essentially a dissallowance of unfair cap relief that the teams obtained. Think about our friends down I-95. They got out of a horrible contract that was a gamble that didn't work out. Such a cut would have set most teams back years, but instead of working with him, and riding it out a few years to see if it improved, they saw an opportunity to free up a lot of cap space and act like that signing never happened. Many people forget why the Redskins had 36 mil to use this year. They rolled over a lot from the previous season. So essentially, the league is putting the Redskins in the situation that they should have been in had they cut Fat Albert in a normal season.

But many I'm more sensitive to this subject because of how the Yankees have destroyed baseball by not having a cap and other protections in the game. I'm alright with anything that takes money out of the equation.

[HoustonRaven]

Without collusion, the NFL couldn't operate the way it does. Every time these 32 separate entities/corporations make a decision as if they were a single entity, it's collusion. They colluded when they decided that Nike will be the sole provider of NFL jerseys. Otherwise, each team could have their jerseys made by a different company. Throwing out the term collusion now means absolutely nothing, because the league could not operate if the teams didn't collude.

Exactly.

The term collusion, when applied to labor issues, isn't the dictionary definition of the word.

[KidSampson]

But many I'm more sensitive to this subject because of how the Yankees have destroyed baseball by not having a cap and other protections in the game. I'm alright with anything that takes money out of the equation.

Yup. Which is funny when you think about it since of all the major sports that "collude", only baseball does it legally with an antitrust exemption. Yet they act more like separate entities than any of the other leagues (no salary cap, independent TV deals, etc). Go figure.

[JimZipCode]

All of the contracts were approved by the league and there was no rule, regulation, or covenant that prohibited the Redskins and Cowboys conduct at the time of the contracts.

This whole business to me is simply the NFL punishing two teams for not engaging in collusion, a practice which (unlike the Redskins and Cowboys contracts) is specifically prohibited.

The NFL deserves to get egg on their face over this in a huge way. If DC and Dallas really, really want to, they have the nuclear option in their back pocket of ratting out the NFL's unspoken collusion practices to whoever will listen. That would blow up the entire NFL.

WORD!

[JimZipCode]

there are a couple of key points.

1. Even though it was an uncapped year there were all sorts of limitations built into the expired CBA that every team complied with.

2. The NFL warned teams at the time not to do things beyond the agreement that was in place. They then approved these deals because they complied with that agreement. It was a on the record approval but an off the record 'you shouldn't have done that'.

All the deals were approved by the league office, because they were within the rules. They were "legal". Therefor there is no grounds for punishment, and the league's treatment of the Skins and Boyz is capricious and arbitrary and should be overturned.

The league offices told the teams to collude to keep salaries down in the uncapped, no-collective-bargaining-agreement year. That is flat-out illegal. That's the reason the "you shouldn't have done that" business is off the record and unofficial: because collusion in the labor market is illegal. The league has sought cover on this, by getting the union to sign off on it, by keeping the total NFL cap number the same (redistributing the Skins & Boyz cap number across the other teams). They've bought the union's silence to get away with the collusion.

Then they punished Washington & Dallas for not toeing the line in the illegal activity the other 30 teams performed.

It's horrendous bullshit, it really should be overturned. It is kinda funny to see it happen to Snyder and Skeltor, so I might not mind if the appeal gets denied. But the actions by the league are ridiculous the more you look at them. Terrible precedent, should not be allowed to stand.

I did not love Tagliabue, but he was an attorney. I find it hard to believe that the league would be trying to pull this lawless crap, under his watch.

[HoustonRaven]

Starting to get the sense that folks do not quite understand the legal definition of "collusion"

The legal definition of collusion is "where two or more persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating."

So lets take that one point by point:

1. Deceitful Agreement, usually secret -- The 30 owners voted openly to take this money away from the Skins and Cowboys. There was nothing secret about it. The two parties that DID engage in a deceitful agreement were the Skins and Cowboys when they shunned off the 6 warnings they got from the league to no back-load contracts in an uncapped year.

2. Defraud and / or gain an unfair advantage -- This is absolutely clear that's what the Skins and Cowboys were caught doing. The league, in their warning, told the teams that moving contract money to the uncapped year was precisely this. Moving that money would have gave the Skins and Cowboys an unfair advantage in terms signing free agents once the new CBA was signed, hence why contracts were allowed. Nobody had a way of knowing how the new CBA would be written or what the cap ceiling / floor was going to be.

3. With those whom they are negotiating -- The owners do not negotiate amongst themselves, they negotiate with the players via the NFLPA. I don't think they needed the NFLPA's approval, but once they did get it, it removed any claim of collusion.

In short, there was nothing illegal about any of this. The NFL is a non-profit, not a governmental body.

With all that said, the magistrate may still say this was unfair, based on no written rule. That, more than this collusion nonsense, will be the reason, if any, this gets reversed. Even still, if 30 owners are prepared to say there were indeed 6 verbal warnings, that's more than enough in the private sector.

If your boss warns you 6 times not to do something, you do it anyway with the notion "hey, it's not a written rule", you're going to find out the hard way just how much weight a verbal directive really has.

[Greg]

It was an uncapped year. There was nothing in writing to say they shouldn't rework some of their contracts. An agreement 'in spirit' just doesn't typically hold up in court but then again the NFL's rights to maintain competetive balance may override things.

This is a good article:
http://www.washingtonpost.com/blogs/...JzBU_blog.html

I am not a lawyer but agreements in spirit or oral agreements can indeed hold up in court.

[GOTA]

Starting to get the sense that folks do not quite understand the legal definition of "collusion"

The legal definition of collusion is "where two or more persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating."

So lets take that one point by point:

1. Deceitful Agreement, usually secret -- The 30 owners voted openly to take this money away from the Skins and Cowboys. There was nothing secret about it. The two parties that DID engage in a deceitful agreement were the Skins and Cowboys when they shunned off the 6 warnings they got from the league to no back-load contracts in an uncapped year.

2. Defraud and / or gain an unfair advantage -- This is absolutely clear that's what the Skins and Cowboys were caught doing. The league, in their warning, told the teams that moving contract money to the uncapped year was precisely this. Moving that money would have gave the Skins and Cowboys an unfair advantage in terms signing free agents once the new CBA was signed, hence why contracts were allowed. Nobody had a way of knowing how the new CBA would be written or what the cap ceiling / floor was going to be.

3. With those whom they are negotiating -- The owners do not negotiate amongst themselves, they negotiate with the players via the NFLPA. I don't think they needed the NFLPA's approval, but once they did get it, it removed any claim of collusion.

In short, there was nothing illegal about any of this. The NFL is a non-profit, not a governmental body.

With all that said, the magistrate may still say this was unfair, based on no written rule. That, more than this collusion nonsense, will be the reason, if any, this gets reversed. Even still, if 30 owners are prepared to say there were indeed 6 verbal warnings, that's more than enough in the private sector.

If your boss warns you 6 times not to do something, you do it anyway with the notion "hey, it's not a written rule", you're going to find out the hard way just how much weight a verbal directive really has.

The deceitful agreement was made at time. The 3rd party they were trying to deceive was the NFLPA. There was an agreement in place from the previous CBA that had rules for an uncapped year. The NFL colluded by coming up with additional secret rules in an attempt to keep salaries low for their negotiations with the NFLPA. It was collusion but since the NFLPA doesn't seem to mind that part is not an issue and isn't being challenged.

[HoustonRaven]

The deceitful agreement was made at time. The 3rd party they were trying to deceive was the NFLPA. There was an agreement in place from the previous CBA that had rules for an uncapped year. The NFL colluded by coming up with additional secret rules in an attempt to keep salaries low for their negotiations with the NFLPA. It was collusion but since the NFLPA doesn't seem to mind that part is not an issue and isn't being challenged.

Huh?

The NFLPA agreed to it. How do you deceive someone that was involved in the agreement?

And what of any of this was secret? The 32 owners were told not to do this. 30 of them agreed to it. 30 of them voted to strip the money with the NFLPA's blessing.

[JimZipCode]

The legal definition of collusion is "where two or more persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating."

So lets take that one point by point:

Yes indeed, let's.

two or more persons or business entities

The 30 NFL teams, other than Dallas and Washington. Check.

a deceitful agreement, usually secret

Not always secret, check. It was reported before the uncapped year that the NFL was instituting "guidelines" for teams to deal with the uncapped year. The guidelines themselves were not publicized, so those can be construed as secret.

to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating

The NFL teams gained an unfair advantage over the players during the uncapped year, with whom they are negotiating, by behaving as if a salary cap was still in place when it was not. The unfair advantage they gained was the artificial restraint in player prices. They kept free agent contracts down.

Check.

The collusion we are discussing is not the NFL's decision to slap Dallas & Washington. The collusion consisted in their tactics of keeping salaries down in the uncapped year. Textbook collusion.

Dallas & Washington were the only teams who behaved legally during the uncapped year. The league is punishing them for not falling in line with the rest of the gang.

In short, there was nothing illegal about any of this.

Utterly illegal.

The NFL may still get away with it, because they got the players union to go along with it, by redistributing the "revoked cap money" among the other teams. The union is really the only complainant who would be likely to take the league to court, so buying them off was an important step.

Most of this is about the league trying to legitimize actions it took as a whole during the uncapped year, that were blatantly illegal. Actually, slapping Dallas & Washington looks pretty stupid, to me. It draws attention to an issue that the league really should let go away.

[JimZipCode]

If your boss warns you 6 times not to do something, you do it anyway with the notion "hey, it's not a written rule", you're going to find out the hard way just how much weight a verbal directive really has.

This is a little off-the-mark as well. The league is not, properly speaking, the "boss" in these matters. The collective bargaining agreement controls the conditions of employment between teams and players. The league is a central clearing house for player contracts, in the sense that they keep track of who is a free agent and who is under contract. And they monitor salary cap compliance.

In the absence of a salary cap, the league has (had) no legitimate say in cap compliance. Any direction they gave to the teams in terms of conducting an orderly free agency, would be a "suggestion" not an "order". However, it's in everyone's interest to have an orderly free agency period, so of course those "suggestions" were heeded.

But if they suggested any kind of cost control, or price fixing for free agents, that is blatant collusion. It's illegal in a labor market. Let alone that the agreement specifically called for an "uncapped year", so capping salaries is a violation of that agreement -- also illegal. (That's the "deceitful" part of the collusion definition. The teams deceived the union into thinking there was no salary cap, while secretly behaving as if a cap were in place.)

So to recap:

• The Skins and Cowboys did not break any "written" rules by exceeding the cap, because there was no cap.
• Any "unwritten" cap that the league tried to get teams to abide by, was blatantly illegal, and have no force to be obeyed.

And the league might get away with it, because they bought off the union by bumping up the cap for the other teams.

Let's not pretend that punishing Washington & Dallas is anything like legally or morally acceptable behavior. This whole thing stinks. I'm getting angrier the more I write about it.

[HoustonRaven]

It was reported before the uncapped year that the NFL was instituting "guidelines" for teams to deal with the uncapped year. The guidelines themselves were not publicized, so those can be construed as secret.

Secrecy is not a requirement. Even if it did, it's not secrecy from the public. The secrecy issues is of the colluding parties keep a secret amongst themselves, not the public.

The NFL teams gained an unfair advantage over the players during the uncapped year, with whom they are negotiating, by behaving as if a salary cap was still in place when it was not. The unfair advantage they gained was the artificial restraint in player prices. They kept free agent contracts down.

Wow, that's quite a stretch. So by warning owners not to back load contracts (something that benefits the players because they can be paid any amount during an uncapped year), they committed a conspiracy against the players by creating a system for one year that pays them more money in an uncapped year?

This is a dispute amongst the owners. Not with the NFLPA. The owners can enforce sanctions amongst themselves and not even sniff any labor law. That's the larger issue.

The collusion we are discussing is not the NFL's decision to slap Dallas & Washington. The collusion consisted in their tactics of keeping salaries down in the uncapped year. Textbook collusion.

Except it was an uncapped year and no CBA governing salaries. No CBA = No Collusion. And as you accurately point out, the NFLPA agreed to everything.

[Captain Silver]

Dallas, Washington... two of the most idiot owners in the league. I don't see a problem dropping the hammer on them. They were warned. I even recall seeing it somewhere that said if you broke the cap that year you would be pro-rated against the cap when it came back.

[JimZipCode]

Wow, that's quite a stretch. So by warning owners not to back load contracts (something that benefits the players because they can be paid any amount during an uncapped year), they committed a conspiracy against the players by creating a system for one year that pays them more money in an uncapped year?

You almost have it. Rephrase it this way:

"By warning owners not to back load contracts (something that benefits the players because they can be paid any amount during an uncapped year), they committed a conspiracy against the players." Full stop here. The owners conspired to deny benefits to players, that they might have been able to negotiate for themselves. We usually say "colluded" instead of "conspired", but same thing.

The second part of your sentence above is where the deceit comes in. The owners negotiated with the players and agreed to "a system for one year that pays them more money in an uncapped year". But then they deceitfully reneged on that agreement, by secretly agreeing not to pay the players more money. The team owners behaved as if there were a salary cap, thus artificially keeping player prices down. The money over and above the cap that teams would have paid to players if the market were operating freely, was kept by the owners.

There should have been outrageous bidding wars for players. There weren't.

The players union signed on for "a system for one year that pays them more money in an uncapped year," but they didn't get it. That's because of owner collusion.

Except it was an uncapped year and no CBA governing salaries. No CBA = No Collusion.

No, that's not how it works. No CBA governing salaries = a free market for salaries. Any agreement between the owners to keep player prices down is illegal. The teams would be behaving like an illegal cartel in that situation.

And as you accurately point out, the NFLPA agreed to everything.

Yes, after the fact. That's essential for the league to be able to get away with this.

Note that two agreements are required. The first was for the NFLPA to turn a blind eye to the collusion. The second agreement was for the NFLPA to accept the league punishing Dallas & Washington for not falling in line with the illegal behavior. That's how the cap hit got re-allocated among the other teams.



For a basic grounding on "collusion" in labor relations in pro sports, baseball is the place to look.
http://en.wikipedia.org/wiki/Baseball_collusion