Just read Burbank's decision. As BB suggested/I inferred,
http://www.bgobsession.com/showpost.php?p=125211&postcount=78, Burbank essentially holds that the March 27 vote at the league meeting retroactively ratified the salary cap penalty letter b/w the league and NFLPA
and clarified/turned it into an amendment to the CBA itself.
It's very hard to argue that the cap penalty violates the CBA when specific authorization for that penalty (enacted
after the other CBA provisions we alleged precluded the penalty) is found in the CBA itself, as amended. That was my biggest concern--that the cap penalty would somehow be considered an amendment to the CBA; the NFL figured out how to do that.
I would have thought, notwithstanding the cap penalty as CBA amendment, that the System Arbitrator would properly consider in this proceeding a) whether the NFL Constitution and Bylaws would preclude i) this CBA amendment (procedurally) or ii) this penalty (substantively), and in any event b)
some means of challenging an action taken as an amendment to the CBA that is inconsistent with other provisions of the CBA--and, moreover, with the CBA that governed when the complained-of actions occurred (i.e., the 2006 CBA). Burbank apparently determined that he has no jurisdiction to enforce claims under (or even taking account of) the 2006 CBA in this proceeding.
I'll have to think this through further. One thing to note, in terms of potential further avenues, is that Burbank points to some possibilities for a lawsuit that do not require the nuclear (antitrust) option--suing for breach of contract/breach of a state duty of fiduciary representation would not necessarily implicate the full set of antitrust issues.
Another point, which neither Burbank nor others have noted, afaik, concerns collusion
as defined in the CBA (i.e., not antitrust). I'm going off memory here, given limited time, but he rejected any such claims by the Skins because they have no standing; he's correct, I think, that only players or the NFLPA, I believe, have standing to raise such claims. That's why I had raised the possibility (here, and/or on ES) that the Skins suggest that Fletcher (at the time, now maybe Griffin, or Cooley or some other player affected by the cap hit) file a claim alleging collusion under Article 17 of the CBA. It's not clear how to reconcile a) a CBA amendment expressly authorizing the cap penalty with b) a CBA provision permitting a challenge to collusive conduct--it may be that even a CBA amendment could be challenged as collusive, b/c it presents a procedural flaw in the amendment process. That seems a potentially viable, non-nuclear route--one that may allow us to circumvent the "cap penalty as CBA amendment" roadblock.
Oh, and another pipe dream, while I'm at it. Maybe we can propose to the Executive Committee/NFLPA an amended cap penalty, one that would place the cap penalty on us that would be the same as where we would be if we hadn't accelerated the cap hits into 2010. I believe that would be $28 million over the next four years (b/c $6 million would have been eaten up legitimately in 2010). Maybe the NFL would accept that, a) b/c it's fair, in that ensuring competitive balance does not warrant an exorbitant punishment, and b) in order to settle a (limited) lawsuit that may follow, and c) teams may be amenable to it, b/c the implication of Burbank's decision is that
whatever the NFLPA and 21 (or so) teams vote to do cannot be challenged under the CBA, so long as that decision is couched as a CBA amendment.
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