(Further thoughts, cross-posted on ES
http://www.extremeskins.com/showthread.php?363869-Espn-NFCEast-Blog-Giant-s-Mara-quot-Skins-got-off-lucky-quot-OP-Updated-w-follow-up-links&p=8919271&viewfull=1#post8919271)
But we don't know what's in the league's contract with each team. What if that contract gives the Commissioner (with or without a vote of all teams) authority to make adjustments to any team's cap in the interest of maintaining competitiveness? Then, Goodell just says "It's not a penalty, it's an adjustment. Your contract with the league says I can make adjustments." Just because it's unfair (particularly to fans) doesn't mean it's illegal.
I've been through the NFL Constitution and Bylaws, and I don't see anywhere that the Commissioner or Management Council Executive Committee has any authority to adjust salary cap--other than as a penalty under Article VIII for "conduct detrimental to the league" and for conduct "affecting the competitive aspects of the game." But that's a penalty for a violation of the rules, which the NFL has repeatedly stated has not been imposed. Setting aside antitrust/collusion issues and setting aside procedural irregularities about imposing a penalty under 8.13 and 8.14 (e.g., penalties can only be imposed after notice and a hearing, and I believe the penalty could only come about under 8.14 through the Management Council as a whole (each team without a conflict of interest) voting to increase the punishment beyond that the Commissioner is expressly entitled to impose under 8.13), the NFL would likely have the power to do this under the Constitution and Bylaws (presumably subject to some kind of reasonableness assessment by the System Arbitrator). Even if so, the potential antitrust claim would remain as a background issue (that might be foregrounded), and I'd think Burbank would properly assess whether this non-penalty "adjustment" is anywhere authorized in the Constitution and Bylaws, and if somehow it's an authorized power, whether it was exercised through proper procedures, and if exercised through proper procedures, whether it was (by a clear preponderance of the evidence) substantively reasonable.
Maybe there's something else in the Constitution and Bylaws or CBA, outside of the 8.13/8.14 penalty that would authorize the cap hit, but I haven't found it (and I haven't seen anyone else point to it), or maybe there's some kind of residual power in the Commissioner and/or Management Council. But I don't see it.
Also, if this is not a penalty, but is only to rectify competitive imbalance, there is no basis whatsoever for charging us the full $36 million (let alone losing draft choices); there is no way to justify precluding us from having wiped clean the amount of the cap hit for AH and DH that would have been absorbed in the 2010 league year if the renegotiations had not occurred/not been approved by the League (I believe something like $7.4 million of the $36 million). Moreover, there is no way to justify our being forced to absorb the $36m hit half this year and half next. Instead, at most we should be required to have those cap hits that would have been imposed if the renegotiations were not approved pro-rated into 2011 and future years (very roughly $7million per year for this year and the next three years). At absolute most, that would be sufficient to rectify any legitimate (non-punitive) competitive balance concerns; the far greater cap hit imposed on us is undeniably a penalty, and the NFL simply did not use the process necessary to impose a penalty, or even purport to impose a penalty.
Moreover, the 2011 CBA expressly states that the salary cap is to be the same for all clubs. (One could argue that this does not mean that it forecloses an adjustment to the cap as a penalty, but at least it suggests that altering the cap as a matter of course to reestablish perceived competitive balance is highly concerning.)
And while I'm ruminating, here are some further thoughts, some of which I've raised in the 80+ page thread. A) The argument that "the NFL approved the contracts so we win" is not very strong; B) there's a reason that no one has raised why it's actually a lot stronger than people realize, but C) it nonetheless is not terribly strong. As to A), the NFL approved the contracts in the uncapped 2010 year (in 2009?) because the contracts did not violate the CBA then in place; that's almost entirely distinct from the question whether the Skins' overall conduct in 2010 could be thought in 2012 to have undermined competitive balance and thus warrant an adjustment. In fact, however, B) the argument is stronger than I've seen it articulated by anyone b/c the Commissioner is entitled (under 8.14(A) of the 2011 CBA, and I'm virtually certain under the prior CBA) to disapprove player contracts not just if they violate the then-existing salary cap, but also if he finds them to be "in violation of or contrary to the NFL Constitution and Bylaws," or if the Commissioner believes the player or Club has "been guilty of an act or conduct which is or may be detrimental to the league...." In other words, the Commissioner
did have the power in 2010 to reject AH's renegotiated contract if he believed it upset competitive balance and warranted a penalty. Nonetheless, C) the Commissioner had the power to do it--but I don't see terribly much force to the argument that because he had the powerr to find the conduct detrimental to the NFL in 2010, he forever lost the power to determine it be detrimental or competitive balance-altering at some other point (i.e., I doubt there's any reason to believe the law of the case precludes his later deciding to exercise a power he didn't earlier choose to exercise). Given B), there is
something to the argument that the Commissioner's changing his mind two years later is fundamentally unfair. But--note that all of this language empowering the Commissioner to disapprove contracts is parallel to the language that expressly authorizes the Commissioner and Management Council to impose penalties (if they follow certain processes)--and that is not what they are claiming to have done here.
Also, in thinking about this further, there is strong reason to believe that the NFL would have been entirely within its rights to put rules into the 2011 CBA (if agreed to by the NFLPA) that would have imposed (non-penalty) cap consequences for teams that had wiped clean pending cap hits during the 2010 season (i.e., the Skins). No antitrust problem, because it's in the CBA, and no basis for our grousing (too loudly) because we did know there was the possibility that we wouldn't get away with dumping the cap space--wouldn't get away with it if the subsequent CBA imposed cap consequences, which it didn't. If the 2011 CBA
had spelled out cap consequences, then, to be fair, there's a strong argument that that isn't the league colluding (unlawfully) in 2010 during an uncapped season outside the CBA, it's the league (lawfully) colluding in 2011.
But the 2011 CBA does
not impose cap consequences for cap-dumping actions taken in 2010. Indeed, it expressly
permits teams to have cut players or traded players during the 2010 league year and thereby to have accelerated/wiped clean their
entire cap hit during 2010 (which is what we undoubtedly would have done with AH if we'd known that was our only way to get rid of his cap hit, rather than renegotiating). And the 2011 CBA sets forth the cap consequences for "preexisting contracts"--i.e., those entered into, or renegotiated, prior to the 2011 league year--and does
not impose any cap consequences for preexisting contracts unless those contracts would impose salary cap consequences into 2011 and beyond under the salary cap terms of the prior CBA. AH's and DH's renegotiated/preexisting contracts do not impose salary cap consequences under the terms of the prior CBA.
Thus A) there's an airtight argument that the 2011 CBA expressly permits wiping entirely clean pending salary cap hits in 2010 through a slightly different mechanism (cutting/trading, as opposed to renegotiating), so it's very hard to see how there's such a disruption of competitive balance by renegotiating that taking the renegotiation route (and trading AH before he ever plays another down for us) warrants this huge consequence, and B) there's a strong (but not airtight) argument that the 2011 CBA does not authorize cap consequences for renegotiated contracts prior to the 2011 league year that don't impose salary cap consequences into 2011 and beyond under the rules of the prior CBA (especially folding in the fact that the 2011 CBA states that each team is to have the same salary cap space).
The question remains whether it's permissible for the NFL and NFLPA to get a do-over of the 2011 CBA, two years later, through informal channels, without a full vote, and with the NFL throwing in the leverage of moving cap space from 2014 and 2015 into this year as the price for the NFLPA signing off on the adjustments, and at the 11th hour before free agency, and very likely in conflict with the 2011 CBA, A) as a matter of antitrust law, and B) under the NFL Constitution and Bylaws, which is presumably what Burbank will be focused on.
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