does the NFLPA have to actively pursue collusion charges, or file claims against anti-trust, for things to happen?
basically, what i'm getting at, is if the NFLPA is in the tank with the NFL the redskins may have no leverage and be screwed. Of course there's the right/wrong way to do this, whats legal, etc... but i think we've seen this is league is run by leverage. The people with leverage get their ways, the people without concede.
Well, there are multiple potential legal challenges:
1) our Article 14, section 3 claim under the 2011 CBA that the cap hit was improper (our current arbitration filing);
2) a potential arbitration claim arguing that the other teams and the NFL, in imposing the cap hit, engaged in "collusion" as defined by Article 17 of the 2011 CBA--a claim that could only be brought by a player or the NFLPA (I don't think we're intending to urge anyone to file a claim of this sort, but who knows); and
3) a potential arbitration claim relying on 2011 CBA, Article 14, section 2, brought by us, which would argue that the NFL's cap hit is circumventing the cap rules in Articles 11 and 13 of the 2011 CBA, which do not provide for cap hits to apply to what we did. (And the flip side of this is our potential argument in the current arbitration filing that any claim against us for violating the spirit/circumventing the cap should have been brought pursuant to Article 14, section 2 rather than through what was apparently believed to be some overarching/residual power under the NFL Constitution and Bylaws--and because the cap hit was not done that way, the current cap hit should be vacated, or at least reviewed by the arbitrator with the burden of proof on the NFL rather than on us);
4) a potential antitrust challenge, which would be in court, and which we could bring. The NFLPA would ordinarily be the natural plantiff to file a collusion/antitrust claim, but here they signed off on the cap hit agreement; I see no reason why we would not have standing to file such a claim if we wanted, though:
a) as many have mentioned, that's a nuclear option, in terms of 1) very likely alienating the NFL/other owners, and 2) even if successful, could undermine the parity that many believe has been part of the NFL success story,
b) the substantive strength of our claim might be affected by the fact that the NFLPA signed off on the cap hit, and
c) the NFL Constitution & Bylaws puts some obstacles in the way of teams that file suits against the NFL, not insurmountable, but not insignificant (e.g., teams at least ostensibly agree to pay the NFL's attorney fees, unless the claim is successful, IIRC).
My sense is that the NFL responds a fair amount to leverage (e.g., whether they will agree to settle--and, apparently, whether they'll engage in action like imposing the cap hit in the way they did). I think the NFL is looking quite bad about this, which might provide some leverage, though maybe that's my burgundy colored glasses. The arbitrator is a different story; I'm a lot less skeptical than most about his bias either way--both the NFL and NFLPA signed off on Burbank as the system arbitrator for a wide range of potential claims, thus both sides must have the sense that he'll be fair. He's a law professor at Penn, and a very smart guy.
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