Arbitrator Stephen Burbank will hear arguments Wednesday in Philadelphia for a grievance filed by the National Football League Players Association on behalf of Drew Brees regarding his franchise tag status. Burbank will determine whether Brees is entitled to a 20 percent increase or 44 percent increase over his 2012 salary if franchised by the New Orleans Saints next year because the Collective Bargaining Agreement’s language is vague.
The relevant portions of the key CBA provision, Article 10, Section 2(b), read as follows: “Any Club that designates a player as a Franchise Player for the third time shall, on the date the third such designation is made, be deemed to have tendered the player a one-year NFL Player Contract for the greater of: (A) the average of the five largest Prior Year Salaries for players at the position (within the categories set forth in Section 7(a) below) with the highest such average; (B) 120% of the average of the five largest Prior Year Salaries for players at the position (within the categories set forth in Section 7(a) below) at which the player participated in the most plays during the prior League Year; or (C) 144% of his Prior Year Salary.”
There is an issue here because when changes were made to the franchise player provisions in the 2006 CBA, which were incorporated into the current CBA, the situation in question wasn’t specifically addressed. Prior to 2006, franchise numbers were only based off of the salaries of the five highest paid players at a player’s position or from 120% of the prior year’s salary of the player, whichever was greater.
This led to instances where teams violated the spirit of the franchise tag by franchising players multiple times. For example, Walter Jones signed his franchise tender with the Seattle Seahawks for three straight years before finally signing a long-term deal with them in 2005. Orlando Pace and Donovin Darius played under franchise tags twice before signing long-term deals with the St. Louis Rams and Jacksonville Jaguars, respectively, after getting franchised for a third time.
ICONTwo years removed from a Super Bowl win, Drew Brees is looking for a long-term contract.
To deter teams from repeatedly franchising the same player, the 2006 CBA made the third franchise designation at the greater of the highest franchise number at any position, which is typically quarterback, or 144 percent of previous year’s salary of the player.
The NFLPA and Brees contend that Brees would be entitled to a 44 percent salary increase if franchised in 2013 as a three-time franchise player because he played under the franchise tag in 2005 while he was with the San Diego Chargers. The NFL and the Saints claim that he would be entitled to a 20 percent salary increase next year because the Saints would be using the franchise tag on him for a second time.
The side that receives a favorable decision from Burbank should have increased leverage in the negotiations on Brees’ long-term deal. Brees, who received a $16.371 million tender as the Saints’ exclusive franchise player this year, would have a $23.574 million 2013 franchise tender for a two-year total of $39.945 million if his side is correct, or a $19.645 million franchise tender next year if the NFL and the Saints are right. That’s a discrepancy of $3.929 million over the two years, which is essentially the difference of working off of a framework of $18 million per year or $20 million per year for a long-term deal.
As a reference point, Peyton Manning has $38 million over the first two years of his contract with the Denver Broncos.
It’s unlikely that Burbank’s decision will have a significant impact on franchised players in the future because Rob Moore is the only other player to ever be designated by two different teams. Moore was a transition player (team with right to match any offer sheet signed by player) for the New York Jets in 1994 and a franchise player for the Arizona Cardinals in 1999. Burbank’s decision ultimately could be a moot point for Brees, especially since Brees is confident that he and the Saints will reach an agreement before the July 16th deadline for franchise players to sign long-term deals.
Things could get really interesting if the July 16th deadline passes without Brees signing a multi-year contract because of his distaste for the franchise tender. It stems from the career threatening shoulder injury he suffered when he last played for the franchise tender in 2005. In order to avoid his current contract predicament, Brees unsuccessfully attempted to get a career exemption from the franchise tag last summer as a part of the settlement of the antitrust lawsuit he and several of the players filed against the NFL during the lockout (Brady v. NFL).
However, it might take the Saints agreeing to a modified franchise tender with increased compensation or where they couldn’t restrict Brees when it expired as a concession to get him to report when they open training camp on July 27th. Shaun Alexander signed a one-year deal as a franchise player in 2005 that prohibited the Seahawks from making him a franchise or transition player again when his contract expired. Julius Peppers, who was franchised by the Carolina Panthers in 2009, exceeded his franchise tender in a one-year deal because his contract included a workout bonus and incentives for him making the Pro Bowl and the Panthers making the playoffs.
Given Brees’ feelings about the franchise tag, he might be inclined to sit out through Week 10 of the regular season, which is the deadline for franchise players to sign a contract in order to play that season, without such a mechanism. He did indicate on ESPN’s Outside The Lines on Tuesday that he wouldn’t sit out the entire season without a long-term deal.
Based on the language in the CBA, the NFL and the Saints should prevail in the arbitration. The NFLPA and Brees would have a much better case if Section 2(b) read “Any player that is designated as a franchise player for a third time…” instead of “Any Club that designates a player as a Franchise Player for the third time…” However, it would be a huge surprise if Brees doesn’t sign a multi-year deal before the July 16th deadline.
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Joel Corry is a former sports agent who helped found Premier Sports & Entertainment, a sports management firm that represents professional athletes and coaches. Prior to his tenure at Premier, Joel worked for Management Plus Enterprises, which represented Shaquille O'Neal, Hakeem Olajuwon and Ronnie Lott. You can email Joel at firstname.lastname@example.org