There’s one thing you can count on as the drama returns to court: a complete lack of trust and palpable dislike on both sides. Plus my thoughts on Geno Smith, deadlines for deals and why signing Ray Rice would be no easy matter

By Andrew Brandt
August 19, 2015

With another edition of Courtroom Football in the long-running Brady v. Goodell saga, I am interested in where Judge Richard Berman takes the proceedings today.

The content of the briefs filed last Friday was largely as expected, with a couple of interesting sidebars. Although Judge Berman at one point had told the parties to “tone down the rhetoric,” the NFLPA’s recent filing amplified it. The union got personal with the NFL and Goodell, ratcheting up the stakes by using the phrase “smear campaign” and by accusing the league of 1) a biased investigation to achieve a desired result, and 2) moving the target on Brady’s transgressions, now with trumped-up charges following the Wells report’s innocuous “generally aware” standard.

The NFL’s last filing again trumpeted the commissioner's CBA-sanctioned power, urging Judge Berman to stay out of the collectively bargained process, which the vast majority of judges do, even using the gravitas of the U.S. Supreme Court in their citations. In a curious footnote, however, the league said that, unlike discipline for on-field conduct, Goodell could (under Article 46) have increased Brady’s discipline after the appeal, but chose not to. That is first I’ve seen of the CBA allowing that power, and it naturally raises the questions: With the new information of a destroyed cell phone, why didn’t Goodell use that power? Was Goodell being charitable to Brady and should he “get credit” for doing so?

The Wells report speaks of an investigation pursuant to a competitive integrity policy, but the NFL is now arguing conduct detrimental. The judge may ask, Which is it? and query the discrepancy.

I anticipate Judge Berman will further probe the disciplinary process and the scope of CBA powers of the commissioner. For example, Berman could rightfully ask, “Is there any limit to what Goodell may find as conduct detrimental?” or “Are there any checks and balances to this power?” Judge Berman may further question the “lack of notice” argument being made by Brady’s camp, especially this inconsistency: the Wells report speaks of an investigation pursuant to a competitive integrity policy. If there is such a policy, the players receive no notice because it is directed toward teams’ non-player personnel. But now the NFL is arguing for the punishment because of “conduct detrimental.” Judge Berman may ask, “Which is it?” and query the discrepancy.

As for the Brady side, Judge Berman has not yet raised the subject of the two equipment assistants and their notable absence at Brady’s appeal hearing; it will be interesting to see if he does so today. Further, now that NFLPA attorney Jeffrey Kessler has admitted that Brady did not fully cooperate well with Ted Wells’ investigation—Brady’s agent, Don Yee, has been thrown squarely under the bus on this—Judge Berman may follow up on an obstruction line of questioning.

Although last week Judge Berman was more strident in questioning the NFL as compared to the NFLPA, I would not read too much into that, even if that trend continues today. His clear goal is a settlement, and he may see that the NFL, with its prized CBA power at stake, has less incentive to make concessions and therefore requires more prodding. Berman is now seeing what we all have seen for several years: a complete lack of trust and palpable dislike between the parties. Encouraging settlement discussion is probably much harder than he thought.

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Punchy Jets locker room

Contrary to what may be a popular perception, NFL locker rooms are not all living in harmony. There are too many different backgrounds, interests and personalities; there will be conflict, especially at this time of year, with 90 people filling a space that in a couple of weeks will house just 60.

As a team executive, I dealt with a couple internal conflicts in the locker room, although they were much more benign than a violent punch. One involved a woman (the two topics that players argue about most are money and women), and one was tempering a dispute in which a player accused another of undercutting him and stealing an endorsement deal. I dealt with both situations by having both players sit in my office and had their agents on speakerphone.

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Beyond the drama of Rex Ryan and the Bills claiming IK Enemkpali, it seems a typical football transaction: a player claimed by a coaching staff that is familiar with him. The Bills will get a free look—training camp per diems amount to roughly $1200 per week—while evaluating IK. Pending discipline from the league for violating the personal conduct policy will only kick in if he makes the roster.

Finally, while Geno Smith could file criminal charges, my sense is he will put this behind him. A more interesting legal issue to me is whether Smith would eventually file a “loss-of-earnings” civil lawsuit if his career stagnates or he washes out in a year or two. If so, I could see an argument that a proximate cause of Smith’s lack of success was the broken jaw suffered at the hands of a then-teammate. There will be lawyers.

Deals

Deadlines spur action, and we are now at a key flashpoint for contract negotiations. Teams, as well as agents and players, prefer to close the door on negotiations once the season begins.

Last week’s deal for T.Y. Hilton is another example of the power of rookie contracts. Hilton was scheduled to make $665,000 this season, without an extension, giving the Colts nice leverage to put $11 million in front of Hilton and have a structure that they are comfortable with after that (the Colts are working on another player in the last year of his rookie deal, Anthony Costanzo, to clear the decks for their immense cash outlay next year with Andrew Luck).

The leverage of the final year of the rookie contract was similarly used with Russell Wilson recently. To illustrate the contrast, this week’s extension for Philip Rivers will necessarily look much greater in overall value than that of Wilson, simply due to the starting point. Rivers’ scheduled pay for 2015, pre-extension, was $15.75 million; Wilson’s was $1.5 million. Thus, the Seahawks had more than a $14 million head start in their negotiations compared to the Chargers. The $37.5 million that Rivers is receiving in 2015—through bonus and salary—is, in “new money” terms, less favorable than the $31.7 that Wilson is receiving.

Other players currently in the midst of negotiations include Eli Manning, Sam Bradford, A.J. Green, Julio Jones and Luke Kuechly. It is a busy time in the business of football.

Whither Ray Rice

I have asked a couple of team executives about Ray Rice, and they are careful to couch their lack of interest in him in football terms, mentioning declining production when he last played, in 2013, and the catch-all phrase, “We’re happy with what we have at running back.”

Further, there is a financial element to signing Rice now as well. Any vested veteran—which Rice is—is essentially guaranteed his salary through termination pay, if released, if he is on a team’s Week 1 roster. The financial obligations are much smaller afterward. This could be another factor in why we will not see Rice signed, if at all, until we get into the season.

It is naïve, however, to think that the lack of interest in Rice is for purely football reasons. Signing Rice will be a C-level decision, from ownership down, and it would also have to involve departments such as marketing and community relations. When I was consulting for the Eagles in 2009 and we decided to sign Michael Vick a month removed from federal prison, it had to have blessing from ownership on down. And several owners might be unwilling to provide that blessing for Rice, even though he presented quite well in a recent interview with ESPN.

Speaking of which, let’s remember the situation one year ago at this time. Rice was set to serve a two-game suspension and was still receiving the unqualified support of the Ravens coaches and management that he had received for the six months since his incident. But the release of the elevator video on Sept. 8 signaled a new era of discipline for the NFL, and Rice has remained radioactive despite others with domestic violence backgrounds, including Ray McDonald and Greg Hardy, having been signed. And Rice’s toxicity looks like it may last a while longer.

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