DL Jonathan Fanene to be released?

[MoLewisrocks]

Bedard has confirmed with multiple league sources the initial report by Ross Tucker that the Patriots designated his release as due to failure to disclose. It's a new designation agreed to as part of the CBA which now allows teams to persue recovery of all or portions of signing bonus money under certain conditions. Under the old CBA an arbitration case involving Bronco's receiver Ashlie Lelie precluded that. And it was tough for Atlanta to even recover part of Vick's bonus money (after they had converted chunks of salary into signing bonus for cap purposes prior to his indictment). That is also why signing bonus money started to disappear in favor of guaranteed money for a time, because the teams could put stipulations in the deals that voided the guarantees. The new CBA was altered to allow for limited recovery of signing bonus, which is advance payment on service in most contracts. The recovery limits are for situations where a player lies or somehow withholds services or is unavailable to a team due to suspension or incarceration or NFI.

Still, persuing it in this instance will be a tough sell to an arbitrator. He practiced here during OTA's and was cleared to and practiced the first 5 days of camp and his knee is injured and it may be arthritis has set in. Welcome to the NFL. A scope may fix it for a time, or it may continue to get worse. Unless they can prove he knew he had arthritis (and it was diagnosed and documented privately prior to last March) and was aware they didn't and he didn't disclose it you have no case. They are probably hoping he is willing to settle and avoid the hassle of being dragged through the mud in arbitration to the tune of keeping the $2.5M in hand and foregoing the $1.35M that was deferred. They're playing hardball with a contract/player who disappointed them and who perhaps they discovered six months after the fact they didn't really need.

And there is also the news that the league may be banning the use of Toradol, which is the kind of thing older players with increasingly chronic aches and pains as well as acute injury used routinely in the past to play through them. And that too may alter some teams roster and contract decisions going forward.

 

[Rob0729]

Personally, I don't care about the Pats getting the money back. That is their issue. My only concern as a fan is to get the cap dollars back.

 

[signbabybrady]

Still, persuing it in this instance will be a tough sell to an arbitrator. He practiced here during OTA's and was cleared to and practiced the first 5 days of camp and his knee is injured and it may be arthritis has set in. Welcome to the NFL. A scope may fix it for a time, or it may continue to get worse. Unless they can prove he knew he had arthritis (and it was diagnosed and documented privately prior to last March) and was aware they didn't and he didn't disclose it you have no case.

I dont think participation in OTA and TC has to be a negative to their case and in fact it could be just the opposite. It could be part of their evidence. We dont know what was said to team doctors and to the team itself regarding his missing time in OTAs and in TC for all we know he could have been acting as if his hammy was giving him trouble as to further hide his real issues in hopes he could tough it out long enough to fool us. Obviously this is a far fetched scenario and is intended as a hypothetical.

What do we know? We know he got a large signing bonus close to 4 mil and cutting him now saves you a little under a mil in monies paid out but no cap relief. So why cut him? To me there are only 2 reasonable answers 1) they feel they have a decent case to recoup the money and are willing to try 2) There just is no chance of contributing to this team now and likely in the future. IMO there is to much money to walk away from without one of those 2 things being true.

 

[signbabybrady]

Personally, I don't care about the Pats getting the money back. That is their issue. My only concern as a fan is to get the cap dollars back.

I agree with your point to a certain degree. In the end that is all that matters to us. its not our check book.

But if there is truth to the brush being painted here that Fenene defrauded the Patriots and that doesnt bring out some sort of response then maybe you are little shady yourself and feel it was worth the try. Personally if true, and he is innocent until proven guilty but if true, IMO that is a big scum bag move and I will be pissed at him over it. Had he succeeded he certainly would have hurt the product that we watch and live and breathe every sunday and just by trying he already has. I will wait until I hear the facts to truly judge but I will speculate until that day.

 

[PatsWickedPissah]

Were I Bob Kraft I'd have a strong discussion with my medical experts and maybe someone outside about how this happened, costing me personally several million bucks for nothing. Was this avoidable and if not why not? I hope that someone had a detailed discussion before taking the unprecedented for the Pats possible player relations PR hit in claiming fraud by the player.

 

[patfanken]

Since I was dead wrong on bringing him back from waivers help me out and confirm a few things for me so I can get this quickly behind me.

1. He's gone and he's not coming back?

2. He got $2.5MM this year and is supposed to receiver $1.3MM next off season.

3. He may or may not have to give back all or part of the money.

4. We get back all or some of his cap money (which one?)

 

[PatsWickedPissah]

Since I was dead wrong on bringing him back from waivers help me out and confirm a few things for me so I can get this quickly behind me.

1. He's gone and he's not coming back?
YES

2. He got $2.5MM of the signing bonus this year and is supposed to receiver $1.3MM next off season.
YES

3. He may or may not have to give back all or part of the money.
The more likely MAY is part of the money, the not paid part. Most likely none.

4. We get back all or some of his cap money (which one?)

All or some. More likely some rather than all. Most likely none.

 

[Deus Irae]

The Patriots aren't the only team going down this route:

The Indianapolis Colts cut rookie linebacker Larry Lumpkin with a failure to disclose physical condition designation, according to a league source.

Lumpkin went undrafted in the NFL supplemental draft after drawing interest from several teams.

Scout.com: Larry Lumpkin Profile

 

[jason423]

This seems like a pretty unique situation. Essentially NE is saying that this was not a good faith negotiation and Fanene did not disclose information when directly asked by the physician during the physical. Based on the various forfeiture clauses in the CBA Id imagine they can go after the entire signing bonus since they are cutting him in the year of signing and that this constituted a breach of contract.

Looks like this will basically go through the grievance process which I believe should mean that any credit received by the Patriots would go on next seasons cap and not this seasons. I wonder if Fanene can also file an injury grievance looking for refunded salary saying he was injured in camp and deserves his salary for the season. It could take awhile to play out, especially since his SB was deferred, but this is going to be watched closely by the front offices of the NFL.

 

[PatsWickedPissah]

Jason your posts are much appreciated here. Keep us in the loop with the facts.

 

[Rob0729]

This seems like a pretty unique situation. Essentially NE is saying that this was not a good faith negotiation and Fanene did not disclose information when directly asked by the physician during the physical. Based on the various forfeiture clauses in the CBA Id imagine they can go after the entire signing bonus since they are cutting him in the year of signing and that this constituted a breach of contract.

Looks like this will basically go through the grievance process which I believe should mean that any credit received by the Patriots would go on next seasons cap and not this seasons. I wonder if Fanene can also file an injury grievance looking for refunded salary saying he was injured in camp and deserves his salary for the season. It could take awhile to play out, especially since his SB was deferred, but this is going to be watched closely by the front offices of the NFL.

Thanks for the insight Jason. According to some Jets fan capologist who has a site that also tracks the Pats' cap (perhaps you have heard of him), the Pats are about $10 million under the cap. So any cap money recouperated by the Pats from this grievance would not be needed this year anyway (unless they unlikely trade for MJD along with a new contract).

 

[MoLewisrocks]

Personally, I don't care about the Pats getting the money back. That is their issue. My only concern as a fan is to get the cap dollars back.

You only get cap dollars back if you get cash dollars back, too. That's why it's at teams discretion to persue their return. For example, if you allow a retiring player like Light or Tedy or TJ to keep their bonus money, you don't get it back against the cap, either.

 

[jason423]

Since I was dead wrong on bringing him back from waivers help me out and confirm a few things for me so I can get this quickly behind me.

1. He's gone and he's not coming back?

2. He got $2.5MM this year and is supposed to receiver $1.3MM next off season.

3. He may or may not have to give back all or part of the money.

4. We get back all or some of his cap money (which one?)

2. Yes. According to reports his bonus was deferred. Its not really an unusual thing and keeps the teams cash flows more in order. Sometimes they have to fund those payments in a separate account but only for large guarantees or deferments which this was not.

3/4 I have to think its either all or nothing on the cap money. If he did negotiate in good faith I cant see how he has to give back anything. You get a signing bonus for just that- signing a contract. He never played a game so if he didnt disclose the info he should not be entitled to a penny. If he did then he should keep all of it. Id hate to be the Patriots doctor here because that is the guy that is going to have to say, under oath, "I asked for all of this information and he clearly and knowingly withheld information from us about a pre-existing condition that would have persuaded me to fail him on the physical or make a recommendation to the club that he will be unlikely to fulfill his contract because of this problem". If it is arthritis I guess they are going to have to say that they tested him and asked about his knees and he said they were fine he just needed some rest and they believed him enough to not do a more thorough exam that would have shown the degenerative condition he supposedly has. Plus they are going to have to have evidence from medical records or things he said to teammates, trainers, etc... about his problem that showed he did know it was an issue but never told the team when he signed his deal or took his physical before camp.

 

[Rob0729]

You only get cap dollars back if you get cash dollars back, too. That's why it's at teams discretion to persue their return. For example, if you allow a retiring player like Light or Tedy or TJ to keep their bonus money, you don't get it back against the cap, either.

Yeah, you are probably right except that Fanene can technically file for bankruptcy and potentially avoid paying back some or all the money even if the Pats win the grievance and get back the cap dollars.

A player retiring is different though. The Pats are basically arguing the contract is void because Fanene fraudulently signed it by withholding or lying about medical information that would have made the Pats rescind their offer. In a retirement case, there is no claim of fraud.

 

[ctpatsfan77]

2. Yes. According to reports his bonus was deferred. Its not really an unusual thing and keeps the teams cash flows more in order. Sometimes they have to fund those payments in a separate account but only for large guarantees or deferments which this was not.

3/4 I have to think its either all or nothing on the cap money. If he did negotiate in good faith I cant see how he has to give back anything. You get a signing bonus for just that- signing a contract. He never played a game so if he didnt disclose the info he should not be entitled to a penny. If he did then he should keep all of it. Id hate to be the Patriots doctor here because that is the guy that is going to have to say, under oath, "I asked for all of this information and he clearly and knowingly withheld information from us about a pre-existing condition that would have persuaded me to fail him on the physical or make a recommendation to the club that he will be unlikely to fulfill his contract because of this problem". If it is arthritis I guess they are going to have to say that they tested him and asked about his knees and he said they were fine he just needed some rest and they believed him enough to not do a more thorough exam that would have shown the degenerative condition he supposedly has. Plus they are going to have to have evidence from medical records or things he said to teammates, trainers, etc... about his problem that showed he did know it was an issue but never told the team when he signed his deal or took his physical before camp.

How does arbitration work? Is it that the Pats say we want X and Fanene's camp says we want Y, and the arbitrator has to pick one, or is he allowed to "split the baby" (and pick an intermediate position)?

 

[Haley]

Well, no name song/banana song this year.

I guess I'll have to stick with this RB song (to the tune of Flaming Lips - She Don't Use Jelly)

I know a guy who runs real quick
He was Bill Belichick's
2nd round pick
He isn't the Lawfirm
And he isn't Faulk
He isn't Maroney
But please don't Gawk
His name is Shhhaaaaane Vereeeeen :rocker:
Shaaaane Vereeeen
Shaaaane Vereeeen

 

[MoLewisrocks]

This seems like a pretty unique situation. Essentially NE is saying that this was not a good faith negotiation and Fanene did not disclose information when directly asked by the physician during the physical. Based on the various forfeiture clauses in the CBA Id imagine they can go after the entire signing bonus since they are cutting him in the year of signing and that this constituted a breach of contract.

Looks like this will basically go through the grievance process which I believe should mean that any credit received by the Patriots would go on next seasons cap and not this seasons. I wonder if Fanene can also file an injury grievance looking for refunded salary saying he was injured in camp and deserves his salary for the season. It could take awhile to play out, especially since his SB was deferred, but this is going to be watched closely by the front offices of the NFL.

Yeah, technically can they cut a player who claims to be injured without oweing them more money (under the new CBA which guarantees portions of the first two years of a deal against injury)? That may be what the Colts are seeking to do, because an UDFA likely didn't get more than $11K in signing bonus (like Demps). Got to think in the NE instance however they are probably intent on getting back some or all of that signing bonus money.

Thing is it's a tough case to make absent some form of documentation that proves someone diagnosed the knee issue previously but it wasn't in his full medicals which NE's medical people would have had unfettered access to prior to signing him and he knew we had no concern about his knee going forward as a result and didn't tell us we should have. If information was available and our medical people simply missed or dismissed earlier information, he's off the hook. He doesn't have to tell them something he assumed they were aware of. This is about withholding information he knew they didn't have access to.

However, this is business and teams can and will persue any avenue available to them whether they deserve to or not so he shouldn't be painted as a conniving cheater until or unless they make their case convincingly to an arbitrator. And a settlement wouldn't necessarily indicate culpability in either case as that too is often the way business is done. He probably doesn't want to be labled a chronic or a liar any more than they want to be snickered at for making an uncharacteristically costly mistake. I would imagine the NFLPA will be in on this and go to the wall if he wants to because while they agreed to limited recovery language you know their heart wasn't in it and challenging what they actually agreed to is what they love to do.

 

[jason423]

How does arbitration work? Is it that the Pats say we want X and Fanene's camp says we want Y, and the arbitrator has to pick one, or is he allowed to "split the baby" (and pick an intermediate position)?

They would be two separate claims. The Patriots I believe have to file a non-injury grievance in order to fight for money back. They have 50 days to file it and its from the time of knowing of the problem so its 50 days from yesterday if yesterday is when they learned he did not disclose information to them. I guess they can file for less money but my assumption is that they will go for all of it except the workout since that should have been earned by the player. My guess is they are attacking the good faith portion of the "physical condition" clause in the contract.

Fanene would file an injury grievance. He has 25 days to do that. He would essentially assert that he was terminated because of injury and did report any conditions to the team whenever asked. If he does that there would be a charge against the Pats cap this year (I think its half of the amount) and then next year either the remainder of the charge or a credit for not paying out any award to the player.

 

[jason423]

Yeah, technically can they cut a player who claims to be injured without oweing them more money (under the new CBA which guarantees portions of the first two years of a deal against injury)? That may be what the Colts are seeking to do, because an UDFA likely didn't get more than $11K in signing bonus (like Demps). Got to think in the NE instance however they are probably intent on getting back some or all of that signing bonus money.

I think the injury protection clauses are for players who get hurt in an NFL game/practice, go through rehab, and then fail the preseason physical leading to them being cut. At that point the injury protection kicks in which gives them some money for either 1 or 2 years, depending on their contract length, so its possible that could be the Colts thinking.

In the Colts case the normal procedure, if he is hurt, would be to waive/injured and then come to a settlement if he doesnt fit into their future plans. I guess its possible that they worried he wouldnt settle, they would get stuck paying him the split salary this year and then what would amount to another years worth of salary if he did get the injury protection benefit.

 

[MoLewisrocks]

2. Yes. According to reports his bonus was deferred. Its not really an unusual thing and keeps the teams cash flows more in order. Sometimes they have to fund those payments in a separate account but only for large guarantees or deferments which this was not.

3/4 I have to think its either all or nothing on the cap money. If he did negotiate in good faith I cant see how he has to give back anything. You get a signing bonus for just that- signing a contract. He never played a game so if he didnt disclose the info he should not be entitled to a penny. If he did then he should keep all of it. Id hate to be the Patriots doctor here because that is the guy that is going to have to say, under oath, "I asked for all of this information and he clearly and knowingly withheld information from us about a pre-existing condition that would have persuaded me to fail him on the physical or make a recommendation to the club that he will be unlikely to fulfill his contract because of this problem". If it is arthritis I guess they are going to have to say that they tested him and asked about his knees and he said they were fine he just needed some rest and they believed him enough to not do a more thorough exam that would have shown the degenerative condition he supposedly has. Plus they are going to have to have evidence from medical records or things he said to teammates, trainers, etc... about his problem that showed he did know it was an issue but never told the team when he signed his deal or took his physical before camp.

He would have had an exit physical in cincy and a record of his injuries and tests and treatments in the 7 seasons he was on their roster and NE would have received that. But as Jeff Howe tweeted earlier teams don't document aches and pains, if they did they'd spend all day writing. They document injuries and what they entailed and the outcome. Jeff also tweeted that a source told him there was no history of arthritis with Fanene.

It wouldn't be enough to show he complained of a sore knee to a teamate once last season. Most of them have sore knees, shoulders, ribs, etc. Unless he was examined and treated by some doctor for knee issues/arthritis, he doesn't know anything he has to disclose. And if he was that should have been in his records. And if it wasn't they'd have to prove he knew it wasn't yet he knew it should have been and he didn't disclose that. More likely they simply missed it or it's a recent development and working in OTA's and later again in camp just triggered it. And they're experiencing buyers remorse.

He is obviously contending this isn't a pre existing condition, it's something that flared up (inflamation in his knee) during OTA's then again 5 days into camp. Not unusual. Howe says he passed 2 physicals, before signing the contract and before camp.

Bedard says he is undergoing a scope procedure tomorrow on his left knee and expects to be ready to play in 4-8 weeks.