Re: NFLPA Accuses Patriots, Fins of violating CBA on Welker
There is nothing to this case.
Respectfully, that's wishful thinking.
It's a clear violation of both the CBA and the labor law to deprive or to attempt to deprive a protected bargaining member of a CBA right through collusion.
Your premise seems to be that the NFLPA must prove there was colusion by something like a criminal burden of proof -- beyond a reasonable doubt or something. That's not true. It's a preponderance of the evidence standard. Moreover, it's ultimately a case that will turn on intent, which is always proved by circumstantial evidence, by necessity.
The best argument I've heard you make is one that would go like this -- A club can decide that uncertainty about whether another team will match a contract with a poison pill is sufficient for it to give more in trade than the tender-level pick.
I think that's the Patriot's best shot, and it will be a test case. Respectfully, if I were deciding which side to take, I'd take the other side on the one.
I think an arbitrator can quite easily decide that it's always a simple matter to write a poison pill agreement that will work. And I think the NFLPA's lawyer gets to sit there and ask the dolphins representative under oath a series of hypothetical poison pill contracts and ask whether the Dolphins would match -- starting with reasonable ones and moving to exceptional ones. I think that would be pretty effective cross examination.
The reality is that it's a very simple matter to write a true poison pill that is foolproof. And an arbitrator is not going to miss that point. It's a critical weakness with the case.
Put another way, if the Patriot's try the position above, there are really only two conclusions an arbitrator could make:
1) The Patriots did in fact give the 7th to avoid poison pill uncertainty.
2) The Patriots gave the 7th to avoid the unseemlyness of using the poison pill.
Number 2 is a violation. Number 2 also is far and away the most reasonable conclusion -- in fact, it's the one we all came to on this very board right after the deal and the one that Kraft is reported to have desired and brought about (apparently without getting counsel from a labor lawyer first).