What Might We Expect in Branch Arbitration

[arrellbee]

In Mike Reiss' article, there were opinions that Branch did not have much of a case. But there was also one paragraph that should not be taken lightly:

http://www.boston.com/sports/football/patriots/articles/2006/09/04/experts_dont_back_branch/

However, there could be a wrinkle in the good-faith argument that Branch's camp might be able to stress, according to Haagen.
``If in fact, despite saying they would do something and taking on the duty to negotiate in good faith they then refused to meet with him, refused to discuss it, and wouldn't [negotiate] with another team, that could make a difference," Haagen said.
Haagen also added that while it appears Branch is facing long odds, anything can happen in the arbitration process.
``Any time you go in to any decisional process, whether it's court, arbitration, or anything, there is a level of risk," he said.

I made a comment pertaining to this also in a previous post:

The huge problem with this is the arbitrator. Arbitrators do not - in the slightest - have to rule based on sound legal basis (or that non-existent concept in law of fairness). They are complete wild cards. And history is littered with arbitrators handing down ridiculous and one-sided judgments. The result of this arbitration is probably decided completely at the outset without regard to the substance of any actual issues by simply the selection of the arbitrator !! This is a HUGE first test for Roger Goodell. If he is weak about making sure that the arbitrator is at least one who will actually decide on the legal issues versus caving in to the selection of an arbitrator sought by the NFLPA who will automatically rule in the favor of the player, IT'S GOING TO BE THE START OF CHAOS. This situation has FAR more widespread impact that just the Patriots and Branch situation. This is the harbinger of what is to come over the next 2 years. Maybe you should enjoy your football this year, because after this 2 year period of grace, the NFL could be in a shambles.

With regard to this selection of arbitrators, Gene Upshaw has not been bashful about blackballing an arbitrator from ever hearing another NFL/NFLPA case when he is unhappy (p**sed) at the decision:
http://proxy.espn.go.com/nfl/columns/story?columnist=mortensen_chris&id=2235051
"'One thing I can control is that he will no longer be an arbitrator in any more of our cases," Upshaw said, shortly after Bloch upheld the Philadelphia Eagles' suspension of the veteran wide receiver and the the team's stance that Owens will be deactivated for the final five games of the 2005 season.' Under the (collective bargaining agreement), either side has a right between Dec. 1 and Dec. 10 to dismiss an arbitrator, and we are going to dismiss this one. "


I finally tracked down the information that I remembered seeing which names the possible arbitrators and master:
http://www.washingtonpost.com/wp-dyn/content/article/2006/09/01/AR2006090101705_pf.html

So if we are curious as to how the possible arbitrators, John Feerick or Shyam Das, might rule, it is interesting to look at past issues that they have been involved in.

Shyam Das was arbitrator in the McCardell holdout with Tampa Bay.
http://www.buccaneers.com/news/newsdetail.aspx?newsid=4747
In this case, he basically ruled completely in Tampa Bay's favor. He ruled that McCardell had to repay $1.5M of signing and roster bonuses after McCardell had held out until he was finally traded in October. (in Branch's case there is a consideration that he has not yet been traded and that the Patriots may not want to trade him unless they get a substantial offer; and there is the reputed verbal 'agreement' which might be be something that is different)

Das was also arbitrator in baseball's Rocker and Kenny Rogers cases. In both cases he upheld penalties but reduced them considerably.

John Feerick (Dean of Fordham University Law School) was the arbitrator in the NBA Latrell Sprewell case. He reduced Sprewell's penalties by 17.3M to 6.4M and reduced his suspension to 68 games - still substantial penalties.

He was the arbitrator in the NBA issue of whether the players could demand to paid even though they were locked out. He ruled that the NBA clubs did not have to pay the players.

More to the point of the NFL, Feerick was the arbitrator in the McNair case.
http://www.tennessean.com/apps/pbcs.dll/article?AID=/20060603/SPORTS01/606030362/1027
Feerick ruled that the Titans could not refuse to allow McNair to work out in their training facility. However, "Feerick rejected requests from McNair to be released from his contract and compensated for missed workouts." And:
"The ruling also appears to leave the Titans with the option of not giving McNair any work at their six organized team activity practices that start on June 13 or using him in training camp or the preseason if he's still with the team under his current contract.
'The request that (I) grant relief as well with respect to the mini-camp and pre season participation is denied since that issue is not presented in this grievance,' Feerick wrote."

While it appears that both Feerick and Das have had cases where they upheld team rights, there are still elements in these cases where trades were actually worked out. So we are still left to wonder whether the Branch case will be strictly the issue of upholding the contract under the CBA or whether either arbitrator might issue some requirements with respect to pursuing a trade.

So long as the Patriots were legally careful enough in how they allowed Chayut to seek a POSSIBLE trade subject strictly to their unilateral decision choice, I would hope that the arbitrator would rule that Branch has no rights to require a trade. Otherwise, it still seems to me that this would introduce really chaotic possibilities with regard to the stability of contracts through their complete term. But in the end, you just never know how an arbitrator may rule.

 

[DarrylS]

While it appears that both Feerick and Das have had cases where they upheld team rights, there are still elements in these cases where trades were actually worked out. So we are still left to wonder whether the Branch case will be strictly the issue of upholding the contract under the CBA or whether either arbitrator might issue some requirements with respect to pursuing a trade.

So long as the Patriots were legally careful enough in how they allowed Chayut to seek a POSSIBLE trade subject strictly to their unilateral decision choice, I would hope that the arbitrator would rule that Branch has no rights to require a trade. Otherwise, it still seems to me that this would introduce really chaotic possibilities with regard to the stability of contracts through their complete term. But in the end, you just never know how an arbitrator may rule.

Good post, nice research.

From the onset I have wondered what part of the NFL CBA are they arbitrating, as best as I can tell there was a side agreement between Chayut and the Pats. A side agreement is not guaranteed by the CBA, it is purely something that helps both parties achieve a goal. Unless I am missing something this whole matter may be thrown out as there is no contract violation.

I do not thing that either side wants to go to arbitration as the results are crap shoot, the NLF and its minions do not want to be dictated to by third parties. This case should be resolved either before, during and probably not before a decision is made by the arbitrator, thus rendering it a moot point. It seems in the best interest of all parties to resolve this soon and do not sit down before someone who can change the way you do business.

 

[Sundayjack]

Here's my next question, and it involves the second hearing before the special master (if the arbitrations are not joined): What's the remedy for the Patriots' bad faith?

Seems to me that, even if Deion wins, the remedy in that second arbitration hearing wouldn't be to impose the Jets' trade terms - that ship would have already sailed in the first arbitration hearing.

Rather, assuming Deion could win the second of the two arbitrations (not that I think he could) the only seemingly available remedy for Deion Branch would be the reinstatement of the trade period. That is to say, the arbitrator could tell the Patriots, "Go back, and this time take it seriously," but that's about it. Sure, he has broad discretion to fashion remedies, but there's still a contract governing most of the relationship. The only new element was that period to seek trades.

Anyway, just my thoughts.

 

[Brady-To-Branch]

It's simple. Branch will lose all his grievances.

I'm going to cut through all the ambiguities with 5 reality-based facts...

1.) Branch is under contract. Period.

2.) The Pats have the right to offer Deion whatever they want, provided it's above league minimums.

3.) The Pats have the right to trade or not to trade Branch and, in the case of the latter, can decide what price is "reasonable".

4.) The Pats are not obligated to pay Deion what other teams are willing to pay.

5.) No form of arbitration can undo 1-4.

If this arbitration hearing becomes a circus and rules against the Pats, the Krafts will take this to a real court and win. 1-4 cannot be ignored.

Pro Football Talk has confirmed my suspicions that all of this is an elaborate stunt on the part of a group of agents and Gene Upshaw aimed at the Patriots and the NFL system.

POSTED 11:34 p.m. EDT; UPDATED 11:59 p.m. EDT, September 5, 2006

BRANCH SITUATION GETS EVEN WEIRDER

We hadn't been paying much attention of late to the Deion Branch saga because, frankly, we already can tell how this one is going to end: Branch won't be traded, his grievances won't be successful, he won't report until the tenth week of the season, he will be slapped with the franchise tag in February, and he then will be traded.

But we did a double-take this evening upon reading Mike Felger's most recent update on the situation, in which the Boston Herald scribe and ESPN Radio host explains that NFLPA lawyer Jeff Kessler is threatening to seek monetary compensation from the Patriots . . . if Branch loses the grievances.

That's right folks. If Kessler and the NFLPA fail to show that the Pats reneged on a promise to trade Branch and if they are also unable to prove that the Pats did not negotiate an extension for Branch in good faith, then the fallback position will be to demand the difference between the money that Branch is set to earn in 2006 from the Pats and the first-year money that he would have been paid under the terms of the offers that he received from the Jets and Seahawks during the one-week window that the team granted to Branch in order to finagle a contract offer and a trade package.

It makes zero sense. If Branch's grievances fail, he has no basis to claim anything from the Patriots. We wonder whether Kessler can even muster a straight face while articulating the inexplicable position that, if he can't show that Branch should have been traded and if he then can't show that the Pats failed to take good-faith steps to extend a contract that does not even expire until after the 2006 season, then he wants the money that would have been paid under the contract that would have been signed if the trade would have gone through.

The frivolous nature of Kessler's contention makes us wonder what else is really going on here. Surely, he doesn't expect to win more money for Branch if he loses both grievances. So does the NFLPA simply hope to help place as much pressure on the Patriots as possible in the hopes that they'll throw their hands up and trade Branch? Or is Upshaw agent Tom Condon still so miffed at the Pats for driving a wedge between Condon and former client Ben Watson by demanding a six-year rookie deal that Condon is coaxing the Players Association into creating as much commotion as possible within the organization?

The new development has caused us to consider the possibility that Branch might report to the team once the two grievances are rejected. At this point, his mere presence in the locker room will be a distraction, even if he doesn't utter a word. So perhaps by showing up for duty after defecating in the boss's hat, Branch might find himself traded out of town, simply because the team won't want him around.

Branch must recognize this and pull himself out of this morass before he becomes a spectacle like Maurice Clarett.

If not, this will become another Brian Shaw fiasco. After a year playing in Italy, Shaw fired his agent and signed a 5 year deal to return to the Celtics. At the time Shaw was unaware that if an NBA player is not under contract for a year, he becomes a free agent (unrestricted). When Shaw found out, he hired agent Jerome Stanley and told the C's he won't honor the contract. The dispute wound up being decided in a court of law in favor of the C's. Shaw then said that "this (Celtics) is were I want to be".

 

[arrellbee]

It's simple. Branch will lose all his grievances.

I'm going to cut through all the ambiguities with 5 reality-based facts...

1.) Branch is under contract. Period.

2.) The Pats have the right to offer Deion whatever they want, provided it's above league minimums.

3.) The Pats have the right to trade or not to trade Branch and, in the case of the latter, can decide what price is "reasonable".

4.) The Pats are not obligated to pay Deion what other teams are willing to pay.

5.) No form of arbitration can undo 1-4.

If this arbitration hearing becomes a circus and rules against the Pats, the Krafts will take this to a real court and win. 1-4 cannot be ignored.

Everything you say makes perfect sense.

But there is the problem. Arbitrators are not necessarily bound by perfect sense. And if you think courts are infallible, remember an infamous trial of a famous football player ?

But, even if the arbitrator is deciding in the context of what you state, you have completely left out that we know as an absolute fact that the Patriots gave Branch permission to seek a trade. This MIGHT create an ancillary contract to the basic one he has with the Patriots. I don't see why it would give Branch any rights to require a trade no matter what kind of offer might be made, but it opens a door for an arbitrator to consider - which becomes somewhat unpredictable. Much may depend on what the Patriots put into writing or if they put anything into writing. If it's written, it would be hard to argue that any 'verbal' agreement or 'expectation' has any validity since a written agreement was done and Chayut did not get something like that into the agreement - there is a tacit assumption that the written agreement would clearly state the Patriots position.

There is really no mystery in the slightest as to why Chayut would seek an arbitration. His simple goal is to get Branch as much money as he can right now (including this year in any multi-year average) ignoring the existing contract. Once this is his goal, you would simply expect him to use any mechanism he can think of to force this. It is obvious that he will use and has used the media to try to force the Patriots to give in based on an 'image' issue. A grievance is simply a tool that he can try - and he may have tried it even if the Patriots had not allowed him to seek a trade !! !! !!

Although I haven't seen it mentioned anywhere, don't discount the possibility that some number of agents and perhaps even NFLPA executives may really be interested in a chance to try to break the teams' exclusivity rights that they presently have. They would love that and Branch may just be allowing himself to give them the opportunity to take a crack at that. They have absolutely nothing to lose, so why not ?

 

[Brady-To-Branch]

Everything you say makes perfect sense.

But there is the problem. Arbitrators are not necessarily bound by perfect sense. And if you think courts are infallible, remember an infamous trial of a famous football player ?

Clarett? The nitwit judge that ruled in his favor was overruled by a higher judge.

If you're referring to OJ Simpson, then your argument is weak. Contracts cases are cut and dry. Murder has to be proved and is subject to a jury. Apples and oranges.

But, even if the arbitrator is deciding in the context of what you state, you have completely left out that we know as an absolute fact that the Patriots gave Branch permission to seek a trade. This MIGHT create an ancillary contract to the basic one he has with the Patriots.

No it won't. The Pats don't HAVE to trade Branch under any circumstances. Vagarities over an oral agreement to seek a trade aren't binding and certianly can't negate a written contract.

I don't see why it would give Branch any rights to require a trade no matter what kind of offer might be made, but it opens a door for an arbitrator to consider - which becomes somewhat unpredictable.

I covered this point. In fact, the Pats are fighting the grievances on the basis that an arbiter has no right in these areas. If the arbiter rules in favor of Branch, the Pats will go to court, and win. And the NFL will no longer trust the arbitration process, which will set up an ugly labor dispute. The NFL is starting to simmer over the Branch saga. Upshaw is playing a dangerous game if he thinks he can finagle the arbitration process.

Much may depend on what the Patriots put into writing or if they put anything into writing. If it's written, it would be hard to argue that any 'verbal' agreement or 'expectation' has any validity since a written agreement was done and Chayut did not get something like that into the agreement - there is a tacit assumption that the written agreement would clearly state the Patriots position.

Chayut screwed up by focusing on a new contract w/o any regard to the Pats trade demands. When Seattle and the Jets offered the Pats a paltry #2 pick, the Pats rightly declined these trade offers and Chayut whined and made two grievances. Chayut has handled this poorly from the very beginning. IMO, once the grievances are settled, Deion will relent.

There is really no mystery in the slightest as to why Chayut would seek an arbitration. His simple goal is to get Branch as much money as he can right now (including this year in any multi-year average) ignoring the existing contract. Once this is his goal, you would simply expect him to use any mechanism he can think of to force this. It is obvious that he will use and has used the media to try to force the Patriots to give in based on an 'image' issue. A grievance is simply a tool that he can try - and he may have tried it even if the Patriots had not allowed him to seek a trade !! !! !!

This is why I brought up Brian Shaw. He tried everything to wiggle out of his deal, but in the end, he lost. Clarett had no case and he was crushed. In the end the Pats won't cave, they can't afford to, and Deion will be forced to play under the 5th year of the deal. The Pats will then franchise him. If anyone's image is destroyed, it's Deion's. He could still save himself by firing Chayut and signing the Pats offer. The ill will he built up over the summer will evaporate. If not, he risks injury by playing in 2006.

Although I haven't seen it mentioned anywhere, don't discount the possibility that some number of agents and perhaps even NFLPA executives may really be interested in a chance to try to break the teams' exclusivity rights that they presently have. They would love that and Branch may just be allowing himself to give them the opportunity to take a crack at that. They have absolutely nothing to lose, so why not ?

They have plenty to lose. They can hurt their clients and force a player's strike. The owners will never allow a baseball type system in the NFL. They would cancel the season before doing that. In 1987, the owners used scabs to break the picket line. It worked. It will work again. Upshaw's weakness is that he represents agent's interests more than the players. NFL players are making more money than ever and the salary cap has grown significantly since 1993. Moreover, NFL careers are shorter than in other professional sports. Players will not only lose salaries but years as well. The agents hate the system and Upshaw has been a willing dupe. The players will not strike to satisfy their agent's greed, T.O.'s right to be a turd, or Deion Branch's right to break a contract. That's the ultimate weakness of the NFLPA.

 

[Sundayjack]

If the arbiter rules in favor of Branch, the Pats will go to court, and win. And the NFL will no longer trust the arbitration process, which will set up an ugly labor dispute. The NFL is starting to simmer over the Branch saga. Upshaw is playing a dangerous game if he thinks he can finagle the arbitration process.

I can't agree. Whether the arbitrator has jurisdiction over Branch's claim is at issue; whether the arbitrator has binding authority over the jurisdictional issue is not. If the arbitrator were to rule later this evening that Branch's grievance can go forward, that's one of the areas where his jurisdiction is clear, and it's binding. There is no Federal Court appeal available to the Patriots on that jurisdictional issue anymore than there is a court appeal available to Deion Branch were he to lose at arbitration.

 

[Brady-To-Branch]

I can't agree. Whether the arbitrator has jurisdiction over Branch's claim is at issue; whether the arbitrator has binding authority over the jurisdictional issue is not. If the arbitrator were to rule later this evening that Branch's grievance can go forward, that's one of the areas where his jurisdiction is clear, and it's binding. There is no Federal Court appeal available to the Patriots on that jurisdictional issue anymore than there is a court appeal available to Deion Branch were he to lose at arbitration.

Going to court is not an appeal.

Deion can go to court if he loses his arb case. He won't win.

 

[Sundayjack]

Going to court is not an appeal.

Deion can go to court if he loses his arb case. He won't win.

What you said was: "If the arbiter rules in favor of Branch, the Pats will go to court, and win. And the NFL will no longer trust the arbitration process." That was the part I highlighted. And my point, which I'll state again, is that, if the Patriots lose on the jurisdictional issue mentioned in Borges' column, that is a binding decision. They won't go to court and win, because they can't.

 

[lobster]

The context is important here - the Pat's voluntarily offered a 1-week opportunity to seek a trade to a hold-out who had flat-out rejected a very substantial offer. It turns out that offer was in the same range as both the Jets and Seahawks offers. This is also not any player either - it's a WR who has worked for years with Brady to perfect their game.

Now suppose you're an experienced agent - wouldn't you be telling the union they need to encourage other clubs to also offer an opportunity to seek a trade. Therefore my prediction is the union is going to SELL-OUT CHAYUT and get this settled pre-arbitration - in spite of all the legal posturing by Kessler!

 

[PatsFan37]

Legal eagles, let me know what you think. PFT just posted that the CBA specifically excludes oral contracts as non-binding.

If arbiters can only decide disputes concerning the CBA and contracts cannot be modified orally, then is that the basis for the Pats claim that there's no jurisdiction? What am I missing?

 

[DefenseRules]

Legal eagles, let me know what you think. PFT just posted that the CBA specifically excludes oral contracts as non-binding.

If arbiters can only decide disputes concerning the CBA and contracts cannot be modified orally, then is that the basis for the Pats claim that there's no jurisdiction? What am I missing?

You are correct.
an excerpt from PFT

There's other evidence in the CBA to support the notion that verbal agreements are not enforceable. At Article XIV, Section 5(a), the CBA states that "[a]ny agreement between any player and any Club concerning terms and conditions of employment shall be set forth in writing in a Player Contract as soon as practicable." Surely, an agreement permitting Branch to troll for a new contract and then to trade him if he found a better deal elsewhere "concern terms and conditions of employment."

Case closed. Even if the alleged verbal promise was made, there's nothing that Branch can do about it if the alleged promise wasn't reduced to writing.

 

[PatsFaninAZ]

Legal eagles, let me know what you think. PFT just posted that the CBA specifically excludes oral contracts as non-binding.

If arbiters can only decide disputes concerning the CBA and contracts cannot be modified orally, then is that the basis for the Pats claim that there's no jurisdiction? What am I missing?

Other than in contracts between merchants, so-called no oral modification clauses are almost always unenforceable.

I don't know what state's law would apply, but most states hold that these clauses don't carry any water. The reason? Because one can always orally modify the no oral modification clause. There is a statute that most states have adopted call the "Uniform Commercial Code," which makes NOM clauses enforceable in certain transactions between merchants or for goods, but this wouldn't apply -- it's clearly a service contract.

Sorry. Kessler knows what he's doing here. He's probably going to lose, but the reality is that unlike most of you, I don't think this claim is insane. The covenant of good faith and fair dealing, which is a part of every contract you enter into in most states by operation of law, is very broad.

The theory in the arbitration will be that the patriots breached the covenant (and thus the contract) by not dealing fairly with Branch. Since the arbitrator has no authority to compel the Jets to accept the trade at this point in time, the damages would be the differences in the two contracts.

None of us knows the facts here. There is a whole spectrum. On the one hand it could be as we all think it is -- that the Patriots said merely, "go see what other teams will offer, and if we can get a good trade we'll trade you," and nothing else was said. On the other side of the spectrum, imagine an e-mail in which the Pats said, "this will squash this guy when he finds out he has no value, since we'll never take a trade no matter what's offered." Now that would be a breach of the covenant of good faith and fair dealing.

What is the truth? Probably something somewhere in the middle, and much closer to the Pats' side than Branch's.

The problems are these: (1) Kessler is a good lawyer. (2) The way he's packaging this makes it not entirely a no brainer. (3) This is arbitration. It's Chinatown, for those that remember the movie.

 

[lobster]

If in fact Belichick or a Patriots executive admitted they said what Chayut has claimed, then Kraft would almost certainly honor it even if the CBA said all aspects of a players employment must be in writing.

 

[PatsFaninAZ]

A further answer on no oral modification. Sorry -- it does not appear to be a silver bullet.

Assuming Mass. law applies, that state follows the common law rule that no-oral modification clauses may themselves be modified orally.

Cambridge Sav. Bank v. Boersner, 597 N.E.2d 1017, 1022 (Mass. 1992) ("a provision that an agreement may not be amended orally but only by a written instrument does not necessarily bar oral modfication of the contract").

 

[DefenseRules]

I find it hard to believe that the Patriots said anything or made any promises other than the statement that was initially released.
It's easy for Chayut and his crew to say whatever they want. They can flat out lie and say that the Pats said this and that. Because they know that the Pats will not say anything publicly to either confirm or deny what they say.

 

[PatsFan37]

A further answer on no oral modification. Sorry -- it does not appear to be a silver bullet.

Assuming Mass. law applies, that state follows the common law rule that no-oral modification clauses may themselves be modified orally.

Cambridge Sav. Bank v. Boersner, 597 N.E.2d 1017, 1022 (Mass. 1992) ("a provision that an agreement may not be amended orally but only by a written instrument does not necessarily bar oral modfication of the contract").

Thanks, PFAZ. I asked for your thoughts and you filed a brief.

 

[lobster]

Brady today was very clear that he would love to have Branch back. If I were Branch I would tell the inexperienced Chayut to shove it and end the hold-out. If Branch is on the 53-man roster at the time of the Bills game he is guaranteed termination pay if he's cut by the Pat's - thus he receives his full salary.

What an easy decision to make!

 

[PatsFaninAZ]

Thanks, PFAZ. I asked for your thoughts and you filed a brief.

You'll note that my citation form was good too. The "Savings" to "Sav." is tricky. :0)

 

[brady2brown]

The theory in the arbitration will be that the patriots breached the covenant (and thus the contract) by not dealing fairly with Branch. Since the arbitrator has no authority to compel the Jets to accept the trade at this point in time, the damages would be the differences in the two contracts.

You are assuming that the Pats are required to accept an offer that another team seems fair but that the Pats don't. According to the PFT article, each team can offer the player what it thinks fair, and no other team can force it otherwise.

From the PFT article: Like most union contracts, the agreement between the NFL and the NFLPA contains a broad "Management Rights" clause. Section Article II, Section 3 of the CBA states: "The NFL Clubs maintain and reserve the right to manage and direct their operations in any manner whatsoever, except as specifically limited by the provisions of this Agreement."

It's Chinatown, for those that remember the movie.

This is an extremely bad example to support your position. I remember the movie, and I remember that the "It's Chinatown, Jake." comment referred to the working stiff who turned out to be powerless even though right, and that the establishment and greedy, sinful and overbearing people in authority won out totally. If you want to quote the movie, it has to be the NFLPA telling a beaten down Branch, "It's Chinatown, Deion. Go home."