What Might We Expect in Branch Arbitration

[BigT815]

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!

Hi Guys, First time poster here. Just found out about this site off of HFboards.com (hockey's futures). Quick thought on this, Brady is going to say the right things....it's what he does. He isn't going to bad mouth Deion in the chance that he might return to his team. You will also notice he has never come out and say the Pats should pay him. I do agree thought that he should be on the field. This legal crap is just going to leave a bad taste in the mouth of Pats fans.

With or without Deion, the season will start for the Pats on Sunday. It would be nice to see him line up, but it probably won't happen. So the team will have to go on with out him.

 

[PatsFaninAZ]

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."

I'm not the first by any means to compare arbitration to Chinatown. I wish I could take credit, but I can't. I think the analogy is perfect. You say it yourself -- the line from the movie is about a guy who is right but powerless to do anything about it. Occassionally, unfortunately, such is arbitration.

I actually wasn't trying to support any position. I don't have a position, other than that Branch should lose and would lose in court. My only position is that arbitration is not court, and the breach of the covenant of good faith and fair dealing argument actually gives Kessler something to fight about rather than getting laughed out of the room.

But, for the record, I neither think the arbitration claim has merit nor that it should win. I think it is baloney. But it's Chinatown.

 

[SBPatsFan]

From Section 2 of Article 2 (Scope of the Agreement: Arbitration)
"If the arbitrator finds that either party did not engage in good faith negotiations, or that the proposed change would violate or render meaningless any provision of this Agreement, he may enter an appropriate order, including to cease and desist from implementing or continuing the practice or proposal in question; provided, however, that the arbitrator may not compel either party to this Agreement to agree to anything or require the making of a concession by either party in negotiations."

I'm curious how the people who have been posting in this thread would interpret the above from the CBA. It seems to me to place a definitive limit on the scope of what can be awarded in arbitration and might be material in this case.

 

[PatsFaninAZ]

From Section 2 of Article 2 (Scope of the Agreement: Arbitration)
"If the arbitrator finds that either party did not engage in good faith negotiations, or that the proposed change would violate or render meaningless any provision of this Agreement, he may enter an appropriate order, including to cease and desist from implementing or continuing the practice or proposal in question; provided, however, that the arbitrator may not compel either party to this Agreement to agree to anything or require the making of a concession by either party in negotiations."

I'm curious how the people who have been posting in this thread would interpret the above from the CBA. It seems to me to place a definitive limit on the scope of what can be awarded in arbitration and might be material in this case.

I believe that provision is about the CBA itself. In other words, it calls for arbitration of any dispute between the NFL and the NFLPA about the CBA itself, including any dispute about bad faith during the negotiation of the CBA. It wouldn't be applicable here.

 

[arrellbee]

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 clearly said in my initial return comments that everything you stated in your original post makes sense.

This statement was not included in your original post, which was the whole point of my initial return comments to you.

You seem to insist that there is only an ORAL agreement. The press release issued by the Pats IS a WRITTEN agreement in principle. You can't know if there was additional WRITTEN content between the Patriots and Chayut or NOT. The Patriots opened the door to the actuality that they agreed to some kind of provisions in addition to the terms of the original contract. What their obligations might be, IF ANY, is exactly the subject of the first arbitration.

I agree that it is highly unlikely that any aspects of what the Patriots may have told Chayut that was in the form of 'oral' 'agreements' will have any weight in arbitration with respect to this kind of contract. (PatsFanInAz gave us this opinion in one of his posts)

I think it is almost a certainty that the first arbitration will happen. There is ample precedence that cases like McCardell and Tampa Bay and also McNair and Tennesee which were non-injury grievances did go through a complete arbitration process. McCardell's in particular was a hold-out case.

On the other hand, I can't see any grounds for even conducting the second arbitration with regard to whether the Patriots were negotiating an extension 'in good faith'. There is NO provision in the CBA or standard contract that places any obligation in the slightest on a team to conduct new contract discussions before the end of an existing contract much less any obligation to reach some new contract. That grievance is ridiculous.

I will be looking forward with interest to see whether the second arbitration is even conducted. If it is, then I think it says that the teams or players can cause an arbitration to occur even when they are no apparent grounds to do so.

 

[SBPatsFan]

I believe that provision is about the CBA itself. In other words, it calls for arbitration of any dispute between the NFL and the NFLPA about the CBA itself, including any dispute about bad faith during the negotiation of the CBA. It wouldn't be applicable here.

Thanks PatsFaninAz.

 

[arrellbee]

Originally Posted by SBPatsFan
From Section 2 of Article 2 (Scope of the Agreement: Arbitration)
"If the arbitrator finds that either party did not engage in good faith negotiations, or that the proposed change would violate or render meaningless any provision of this Agreement, he may enter an appropriate order, including to cease and desist from implementing or continuing the practice or proposal in question; provided, however, that the arbitrator may not compel either party to this Agreement to agree to anything or require the making of a concession by either party in negotiations."

I'm curious how the people who have been posting in this thread would interpret the above from the CBA. It seems to me to place a definitive limit on the scope of what can be awarded in arbitration and might be material in this case.

I believe that provision is about the CBA itself. In other words, it calls for arbitration of any dispute between the NFL and the NFLPA about the CBA itself, including any dispute about bad faith during the negotiation of the CBA. It wouldn't be applicable here.

I think your observation is completely correct. Section 2 is in the context of Section 1:

if any proposed change in the NFL Constitution and Bylaws during the term of this Agreement could significantly affect the terms and conditions of employment of NFL players, then the Management Council will give the NFLPA notice of and negotiate the proposed change in good faith.

 

[Sundayjack]

From Section 2 of Article 2 (Scope of the Agreement: Arbitration)
"If the arbitrator finds that either party did not engage in good faith negotiations, or that the proposed change would violate or render meaningless any provision of this Agreement, he may enter an appropriate order, including to cease and desist from implementing or continuing the practice or proposal in question; provided, however, that the arbitrator may not compel either party to this Agreement to agree to anything or require the making of a concession by either party in negotiations."

I'm curious how the people who have been posting in this thread would interpret the above from the CBA. It seems to me to place a definitive limit on the scope of what can be awarded in arbitration and might be material in this case.

Hey, great find! I think that speaks to the question that I asked on Page One of this thread - if the contractual part of the grievance is resolved, and only the "bad faith" part remains, what's the remedy? Seems clear that the only remedy left remaining would reopening the one-week trade window. I mean, if there's no contract terms at issue anymore, what the hell else could it be?

My earlier question:

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.