Wednesday’s report from Don Van Natta Jr. and Kalyn Kahler of ESPN.com is chock full of impactful nuggets regarding the collusion ruling that the NFL and NFL Players Association hid from everyone for more than five months.
Here’s one, from the first sentence of the article’s final paragraph: “On Wednesday, a source familiar with the league office said the NFL notified the union of its intention to seek legal fees and costs in excess of $12 million.”
That’s a direct byproduct of the NFL Players Association’s decision to unpause the post-ruling litigation process, by exercising its right to appeal the decision.
As one source with knowledge of the situation tells PFT, the NFL previously offered to forego seeking reimbursement of attorneys’ fees and costs in exchange for the NFLPA waiving its appeal rights. That’s not an uncommon move on the tail end of a failed legal claim.
While most defendants in the American civil justice system can’t seek reimbursement of attorneys’ fees, basic litigation costs are payable — typically at the discretion of the presiding judge. So the defendant puts together a thumb-on-the-scale petition for costs, and the plaintiff decides to abandon the Hail Mary of an appeal to eliminate the chance of having to write a big check to the other side.
That could be the next step in this case. The NFLPA files the appeal to save face, given that the nonsensical concealment of partial success in the collusion case came to light. Then, once the NFL officially submits a request for repayment of more than $12 million in fees and costs, the NFLPA can do a cost-benefit analysis and decide to walk away from possibly losing the appeal and possibly losing $12 million.
Any such analysis should include a fair and objective assessment of the plain language of the Collective Bargaining Agreement. From Article 17, Section 15 of the CBA: “In any action brought for an alleged violation of Section 1 of this Article [i.e., a collusion claim], the System Arbitrator shall order the payment of reasonable attorneys’ fees and costs by any party found to have brought such an action or to have asserted a defense to such an action without any reasonable basis for asserting such a claim or defense. Otherwise, each party shall pay his or its own attorneys’ fees and costs.” (Emphasis added.)
How can anyone reasonably believe, based on the outcome of the case, that the NFLPA brought the case “without any reasonable basis” for doing so? The arbitrator found that the NFL’s Management Council, with the blessing of Commissioner Roger Goodell, urged teams to collude as to guarantees in player contracts. The league only won because the arbitrator accepted the predictable, self-serving denials of collusion — and ignored and/or explained away the circumstantial evidence of actual collusion.
Here’s what the player leaders of the NFLPA need to understand. An effort to swap their appeal rights for eliminating any chance of having to pay $12 million to the league would be more proof that current management is failing to properly embrace the partial win, and the valuable evidence, that the NFLPA has achieved.
Roll the dice before the three-judge panel. Damn the torpedoes as to big, bad Big Shield’s effort to squeeze $12 million in fees and costs from the union.
The case was brought with a reasonable basis for asserting the collusion claim. The NFL tried to get the teams to collude. If that’s not a reasonable basis to make the claim, what is?
Unless the arbitrator is stupid or corrupt, the request for repayment of fees will be quickly denied. And the appeal is a nothing-to-lose proposition.
Let it ride. Let it rip. And don’t accept a clunky bargain that would be worth MUCH more to the league than it would be to the union.
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