Timing is everything in the NFL, from rushing the passer to running a route to setting up a block. Timing is also at the heart of the NFLPA's collusion complaint against the league filed on Wednesday morning, and the outcome of the case could hinge on a question of timing as well as the language from prior agreements between the league and the union.
The timeline of the NFLPA's case starts with what it claims was a revelation of a "secret" $123 million salary cap in place during the uncapped 2010 NFL season. The Dallas Cowboys and the Washington Redskins appealed a total penalty assessed by the NFL of $46 million in cap space stripped from them, due to excessive player spending in 2010. They lost that appeal on Tuesday, on the basis that the NFL can take measures to ensure competitive balance. During the course of that appeal, the union claims it learned of the alleged collusion during the 2010 season.
The NFLPA filed suit the day after those teams lost their appeal in front of Special Master Stephen Burbank. Timing in filing their case is pure coincidence, according to the union's lead attorneys Jeffrey Kessler and David Barrett, who spoke on a Wednesday afternoon conference call.
On the conference call with members of the press, questions over an agreement between the NFLPA and the NFL calling for the reallocation of 2012 cap dollars as a result of the 2010 actions taken by the Cowboys and Redskins continued to surface.
The cap reallocation agreement was reached on March 11, 2012. Why did an agreement covering the reallocation of cap dollars via penalties for spending that took place during the uncapped year not raise a red flag at the time with the union?
The Players Association said that the league gave them little choice. If they did not agree, the 2012 salary cap would have been reduced. According to Jeffrey Kessler on the Wednesday afternoon call, the NFL maintained its stance that the matter centered on those teams taking advantage of the situation to gain unfair competitive advantage. The NFLPA also claims that they had only a small time window to sign the agreement, describing it as a "take it or leave it" proposition.
Asked again whether the issue raised any suspicion, Kessler said, "we trusted the league at its word."
The NFL claims that the NFLPA has no basis for the suit under a stipulation of dismissal reached on August 4, 2011, following the conclusion of last year's labor battle. The league says that the agreement throws out all claims, including anything related to collusion in the uncapped year.
Citing a subsequent order from Minnesota Federal District Court Judge David Doty, the NFLPA says that their claim of collusion is not covered by that because it was not a pending claim. In fact, the union says, they could not have made such a claim because the matter of collusion in 2010 was only discovered in the process of the Dallas and Washington appeal.
The NFLPA collusion claim was filed in the Minnesota District Court because they claim it stems from the Reggie White Settlement, which was resolved and overseen in that jurisdiction.
Kessler said on the call that the NFLPA has not determined the amount of lost salary dollars resulting from the league's "secret" cap in place during the 2010 season. They are currently asking for up to $3 billion in damages.
If the case survives challenges on the basis of the stipulation of dismissal, the NFLPA sounded confident in their ability to prove collusion.
"The evidence here will be more compelling and direct than it was in the MLB case," Kessler said, referring to a series of collusion cases lost by Major League Baseball in the 1980s.
Much of that evidence, the union says, comes from statements made in the media by owners, executives and others affiliated with the NFL. The initial press release from the NFLPA directly cited comments made by New York Giants owner John Mara. Additional evidence will be revealed in the discovery phase, said Kessler, including how the NFL arrived at their alleged $123 million cap during the uncapped 2010 season.
The timing of the case will slow at this point, as attorneys from the league and the union attempt to unwind for the court whether or not the case can proceed on the basis of the dismissal stipulation. If it passes that hurdle and gets to the discovery phase, a pitched battle between both sides (in the media as well as in court) should rival the back and forth fans experienced during last year's lockout. This time, there will at least be football to distract them.