Andrew Brandt has a very smart and balanced article on the salary cap penalties placed on the Redskins and Cowboys. One part of it sums up what I believe is one of two key factors that will determine whether or not Dallas and Washington will prevail in their case in front of the arbitrator.
- The Cowboys and Redskins will argue that there were no written warnings against what they did.
- The NFL will argue that there were repeated and strident verbal warnings as far back as three years prior to the uncapped year.
The key question is if the verbal warnings have any validity. In the business world, documented warnings are the norm for obvious reasons. Verbal warnings aren’t worth the paper they’re written on. At least that is what most of us understand.
It gets even sticker when the verbal warnings contradict what is written in a document and could be evidence of collusion. The CBA in force at the time was quite clear that there were no limits on spending during the 2010 league year. Can verbal warnings supersede a written, legal document even if they did start coming in 2007, as Brandt says they did?
Approaching this as a layman the answer seems to be obvious. However, what is logical and obvious may not necessarily be the law.
What may override all of that is the second question here. Did the Redskins and Cowboys give the NFL Management Council and a committee of the NFLPA the authority to do what they did?
Somewhere in the thick legal fog of the CBA or an accompanying document or somewhere in the bylaws, there could be a provision that allows the cap to be adjusted at any time for any reason or for no reason at all.
It looks like arbitrator Stephen Burbank will first examine the authority of the Management Council and NFLPA to levy salary cap penalties. If they have the authority to do so for any reason, case closed, the league wins. If they have no authority to do so, case closed, the Redskins and Cowboys win.
Should the CBA or bylaws say that cap space can be taken away for cause, they then would proceed to the first question here–do verbal warnings have any validity at all? If they do, can they override the written language in the CBA, which said that the year was uncapped meaning no restrictions on spending?
Again, although the answer seems obvious to almost everyone, some at the NFL believe that the verbal warnings carry considerable weight. Arbitrator Burbank will decide if they do or don’t.