Don’t Franchise Me! The NFL’s Emerging Dilemma

I. Introduction

This past National Football League ("NFL") off-season, four Pro
Bowl-caliber defenders were eligible for free agency in some form. [1] 
Two received contracts that guaranteed approximately $20 million each,
while the other two agreed to contracts that guaranteed less than half
this amount. [2]  The four defenders were linebackers – Adalius Thomas
and Lance Briggs and corner backs – Nate Clements and Asante Samuel.
[3] All of them hoped to sign lucrative contracts with a significant
portion of that contract guaranteed.  While Clements and Thomas cashed
in, Briggs and Samuel were not as lucky – they were designated with the
franchise tag. [4]  Accordingly, Samuel and Briggs threatened to
hold-out until deep into the season to voice their disgust with the
stigma of franchise designation. [5]  By holding out, a player refuses
to take the field until his contract situation is remedied. [6]  In
light of this summer's high profile protests, the current system of
franchise designation is crying out for reform.

II.  Background

The National Football League introduced free agency and the
franchise tag designation in 1993. [7]  The players association agreed
to the franchise designation simply because no form of free agency
existed prior to the first collective bargaining agreement. [8]  Under
the NFL's collective bargaining agreement, the franchise tag allows a
team to sign one of its free agent's, restricted or unrestricted, for a
salary equal to the average of the top five players at the respective
position. [9]  This process can be repeated. [10]  The player can avoid
the franchise designation if another team chooses to part with two
first-round draft choices as compensation for signing this player away
from his current team. [11]

The franchise tag was initially thought to benefit owners and
players alike. [12]  The owner is virtually guaranteed that he can
retain an integral player for at least one additional season because
most owners will not forfeit two first-round picks for a player. [13]
The player is guaranteed a large guaranteed salary for a season. [14]
The underlying problem lies within the nature of NFL contracts and the
lack of freedom associated with the franchise tag.

III.  The Defenders Case Study

Unlike the Major League Baseball and the National Basketball
Association leagues, salaries in the NFL are not guaranteed. [15]  The
likelihood of a career-ending injury is also higher in professional
football based on the physical nature of the game. [16]  Under the
current system, players seek pay days that generate guaranteed money,
in the case that a career-ending injury is sustained.  Adalius Thomas
successfully avoided being franchised by the Baltimore Ravens and
signed a lucrative contract worth a guaranteed $20 million dollars over
the first two seasons with the New England Patriots. [17]  Briggs and
Samuel were not as fortunate.  The Chicago Bears designated Briggs as
their franchise player, and he will only earn $7.2 million dollars this
season. [18]  Samuel was designated a franchise player by the New
England Patriots, and will earn nearly $8 million. [19]  Fellow free
agent defensive back Nate Clements avoided franchise tag limbo and
signed a contract that includes a guaranteed $22 million. [20]  The
latter have no say in whether or not they will be franchised.  With
disparate results and talent for equally talented players, something is
wrong with this picture.

IV. Options Open to a Franchised Player

When a player is franchised, he is left virtually without recourse.
If a player is unwillingly franchised, he is bound by the collective
bargaining agreement to sign the offer sheet or hope that another team
is willing to exchange two first-round draft picks in exchange for the
franchise-designated player. [21]  Two
first-round picks are valuable commodities that allow a team to infuse
its roster with young and promising talent.  This cost has been deemed
too high by most owners. [22]

The current options available to players who would like to avoid the
franchise designation are neither financially desirable nor generally
feasible.  The player can either (1) hold-out or (2) find a team to
relinquish two first-round draft picks to compensate the current team
for forfeiting its rights to the player. [23]  Briggs and Samuel, upon
being tagged and seeing the guaranteed dollars thrown at their
contemporaries, threatened prolonged hold-outs. [24]

The threat of a hold-out does not carry much weight.  A holdout
would only serve to (1)
drastically reduce the player's payday, (2) portray the player as
selfish, potentially alienating him from teammates, and (3) depict the
player as a
malcontent in the eyes of potential team suitors.  The players are
unhappy with the status quo, but the owners
will not relinquish the franchise tag because it protects them from
losing their best players.  While this may seem unjust, courts have
also upheld the franchise tag as a valid practice. [25]  Linebacker
Wilbur Marshall challenged the validity by filing memorandum in federal
court, where the designation was deemed fair and reasonable – the court
stated that market conditions still favored players. [26]  Seeing that
the franchise tag is a valid practice, the players will have to seek a
forum other than the courts to address their issue with the
designation. [27]

V. Conclusion

A possible solution to this problem lies not in eliminating the
franchise tag designation, but in restructuring it.  The franchise tag
allows for a player to be designated as a franchise player for up to
three seasons. [28]  This discourages a team from signing a player to a
long-term contract, since owners can always fall back on franchising
the player the following season.  This happened to Seattle Seahawks
tackle, Walter Jones, who had the tag imposed on him no less than three
times. [29]  In this restructured solution, the franchise tag could
potentially be limited to one season.  This would encourage owners to
either sign a player to a long-term deal, or let him walk following one
year of franchise designation.  This solution would benefit both
players and teams.  The owner would have the player for at least one
season, the player would receive both a high salary, and the
opportunity to test the open market the following year.

The problem associated with the lack of a player's freedom when
franchised can also be alleviated through lowering the cost to sign
them.  If the cost of signing an otherwise franchised player was
lowered, more teams would be willing to sign a franchised player.
Currently, a team must forfeit two first-round draft picks in exchange
for the franchise player. [30]  This price is so steep, it virtually
guarantees no owner will decide to utilize this course of action. [31]
Rather than two first round draft picks as compensation for losing the
franchised player, the cost could be reduced to perhaps a second-round
and fourth-round pick, or two second-round picks.  This would encourage
owners to sign a player to a long-term deal and it would encourage
other owners to make bona fide offers to franchised players.

The collective bargaining agreement was renewed in 2006. [32]  Will
owners and the players association resolve this issue?  The picture
will become clearer in 2011, when the agreement expires. [33]

Sources

1 Len Pasquarelli, Players Wonder About the Free Part of Free Agency, ESPN, Apr. 6, 2007 available at http://sports.espn.go.com/nfl/columns/story?columnist=pasquarelli_len&id=2828276 last visited Oct. 11, 2007 (hereinafter, Pasquarelli, Players Wonder).

2 Id.

3 Id.

4 Id.

5 Id.

6 Id.

7 Mike Tanier, Two Deep Zone:  The First Franchise Player, FOOTBALL OUTSIDERS, Feb. 19, 2007 available at http://www.footballoutsiders.com/2007/02/19/ramblings/too-deep-zone/4967/ last visited Oct. 11, 2007 (hereinafter Tanier, Two Deep Zone).

8 Id.

9 Id.

10 Pasquarelli, Players Wonder, supra note 1.

11 Posting of Albert Breer to The Point After, http://www.bostonherald.com/blogs/sports/patriots/?p=959 (Feb. 8, 2007 at 12:56 p.m. EST) (hereinafter Breer, Point After)

12 Id.

13 Id.

14 Id.

15 Tanier, Two Deep Zone, supra note 7.

16 Al Tompkins, Friday Edition, the Inside Story of NFL Injuries, Poynter, Jan. 13, 2005 available at http://www.poynter.org/column.asp?id=2&aid=76955 last visited Oct. 21, 2007.

17 Jeffri Chadiha, Thomas Brings Remarkable Versatility, ESPN, Jul. 31, 2007 available at http://sports.espn.go.com/nfl/trainingcamp07/columns/story?columnist=chadiha_jeffri&id=2955538 last visited Oct. 12, 2007.

18 Posting of David Haugh to Chicago Sports, http://blogs.chicagosports.chicagotribune.com/huddleup/2007/10/briggs-may-be-b.html (Oct. 10, 2007 at 1:38 p.m. CST).

19 Breer, Point After, supra note 11.

20 Pasquarelli, Players Wonder, supra note 1.

21 Breer, Point After, supra note 11.

22 Id.

23 Id.

24 Mike Mulligan, Briggs Plans 10-Game Holdout to Combat Franchise Tag, CHI. SUN-TIMES, Mar. 27, 2007, available at http://www.suntimes.com/sports/football/bears/314384,CST-SPT-bear27.article last visited Oct. 12, 2007 (hereinafter Mulligan, Briggs).

25 Tanier, Two Deep Zone, supra note 7.

26 Id.

27 Id.

28 Mulligan, Briggs, supra note 24.

29 Pasquarelli, Players Wonder, supra note 1.

30 Breer, Point After, supra note 11.

31 Id.

32 Mulligan Briggs, supra note 24.

33 Jarrett Bell, NFL Owners Accept Player Union Proposal 30-2 Vote, USA Today Mar. 9, 2006 available at http://www.usatoday.com/sports/football/nfl/2006-03-08-labor_x.htm, last visited Oct. 22, 2007.