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Posted: Wednesday, 02 July 2014 12:34PM

Complete text of Burbank ruling on Jimmy Graham

On April 28, 2014 the National Football League Players Association (“NFLPA”) commenced this proceeding against the National Football League Management Council (“NFL”) and the New Orleans Saints (“Saints”) pursuant to the Collective Bargaining Agreement between the NFLPA and the NFL dated August 11, 2011 (“CBA”). On behalf of Jimmy Graham, whom the Saints designated as a Franchise Player for the 2014 League Year, the NFLPA contends that, for purposes of a Franchise Player tender under Article 10, Section 2(a)(i) of the CBA,  Mr. Graham must be deemed a wide receiver rather than, as the Saints and the NFL would have it, a tight end. The NFLPA seeks “a declaration that the correct tender for Mr. Graham is at the wide receiver position.” NFLPA Initiating Letter 1 (April 28, 2014).  Following discovery, the parties submitted pre-hearing briefs on June 12, 2014. A hearing was held on June 17 and 18 in New Orleans, and the parties submitted post-hearing briefs on June 27. Because of the potential impact of the resolution of this dispute on contract negotiations between Mr. Graham and the Saints,  I undertook to provide a decision by July 3, 2014. This opinion includes my findings of fact and conclusions of law. 

Mr. Graham played basketball for four years at the University of Miami and, during a fifth year, played backup tight end on the University of Miami football team. Tr. at 59-61 (Mr. Graham). Notwithstanding Mr. Graham’s limited football experience in college, having reviewed his workouts as a tight end at the 2010 NFL Combine and other scouting data, the Saints drafted him as a tight end in the third round of the 2010 draft. The Saints assessed Mr. Graham’s physical attributes and his traits or skills (or potential skills) according to criteria and metrics the Club uses in evaluating tight ends, which in some respects distinguished Mr. Graham from what the Saints look for in wide receivers, including his size. Loomis Tr. at   9-30, 34, 41. Tight ends typically have significantly more girth than wide receivers. Ex. 1 at 6-7; Ex. 42 at 3830-32; Tr. at 265-66, 297 (Mr. Polian); id. at 441 (Mr. Davis). 

The Saints have always listed Mr. Graham as a tight end on their roster, and he has always been part of the Saints’ tight end position group, which has its own pre-season conditioning test, coach, and position manual. Tr. at 67, 152, 164 (Mr. Graham); id. at 509-11 (Mr. Payton); Ex. 13. When Saints players meet or practice by position group, the tight ends do so separately from wide receivers,  and tight ends and wide receivers are separately evaluated by their respective position coaches at the end of each season. Tr. at 68 (Mr. Graham); Loomis Tr. at 30; Exs. 15-18.

Mr. Graham refers to himself as a tight end in social media that he controls (Twitter and Facebook), and his agents do so as well. Exs. 31, 32, 48 and 49. The NFL listed Mr. Graham as a tight end in the material distributed to guide Pro Bowl balloting for the 2013 League Year by players and coaches, and he was elected as a tight end for 2013, as he had been for 2011. Exs. 5, 30, 32, and 46. In addition, other post-season honors that Mr. Graham has received (e.g., 2013 Associated Press NFL All-Pro; 2013 Professional Football Writers of America All-NFL; 2013 Sporting News NFL All-Pro) have been as a tight end. Exs. 27-29.

As suggested by the honors Mr. Graham received for the 2013 League Year, his performance that year confirmed both his exceptional talent and his exceptional value to the Saints. In official statistics compiled by Elias Sports Bureau, among all NFL players Mr. Graham ranked thirteenth in receptions (first among roster tight ends), fifteenth in receiving yards (first among roster tight ends), fortieth in receiving average (sixth among roster tight ends), and first in receiving touchdowns. Ex. 30A. But the 2013 League Year was the last year of Mr. Graham’s four-year Rookie Contract, and at the expiration of that contract he would have become an Unrestricted Free Agent, “completely free to negotiate and sign a Player Contract with any club.” CBA, Art. 9, §1(a).  In order to prevent that from happening, the Saints designated him as a Franchise Player under Article 10 of the CBA and made him a Nonexclusive Franchise Tender under Article 10, Section 2(a)(i), which provides in pertinent part:

The Nonexclusive Franchise Tender shall be a one year NFL Player Contract for … the average of the five largest Prior Year Salaries for players at the position (within the categories set forth in Section 7(a) below) at which the Franchise Player participated in the most plays during the prior League Year… .

Article 10, Section 7(a) provides:

No later than February 1 of each League Year during the term of this Agreement, the NFL shall compile and disclose to the NFLPA a list of the five and ten largest Prior Year Salaries for players at the following positions which shall be utilized for calculating the average Prior Year Salaries of players at the positions of Franchise Players and Transition Players: Quarterback, Running Back, Wide Receiver, Tight End, Offensive Line, Defensive End, Interior Defensive Line, Linebacker, Cornerback, Safety, and Kicker/Punter.

This dispute is about money. The Saints’ tender to Mr. Graham was as a tight end. The pertinent average Prior Year Salary for tight ends is approximately $7 million, while for wide receivers it is approximately $12 million. Ex. 19. As the NFLPA observes, “Mr. Graham’s consideration of whether to accept the Franchise Player tender is affected by whether the tender is for a one-year contract of $7 million, or $12 million. Moreover, the amount of the tender has a major impact on any negotiations between Mr. Graham and the Saints for a long-term contract, which remains a possibility.” NFLPA Pre-Hearing Brief 2 (June 12, 2014); see supra note 2.

The resolution of this dispute depends on interpretation of the language in Article 10 that prescribes the means to determine the positions to be used for the Franchise Player tender. At which of the two potentially applicable positions set forth in Section 7(a) – tight end or wide receiver – did Mr. Graham “participate[ ] in the most plays” during the 2013 League Year? As always when interpreting the CBA, my duty is to seek the meaning intended by the contracting parties, starting with the language used, and ending there if that language unambiguously provides an answer to the question of interpretation at hand. 

Under New York law, the terms of a contract must be construed so as to give effect to the intent of the parties as indicated by the language of the contract. Slatt v. Slatt, 64 N.Y.2d 966, 967, 477 N.E.2d 1099, 488 N.Y.S.2d 645 (1985). "The objective in any question of the interpretation of a written contract, of course, is to determine 'what is the intention of the parties as derived from the language employed.'" Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 171-72, 305 N.E.2d 907, 350 N.Y.S.2d 895 (1973) (quoting 4 S. Williston, A Treatise on the Law of Contracts § 600, at 280 (3d ed. 1961)). The court should also give the words in a contract their plain and ordinary meaning unless context mandates a different interpretation. See Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 277 N.E.2d 641, mot. for rearg. den. 30 N.Y.2d 694 (1971).
Moreover, a court may not rewrite into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms. Slatt v. Slatt, 64 N.Y.2d 966, 967, 477 N.E.2d 1099, 488 N.Y.S.2d 645 (1985).
White v. NFL, 899 F. Supp. 410, 414, 415 (D.Minn. 1995). 

Here, however, there are a number of sources of ambiguity. 

The NFLPA argues that all of the facts recited above concerning Mr. Graham’s evaluation and treatment by the Saints as a tight end because of his physical attributes and skill set, the honors he has received, and other similar indicia are irrelevant because Section 2(a)(i) (incorporating the positions listed in Section 7(a)) prescribes an objective test that must be objectively applied. Thus, one source of ambiguity is whether the pertinent language of the CBA has a meaning that is impervious to a Franchise Player’s treatment by the Club, the NFL, other players and coaches in the NFL, and sportswriters, as well as to that player’s public self-description.

On the assumption that Section 2(a)(i) does prescribe a self-contained (autonomous) objective test, another source of ambiguity is how to determine objectively the position at which the Franchise Player participated in a play (and hence in the most plays). As noted by the NFLPA, the “CBA does not define the term ‘position’ in these provisions,” and the “term is not used elsewhere in the CBA in any defined manner.” NFLPA Post-Hearing Brief at 5. Both in briefing and through the evidence it presented at the hearing, the NFLPA advocates that the proper interpretation of Article 10 requires close adherence to the traditional conception of the tight end position – in particular alignment “tight” to an offensive lineman when the ball is snapped. See, e.g., NFLPA Post-Hearing Brief at 8. On that view, whenever a roster tight end is not so aligned at the moment the ball is snapped,  he is a “wide receiver.”  In other words, the NFLPA urges an interpretation of the relevant football positions that is both dichotomous and essentialist. 

The dichotomy cannot be escaped. Section 7(a), which Section 2(a)(i) incorporates by reference, affords only two choices for these purposes: Mr. Graham either participated in the most plays in the 2013 League Year as a tight end or as a wide receiver.  The NFLPA’s essentialist interpretation, however, is hardly inevitable. 

The dictionary definitions of “position” adduced by both parties seem to me not very helpful.  Thus, for example, in response to the NFL’s use of the Oxford English Dictionary’s definition of “position” with respect to sports, see NFL Pre-Hearing Brief at 5, the NFLPA invokes the on-line Oxford Dictionary (American English) definition of “position” as used in team games – “a set of functions considered as the responsibility of a particular player based on the location in which they (sic) play.” 
http://www.oxforddictionaries.com/us/definition/american_english/position?q=position; see NFLPA Post-Hearing Brief at 6. That definition does not tell us the location(s) in which tight ends play, although it does suggest that, to the extent that a player’s location when playing a position varies, so too may the player’s functions. Moreover, pace the NFLPA, the definition does not mean that “a player’s ‘position’ -- under the plain meaning of the term – has nothing to do with a player’s skill set or body type, but is focused on the player’s location on the field.” Id. Indeed, if the definition were thought to mean that, abundant evidence presented at the hearing concerning the tight end position, both traditionally and today, would confirm its uselessness. Even on the traditional interpretation of “tight end,” players were not aligned “tight” to an offensive tackle without regard to their skill set or body type.   

    Dictionary definitions of “tight end” that use as part of the definition the fact that a tight end “lines up close to the tackle” are not, on this record, much more helpful. Compare NFL Pre-Hearing Brief at 18 with NFLPA Post-Hearing Brief at 8. Thus, much as the NFLPA would like to equate “close” with “tight,” the words need not require the same degree of proximity.  Moreover, at the hearing there was testimony and other evidence introduced concerning the history and evolution of the position of tight end, evidence to which the NFLPA objected as irrelevant. If that objection is well taken -- if the “tight” in “tight end” must be interpreted strictly according to a traditional conception -- the same interpretative approach surely must apply to the “wide” in “wide receiver.” In that regard, when forming his opinions about Mr. Graham’s play participations during the 2013 League Year, the NFLPA’s expert witness included within his “wide receiver” classifications for these purposes plays at what he described as “two different positions[:] [a] true wide receiver and a slot wide receiver.” Tr. at 371 (Mr. Davis). See NFLPA Post-Hearing Brief at 13.   

To insist that a “tight end” be aligned “tight” to an offensive lineman and that a “wide receiver” be a “wide-out” – one of the four classifications used by the NFLPA’s expert (NFLPA Post-Hearing Brief at 13) -- or that he be aligned “wide” -- one of the four locations in a chart presented by the NFLPA to which the NFL stipulated (id. at 8) -- would leave Mr. Graham in a categorical no man’s land for the majority of plays (from the snap) during the 2013 League Year for purposes of the Franchise Player tender. The same stipulated evidence shows that for a majority of plays he was neither “tight” nor “wide” in the traditional sense, but somewhere in between.  To say, as does the NFLPA, that players in the slot are traditionally grouped with wide receivers, NFLPA Post-Hearing Brief at 9-10, 18, raises the question of the purposes for which they are so grouped and whether the same grouping is appropriate for purposes of Article 10 of the CBA. In any event, it is to depart the language of Sections 2(a)(i) and 7(a). 

The NFLPA reminds us that the CBA prohibits use of or reference to parol evidence “with regard to the interpretation of” Article 10. CBA, Article 70, §2; see NFLPA Post-Hearing Brief at 2. The prohibition seeks to prevent “recourse to any extrinsic evidence regarding the parties’ intent.” White v. NFL, 972 F. Supp. 1230, 1236 (D. Minn. 1997). If the prohibition extends to what the incorporated terms “tight end” and “wide receiver” mean for purposes of Section 2(a)(i), both sides in this dispute have committed numerous violations.  If, on the other hand, one makes the reasonable assumption that the contracting parties sought to use the terms as they were understood in 2011, when the current CBA became effective, extrinsic evidence of the sort introduced by both parties is relevant. As the NFLPA’s assimilation of slot receivers to “wide receivers” suggests, it is not reasonable to accord either “tight end” or “wide receiver” a “plain and obvious meaning” it no longer has in the relevant interpretative community. See White v. NFL, 149 F. Supp.2d 858, 861 (D. Minn. 2001); id. at 862 (citing 3Com Corp. v. Banco de Brasil, S.A., 2 F.Supp.2d 452, 457 (S.D.N.Y.1998) (“where a contract is silent on the point directly in controversy, the court must give the contract in dispute a fair and reasonable interpretation consistent with its purposes”)).   

I agree with the NFLPA that Mr. Graham’s roster position as a tight end is not decisive for purposes of Section 2(a)(i). See White v. NFL, slip op. at 5 (Nov. 16, 2006) (Burbank) (“Ashley Lelie”) (“If the parties had intended to restrict ‘salary escalators’ to contract provisions that directly escalate Paragraph 5 Salary, they could easily have so provided… .”). That is not, however, what I understand Saints personnel or the NFL’s/Saints’ expert witness to have claimed by asserting that Graham participated in every play during the 2013 League Year as a tight end. Those assertions were, rather, predicated on Mr. Graham’s physical attributes and skill set, which caused him to be drafted as a tight end, on his conditioning, training and education as a Saints tight end, on the plays that were crafted for him as a tight end in light of his physical attributes and skill set, and on the opportunities for seizing strategic advantage that defensive reactions to Mr. Graham’s alignment on the field, in light of his physical attributes and skill set, elicited. Many of those reactions were different from those typically elicited by players with the physical attributes and skill set associated with wide receivers (including those aligned at the snap in the slot).  Loomis Tr. at 17-23, 28-34, 41-42; Tr. at 232-33, 265-70, 289-91, 303-04 (Mr. Polian); id. at 585-86, 591-94, 656 (Mr. Payton); cf. id. at 653-54 (Mr. Payton) (describing player aligned outside as a fullback not just because he was on the roster as a fullback but because of his physical attributes, “all of his training” and “[a]ll of his education”). See also id. at 496-97 (Mr. Davis).

All of that said, to accept Coach Payton’s, Mr. Loomis’, or Mr. Polian’s views in this respect might reasonably be deemed functionally equivalent to reliance on Mr. Graham’s roster position, at least by those who do not employ the Saints’ criteria and metrics in selecting and evaluating players, follow their practices regarding position groups, or deploy a similarly complex offense. Accepting their views would be most troublesome for plays during which, at the snap, Mr. Graham was in a wide-out alignment.  Although dictionary definitions quickly exhaust their value in this case, to regard a player aligned outside the numbers at the snap as “line[d] up close to the tackle” would stretch “close” to the breaking point. Since, however, such alignments did not comprise even a plurality of  Mr. Graham’s plays during the 2013 League Year, I need not decide whether Mr. Graham was a tight end for purposes of Article 10, Section 2(a)(i) when he was in a wide-out alignment. Stipulated evidence establishes that, at the snap, Mr. Graham was aligned (in relationship to the nearest offensive lineman) in the slot for 51.7% of the plays, NFLPA Post-Hearing Brief at 8, and within four yards for 54.6% of the plays. NFL Post-Hearing Brief at 22; Stipulation at Ex. A. I will confine my analysis to those plays. 

In distinguishing situations in which it is legal or illegal for a “flexed tight end” to block an opposing defender below the waist, the Official Rules and Casebook of the NFL specifically contemplates that a tight end may be aligned “with his inside foot 2 ½ yards outside the right tackle’s outside foot.” Ex. 9, at 3718. The NFLPA argues that this evidence supports its position “because the distances referenced for a tight end, even in the flexed location,  are only between 1 ½ yards and 2 ½ yards away from the tackle, which is essentially the same distance that the NFLPA and Mr. Graham used as a cut-off point  -- arm’s length from the nearest lineman.” NFLPA Post-Hearing Brief at 9. The argument is puzzling. First, if, as counsel for the NFLPA asserted at the hearing, “tight” in “tight end” is “actually a term of art within the NFL which means what we said which is adjacent to the player next to you,” Tr. at 16, two and one-half yards does not qualify. See Tr. at 22 (“Adjacent is closer than arm’s length.”) (Mr. Feher). Second, two and one-half yards also does not qualify for classification as “arm’s length,” even if that term actually refers to two arms’ length or two yards, as it apparently does for purposes of Exhibit A to the parties’ stipulation. NFL Post-Hearing Brief at 5; Tr. at 21 (“arm’s length is two persons who can reach out and touch each other”) (Mr. Feher); id. at 21 (“Arm’s length is about three feet. So arm’s length is two times three or two yards”) (Mr. Feher).  

Central to the NFLPA’s contention that Mr. Graham was not participating in plays as a tight end when he was aligned more than two yards from the nearest lineman, as also to Mr. Graham’s testimony, is the argument that any greater distance eliminates the potential of the player to serve one or more of the three roles that a tight end may perform on a given play: run-blocking, pass-protecting, and route-running. See, e.g., NFLPA Post-Hearing Brief at 6 (“If a player is not ‘tight’ to another player, then he loses the main attribute of the position.”); Tr. at 76 (Mr. Graham) (“but the reason they really put you there [“tight”] is so you also have the ability to pass protect which is another form of blocking”). 

There is nothing in any definition of a “tight end” I have seen that confines his blocking universe to defensive linemen.  In any event, viewing video of a play, Mr. Graham acknowledged that he blocked a defensive end from a split of between two and four yards. Tr. at 139-40 (Mr. Graham). See also Tr. at 273-74, 355 (Mr. Polian). Again, the NFL Rulebook contemplates a tight end blocking a defensive player from an alignment two and one-half yards off tackle. Moreover, the evidence supports the finding that even a player split five yards from the nearest offensive lineman can be an effective down blocker, at least if, in response to the dilemma caused by the split, a linebacker moves half way toward that player. Tr. at 219-20 (Mr. Polian).  Finally, I reject the notion that it is not “possible for a player to play the position of tight end if there’s no possibility of him pass protecting for the quarterback.” Tr. at 643 (Mr. Feher). As Coach Payton observed, “[t]he idea that the tight end potentially on any play could run-block, pass-block, or go out for a pattern is mythical.” Tr. at 643 (Mr. Payton).  

The evidence supports findings that (1) since the early 1960s, Clubs have deployed tight ends in multiple locations, Ex. 33; Ex. 43, at 404-08, (2) during the same period many tight ends have often lined up in a flexed position more than two yards from the offensive tackle, Tr. 215-30 (Mr. Polian); Ex. 24, at 3441; Ex. 33; Ex. 42, at 3864-65, and (3) tight ends often line up in the slot. Tr. 271 (Mr. Polian); id. at 496-97 (Mr. Davis). 

 The NFLPA argues that evidence concerning the alignment of tight ends of past years, such as Mike Ditka, “does not mean that they were always considered to be participating in a play as a tight end in these plays,” noting also that the Franchise Player tender provisions only went into effect in 1993. NFLPA Post-Hearing Brief at 22. In combination with evidence that some coaches for years have regarded such alignments as part of their repertory in deploying tight ends, Exs. 24, 42, Tr. 514-16, 533-34, 548-49 (Mr. Payton), however, this evidence speaks to the meaning of the term “tight end” in the relevant interpretative community.  That meaning may not be “plain and obvious,” but no more than “wide receiver” is “tight end” reasonably deemed a term with an invariant meaning fixed in the past. 

The evidence also supports findings that, like tight ends, wide receivers and running backs often line up in the slot, Tr. at 358 (Mr. Polian); id. at 496-97 (Mr. Davis); Stipulation at Ex. C, and that the defense employed against any player so aligned turns on the player’s position, not his alignment, because of the physical attributes and skill sets of the players in those positions. Tr. at 449-50, 455, 497-98 (Mr. Davis). Cf. Tr. at 553 (Mr. Payton) (“When our receivers are lined up widest in formations, they are never covered by safeties or linebackers ever.”); id. 572 (“Never ever ever ever ever does a linebacker match up with a wide receiver ever.”).

In sum, I conclude that Mr. Graham was at the position of tight end for purposes of Article 10, Section 2(a)(i) when, at the snap, he was aligned adjacent to or “arm’s-length” from the nearest offensive lineman and also when he was aligned in the slot, at least if such alignment brought him within four yards of such lineman. Since Mr. Graham was so aligned for a majority of plays during the 2013 League Year, the NFLPA’s request for “a declaration that the correct tender for Mr. Graham is at the wide receiver position” is denied.                     

                                  s/Stephen B. Burbank
                            Stephen B. Burbank
                                 System Arbitrator
                                        July 2, 2014

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