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.