That big article about a week ago on his grievances at
Yahoo Sports indicated that clauses that deviate from the standard CBA-approved language tend to get ignored in arbitration.
That article is not very good and I have some skepticism that this is actually true. That is to say that I don't believe that arbitrators simply reject any provisions that supplement the standard CBA player contract.
I think what the article is referring to is that
in the CBA itself there actually is a provision that does not allow deviations for forfeitures of "earned Salary." Accordingly, it's not that arbitrators are reluctant to enforce provisions in contracts that supplement the CBA. The issue is that the
CBA itself says that there are certain areas in which the contract is not permitted to deviate from the CBA.
I think the arbitrator's analysis goes something like this:
1. Is there language in this contract that allows the Patriots to either void the contract or to withhold payment? If the answer is yes, move on to question 2. If the answer is no, AB wins.
2. Is the language that the Patriots are relying on language that the CBA allowed the Patriots to put in the contract? If yes, Patriots win. If no, AB wins.
I posted a bit about question 2 in one of the prior threads that we had about legal issues and AB. The CBA is clear as mud on this. Article IV Section 9(a) of the CBA says very clearly that players and clubs cannot agree to provisions that would forfeit "earned Salary" for any reason outside specifically enumerated events which do not apply here. If that section is the only section that applies, AB will win.
Section 9(g), however, is entitled "voiding of guarantees" and it allows players and clubs freely to negotiate any conditions under which "unearned Salary" may be voided.
It is entirely not clear whether bonuses agreed to but not yet paid count as earned Salary or unearned Salary, and I think that will be the key question in the arbitration. The Yahoo article and much of the commentary that I have seen treat the issue as obvious for "signing" bonuses -- that is, that they are fully earned on signing. But the idea of a "signing" bonus is not CBA language. Maybe this issue is very clear and there is a practice that makes it obvious. But the Yahoo article certainly doesn't take on this complicated wrinkle and there seems to be an underlying failure to grapple with this issue.
Separate from all this there actually is a third question.
3. Do standard contract formation issue defenses apply to CBA contracts? If the answer to that is yes then the Patriots may very well have a contract formation defense based on nondisclosure depending on the language of the contract and the representations or material omissions that were made by AB or Rosenhaus, which is an issue none of the genius commentators have touched. Again, maybe it is clear that standard contract formation defenses are not permitted under the CBA or under some federal labor law common law. But the CBA at least appears to me to be silent on the matter.