Today the NFL announced that System Arbitrator Stephen Burbank "dismissed" the challenge brought by the Redskins and Cowboys to the salary cap penalties imposed on the teams for their conduct in 2010. The word "dismissed" suggests that Burbank agreed with the NFL that the teams did not have the authority to challenge the penalties in the manner that they did because the NFLPA signed on to the penalties.
But this may not be the end. Perhaps the method the teams used to bring their challenge was the same method that a player or the NFLPA might use to appeal some financial decision by the league, and so the arbitrator found that door closed to the teams because of the NFLPA's consent to the penalties.
This would leave three possible avenues open, as I see it:
- Appeal the arbitrator's decision to the three-person Appeals Panel, per the CBA rules, and argue why the decision was wrong - this may kick the can down the road a bit, but seems unlikely to result in a favorable opinion unless Burbank made some grievous error in interpreting the CBA
- File suit in federal court, alleging anti-competitive collusion by the other owners and the NFL - this is the nuclear option
- Challenge the penalties through a different vehicle within the CBA. Though I don't know exactly how the current petition was framed, one separate option appears to be the one I outlined in an earlier Hogs Haven post, whereby the team deliberately structures a player contract to exceed its remaining 2012 penalized cap space. You would do this with a player who is already firmly in place, and for whom you'd be happy to live out the test-case contract. I'm thinking of a multi-year extension for Fred Davis or Brian Orakpo that places a large cap hit on 2012. If the contract is disallowed, no harm done, other than the fact that the player will want that kind of contract next year and the team has basically already agreed to it. But by submitting a contract that exceeds the team's cap because of the 18M penalty, the Commish will have to reject it, and thereby give the team a new cause of action before the arbitrator. It's possible this won't make any difference because the arbitrator has already ruled that the penalty is kosher because of the NFLPA's consent, but if his ruling today was based on a procedural issue - basically saying you can't bring this kind of claim through Procedure A because Procedure A is for NFLPA-type challenges to penalties, but that doesn't foreclose you from bringing a claim through Procedure B which isn't designed for NFLPA-type challenges to penalties - then the team should explore how to bring a claim under a different procedure.