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The 5 O'Clock Club: Can the non-exclusive tag really be used on Kirk Cousins in 2018?

It’s 5 o’clock somewhere…

LANDOVER, MD - SEPTEMBER 25: Washington Redskins fans hold up a sign refering to quarterback Kirk Cousins during a game against the New York Giants at FedExField on September 25, 2014 in Landover, Maryland. (Photo by Rob Carr/Getty Images) Getty Images North America

The 5 o’clock club aims to provide a forum for reader-driven discussion at a time of day when there isn’t much NFL news being published. Feel free to introduce topics that interest you in the comments below.

Ideally, we wouldn’t be talking about Kirk Cousins’ contract right now. That kind of talk should be reserved for the off-season, since nothing can be done as long as the Redskins are still playing football. But on Thanksgiving, with the Redskins hosting the Giants, Ian Rappaport published a rumor about the Redskins front office needing to evaluate Kirk for the remainder of the season before deciding what to do about his contract. That set off a flurry of articles and commentary.

NBC Sports wrote an article last week that said that the Redskins should use the non-exclusive franchise tag on Kirk Cousins this coming off-season. This is an argument that I’ve made myself in the past. I’ve pasted part of the article below to explain the concept in brief.

If Redskins can't get long-term deal done with Kirk Cousins, one option makes most sense

Assuming a deal doesn’t get done by the late February deadline to use a tag, Washington must go with the non-exclusive franchise option.

By using the non-exclusive tag, Cousins can request permission to negotiate with other NFL teams. Should the Redskins grant permission, and a deal get reached between the QB and another franchise, then the two sides must work out compensation.

That compensation discussion begins with two first round picks. Losing a franchise passer like Cousins would never be easy, but getting a sizable package of draft picks in return would lessen the blow.

In the negotiation dance that is going on between the Redskins and Cousins, the non-exclusive franchise tag seems to be the only thing that makes sense for a 3rd franchise tag. It is the only one of the three franchise tag options that gives the Redskins any amount of leverage — or at least the chance to get something meaningful in return if they lose their starting quarterback to free agency.

Before I go any further, let me quickly re-cap the options that the Redskins have available to them in the 2018 offseason.

1. The Redskins could simply let Kirk walk in free agency

This is the least likely option, as the Redskins would probably get nothing at all in return, not even a ham sandwich. The absolute best they could hope for would be a 3rd round compensatory draft pick in 2019, and that would be dependent on a number of conditions being met.

2. The CBA defines three different types of tags used by a team to retain rights (Transition Tag and 2 forms of the Franchise Tag), and the Redskins could choose to use one of them to maintain control over Kirk for another season. If Kirk played out the 2018 season on the tag, then at the end of 2018 the Redskins would be right back to scenario #1, but without any other options aside from hoping that Kirk signs a long term deal.

Here is a description of the three tag options.

Exclusive Franchise Tags

An "exclusive" franchise player is not free to sign with another team. Teams usually want to negotiate a longer term deal by July 15 that will pay less. If a new contract isn't agreed upon by the July 15 deadline, the tagged player becomes a free agent the following year when the exclusive tag expires.

Non-exclusive Franchise Tags

A “non-exclusive” franchise player is permitted to negotiate with other teams while he's trying to reach an agreement with his old team. His old club has the right to match any new team's offer, or it can let him go and receive two first-round draft choices for the player instead as compensation.

Transition Tags

A transition player designation gives the free agent's team the right of first refusal. If the player receives an offer from another club, his initial team has seven days after his contract expires to match it and the player stays. If the team doesn't match the offer, the player moves on and the team receives no compensation at all.

The cost of each of the three options was outlined in the NBC article above:

  • Transition Tag - approximately $29m
  • Exclusive Franchise Tag - approximately $34m
  • Non-Exclusive Franchise Tag - approximately $34m

Because of the method of calculation, after the first time the tag was used, the price of the Exclusive and Non-exclusive are the same in Kirk’s situation. That’s why there was no real advantage in using the Non-Exclusive for the second tag in 2017.

Why would it make sense to use the Non-Exclusive Tag in 2018? Because it’s generally accepted that the franchise tag can’t be used more than 3 times, so the Redskins would lose control over Kirk at the end of the 2018 season. They either need to get him signed long-term, or get draft picks in return for losing him. The non-exclusive tag seems to make that possible, but the exclusive tag does not.

3. The Redskins could apply the Tag, then trade Kirk to another team

While this would achieve the goal of getting draft picks in return for Cousins, the Redskins are extremely unlikely to find a trade partner willing to absorb the $34m price tag for a single season.

4. The Redskins could apply the Tag, but follow it up by signing Kirk to a long-term deal prior to 15 July 2018.

5. The Redskins could simply sign Kirk to a long-term deal without using the Tag at all.

The first option — letting Kirk walk — is really no option at all.

The 5th option — signing a long-term deal without using any tag — would be ideal from the Redskins point of view, but Kirk is unlikely to agree to that, as it takes away all his leverage.

The Exclusive Franchise Tag is basically just option 1 delayed by 12 months. The Redskins get one more season out of Cousins, but then lose all leverage in the negotiation.

The Transition Tag is a risk. There are three possible outcomes — in two of them, Kirk leaves and the Redskins get nothing in return — not even a compensatory pick. The only way he stays is if the Redskins match the contract offer from another team, and that course is fraught with danger. There is a potential reward in this play, but the risks are far greater.

The Non-exclusive Franchise Tag provides the most palatable option for the Redskins. They have the right of first refusal, but if a team offers a crazy contract that the Redskins don’t want to match, they have the leverage to get very good value in return in the form of multiple draft picks. The worst outcome here is that Kirk plays for a season, then becomes a free agent — the same as the exclusive tag. But the other two potential outcomes are positive for the Redskins; they either get Kirk on a long-term contract, or they get draft picks. There is potential downside risk, but a lot more potential reward in this scenario.

There’s really only one problem with the idea of using the Non-exclusive Franchise Tag in 2018 — it’s not allowed under the CBA.

I developed doubt about this the week before the Redskins played the San Francisco 49ers. I was following the “Will Kirk Cousins be the Niners quarterback in the future?” debate on the Niners Nation website, and I came across a commenter who claimed that the Redskins only had two options - the exclusive tag or the transition tag. The subsequent exchange in the comments section of their blog sent me scurrying to the CBA to do some reading.

What I found startled me.

I had planned to wait until the Redskins season and post season were over before I shared my thoughts here on Hogs Haven -- it is after all, an off-season issure — but the NBC article this past week has made the question of using the Non-Exclusive tag on Kirk in 2018 suddenly topical, so I’m gonna jump in with both feet right here in Week 13.

When I read the CBA (the actual document, not some sports journalist’s interpretation of it), this is what I found:

Article 10 covers Franchise and Transition players, and in the article, the term “Franchise Player” is used to describe players who have signed either the Exclusive tag or the Non-Exclusive tag; in other words, the term “Franchise Player” covers both situations.

The term “Transition Player” is used for players subject to the Transition tag.

  • Section 3 covers the rules for Transition players.
  • Section 2 covers the rules for Franchise players.
  • Subsection 2a(i) covers rules specific to the Non-Exclusive tag.
  • Subsection 2a(ii) covers rules specific to the Exclusive tag.

What we are interested in is the next subsection.

Subsection 2b covers the rules that must be followed when a team designates a player as a “Franchise Player” for the third time — this is the situation that the Redskins would face in 2018 if they tried to put the Non-exclusive Franchise Tag on Kirk.

Most of this subsection details how a player’s pay is calculated under a third tag. The rules are fairly complex, but we already know how much the ‘Skins would have to pay Kirk, so that’s of no interest here.

But Subsection 2b ends with two sentences that are easy to overlook. It is the first of the two sentences that caught my attention:

If the Club designates the player as a Franchise Player for the third time, the designating Club shall be the only Club with which the player may negotiate or sign a Player Contract. In lieu of designating such a player as a Franchise Player for the third time, any Club may designate such player as a Transition Player pursuant to Section 3 below.

Hold on... what?

The CBA says that if the Redskins designate Kirk as a Franchise Player for the third time (remember, the term applies to both exclusive and non-exclusive tags), then Kirk can only negotiate with, or sign a contract with, the Redskins.

What that says, in effect, is that there is no Non-Exclusive tag option available. There are only two tag options: Exclusive or Transition.

I’ve never seen a sports journalist write about this. I haven’t seen any TV analyst talk about it. I haven’t seen it in a tweet from Rap Sheet, and I haven’t seen any lawyer discuss it.

I was tipped off to this by a commenter on a rival fan site. I spent a lot of time reading and re-reading Article 10 of the CBA back in October, and I kept coming to the same conclusion — the scenario described in the NBC article last week (a scenario that I was arguing in favor of, using the same logic, right up until mid-October)... that scenario is prohibited by the NFL Collective Bargaining Agreement. The Redskins can’t tag Kirk and then get draft picks if he signs with another club.

It seems very clear to me that Article 10, subsection 2b says that there is, in effect, no non-exclusive tag available to the Redskins to use on Kirk in 2018 because, under the CBA, he is not allowed to negotiate with or sign a contract with any team other than the Redskins.

I feel quite sure that I must be right, because there would be no reason to put that sentence into the CBA if it were simply referring to the Exclusive Franchise Tag, since a player on the Exclusive tag is already prohibited from negotiating with other teams. This is a provision in the CBA that modifies the rules for the Non-Exclusive Franchise Tag when a player is designated as a Franchise Player for the third time.

Some forward-thinking lawyer for the NFLPA, back in 2010/2011, realized the leverage that a team would have if this provision wasn’t in the agreement, and he put the language in there to take away the benefit to the team of using the Non-Exclusive Franchise Tag in this circumstance.

Look, I’m no lawyer, but I’m pretty facile with contracts. I could be wrong; I hope I’m wrong, but I think I’m right.

The article that CBS published last week paints a scenario that can’t happen under the current CBA. No one will be giving up 2 first round draft picks to the Redskins because Bruce & Dan decide not to match an offer from that team... it’s can’t happen under the rules of the CBA. It’s all-or-nothing for the Redskins in their negotiations with Kirk this time.


What will be Kirk’s contract situation in 2019?

This poll is closed

  • 35%
    He’ll be playing for the Redskins on a long-term contract
    (106 votes)
  • 30%
    He’ll be playing for a different team in the NFC
    (92 votes)
  • 31%
    He’ll be playing in the AFC
    (94 votes)
  • 1%
    He’ll be playing in the Arena league
    (4 votes)
  • 0%
    He’ll be playing in Canada
    (1 vote)
  • 1%
    He won’t be playing anywhere at all
    (3 votes)
300 votes total Vote Now