CASE STUDY: NFL Franchise Tag and 5th-Year Option Litigation Analysis

A report surfaced recently that Seahawks Safety Jamal Adams would have filed a grievance alleging that he is a Linebacker if the Seahawks franchise tagged him. Adams eventually agreed to an extension with the Seahawks but the report shined a light on a very interesting question – is the franchise tag system equipped to handle how football evolves over time?

The Basics:

The franchise tag was a product of negotiation for the new Collective Bargaining Agreement in 1993. Under the current CBA, each team is allowed to designate one player who is about to enter free agency as their franchise player. That player is essentially no longer an unrestricted free agent, on a one year fully guaranteed contract, with the salary amount set by the averaging the top five salaries by position for the previous league year, or if it’s higher, 120 percent of a player’s salary the previous season

Where Conflicts Arise:

There are two key components of the current franchise tag system that, as currently constructed, create opportunity for positional designation conflicts to arise – (1) the list of positions and (2) the standard for defining what position a player is.

The positional designations for both the Franchise Tag and Fifth-Year Option are as follows: Quarterback, Running Back, Wide Receiver, Tight End, Offensive Line, Defensive End, Interior Defensive Line, Linebacker, Cornerback, Safety, and Kicker/Punter.

The standard for which position players are assigned a position for purposes of both the Franchise Tag and the Fifth-Year Option is the same – the position at which they participated in the most plays during the season prior to the designation.

Since at least 2008, grievances have been filed by the NFLPA on behalf of franchise tagged players who believe they should be designated as playing a different position. Those disputes have fallen into three categories thus far – Tight End or Wide Receiver, Defensive End or Linebacker, and Defensive Tackle or Defensive End. The only grievance known to have gone to the decision of an arbitrator was New Orleans Saints TE Jimmy Graham in 2014. That arbitrator determined that a player is a Tight End when lined up within four yards of the offensive line, and that the arbitrator can weigh evidence such as how the player is referred to on social media or the team’s website as a factor in determining a player’s position. More recently, most disputes over a player being a Defensive End or Linebacker have resulted in the two sides settling on the midpoint of the two franchise tag salaries for the one season.

Jamal Adams’ situation raises a very interesting point though – is there a limit to the extent of what positions could be involved in a franchise tag dispute? Football has clearly evolved over time. Consider how far fans’ perspective of the game has come since the classic 1957 Topps football trading card set was released, where players are only listed as three positions – End, Back and Tackle.

As sports evolve, so must their governing rules or unnecessary conflict will ensue. To illustrate the point, imagine the NBA instituted a similar franchise player system in 1993. Now, imagine 30 years later trying to define what position Giannis Antetokounmpo, Lebron James or Kevin Durant are for purposes of their salary based on the five traditional positions on a basketball team. As you can guess, that would be so difficult because of how multidimensional players are today and the ways they are used are not easy to put in one specific category. While the NFL and NBA have changed differently over time, it still demonstrates how a

professional sports league, and its players union should craft the language of rules tied to salary in ways that allow for the game to evolve without creating procedural conflicts.

Where the Current System Can Improve:

1. The definition of “participation” is unclear. Participation is used in multiple different contexts within the CBA. The first way is to determine if someone did or did not make an appearance – such as on an offensive/defensive play or in the team’s facility for an offseason workout. In the context of the Franchise Tag or Fifth-Year Option, “participation” actually assumes the player has appeared on the field. The real question that needs to be answered to determine “participation” for the Franchise Tag or Fifth-Year Option is “what position did the player play once he appeared on the field?” The CBA does not define player positions nor elaborate if participation is viewed from the perspective of a player’s pre-snap alignment (ie., a Defensive End lines up in a three point stance) or his post-snap assignment (a Defensive End rushes the passer). This use of “participation” without a specific definition that differs from where the word is used in a more binary sense in the CBA creates an ambiguity that is the root cause of positional identification grievances.

2. The positions at which players can be identified are not structured consistently. The main issue is that there is no Outside Linebacker designation – which would create a natural compromise between the current Linebacker and Defensive End tags. The designations of Offensive Line, Linebacker, and Kicker/Punter all encompass multiple similar positions, whereas Defensive Linemen and Defensive Backs are separated into the specific position groups within those categories. Fullback and Long Snapper do not have their own designations.

Recommended Changes:

1. Break up all group tags into specific positions. The main position needed is Outside Linebacker, which would codify the practice of settling for the difference between Defensive End and Linebacker. Other advisable changes are: (A) split Linebacker into Outside Linebacker and Inside Linebacker, (B) split Offensive Line into Tackle, Guard, and Center, (C) split Running Back into Running Back and Fullback, (D) split Kicker/Punter into Kicker and Punter and (E) add Long Snapper as a position.

Benefits for Clubs:

• Cheaper to Franchise Tag Certain Positions. For example, two guards (Joe Thuney and Brandon Scherff) were Franchise tagged in 2020, but because Tackles make up the highest paid Offensive Lineman, their franchise tender amounts made them the highest paid Guards. If there were a Guard specific tag, those two contracts would have been cheaper for the teams. Inside Linebackers, Centers, and Punters would also become cheaper without making Tackles, Running Backs, or Kickers more expensive.

• Added Leverage in Contract Negotiations for Certain Positions. In Fullback or Center contract negotiations, it is so unlikely that teams would Franchise Tag those players because they are grouped with much higher paid positions for purposes of the Franchise Tag (Running Backs and Tackles). Additionally, it has never even been a bargaining chip clubs had available in negotiations with Long Snappers.

2. Codify splitting the difference for players logging above 40% participation at two positions. As a player like Jamal Adams illustrates, the game of football will keep changing. Running Back or Wide Receiver, Safety or either Linebacker position, and Safety or Cornerback are among the foreseeable disputes that have yet to be filed in addition to continued disputes between Defensive End or Outside Linebacker. An idea to further avoid litigation is to agree that if a player participates in over 40% of his plays at two different positions that the value of his Franchise Tag tender or Fifth-Year Option will automatically become the average of the two positions. This would greatly benefit players by creating an automatic trigger for a raise if a player meets the criteria and avoid unnecessary legal battles between the league and its players.

Edward L. Healy IV is a judicial law clerk to the Honorable Nancy M. Purpura in the Circuit Court for Baltimore County. Healy, a former NFL Management Council intern and member of the Baltimore Ravens 2012 Player Personnel department, is a 2021 graduate of the University of Maryland School of Law. He can be followed on Twitter @ELH_IV.