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Friday, September 01, 2006
Broken Deal to Deal? Deion Branch Files Grievance Over Patriots' Refusal to Trade Him

In what seems like an unprecedented move, New England Patriots holdout wide receiver Deion Branch has, through the NFLPA, filed a grievance against the team because it won't trade him. Branch, who was the MVP of Super Bowl XXXIX, is entering the last year of his five-year rookie contract, which over the last four seasons has paid him about the league-minimum (plus a $1 million signing bonus), and he is slated to earn about $1 million this year. He wants a new contract that will pay him at least $12 million in bonus and guaranteed dollars. The Patriots have steadfastly refused. (For more background on Branch's holdout, see Jerry Rice Slams Deion Branch's Holdout, 6/13/2006).

A couple of weeks ago, the Patriots granted permission to Branch and his agent, Jason Chayutt, to seek a trade. The move was seen as a way for the Patriots to show Branch that his market value wasn't anywhere near what he had estimated. In other words, the team didn't think that Branch would net his desired contract on the open market. Yet in the event that he did, the Patriots agreed that they would trade him if, and only if, the team offering the contract presented the Patriots with a "fair and reasonable" return in a trade.

And in the last 24 hours--and perhaps to the surprise of the Patriots--Branch has received two lucrative six-year contract offers, from the New York Jets and Seattle Seahawks, in the $36 million to $39 million range, with $13 million worth of guaranteed money. So he got what he thought he was worth. But here's the problem: both teams have apparently offered one second round pick and an established wide receiver (Laveranues Coles is said to be the Jets' offered player), whereas
the Patriots are demanding two first round picks. To me at least, that seems like a rather pricy extraction for a 26-year-old player who has never had 1,000 yards receiving or caught more than 78 passes in a season.

And therein lies the essence of Branch's grievance: he contends that the Patriots are undervaluing his financial worth, but overvaluing his trade value, and they shouldn't be able to have it both ways, especially since they agreed to deal him for a "fair and reasonable" return. The NFLPA, led by attorney Richard Berthelsen, agrees that the Patriots have "reneged" on their deal, and that the team should be required to trade Branch.

On the other hand, what the heck does "fair and reasonable" mean, and who should get to decide that? Moreover, should players be able to "force" teams to trade them? A special master--who works for both the NFL and NFLPA--will decide all of that in the coming days in an emergency hearing.

My prediction: if the Patriots don't trade him over the weekend, Branch will lose his grievance, because for a special master to command the Patriots to trade him could set a curious and likely undesirable precedent whereby players could use the greivance process to compel not only trades, but the return teams obtain in those trades.

Update (9/2/2006): Through the NFLPA, Branch has filed two grievances against the Patriots. The first alleges that the Patriots broke their pledge to trade him for a "fair and reasonable" return. That claim is addressed above, and will be heard in the next seven days by one of two special masters, Professor John Feerick of Fordham University School of Law or arbitrator Shyam Das. Branch will be represented by NFLPA general counsel Richard Berthelsen, outside counsel Jeffrey Kessler, and his personal attorney, Peter Ginsberg. The second grievance alleges that the Patriots failed to negotiate in good faith over Branch's contract extension. It will be heard by special master Professor Stephen Burbank of the University of Pennsylvania Law School, although no date has been scheduled.


Branch has no case here. The Patriots have exclusive rights to him under a written standard player contract -- end of story. Even if you go down that path of trying to enforce a verbal agreement, it's he said - she said. And even assuming that Branch is able to prove the verbal agreement and assuming the arbitrator says it's enforceable (huge stretch), the Patriots didn't breach because all they told Branch was, "Go find us a deal and we'll look at it." Well, they looked at it and obviously don't think it's a good deal for them.

I'm going to go out on a limb and say that the NFLPA and Branch's agent know this is a losing case, and they want a third party decision because it's the only way they will be able to convince Branch to get back in camp -- he's being fined $14,000 per day right now!

Blogger Rick Karcher -- 9/02/2006 8:39 AM  

I think what the Pats have done is entirely reasonable. I understand the never caught 1000 yards stat, but he was Super Bowl MVP, and he's a sure #1 receiver on many teams. Two #1 picks is the just compensation for signing away a player given the "franchise tag" something that is placed at teh team's discretion. While the Pats may be asking for too much (though they traded Curtis Martin for a 1,2,3 & 4 in a similar situation years ago) their demand didn't come out of the air, and certainly within their rights to do so. They may also be telling Branch that if he sits out this year, he'll be franchised next year -- no escape.

Anonymous Anonymous -- 9/02/2006 9:21 AM  

Um... yeah, the Patriots position is reasonable, but only if they didn't actually make the offer to trade him. Branch's grievance isn't based on the Patriots not trading him, it's based on them not trading him after they said they would.

I think the guy has a case. The unstated purpose of the Patriots' offer was to show Branch that their valuation of his worth was correct. If they still hold that view, then it seems that they have some good offers on the table, and they should honor their oral contract.

Anonymous Collin -- 9/02/2006 2:50 PM  

How could the Patriots be liable for failure to negotiate "in good faith" over an extension, unless they had a duty to negotiate an extension with Branch in the first place? What purpose would be served by any team signing any player to a long term contract if Branch is right? If Branch wins this grievance, it would mean that from here on out, any player who thinks he's underpaid could ask for an extension during the term of his contract and require the team to engage in negotiations, and then essentially compel the team to agree to an extension for "reasonable and fair value" -- That just can't be the right answer.

And even if Branch is successful in proving a breach of an oral agreement to trade him "because they said they would," I don't understand how "comparable value" would be measured. Each team has different needs and spends differently, and both of these things vary at different points in time, so it all depends on which team you ask.

Blogger Rick Karcher -- 9/03/2006 7:27 AM  

What was the consideration on Branch's part for the oral agreement? He didn't report to camp in reliance on the problem, did he? Assuming not, how is that oral agreement enforceable?

Anonymous PK -- 9/03/2006 10:20 AM  

Doesn't take much for consideration in modern contract law. In this case, Branch did the hard legwork of, essentially, negotiating his own trade. The Patriots were basically saying, "okay, you do the negotiations and we'll do the trade."

And Rick, I don't think that the Patriots' lack of a duty to negotiate in the first place has anything to do with this. They assumed a duty when they made the promise. They could've just stuck with their old duty and fought the battle on that front, but once they made a subsequent agreement with Branch, they assume a whole new set of duites.

Anonymous Collin -- 9/03/2006 11:32 AM  


I see your argument that Branch, through his agent, did leg work in negotiating with teams, and that he presumably incurred some expense and opportunity costs in doing so. As a result, consideration is arguably here (although PK's points above are duly noted).

Nevertheless, and as Rick notes, shouldn't the team ultimately get to decide what is a "fair and reasonable" return? Isn't that what player personnel is all about?

In this instance, the Patriots apparently haven't received an offer that meets their criteria for "fair and reasonable." I don't see how that comprises a violation of good faith or a breach of an oral promise. In fact, it seems like all of the parties acted correctly under the agreement. Granted, Branch now seems upset that the Patriots won't define "fair and reasonable" in a way that would enable a trade under the present circumstances, but maybe he and his agent should sought specificity for what "fair and reasonable" actually meant when the Patriots extended him the privilege of allowing a player under contract to negotiate a contract and trade with other teams.

I normally find myself taking the player's side in legal disputes, but here I think Branch might want to direct his anger elsewhere. Had he obtained specificity on "fair and reasonable" he wouldn't be in this mess.

Blogger Michael McCann -- 9/03/2006 12:39 PM  

Well, I don't know, Michael. In a court of law, does one side get to decide what's "fair and reasonable"? Isn't it a question of fact for the jury?

I don't think that the Pats get to decide what's fair and reasonable, but even if they do, this deal fits that description since it matches what would be reasonable for a player who is valued the way that they valued Branch.

How can you fault someone for not getting specificity on a term which by its very nature is undefined and non-specific? If he'd asked for specificity, the Pats would have said "Okay, like, a first rounder and a second reounder the following year." (for instance). Branch comes back with three second round picks in consecutive years (for instance), and the Pats say "no, we were very specific." "But I got you three consecutive second round picks" says Branch, "It's the same damn thing!" And the Pats say, "no, we were specific, just like you asked."

Anonymous Collin -- 9/03/2006 1:29 PM  

I don't understand how the Pats have any obligation to negotiate in good faith with a player who is under contract with the team but who has refused to live up to his part of the deal.

I might understand if Branch was a draft pick who had never signed with the team and some kind of deal was struck where he and his agent were "allowed" to go and find a trade opportunity. But this situation confuses me...

Anonymous The Sports Curmudgeon -- 9/03/2006 2:33 PM  


Good point about Branch's efforts to find a trade partner being consideration on his part, but Branch still has a definiteness problem. Assuming he's seeking specific performance of the trade agreement, courts generally require fairly precise price terms. See, e.g., Linderkamp v. Hoffman, 562 N.W. 2d 734 (N.D. 1997)("To be specifically enforceable, " '[a] contract must fix the price or consideration clearly, definitely, certainly, and unambiguously, or provide a way by which it can be fixed with certainty.' " Mandan-Bismarck Livestock Auction v. Kist, 84 N.W.2d 297, 301 (N.D.1957) (quoting 81 C.J.S., Specific Performance ยง 34)."). Is "fair and reasonable" sufficiently definite when the object of the contract is the services of a highly-skilled professional athlete for which there may be few if any comparable trades and the return compensation is going to another hard to value athlete and/or draft picks of uncertain value?

Not to put words in their mouth, but I think this is what Rich and Mike are getting at when they argue that the Patriots have the final say on what "fair and reasonable" means because the term is so vague that no enforceable contract exists. However, I agree with you in that if "fair and reasonable" is found to be sufficiently definite, then what exactly that value is a question of fact to be decided by the factfinder.

Anonymous PK -- 9/03/2006 4:49 PM  

Wow, some more great comments, thanks.

Collin: You raise an excellent point about "fair and reasonable" being a question of fact. I agree with you on that, and it does seem to bolster Branch's claim. However, I still think that since only the Patriots can execute a trade, and since ruling for Branch could trigger a negative precedent in terms of transforming players into de facto general managers (see Rick's comments above), the Patriots would seem to be the correct final arbiters of what the disputed phrase actually means. But those are clearly debatable points. Maybe Branch should get you to New York City ASAP because you're bringing out some genuinely good arguments for him!

Sports Curmudgeon: As a matter of practice, I agree with you, but I suppose Branch would argue that the window of time in which he could negotiate was separate from his contractual obligation and also (in theory) benefitting both parties in resolving their dispute.

PK: I agree with you, and you correctly articulated what I would say (and I think Rick would agree as well). Since only the Patriots can execute a trade, since only they have to live with what they get in return, and since the phrase "fair and reasonable" seems to mean almost nothing, the Patriots appear to be the best positioned party to interpret the phrase (although Collin's counter-arguments above are persuasive). Also, thanks for citing the case law on the requisite specificity for price terms.

Blogger Michael McCann -- 9/03/2006 5:22 PM  

I guess I'm still not getting how Branch's case threatens to be a watershed event. To me, the fact that separates this from all other disgruntled athlete cases is the actions of the team itself, telling Branch to go out and test his worth on the market. No other team has ever, to my knowledge, done that. If they have, it probably ended like the Pats wanted this to end -- with the player crawling back with their tail between their legs.

As for PK's case law, I admit it does seem to go against Branch. However, two points about it: (1) Branch would likely be arguing in a different state than the cases cited, states which might have different interpretations; and (2) the quotes don't really provide a final answer since they substitute one indefinite term for another -- so now we have to figure out what is a "method" that can fix a price unambiguously, instead of figuring out what is "fair and reasonable." If I was arguing this matter, I'd point out that we do have a method of fixing Branch's worth unambiguously -- the contract offer that another team is willing to make him, and the consideration that they are willing to offer in order to be in a legal position to pay him what they think he's worth to their orgainization. Seems pretty unambiguous to me.

As to the Patriots being able to decide what is fair and reasonable, I just don't buy it. It seems to me that the whole reason that the term "fair and reasonable" gets inserted into agreements is to remove that determination from the contracting parties. Otherwise, one party is forever at the mercy of the other. The Pats are not in the best position to interpret the phrase -- that's what a judge and jury are for. If the oral contract is valid, then the Pats are obligated to deal with Branch in a fair and reasonable manner, and from what I'm seeing, they're just not doing that.

Anonymous Collin -- 9/03/2006 6:49 PM  

The patriots can argue they do not want to trade him to a team within their divsion, the jets or a potential super bowl opponent, the seahawks. Or that in those situations you could request a substantial amount more. I am sure if they Minnesota Vikings or 49ers came calling the patriots would have a different asking price.

Anonymous tommie -- 9/03/2006 11:16 PM  

One might want to look up at what happened when a certain coach was the HC for a team for one day.

Blogger Michael -- 9/05/2006 8:24 AM  

Isn't there also a remedy problem here? As I understand, Branch wants specific performance. That is, he wants the arbitrator to force the Pats to trade him to (say) the Jets. The Jets would get Branch and the Pats would get a 2nd round pick and Coles. Can the arbitrator force the Jets to make this trade? Also, what happens if, in two weeks when the arbitrator makes his decision and the Jets decide, because the season has already started, that Branch is now worth only a third round pick and Coles? Or what if Coles gets injured (either a minor injury or a career ending injury)? Or what if the Jets execute a different trade for a WR? And what if that trade is for Coles? Would the arbitrator then force the Jets to trade this new WR (Coles' replacement) and the pick for Branch? Would it make a difference if the new WR had a much more beneficial contract (to a team) than Coles under the salary cap?

This is a long way of saying, let's not forget that this dispute involves parties (Branch, the Pats and the Jets) and that the remedy would result in a trade that may not long be desired by the team that originally made the trade offer or may not even be possible anymore.

Anonymous David -- 9/05/2006 3:35 PM  

The CBA provides that the price for a franchise player is two #1 picks. NE can franchise Branch for the 2007 and 2008 seasons, and so, with a straight face, can purport that two #1's is reasonable value for Branch. Neither Seattle nor NY offered two #1's. As for Coles, he was signed by the Redskins as a free agent, and then traded back to the Jets for Moss, in an exchange of players who were headaches to their respective teams. NE can honestly say that Coles would not constitute a portion of a reasonable value total.
The CBA is not favorable to oral modifications of contracts, either. Modern contract doctrine superseding a specific provision of a collective bargaining agreement sounds to me like an argument which succeeds at the appellate level, and that would be several seasons down the road, during which time Branch's window of athletic opportunity is likely to dwindle without any injunctive relief. He is getting bad advice, unless one of the two teams bidding for his services raised the stakes, in which case, Branch and NE both win!

Anonymous Anonymous -- 9/06/2006 2:30 PM  

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