Sports Law Blog
All things legal relating
to the sports world...
Tuesday, September 05, 2006
Figuring out Jeffrey Kessler's Litigation Strategy for Deion Branch

Check out this curious statement in an afternoon posting by Michael Felger of the Boston Herald and ESPN Radio:
Furthermore, [Deion Branch's attorney Jeffrey] Kessler revealed today that if Branch loses both grievances, he will then seek damages against the Patriots for extra compensation this year. Kessler said Branch will seek to be paid the difference between what the Pats are scheduled to pay him this season (just over $1 million, minus fines) and the first-year money being offered by Seattle and the New York Jets.
If Branch loses both of his grievances against the Patriots, what grounds would he then have to sue the Patriots or seek arbitration against the Patriots for this alleged "extra compensation"? I could understand such an attempt if he wins his greivance, but if he loses? What contractual or other legally-cognizable obligation would the Patriots have in that instance? Or is Kessler--a hugely successful sports litigator--referring to a third greivance that would be filed if Branch loses the first two? Or has the NFLPA simply decided to make this some kind of test case?


Outrage of the week! Schwarzenegger bars NCAA athletes from competition based on minor crimes.

(September 4, 2006) Today, California Governor Schwarzenegger signed into law a statute forbidding NCAA student athletes in California Universities and community colleges from competing if they are convicted of certain crimes. These student athletes will presumably lose their scholarships for being convicted of some relatively minor offenses.

New California Education Code, section (§) 67362, (AB 2165) prohibits and bars any student athlete from competing in any event in California, or for any collegiate team (except intramurals), if that student/athlete is convicted of certain crimes, including:

(a) breaking into a car or shop-lifting (California Penal Code § 459);
(b) getting into a fight at a bar or fraternity party (California Penal Code § 245); or
(c) “beer runs” or grabbing and taking some alcohol from a convenience store (California Penal Code § 211).

In addition, NCAA student/athletes can be barred for more serious offenses like murder, rape, and sexual assault. The law also imposes a new “reporting” requirement upon NCAA student athletes in California: from now on they will have to declare under penalty of perjury that they are essentially “crime-free.” If the student athlete does not report accurately, he or she risks further discipline including loss of scholarship.

This new law has tremendous implications for the more than 25,000 NCAA student athletes in California. To being with, to just take away the eligibility and scholarships of NCAA athletes upon conviction of seemingly small crimes may violate the due process clause under the federal and state constitutions. In addition, it may also violate the right an education under the California Constitution.

Chip Venie, Esq, and the Freedom Law Center are attorneys who concentrate a large portion of their practice on NCAA law and the criminal defense application of NCAA laws and policies. Mr. Venie is admitted to practice law in California, Washington D.C., and Michigan. Please call him at the San Diego office at (619) 235-8300, or email him at if you have any questions, or are facing the impact of this new law AB 2165. You can check his blog at

Blogger chipesq -- 9/05/2006 9:47 PM  

If the grievances (especially the one regarding the failure to consummate the trade) are seeking specific performance of the trade agreement, the arbitrator could deny that remedy but still be open to awarding monetary damages. This would be especially appropriate if the two proposed counterparties are no longer interested in the trade.

Anonymous PK -- 9/05/2006 11:01 PM  

I would think that equity here would not demand specific performance, as monetary damages could arguably be given to Branch...and then he would get paid to not play any football? Hardly seems like a court would uphld this, and it almost seems more fair to order specific performance in this case.

Anonymous Taylor -- 9/05/2006 11:14 PM  

I don't see how Branch could obtain monetary damages for salary that he could have only theoretically earned from another team if the Patriots are found to have done nothing wrong in their dealings with him.

Even if the Patriots and Branch no longer want to have a relationship, why should the Patriots have to pay him for the difference in contract value between what the Patriots offered and what he could have gotten from the Seahawks if the Patriots had agreed to the trade?

I just don't see a legal claim here, or at least one that would be taken seriously.

Anonymous Steve Botts -- 9/05/2006 11:19 PM  

Kessler is a clown. He's just throwing things against the wall hoping the Patriots will get fed up enough to trade Branch. He has no claim.

Anonymous john -- 9/06/2006 9:32 AM  

Yea, it seems to get lost that Branch is the one who is breaching his contract here, not the Patriots.

Anonymous Taylor -- 9/06/2006 12:02 PM  

Branch cannot say he would have gotten that money. Who is to say the Jets did not just say they would have game him the money to keep him off the field for two divisional games. Or Seattle had a similar motive? There was never any binding contract signed by the Jets or the Seattle with Branch. There was never any contract, that is like a player seeking trades and finding several teams that would give him substantially different amounts and the current team trading him to a totally different team because of a better compensation package. I just do no see it happening.

Anonymous tommie -- 9/07/2006 10:15 AM  

Even if Branch doesn't have a claim, what does Kessler lose by saying so? At worst, someone thinks he's a scummy lawyer. They probably think that anyway. Plus, no one is going to be talking about Deion Branch's holdout a year from now, and even if they do, Kessler's name won't be the one they remember.

On the upside, maybe the Patriots think "What does he know that we don't." Or maybe it's pure PR. Little Deion Branch, the working man, has a claim for damages against the big, bad, corporate Patriots. The message is: "Fans, please don't be angry with Branch once he signs with a team. He's not a bad man. He's just getting screwed by a greedy NFL team."

Blogger ChapelHeel -- 9/07/2006 1:57 PM  

in all fairness, Branch signed the contract. He could be a man and honor it. The Patriots are under no obligation to renegotiate. And they are being more than generous with the extension they offered him. If another team is stupid enough to sign him to all that money then when he earns his unrestricted status he can go to those teams. That is why the Patriots have been winners with their current management. You cannot argue with their success and their system. The Patriots are not being greedy, they have no duty owed to Branch. Branch is the greedy one. Holding out of training camp, disrupting team chemistry and asking for a lot of more money than he is worth.

Anonymous tommie -- 9/07/2006 2:18 PM  

Parsing out the 2 grievances, Branch/Chayut seem to say: (a) that NE failed to negotiate in good faith in a situation where they had no obligation to negotiate at all (1 yr left on conrtact); and (b) that they somehow formed a legal obligation to Branch once they proposed letting him shop himself.

On (b), I gather this is a straight-forward promissory estoppel argument - Pats promised to trade him for satisfactory consideration from other teams, and Branch relied on it in rounding upoffers, to his detriment - combined with an implied duty of good faith and fair dealing - allowing NE to exercise unfettered discretion in deciding what's 'satisfactory' will defeat Branch's reasonable expectations.

Am I reading this correctly? If so, what is the 'detriment' or 'injustice' that Branch will have to establish for promissory estoppel? Is there another theory out there to support this grievance?

I don't have a clue on the first grievance. Is there an obligation under the CBA to negotiate in good faith when a player still under contract asks for restructuring and extension? Or does NE step into that duty once it begins that dialogue, even though it had no obligation to discuss restructuring in the first place?

If it's the latter, doesn't that mean that any team that wants to extend a player before his free agency year assumes a significant legal risk in doing so?

And assuming that Feerick finds there was a quasi-contractual obligation that was breached, what kind of relief can he grant? Outside of this arena, specific performance might be difficult because money damages would be a sufficient legal remedy. Is this somehow different?

And most critically, why did NE make the 'shop yourself' offer, thereby incurring another dimension of risk? Did it ignore or overlook the estoppel issue, or did it evaluate the issue with counsel and decide that it could make 'absolute discretion' stick?

It will be interesting to see what Kessler does with this. Everyone is writing it off as a desperation move with no chance of success, but while I see lots of unanswered questions, I'm left wondering.

Anonymous Anonymous -- 9/09/2006 7:14 AM  

Post a Comment