A Legal Writing Lesson for Jimmy Graham

Jimmy Graham recently lost out on about $5 million because of a

legal writing ambiguity in the Collective Bargaining Agreement (CBA) between the NFL and the Players Association. Graham

plays for the New Orleans Saints. Because Graham and the Saints

couldn't reach a long-term contract in the offseason, the Saints placed a franchise tag on him, obligating him to play for the team this coming season under a one-year contract.
 
The CBA outlines the parameters for the placement of a franchise tag and the formula used to determine the salary of the franchise player. The formula itself is pretty complicated and requires that the salary be calculated based on the NFL's salary cap and various prior average salaries for "players at the position...at which the Franchise Player participated in the most plays during the prior League Year."

The problem for Graham? The tight end position in the NFL has changed over the last 10-15 years, and tight ends frequently catch passes--in fact, many tight ends are used primarily as pass catchers these days. And for the upcoming NFL season, the franchise salary for traditional pass catchers (i.e. wide receivers) is about $5 million more than it is for tight ends.   
 
Graham (who has always been considered a tight end) argued that he should receive the franchise salary of a wide receiver because he "participated" more in the wide receiver position than he did in the tight end position--that is, he lined up where a wide receiver would line up more frequently than he lined up where a tight end would. 


Logo from www.nfl.com

Despite the care with which the NFL and Players Association outlined the payment parameters for franchise players, they didn't do a good job of defining "participated in" (or in selecting alternative language that would have provided more clarity). So, an arbitrator was forced to decide what "participated in" means in this context.

Without any real guidance from the CBA, the arbitrator used an apparently arbitrary factor to determine Graham's status: The arbitrator considered Graham a tight end on plays where he lined up within 4 yards of an offensive tackle.*  
 
Under that standard, the arbitrator determined that last season Graham participated as a tight end on more plays than he participated as a wide receiver. Thus, unless he and the Saints reach a long-term deal, Graham will earn about $5 million less this coming season because of the ambiguity in the phrase "participated in."

Legal writing lesson learned!

Happy Friday!
  
*This is also interesting because both Graham and the Saints objected to the arbitrator's formula. The Saints argued three factors should be used to determine whether a player is a tight end: (1) the player's size; (2) the position group with which the player meets at practice and team events; and (3) how the player is defended by other teams. See here.