A lawyer’s-eye view of the Le’Veon Bell and Antonio Brown situations

People seem to think that Le’Veon Bell faced a different legal situation than Antonio Brown is going through now. I have been a lawyer for the better part of 30 years and I am here to say that it isn’t. The situations are exactly the same aside from a few key details.

First the biggest picture: every American citizen has the constitutional right to break a contract if - the big if - he is willing to pay the price in terms of money (what the courts can do) and reputation.

Wait a second! Constitutional?

Yes, that’s right. It’s called the 13th Amendment, the one that banished slavery and involuntary servitude. No one in America can use physical force or the threat of physical to compel either Mr. Bell or Mr. Brown to play football. Neither man can be whipped, beaten, chained or even jailed for refusing to do so. That stopped in 1865. The most that can happen is a lawsuit by the aggrieved team to recover money damages for the breach of contract, and/or for an injunction to prevent the individual from playing on some other team. Now let’s look at the contract(s) to be enforced.

Le’Veon Bell signed a contract with the Pittsburgh Steelers in 2013, as a rookie. He did not have to do so. He chose to. In that contract (i) he agreed to play football only for the Steelers; (ii) the Steelers agreed to pay him a specified amount each year if they wanted him to play; and (iii) both sides agreed to comply with a variety of other terms set forth in the Collective Bargaining Agreement (“CBA”) between the NFL, which agreed on behalf of both the Steelers and the other teams, and the NFLPA, which agreed on behalf of Mr. Bell and the other players. If the Steelers had refused to pay the promised amounts, Le’Veon Bell could have sued the team to gain that money. If Bell refused to play, the Steelers could refuse to pay and could prevent him from playing for anyone else.

One of those “other terms” in the CBA says that teams can invoke the “franchise tag” and the “transition tag” to extend a player’s contract if the team is willing to pay a premium salary defined according to a complicated formula. If the player signs the tag, he becomes entitled to that premium price, and to an even higher premium if the team chooses to do the same thing again in the next year (it can only be done two years in a row). If the player does not sign the tag, his contract says that he will get nothing that year, cannot play for another team, and can then be “tagged” once again at the next year’s even-higher premium price. There is no point in this when the player has ceased to have a contract in place with the team, regardless of whether he signs the tag or not. The contract only ends when the team either runs out of franchise tag designations, or chooses not to impose one because the cost would not be worth what the player has to offer. At that point the player becomes a free agent who can sell his services to other teams. The team gets nothing more from the player but may get a “compensatory pick” in the draft under it’s franchise contract with the other teams (a/k/a the NFL as a representative of all teams together).

The Pittsburgh Steelers demanded that Le’Veon Bell play for Pittsburgh under that contract from 2013-2016. He did so and was paid in full. The Pittsburgh Steelers then exercised the first available tag and demanded that Le’Veon Bell play in 2017 at the premium salary named in the CBA. He did that too. The Pittsburgh Steelers then exercised the second available tag in 2018 and demanded that he play once again at the super-premium salary named in the CBA. He refused, could not play for anyone else, and received no salary. Pittsburgh then had the right to impose that same tag in 2019 at the super-duper-premium salary but elected not to do so. Thus Le’Veon Bell is now free to sell his services to some other team and Pittsburgh will receive nothing except a potential compensatory pick from the NFL in 2020.

Next up. Antonio Brown signed a contract with the Pittsburgh Steelers as a rookie in 2010. The terms of his contract were essentially the same as those for Le’Veon Bell other than a lower salary and a shorter term because he was a later round pick. Brown and the Steelers agreed to extend (a/k/a amend, modify, replace, etc.) that contract in 2012 to provide Mr. Brown with a much higher salary in exchange for several extra years of service. In 2017...

Actually, I need to pause here for an important digression. It’s important to realize that NFL player contracts are not structured like the “employment contracts” used everywhere else in the world, including all other professional sports. Those normal-form contracts typically say this:

I, the employer, will pay you, the player, $$$ in each of the next three years in exchange for your work. If you refuse to play, I will not pay you and you will not be able to work for anyone else [which a court will enforce through an “injunction” a/k/a “court order”]. If I no longer want your services, I will still be on the hook for $$$, minus whatever you get paid by any new employer you sign with. [NOTE: I believe that “minus” part often gets negotiated away as part of the CBA for other sports leagues].

NFL player contracts are structured more like an option agreement. They work like this.

I, the team, will pay you $ today for the right to use your services over the next three years. [This payment goes by several names such as “signing bonus,” “guaranteed portion,” “up-front option fee,” etc. and may have subtle variations.] If I choose to use your services in Year 1, I will pay you $ more. If I choose to do so in Year 2 it will be another amount, and then yet another amount if I choose to exercise my option for Year 3. In Years 4 and 5 I will either exercise my right to extend your service under the franchise tags or agree to let you be a free agent. At any point I may decline to exercise my option, in which case you receiving nothing more but can offer your services to the other teams.

The NFLPA agreed to that structure in the CBA but only after vicious negotiations because the star players hate it. They wanted to have normal, “fully guaranteed” employment contracts, not this conditional option structure. But they did not get what they wanted, the CBA allows for the option structure, the Steelers insist on it, and that is the approach that both Bell and Brown agreed to when they signed their rookie deals, and when Brown signed his extensions. Speaking of which...

In 2017 Antonio Brown agreed to the most recent contract. That deal paid him a lot of up-front money (a/k/a an option fee) in exchange for giving the team an right to use his services at specified prices in 2018-2021, with potential franchise tags in 2022 and 2023. If the team declines to exercise that option in any given year, Brown gets to keep all that he has been paid and may offer his services to the other teams. If the team wants him to play and Brown refuses (his 13th Amendment right), the Steelers do not have to pay him for that year and can prevent him from playing for anyone else. Depending on the exact terms of the contract and Brown’s reasons for the refusal, the team may also be able to sue him for some of the option fee (guaranteed money) it paid in 2017.

The only difference between the two players - the only difference - is the salary level, the amount of years left on the deal, and the fact that Brown is holding that up-front option fee.

At this point all the non-lawyers out there are getting ready to scream something like this:

What do you mean that’s “all?” People can’t just go ahead and violate their sworn word! Men who do that are supposed to pay a penalty over and above mere money!

At which point all of the lawyers on this site are going to tell you, “Not under the law.” Indeed, it is expressly illegal to have “punitive” clauses in a contract. [My brethren may feel free to discuss the subtleties of consequential damages in the Comments but I decline to do so here]. Here’s the bottom line: the only consequences for breach of contract in America are paying what you promised, being prevented from doing what you promised not to, and being scorned in the courts of public opinion and personal conscience. That. Is. All.

So, what is the situation with “trading” Antonio Brown? In legalese that means the Pittsburgh Steelers will, for a designated price, transfer Antonio Brown’s contract to another team. That new team will then have the exact same rights that Pittsburgh now has; i.e., to require Mr. Brown to play for a specified amount or else sit the year out and get nothing. With one possible exception: it seems likely that the new team would not be able to sue Mr. Brown for any of that up-front option fee because it did not pay the actual dollars. I doubt that Pittsburgh could sue him for that money either (post-trade) since it did not force him to finally and actually refuse to play under the negotiated deal. [Ask my colleagues about “anticipatory breach” in the Comments if this doesn’t make sense].

You mean that AB can just walk away with all that up-front money no matter what if he gets traded?

Bingo. And Mr. Brown then has the right - the Constitutional right - to sit out if he so chooses, understanding that he won’t be paid the negotiated salary for 2019 and won’t be able to play for any other team. And that he can be forced to do the same in 2020, 2021, and potentially 2022 and 2023 if the new team exercises the franchise tags.

Antonio Brown has said that he will do exactly that - sit out - if the new team does not renegotiate his contract to the normal employment structure where everything is fully guaranteed. He might even demand some extra $$$ while he’s at it, though probably not because going from being under an option to having guaranteed payments is an awfully good benefit already. The Steelers would have some leverage to oppose that change because this organization could try to claw back some of the up front option fee a/k/a “signing bonus”. The team that obtains him in a trade will not have that leverage (see above) and would presumably make the trade because it is willing to hire him on a fully guaranteed deal. Which he may, of course, choose to honor or not in 2021 & etc. subject to the laws of the land governing money damages & etc..

I have been vocal in my belief that this legal reality radically lowers the value of Antonio Brown to any potential trade partner, but that is a different discussion that comes down to the difference between stepping into the Steelers’ shoes in 2018 (a team-oriented, HOF talent with minor behavioral issues who will perform under the option contract) versus what the new team would get (a HOF talent who is not team-oriented, has major behavioral issues, and will require a fully guaranteed contract). Others may feel free to disagree on how big an impact that difference will make to NFL general managers. I am not a prophet who can see the future, just a lawyer who understands how contracts work. This article only tries to explain that legal background and to illustrate why Bell and Brown are actually doing much the same thing.

DISCLAIMER: I am only admitted to the bar in the Commonwealth of Pennsylvania and all of the foregoing discussion pertains only to general legal principles as applied in this jurisdiction. Other states may have different spins on how this works and I have neither the knowledge nor the right to explain any such changes. I do not know what state’s law governs the contracts between the various parties in this case, and I have not read any of the actual contracts. Thus the above discussion is emphatically NOT “legal advice” nor my formal “legal opinion”; no individual or entity may rely on it without hiring me to do a full analysis; and I declare in advance that I will not venture either my advice nor my opinion without an opportunity to review all relevant documents and individuals. It should also be noted that I have deliberately omitted any discussion of some known subtleties in the contracts, such as annual signing bonuses and the like.