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Sean Gilbert contends funding rule constitutes collusion


On Saturday, former NFL player Sean Gilbert made his initial case to the voters for the position of NFLPA executive director. And he finally has unveiled a plan for a collusion claim that could then be used to terminate the current labor deal.

PFT has obtained a copy of Gilbert’s presentation to the NFLPA board of player representatives. In those remarks, Gilbert explained that the NFL’s funding rule for fully guaranteed contracts, as used by the league, constitutes an ongoing collusion violation.

The funding rule appears at Article 26, Section 9 of the Collective Bargaining Agreement. Gilbert’s argument seizes on the notion that the CBA states only that "[t]he NFL may require” teams to deposit future, fully-guaranteed payments into escrow. The argument will be that the NFL at some point turned the “may” into a “must,” preventing teams from putting fully-guaranteed payments into the future years of contracts unless the owners fund those amounts by putting the money in escrow -- even if the owners have the financial resources to honor the future salary commitments.

The NFL surely would respond to this contention by arguing that the NFLPA already has given the NFL blanket authority to mandate funding by using the words “may require.” The NFLPA, under Gilbert, would argue that the mechanism was put in place to ensure that future guarantees made by teams with questionable financial resources would be honored, and that the NFL has twisted a provision aimed at protecting players against franchises that may fold into a vehicle for suppressing guaranteed payments by requiring all teams to fund future full guarantees up front, regardless of whether the owner of a given team has the wherewithal to make the future guaranteed payments.

It’s an argument that relies on nuance, along with an understanding of the specific purpose and origin of the funding rule. Earlier this week, in the wake of a contract signed by Dolphins defensive tackle Ndamukong Suh that includes $59.955 million in full guarantees (which Stephen Ross had to fund up front, despite being a multi-billionaire), PFT posed basic questions regarding the purpose and origin of the funding rule to the NFL. The NFL declined to provide any information beyond pointing out that the funding rule is a collectively-bargained provision.

The collusion claim faces other potential obstacles. NFLPA executive director candidate (and practicing lawyer) Andrew Smith said on Friday’s PFT Live on NBC Sports Radio that the 90-day window for filing a collusion claim based on Gilbert’s idea has expired by now, based on the argument that the NFLPA knew or should have known about the potential collusion claim from the moment Gilbert said he was aware of a specific form of collusion that was essentially hiding in plain sight. Andrew Smith contends that the failure of the NFLPA to obtain the information from Gilbert or to otherwise figure out the argument on its own within 90 days after Gilbert suggested the existence of a silver-bullet collusion claim makes it impossible to bring the claim within the next 90 days.

From Gilbert’s perspective, none of that matters if it helps him win the election. While it could keep him from being re-elected in three years if the effort to terminate the CBA via a collusion claim fails, the existence of an intriguing, creative argument for the existence of collusion can’t hurt his chances of getting the job.