Commentary

Free-agent scramble is real possibility

Originally Published: April 27, 2011
By John Clayton | ESPN.com

If you thought Tuesday was crazy in the NFL with players showing up at team facilities for workouts and either being turned away, shuffled to the cafeteria or, in the case of New York Giants defensive tackle Chris Canty, given a one-day workout, imagine free agency starting during the draft.

Though conventional wisdom indicates Judge Susan Richard Nelson won't start the clock for the 2011 league year on Thursday, Friday or Saturday, it could happen. These aren't conventional times. Nelson spent Wednesday studying the legal positions of the players and owners on the debate of how to lift the lockout and get players back to work.

Be prepared for anything.

The problem is, Nelson has to bridge a four- or five-day gap in time. First, she has to determine whether to grant the NFL's request to stay the termination of the lockout until the NFL appeals to the Eighth Circuit Court. Though the NFL is going to put in an expedited request for the Eighth Circuit appeal, it's more likely the court won't get to it until next week.

Sandwiched in between are a three-day draft and some 450 unrestricted free agents waiting for jobs. Here's Nelson's dilemma. She has determined the lockout needs to go. She feels players are suffering irreparable harm as each day passes. But can she start free agency, trades and signings under a slapped-together NFL system knowing that free agency could end if the Eighth Circuit accepts the appeal?

"I think that is the very powerful reason for getting a stay because what it suggests -- whether it's 48 hours, or 72 hours, or three weeks, whatever -- that you can well find yourself in a situation where a team and players have made decisions and taken actions that are very difficult to undo," said Jeff Pash, the NFL's executive vice president for labor and legal counsel. "It is preferable for everyone to have some greater degree of clarity and certainly and to proceed on that basis. That is certainly what we are looking for right now and what we will continue to look for. "Obviously we have a legal position that we believe in and that we want to continue to advance. What we would like to avoid, I think for everyone's benefit, is a situation where you are trying as they say to unscramble an egg. I think that really goes to the comment that [players' counsel] Jim Quinn made [Monday] night -- you need to take a day or two, whatever it was that he said -- to let the dust settle and see about a stay and things like that.''

The players' lawyers are for scrambling the egg. So are the players. They want to get back to work. Quinn and Jeffrey Kessler, class counsel for the players, sent advisories to players and agents preparing them to be ready for anything. The expectation is that Judge Nelson is not going to grant the NFL's request for a stay. In their view, the NFL is trying to delay the start of free agency.

"Unless and until Judge Nelson or the Court of Appeals issues another order, the lockout has been ordered to end immediately, and if the NFL does not comply, it would be in contempt of the court order," Quinn and Kessler informed players in a memo Tuesday. "So, until you hear otherwise, if you are not under contract, Class Counsel believes that you and your agent can contact teams and shop your services to the clubs. Judge Nelson's order is in effect as of 6 p.m. EDT on April 25, 2011, and unless and until that order is stayed, the clubs are not allowed to refuse to negotiate with you. If they do refuse, you should contact Class Counsel immediately. The NFL must put in place a free agency system that complies with the antitrust laws."

As DeMaurice Smith, executive director of the NFLPA, said Tuesday, chaos exists in the NFL. Still, you can see the case being made by the players for free agency to start in any way possible.

First, the NFL probably would implement the 2010 rules that require six years of service for unrestricted free agency and possibly no salary cap, and trades would be allowed. The NFL's problem is that imposing a system could expose the league to triple damages under antitrust laws. From the players' standpoint, any signing would help. Plus, starting the league year could get some players, such as Kevin Kolb and Donovan McNabb, moved in trades. The window might be small, but it's a window some players wish to crawl through. The alternative isn't great from the players' standpoint. If the Tom Brady case is appealed to the Eighth Circuit and no free-agency window is open, players are stuck in neutral until June, July or later.

Quinn and Kessler suggest letting free agency begin. Pash and NFL attorneys want to block that move. Judge Nelson must weigh both sides in making this difficult decision.

An open window for the weekend could allow undrafted free agents the chance to get jobs they wouldn't have after the draft if the lockout continues.

As everyone awaits what might come out of the St. Paul, Minn., federal court, be ready for anything.

John Clayton, a recipient of the Pro Football Hall of Fame's McCann Award for distinguished reporting, is a senior writer for ESPN.com.

John Clayton

NFL senior writer