As first appeared in Boxscore
By Aron Solomon
NFL players often have performance incentives in their contracts, which are additional payments they can earn by meeting specific on-field benchmarks.
These incentives can be tied to individual achievements, such as reaching a certain number of yards or sacks, or to team success, like making the playoffs.
For example, a player might earn a bonus for reaching a certain number of touchdowns or making the Pro Bowl. These incentives can have a significant impact on a player’s earnings and motivation.
Some of these teams are going to rest players for this last game of the regular season before the playoffs begin. Other teams will rest players in the last game of the regular season and hope of getting a better draft position since these teams are not going to the playoffs.
In both situations, it is rarely the player that has a lot of input into whether or not they get to play. There is nothing wrong with this on its face, as team management, and the coach should be able to decide which players play, and which players don’t.
But both the rock and the hard place are these very contractual performance incentives, which place the decision as to whether the player should play or not play in direct contraposition to the promised incentive.
If a player is not allowed to play in a game where they have the opportunity to meet these performance benchmarks, it could potentially cost them a significant amount of money.
This led me to consider the question as to whether a player who could have met a performance incentive on this final weekend of the regular season might have a legal cause of action against the team if they aren’t allowed to play.
According to Attorney Robert Maider, the answer is, as it so often is in the law, a hard “maybe.”
“Whether a player has a legal case in a situation depends on their contract’s language and the circumstances of their absence from the game. If a player thinks they were unfairly kept from playing, leading to a loss of performance incentive, they might have reason to pursue legal action.”
The NFL’s collective bargaining agreement with the NFL Players Association and the standard NFL player contract explicitly address the issue of performance incentives and the circumstances under which they can be earned. These documents outline the specific criteria for earning incentives and the rights of players in relation to their contracts. If a player feels that their rights under these agreements have been violated, they may choose to pursue legal action.
This really isn’t a great situation for anyone.
A simple fix, moving forward, that would also obviate any legal action from the perspective of the player, would be to have clauses in performance incentives in contracts stating that if a player is not dressed for the final game of the season, we simply pro-rate that game based on the rest of the season performance.
In other words, let’s say that a given play through 16 of the 17 regular season games is 95% towards their performance goal. Then, if we simply prorated that last game, the player would clearly have achieved the final 5% of the performance goal. So under this new contractual clause, the player gets to claim that performance incentive even though it was, justifiably, a coach’s strategic decision not to dress him to play.
This is actually a really quick and easy fix for the fairly complicated situation. Many players and teams are facing this weekend. Of course, it is one that teams are unlikely to adopt because it would allow the player to be paid based on the spirit of the agreement rather than fulfilling the actual letter if they are not allowed to play the final game of the regular season.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.