Tuesday, May 23, 2017
Last weekend, retired NFL receiver Calvin Johnson made news when he revealed that he was not pleased with the Detroit Lions and how they handled his retirement. Johnson is apparently frustrated that the Lions required him to pay back about 10% of the unearned $3.2 million remaining on his $16 million signing bonus from his 2012 contract. This is apparently a thing for the Lions, who sought all of the unearned signing bonus money remaining on Barry Sanders' contract when he abruptly retired in 1999.
This is in contrast to Tony Romo's retirement, in which the Dallas Cowboys released him, making the $5 million remaining on the signing bonus Romo's. Cowboys owner Jerry Jones said he was following the “Do Right Rule” when he allowed the team to release him. The Seattle Seahawks made a similar decision with Marshawn Lynch.
Some have argued that Johnson is being "pettier" than the Lions in this spat. Mike Florio, a sports writer and graduate of WVU College of Law, where I teach, argued that "while Johnson has every right to be miffed at the Lions, Johnson also should be miffed at himself. Or at whoever advised him to retire instead of biding his time until the Lions would have released him." Florio correctly notes that Johnson had a big cap number likely to come due had he not retired or accepted a restructured deal, so he was coming from a position of power in negotiating, which would have likely forced the Lions to cut him. Still, that doesn't mean Johnson is wrong to be frustrated.
Perhaps Johnson didn't ever want to be cut in his career, even at that point in his carerr. Maybe he just wanted to retire. The Lions were worried, perhaps about "precedent" that other players could use to walk away without paying back the bonus, though there is already such precedent out there, as discussed above, and the Lions have non-binding precedent already in the Barry Sanders case, where an arbitrator said Sanders had to pay back some of his signing bonus. Beyond that, the response to most players would simply be, "I know we didn't ask Calvin Johnson for any money back. You're not Calvin Johnson."
It is true that the Lions could seek money from Johnson, and that Johnson almost certainly, from a legal sense, owed the money. But having a legal right to something doesn't always mean it is a good idea. And that is important for lawyers to remember. The question I would have asked the Lions front office is this: "Is it really worth $320,000 when it is possible that one of your greatest players will feel disrespected by the process? Especially when you already created a rift with one of you other greatest players fifteen years ago?"
Maybe it was asked, and the answer was yes, but I just don't see the upside. My guess is that the Lions asked for a lot more and the two sides negotiated to this figure. But that process, not the payment, is likely what irked Johnson. Why does it matter? Because it tells future people the team wants, especially coaches and free agents, how the Lions do business. And when choosing between two similar offers, that could very well lead one to choose the other team.
I often use these kinds of issues facing a business when teaching the importance of the business judgment rule and allowing a board of directors not to pursue claims it can win (as long as there is no fraud or self dealing). Sometimes, it is better for the entity to let a claim go than to extend a bad story or scare off potential talent. Back in 2007, for example, Billy Donovan was hired to leave his head coaching job at the University of Florida to lead the NBA's Orlando Magic. Just days later, Donovan decided he did not want to leave Florida, and asked the Magic to let him return to the college game. The Magic decided to let him do so without any financial penalty, though they did ask him to agree not to coach in the NBA for five years.
Why let Donovan back out and return to Florida without a payment? For one, the Magic needed to hire a new coach, and you want to send a message that you are a good employer. Second, Donovan was beloved in Florida. He had won two NCAA championships in a key market for the team. Don't irritate your prime audience is always a good bit of advice. There was little upside to being difficult. The team was almost certainly irritated, but there is little value in letting that lead to bad publicity and unnecessary public spats. This principle extends well beyond the sports realm, but it is especially important in any area where employers fight for talent, which is common in the sports and entertainment areas.
In assessing the legal (and business) options for the Calvin Johnson situation, good lawyering requires a recognition that key issues were likely related to perception and respect, not money. As such, the fact that there was an argument about repayment at all was the issue that made Johnson frustrated (and now could have repercussions in the future free agent market). It is certainly possible the Lions assessed this risk and decided it was worth it. I disagree that it was worth it, but that would be a reasonable decision. (As a life-long Lions fan, I will need more evidence the problem was properly assessed, though I do hold out hope for the new front office.)
Such decisions, if made simply on the legal merits (e.g., Would I win in court?), run the risk of what Jeff Lipshaw calls "pure lawyering," which is essentially legal reasoning without context or assessment of non-legal impacts or opportunities. As Lipshaw explains in the preface to his book, Beyond Legal Reasoning, A Critique of Pure Lawyering:
Legal reasoning is merely one way of creating meaning out of circumstances in the real world. In its pure form, it does nothing more than convert a real-world narrative to a set of legal conclusions that have no necessary connection either to truth or morality.
Or the ability to recruit free agents.