The arbitrator in the Deion Branch case Thursday denied the NFL's motion that the mediator had no jurisdiction in Branch's dispute with the Patriots and then informed both sides he would not be available to hear the first of Branch's two claims against the team Saturday, as originally expected.
The discovery and deposition hearings are set for Monday and Tuesday in the second grievance procedure and will be argued before special master Stephen Burbank of the University of Pennsylvania Law School Thursday and Friday. This development effectively postponed the original grievance hearing, as to whether the Patriots violated an agreement to trade Branch, for at least a week.
Arbitrator John Feerick of Fordham University School of Law will likely not hear arguments on that issue until after Burbank rules on Branch's second claim, a non-injury grievance in which he asserts the Patriots failed to bargain in good faith. The NFL has contended filing the two grievances on essentially the same issue was an effort by Branch's legal team to take two bites at the apple.
Discovery, in which the sides must produce any written material or other facts in the case, may be the key element. While the league's collective bargaining agreement prohibits any oral agreement from altering a written player contract, faxes, e-mails, and even a team press release announcing that Branch was being given a week to seek a trade could become a stumbling block for the league and the Patriots.
However, if such contact makes clear the Patriots had established a high asking price or states that they retained their right to reject any trade, it would likely be a high hurdle for Branch to overcome. It is expected under an expedited hearing request that Burbank will rule quickly.
Burbank was the special master in a case in 2004, when it was believed he was ready to rule in favor of Terrell Owens in his dispute with the San Francisco 49ers. Before Burbank declared Owens a free agent, the league stepped in and brokered a three-way trade among the 49ers, Eagles, and Ravens that cost the Ravens Owens's services after they had reached a trade agreement with San Francisco and worked out a contract with Owens. Before the trade was finalized, Owens decided he preferred to play for the Eagles and filed a grievance arguing that he had followed the requirements of his contract in San Francisco and should be declared a free agent.
Unexpectedly, Burbank gave clear signs he was ready to rule for Owens but before he issued that order, the deal that sent a late-round pick to the Ravens and Eagles defensive Brandon Whiting to the 49ers was made, and Owens landed in Philadelphia without ever having challenged the system.