Brees argued that the next franchise tag he's assigned should count as his third since he was tagged in 2005 as a San Diego Charger and this offseason as a Saint. Language on the matter in the new collective bargaining agreement was vague, saying "any club" using the tag a third time on a player would have to tender that player at 144 percent of his previous year's salary, but not specifying if it had to be the same club tagging the player each time.
With this win, Brees' 2013 franchise tag would be set at 144 percent of his 2012 salary, rather than 120 percent. Brees' franchise tender is worth $16,371,000, meaning his 2013 tender would be set at $23,574,240, putting his two-year total at $39,945,240.
"We are very pleased that that the arbitrator agreed with the NFLPA that the correct interpretation of the 'third time' Franchise Player designation in the CBA applies across clubs, and a player's rights will not be unfairly hindered if different clubs designate him as a Franchise Player during his career," the NFLPA said in a release.
"The arbitrator properly rejected the NFL's strained interpretation of the CBA language, which ignored the fact that a Franchise Player designation is a narrow exception to the overall free agency structure. This ruling will help all Franchise Players in the future.
The NFL declined to comment on Burbank's ruling when reached by NFL.com and NFL Network.
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While it's expected that a long-term deal will prevent the 2013 franchise tag from ever being used on Brees, Burbank's decision creates a leverage point for the quarterback's camp and clarifies a grey area in negotiations.
"Both parties correctly argue that Section 2(b)'s ambiguity easily could have been avoided, although I do not find the interpretive nourishment the NFLPA apparently does in that provision's use of 'a player' (or 'a Franchise Player') instead of 'one of its players,' " Burbank wrote. "Again, the core ambiguity seems to derive from the use of 'for the third time.' If the parties had intended the meaning urged by the NFL, it would have been a simple matter to replace that phrase with 'three times.' Given language elsewhere ... suggesting that the parties had a different purpose, one that is consistent with the derogative role Franchise Player designation plays in the structure of the CBA, I conclude that, were the Saints (or any other Club) to designate Brees a Franchise Player in 2013, such designation would be subject to the terms of Section 2(b)."