If you’re a fan of that vastly inferior sport involving shoulder pads, helmets, and a vaguely oblong ovoid incorrectly dubbed a “ball,” you’re probably familiar with a northwestern franchise known as the Seattle Seahawks (interestingly, there is no such thing as a “seahawk”). You may also be aware of a 2017 second-round draft pick for the team named Malik McDowell, a rare talent who never suited up in a game for the Seattle fake-birds. That has led to the Seahawks suing McDowell in federal court for the return of a significant portion of his signing bonus.
It’s a rare step for an NFL team to sue a former top draft choice to recoup signing bonus money. The development with McDowell underscores a monumentally disappointing spiral with the club following his selection with the 35th overall pick in 2017 draft. Once considered a potential top-10 pick in that draft class, McDowell suffered a slide on draft night after an inconsistent junior season at Michigan State, then never played a snap for Seattle after suffering serious injuries in an ATV accident prior to training camp nearly two years ago. He was released by the team in March.
But in timing that is germane to this week’s lawsuit, McDowell signed a four-year, $6.95 million contract with $3.19 million in bonus money several weeks before his accident. As part of that contract, the Seahawks were to pay McDowell that bonus in four increments. The team ultimately paid out three installments and withheld a fourth for nearly $800,000 following the revelation of his injury. After negotiations with the NFL Players Association and going through arbitration, Seattle agreed to forfeit half of the agreed-upon signing bonus, which still required McDowell to repay $799,238. The suit alleges McDowell never did despite attempts by the team to recoup the funds, leading to this week’s lawsuit.
Why is McDowell’s case relevant for our purposes? There are three reasons. First, in the wake of last week’s MLB draft, McDowell’s case represents a fascinating look at what can go wrong between a team and a player, particularly because there’s very little here that is unique to football. Off-field injuries happen to professional baseball players; it wasn’t long ago that Giants ace Madison Bumgarner suffered serious injuries in a dirt bike accident. The Seahawks declared McDowell to be in breach of his contract for riding his ATV. The team couldn’t sue McDowell for breach of contract directly, because, just as with MLB’s Collective Bargaining Agreement, the NFL’s CBA is the sole remedy for disputes between teams and players (that’s a doctrine called “labor law preemption”). So instead, the team took him to arbitration, where they won a ruling requiring McDowell to forfeit almost $1.6 million of his signing bonus, and return almost $800,000 that he’d already been paid to the Seahawks. When McDowell didn’t pay it, the team filed this lawsuit in federal court. The lawsuit doesn’t relitigate the arbitrators’ decision – it simply enters the decision as an enforceable judgment, allowing the team to garnish his future wages.
By and large, major league teams aren’t this aggressive when it comes to their players but there’s no reason in the CBA that they couldn’t be. The Giants were without MadBum for months following his dirt bike injury; although there was talk at the time that his contract prohibited the hurler from dirt biking, San Francisco opted not to attempt to recoup a portion of his sizable salary or void his contract. Trevor Bauer famously was forced to leave a playoff start because of a finger laceration he suffered while working on his drone. The Indians, too, didn’t pursue Bauer for breach of his contract. The Giants didn’t void Jeff Kent’s contract after a motorcycle accident, despite Kent lying about the cause.
We’ve talked about other areas where teams and the league are strident in their insistence that players stick to the rules; here, at least, teams have, for the most part, been remarkably lax. The last time a team voided a player’s contract for a non-baseball injury was when the Yankees famously nullified Aaron Boone’s contract after he injured his knee playing basketball in the 2003-04 offseason, clearing the way for the acquisition of one Alex Rodriguez; Boone received a settlement and signed with Cleveland. What makes Boone’s situation really interesting is that he was honest with the Yankees, and had his contract voided – whereas Kent wasn’t truthful, and he kept his contract. But none of those situations ended up in court.
Now, major teams are self-interested, for-profit entities. The Giants’ unwillingness to take legal action against Madison Bumgarner likely had much more to do with the value Bumgarner has to the franchise — and the need to maintain a good relationship with the team’s marquee player and with the MLBPA — than with magnanimity. That said, one wonders what the result would have been had Bumgarner been a less important player. If the same thing happened to the 2019, still-good-but-not-an-ace version of the southpaw in a year where the Giants are actively rebuilding and looking to shed salary, would the team be so quick to look the other way?
This is the first instance in years I’m aware of in which a court is being presented with the contract language present in all major league sports agreements that bars a player from engaging in dangerous, off-field activities. We talked earlier this year about Kyler Murray’s choice between baseball and football; the Seahawks’ case against McDowell rests on the same contract language we discussed then, which prohibits football players from playing other sports (the same goes for baseball). If Murray had elected to try both sports and been injured playing baseball, his football team may have proceeded against him in much the same way the Seahawks have done against McDowell. That possibility may have factored into Murray’s decision to choose to focus on one sport. And Murray is in a similar position to McDowell in one respect. After the outfielder-cum-quarterback signed with Arizona’s Cardinals, he was in breach of his Athletics contract and required to repay Oakland the majority of his signing bonus. If he doesn’t, the A’s will have the right to pursue the same kind of legal action against Murray that the Seahawks are taking against McDowell.
But McDowell’s case is fascinating for one additional reason. Throughout the dispute, McDowell has argued that he is physically fit to play, citing clearances he received from his own neurologists. Seattle’s doctors, meanwhile, wouldn’t clear him, arguing that he wasn’t past the head trauma he suffered in the ATV accident. The result was Seattle cutting McDowell, perhaps to avoid a grievance hearing regarding the player’s medical status.
Disputes between teams and players over injuries are becoming more commonplace in MLB. Just since June began, we had the Mets arguing with Robinson Cano in the media about whether or not the second baseman was healthy. We talked earlier this year about the Yankees allegedly withholding the existence of a bone spur in his throwing arm from relief ace Dellin Betances, which has led to his prolonged absence this season.
One fascinating McDowell analogue might be New York Mets outfielder Yoenis Cespedes. The Mets’ slugger, already out for an extended period after surgery for bone spurs in both feet, broke his right ankle in several places during what General Manager (and Cespedes’ former agent) Brodie Van Wagenen insisted was not a fall off of a horse, but was nonetheless a “non-baseball-related activity” at the outfielder’s ranch. (The official explanation was that Cespedes stepped in a hole on his ranch and suffered a “violent fall.”) Ranching is probably not a contractually acceptable in-season activity for a baseball player who is supposed to be rehabbing from surgery, and that led to Sports Illustrated’s Michael McCann considering if the Mets had legal grounds to void the outfielder’s contract. And McCann is probably correct: if Cespedes’ injury really was an accident, there’s probably not much they can do. But if Cespedes was digging the hole (as opposed to accidentally stepping into it) or riding a horse (despite his and the team’s denials), there’s not much that is legally different between his situation and those of Malik McDowell, Jeff Kent, or Aaron Boone.
Now, McDowell’s case isn’t legally precedential. As we’ve noted, recourse already exists for baseball teams should their players injury themselves in pursuit of activities that violate their contracts. In one sense, it’s “just” the entry of an arbitration award. But in another, the idea of a major league professional sports team suing a former player is largely unprecedented, at least in this century. What the MLBPA and the Mets will likely be watching closely is whether, and to what extent, the NFL Players Association intervenes to defend McDowell. Notably, the Seahawks originally attempted to recoup everything they’d paid McDowell. However, the NFLPA intervened on McDowell’s behalf in the arbitration, arguing that the NFL CBA didn’t permit the team to claw back his entire salary. Eventually, the player, the union, and the team agreed to a compromise that cut that number in half. What we don’t know is whether the NFLPA will intervene again now that the case is in active litigation. The NFLPA is in a bit of a tactical bind here. On the one hand, if the union defends McDowell, they are defending the breach of an arbitration award they helped to negotiate. On the other hand, if the NFLPA opts to stay out of the dispute, they send a message to other professional teams that union defense of players in litigation isn’t necessarily a given.
So McDowell’s case here isn’t about just McDowell. Instead, it will be interesting to see whether it represents a sea change in how professional sports leagues approach off-field player injuries.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.