Few burdens are as difficult to bear as the burden of proof.
It’s heavy enough that the lawyers and clients tasked with meeting them frequently try to resolve matters before they appear in front of the triers of fact — juries, judges, NFL system arbitrators.
There aren’t many things that are too heavy for a 6-foot-7, 265-pound All-Pro like the Saints’ Jimmy Graham. But one of the burdens of proof he recently tried to bear was.
Listed by the Saints as a tight end, Graham all along has had the strongest of cases that he deserves to be the best-paid player at that position in league history. From 2011 to 2013, no NFL tight end equaled his 270 catches and 3,507 receiving yards, and no NFLer matched his 36 touchdown grabs.
Those numbers justify a contract that by at least $1 million exceeds the $9 million per year the New England Patriots are giving top-paid tight end Rob Gronkowski as part of the six-season, $54 million deal he accepted in 2012. But while Graham has routinely had his way with on-field opponents, it’s not surprising that he did not fare as well in his franchise-tag dispute with the Saints and the NFL.
In the dispute, Graham argued that he was not a tight end worth more than $7 million in 2014. Instead, he said he was a wide receiver worth $12 million under a one-year franchise tag, which prevented him from becoming an unrestricted free agent when his rookie contract ended in March. But league rules state that it’s up to Graham to prove he is a wide receiver — not the responsibility of the Saints or the NFL to show he is a tight end.
Graham’s central argument was logically crafted. In the NFL’s labor agreement, it says the kind of tag Graham was given should pay him based on the average of the five largest salaries from 2013 given to players at the position at which he lined up for the most plays that year. And it was undisputed that, on 51.7 percent of his snaps, Graham lined up in the slot, that area between a normally spaced receiver and an offensive tackle. On 54.6 percent of his snaps, he lined up within 4 yards of the closest tackle.
Graham essentially argued that, at those spots, he was too far away from the linemen to fulfill all three duties of true tight ends, most notable pass protection. (Run protection and route running are the other two.) If he couldn’t do all three, he wasn’t a tight end — therefore he was a receiver, he argued.
The Saints’ and the NFL’s arguments were less complex. Graham was drafted as a tight end. He has been chosen to two Pro Bowls and the Associated Press’ All-Pro first team as a tight end. His team manual and preseason conditioning tests are the same as the other tight ends’. Even his own social media profiles call him a tight end, for goodness’ sake. Oh, and he’s defended like tight ends typically are.
There’s more hurting Graham’s case that didn’t show up in the text of the decision rendered Wednesday by arbitrator/law professor Stephen Burbank, who heard the case June 17-18 in Metairie. Graham didn’t do much pass protecting in 2013, but he did do it — on 29 occasions, to be exact, according to Pro Football Focus.
That’s not as many as veteran tight end Ben Watson’s 106 pass protections in 2013. But Graham did log two more pass protections than did another Saint: Josh Hill, who everyone will concede is a tight end.
Do you know how many times Saints receivers Marques Colston, Kenny Stills, Lance Moore and Nick Toon participated in pass protection in 2013? Zero, per Pro Football Focus. Robert Meachem accounted for the single time a Saints receiver took part in pass protection last season.
Certainly it’s not that the Saints’ and the NFL’s arguments proved Graham isn’t a wide receiver; they didn’t have to. They just had to generate enough doubt to prevent Graham from proving he is a receiver. And they did, which is why Burbank found Graham was a tight end and the tag should cost $7 million.
Graham had 10 days from Burbank’s decision to appeal it to a three-person panel, including two former federal judges. Judges presiding over appeals tend to consider evidence in the light most favorable to the opponent of whoever is seeking the review; in this case, that’s the Saints and the NFL.
So let’s skip an appeal with seemingly low odds of success. There’s only one resolution that wouldn’t be foolish at this point, and its key date is July 15: That’s the deadline for the Saints and Graham to reach agreement on a new long-term contract in 2014 and at last do away with the tag imbroglio. (After July 15, the only thing Graham can sign for 2014 is the tag.)
Graham can’t command top wide receiver money for a long-term contract if he can’t prove he deserves it for a tag. But he’s on solid ground in demanding a deal richer than Gronkowski’s, one that would be exponentially more lucrative than the one that paid Graham an annual average of $824,535 during his first four years in the NFL.
Again, just look at the numbers: Since 2011, Graham has the most catches and receiving yards among NFL tight ends, and nobody can match his touchdown receptions.
That’s a burden of proof Graham more than met, long before the drama surrounding his franchise tag started dominating the Saints offseason.