It. Isn't. His. Contract. That. Governs.
C'mon man, as of right this very second his contract means nothing; his 2019 salary isn't (mostly) guaranteed until the league year starts. Stop referring to the terms of his contract, they don't matter because if that's all that did, this would be easy. The contract itself, right now, would leave him open to being cut but/for the additional protections of the CBA.
Those protections are mostly the injury related grievance provisions of the CBA. I'll point you to Article 44, Section 3 allowing for a grievance when a player's contract is terminated. Most notably 44(A)(4) and (6) speaking to allowable defenses from the club:
https://nflpaweb.blob.core.windows.n...u%201-5-15.pdf
Quote:
(4) That the player’s injury arose solely from a non-football-related cause
subsequent to the physical examination;
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and
Quote:
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(6) That subsequent to the physical examination the player suffered no football-related aggravation of a prior injury reducing his physical capacity below the existing at the time of his physical examination as contemporaneously recorded by the Club physician.
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These are contained within the enumerated defenses specifically allowed by the teams; 6 speaks directly to this exact situation. The team must establish that either the injury didn't exist prior to a physical exam (we know that's not the case) or that no further aggravation of it drove his performance to a level below where it was at the time of the physical exam.
Berry's team has an easy response here - he WAS able to pass a physical. And he was seemingly healthy before camp started. And then camp started and through football related activities the condition was aggravated to a point where he was no longer to play at the same level. With rest, he was able to get back out and play but by playing it continued to aggravate the condition and again push him back below that performance level.
Aggravation of a pre-exisiting injury is absolutely sufficient per the terms of the CBA. If the team cannot establish that there was
no aggravation, then they'll end losing an Article 44 grievance. Moreover, the express language of subsection 4 says it must arise SOLELY from a non-football related activity, again - the operative term is 'solely' and puts the onus back on the team to establish that this would still be an issue even had he never practiced a single snap.
There's no way they'll clear that hurdle, just none at all. Yes, they can try the argument and yes on its face it seems to make sense. But when you look into the mechanics of it, they can make that argument and they will lose.
This has nothing to do with a contract guaranteed for injury. It has nothing to do with anything contained within Eric Berry's contract specifically apart from the eventual (virtually) full guarantee on the 3rd day of the league year. What it concerns is whether or not they can cut him PRIOR to that 3rd day pursuant to the terms of the CBA. Article 44 says that if they try, they'll end up paying him anyway.
It's even more interesting when you get down into the presumption of fitness in Section 12 - if he passed a physical prior to camp, he's presumed fit so long as he disclosed any KNOWN conditions. That's just another hurdle they'll have to clear and while yes, you can generally overcome a presumption, it's worth noting that this is specifically not called a rebuttable presumption nor does the CBA provide a manner in which to overcome the presumption. Generally speaking in a provision that provides actual presumptions (contract or statute) there are also methods spelled out to overcome them. There's at least a solid chance that this is simply considered an irrebuttable presumption precisely to address situations like this one.
By my reading of it, they just cannot win this one. There's a presumption of health because the Chiefs passed him on his physical in camp. Even if that presumption is considered rebuttable (it may well not be), he was able to take the field with that condition for years and was deemed fit to practice at the start of camp. He took the field as well and will certainly testify that he felt capable of playing at his usual standard. By engaging in football activities he aggravated his condition to a point below his usual standard. With rest he recovered and when he started playing again, it got worse again, indicating that it was football related activities that led directly to the aggravation.
They will not win here. Your argument is the argument I was trying to formulate months ago when the Haglund's diagnosis first came out - it didn't take a lot of digging to realize that it wouldn't work. And the bottom line is that the Chiefs know this as well because if they didn't, they'd have NFI'd him already.
They were ****ed the moment he passed his physical and took the field in St. Joe. The only thing that could salvage it for them is if Berry knew about the deformity and actively withheld the information. Even then, an arbitrator could easily rule that the Chiefs waived this entire argument given that they've subjected him to numerous physicals over the year and themselves either knew or should have known about the deformity. If they knew or should have know about the condition already, they can't very well use it to void any protections of the CBA.
There are so very few cracks for them to sneak in a W here that I simply do not see how you can be so categorically certain that you're right. Maybe they've hunted something up in that 300 pg agreement that I haven't - it's possible. I didn't read the whole thing; simply the portions I considered relevant. But I'm betting it's more digging than you've done especially since you STILL don't have the controlling document figured out (hint: it's not his player contract).
Based on absolutely anything I've read (and a COMPLETE lack of information from any source anywhere regarding a possible Non-Football Injury tag for Berry), I simply cannot see how you can conclude that there is a way to cut Berry and recover his cap figure.