Quote:
Originally Posted by kccrow
Where we disagree, DJ is specifically about these things.
Berry did not have to 100% pass a physical at training camp, and should the deformity have been known and the extent of it noted, then the club has every right to terminate his contract unless the player can prove, undoubtedly, that the aggravation left him to a lesser state than at the time of that notation. Berry, throughout the duration of camp, was listed on injury reports for this deformity so it was undoubtedly noted by the club physicians. That's my stance on this. Do also pay attention to Section 1 of that article and you'll see why I've been screaming about the contract portion. I disagree that Berry can win a grievance here. I will say that I do have my doubts, and I put them somewhere around 90%, that the club will cut Berry and it isn't on the premise of the injury. If I were the Chiefs, I'd definitely cut him and see if he tries to file a grievance.
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I still think you have standard of proof issues that you're not quite calculating correctly.
You say the player has to prove, undoubtedly, that the aggravation caused the decline. I think you have it reversed based on how the CBA is written. I think it's on the club to prove that the aggravation did not. The burden falls to the team and that's why it's an allowed defense. All the player has to do is establish that he was in recovery at the time he was cut - the ball is then kicked back to the team's court and they have to establish that the recover was as a result of a non-football injury and that the aggravation is distinct from same.
By putting that burden on the Chiefs, you've changed bar significantly. It suddenly becomes a WWI kind of situation where the side trying to advance has a far more difficult row to hoe. With the Chiefs being the ones trying to take the trench, it's a hell of a lot easier for Berry with his barb wire and pillboxes to fend them off.
And my memory of the Berry/Camp situation is different than yours - yes, once camp started, he was on injury reports (because he immediately hit them), but I do not believe there was any indication of a potential heel problem prior to football activities beginning. Moreover, I don't think you're correct from a purely technical persepctive regarding his physical - From what I can find, the Chiefs cannot subject a player to practice, etc... without passing him on his physical. There isn't a "100% pass" or "60% pass" or whatever - either they passed him or they didn't. He was going to start camp so they HAD to have passed him. And if they did, the language of those sections trigger and appear clear on their face.
And really, none of that speaks to the waiver issue - if the Chiefs signed him to this deal or cleared him to play at any point, they could very well be barred from now raising it as a defense if the arbitrator rules that they were or should have been aware of it. At that point its an arms length transaction and if you allow teams to start jumping on those, you've really weakened those sections of the CBA completely.
As I read more of that stuff it's clear that those provisions aren't really designed for situations like Berry's
present situation. They're designed for situations like his previous one - where his cancer simply prevented him from being able to play even a single snap. Or situations where a guy is playing pickup hoops and ruptures his ACL. They aren't designed for situations like this one where a condition doesn't make playing initially impossible, but rather makes the act of playing an activity that inherently degrades the guys ability. That's how this differs from the heart condition situation - the guy simply couldn't take the field and no amount of rest, no matter how long it was, was going to get him cleared to play.
Berry, OTOH, can sit and rehab and get himself into playable shape. Then by playing, the condition is aggravated to the point he can no longer play at that level. That just falls directly into that section 6 heading to me. And with the burden on the Chiefs to show that it doesn't AND that they shouldn't be deemed to have waived the defense....man, we're just on opposite ends of the spectrum. I'd give them a 1 in 6 shot at it, maybe less. 10-15% would be the best shot I'd be comfortable giving them.