Can the Seahawks go after Malik McDowell’s signing bonus?

In the wake of the news Monday that the Seattle Seahawks are considering releasing 2017 second round pick Malik McDowell, I have had multiple fans both online and offline ask me whether the team could go after his signing bonus. The simple answer to that question is both yes and no.

To explain how that is the case, we’ll turn to the collective bargaining agreement (“CBA”).

The relevant portion of the CBA is Article 4, Section 9(a)(iii), which is the bolded portion of the following.

(a) Forfeitable Breach. Any player who (i) willfully fails to report, practice or play with the result that the player’s ability to fully participate and contribute to the team is substantially undermined (for example, without limitation, holding out or leaving the squad absent a showing of extreme personal hardship); or (ii) is unavailable to the team due to conduct by him that results in his incarceration; or (iii) is unavailable to the team due to a nonfootball injury that resulted from a material breach of Paragraph 3 of his NFL Player Contract; or (iv) voluntarily retires (collectively, any “Forfeitable Breach”) may be required to forfeit signing bonus, roster bonus, option bonus and/or reporting bonus, and no other Salary, for each League Year in which a Forfeitable Breach occurs (collectively, “Forfeitable Salary Allocations”), as set forth below:

Now, to determine whether McDowell committed a forfeitable breach, we must turn to Paragraph 3 of the NFL Player Contract. I don’t have access to McDowell’s specific contract, however, here is the standard Paragraph 3 language from an NFL contract (bolding is mine).

3. OTHER ACTIVITIES. Without prior written consent of the Club, Player will not play football or engage in activities related to football otherwise than for Club or engage in any activity other than football which may involve a significant risk of personal injury. Player represents that he has special, exceptional and unique knowledge, skill, ability, and experience as a football player, the loss of which cannot be estimated with any certainty and cannot be fairly or adequately compensated by damages. Player therefore agrees that Club will have the right, in addition to any other right which Club may possess, to enjoin Player by appropriate proceedings from playing football or engaging in football-related activities other than for Club or from engaging in any activity other than football which may involve a significant risk of personal injury.

Now, we could spend all day going back and forth debating whether or not riding an ATV is considered an activity that would fit the definition of “any activity other than football which may involve a significant risk of personal injury”, but that’s not what I’m here to discuss.

For the purposes of this article, let’s simply assume that McDowell committed a forfeitable breach as defined in the above portion of the CBA because I don’t care to debate whether riding ATVs presents a “significant risk”. Thus, operating under the assumption McDowell did commit a forfeitable breach, the question becomes how much of his compensation the team could go after. To address that we simply turn to Article 4, Section 9(b)(i), which is the highlight portion of the following paragraph.

(b) Forfeitable Salary Allocations. For the purposes of this Section, the term “Forfeitable Salary Allocations” means: (i) for signing bonus, the Salary Cap allocation for the player’s signing bonus for that League Year; and (ii) for roster, option and reporting bonuses that are earned in the same League Year as the Forfeitable Breach, the allocation of such bonus for that League Year, out of the total amount of such bonus as allocated over that League Year and any remaining League Years in the player’s contract, notwithstanding the Salary Cap treatment of such bonuses. For example, without limitation, if a player has a $1 million roster bonus that is earned in the same year the player committed a Forfeitable Breach, then, regardless of when that roster bonus is to be paid, that bonus is attributable to the same year as the Forfeitable Breach; if the player has that year and one additional year remaining on his contract, then $500,000 of the roster bonus will be allocated to each of those years for purposes of any potential forfeiture calculation. If the Forfeitable Breach occurs in the second League Year in this example 14 (i.e., the League Year after the roster bonus in this example is earned), there shall be no forfeiture of any portion of such roster bonus.

So, there are two important portions of that highlighted section. The first is that with McDowell having committed a forfeitable breach, the CBA grants the team the right to go after a portion of the signing bonus. However, it only allows the team to go after the player’s signing bonus for the League Year in which the breach occurred.

What that means is that at this time the team only has the legal right to go after the prorated portion of McDowell’s signing bonus allocable to the 2017 League Year, which was $799,619. Thus, at the present moment, the team has no right under the terms of the CBA to go after the $2,398,857 of unamortized prorated signing bonus allocable to the 2018, 2019 and 2020 seasons.

In order to be able to go after those portions of McDowell’s signing bonus, the Seahawks would have to wait until each of those seasons arrives and for McDowell to continue to be unavailable to play for the team. Only then would it gain the legal right to seek recovery of the portion of the signing bonus allocable to that League Year.

This may be a piece of why the Hawks are considering releasing McDowell, as the team releasing McDowell would effectively act as a legal waiver of their right to recovery of the remaining three years of unamortized signing bonus. That would, in theory, allow McDowell to make a decision for his future based on what is best for his long term health, without having to take into consideration the potential to have to pay back $2,398,857.

That may sound strange, but it would not be the first time a team did that. The Baltimore Ravens did the same thing last summer with tight end Dennis Pitta. In 2014 Pitta signed a five-year, $32M contract with an $11M signing bonus, only to suffer a dislocated hip in the third game of the season. He had surgery to repair the hip, and spent the remainder of the 2014 season on injured reserve before missing the entire 2015 season as a result of the same injury. Pitta was advised by Ravens team doctors that it was unsafe to continue his career due to the injury, but he was not ready to walk away at just thirty years of age.

Pitta returned to the team for 2016 and played in all 16 games, starting 12, that year. However, during organized team activities (“OTAs”) during the summer of 2017 he dislocated the hip yet again. Five days after he suffered the injury the Ravens released Pitta. In doing so, the team waived any right to recover the $4.4M in unamortized signing bonus if Pitta chose to retire, and that is exactly what Pitta did.

The same thing may be at play here. If the Seahawks feel that McDowell might be endangering himself by trying to get ready to play simply to avoid any dispute about the unamortized portion of his signing bonus, then it might make sense for the team to release him. Doing so would waive their rights to recover, and would be a sign to McDowell that they are not interested in going after the money. That would allow McDowell to be more open and speak more freely about his condition and his accident, which could help not only McDowell, but other young players as well.

Obviously no one has any idea what McDowell’s future holds in store, either on the field or off it. However, it seems highly unlikely the Seahawks would keep McDowell around for the next three seasons just to make sure he commits a forfeitable breach each year in order to allow the team to go after that year’s portion of his signing bonus.

We’ll see what happens in the coming weeks and months, but my guess is that the team never recovers a dime of McDowell’s signing bonus.