Practice Link article

Clean Up Your Writing Make it Clear and Concise

By Danielle DavisRoe, Esq., Senior Consultant, Affinity Consulting Group This article is provided by Affinity Consulting Group as part of ArkBar’s member benefit Practice Link. Find more resources at www.arkbar.com/practice-link including a list of upcoming free one-hour CLEs on law practice management and technology.

While writing about complex issues is a focus of many attorneys’ days, between advising clients, researching the issues, going to court, and negotiating contracts, most attorneys have little time to focus on their writing style. Add on a multitude of pressing deadlines, and attorneys find themselves drafting most legal documents at the eleventh hour, leaving just enough time to proofread, but not enough time to revise. To improve your writing style, you must take the time for revisions that include a focus on your writing style.

Focus on Clear, Concise Language

The focus of most lawyers’ revisions should be on simplifying their language. Aim for clear and concise writing whenever possible. Attorneys are known for using 20 words when two words would do. This “lawyerly approach” to writing is deeply-rooted in tradition. To help shake the habit, let’s look at some specific bad practices.

Passive Voice

There is a time and a place for passive voice, but legal writing is not it. Active voice is more concise and clearer than passive voice. Passive voice occurs when the person or thing acting is not the subject of the sentence. For example: Plaintiff’s leg was broken by the defendant. In this example, the defendant is performing the action (the breaking of the leg), but the defendant is not the subject of the sentence (the plaintiff’s leg is the subject). When written in active voice, the sentence reads: Defendant broke Plaintiff’s leg. The sentence length is reduced from seven words to four words, it is easier to read, and it paints a better mental picture for the reader. Catching passive voice is easy. Passive voice always contains a form of the verb “to be” and follows it with a past participle – just watch for sentences using that formula while revising a document.

Redundancy

Redundancy comes in all forms. From including both written out and Arabic numerals to redundant phrases (e.g., “last will and testament” and “swear and affirm”), lawyers habitually include unnecessary words. Following a written number with the Arabic numeral in parentheses makes your writing hard to read and increases the possibility of error. If there’s a mismatch between the two, the drafting attorney unintentionally opened the door to litigation over the contract and a possible malpractice claim. Use the Arabic numeral alone to ensure accuracy and improve readability.

Phrases such as “last will and testament” and “give, devise, and bequeath” are the norm in estate planning documents. However, “will” and “give” are sufficient.

Needless Words

Redundant phrases are not the only time lawyers use needless words in their writing. “Until” becomes “until such time as.” “Annual” becomes “on an annual basis.” “The fact that” appears frequently in legal writing, yet rarely adds any meaning or clarity to the sentence. Remove unnecessary words for more concise, clear writing.

Tools to Help

While there is no magic wand to start writing more concisely, there are tools that can help. Previously the bane of most writers’ existence, Microsoft Word’s grammar checker has become a useful tool for encouraging simplified, easily-understood language. Grammar checker is included with Microsoft Word. There is nothing to buy and nothing to install.

WordRake, an add-in for Microsoft Word (Mac and PC) and Outlook (PC only), simplifies legal writing with the click of a button. Using tracked changes, WordRake cuts through extraneous language and produces clear, concise writing. While this tool is a bit pricey, WordRake can be life-changing for those who want to focus on writing more concisely. See https://www.wordrake.com for more information.

Grammarly, another Microsoft Word and Outlook add-in, gives users a taste of its magic for free. However, most of its powerful editing features require a premium subscription. When analyzing a document for potential edits, Grammarly frequently proposes two or three alternatives to your existing phrasing. See https://www. grammarly.com for more information.

Find an Editor

Find someone else who writes well who is willing to edit your work. Have them edit your writing, tracking their changes as they go. A second set of eyes is invaluable at catching issues that the other tools will never catch. ■

Both Sides of the Coin: Arkansas’ New Child Support Guidelines

By Geoffrey Davis Kearney

Geoffrey is the proprietor of the Law Office of Geoffrey D. Kearney, PLLC, where he has a general practice focusing on Appeals, Civil Litigation, Personal Injury, Family Law, and Criminal Law. As of July 1, 2020, all new child support orders issued in Arkansas are governed by a new method of calculation. This article will provide a brief overview of the new approach.

Introduction

The Supreme Court of Arkansas recently approved a revised version of Administrative Order 10, also known as the Child Support Guidelines. Though previous revisions implemented relatively minor changes, such as updates to the Support Chart to reflect higher cost of living, the revised version (“New Guidelines”) fundamentally changes the way Arkansas courts calculate child support amounts.

The groundwork for this amendment was laid with the unanimous passage in April 2019 of House Bill 1802. This act amended Ark. Code Ann. § 9-12-312(a)(4) to require the Child Support Committee, a body comprised of judges and attorneys and appointed by the Chief Justice of the Supreme Court of Arkansas, to revise the Guidelines to take into account the income of both the payor parent and the payee parent. This change would bring Arkansas in line with the approach taken by the majority of states. Following the Child Support Committee’s submission to the court of the proposed New Guidelines, the court published them for comment in December 2019. In April 2020, the court published In re Implementation of the Revised Administrative Order 10,1 adopting the proposed New Guidelines.

The Old Guidelines

The first iteration of the Old Guidelines was implemented in 1990.2 Between then and the implementation of the New Guidelines, Arkansas courts have used the same basic process to calculate child support: 1) Determine the payor’s gross income, 2) Subtract allowed deductions like taxes and health care premiums from gross income to determine net income, 3) Take the net income and number of children and look to the Support Chart grid to determine what it states that parent should pay, and 4) Decide if any factors justify awarding more or less than the amount set forth on the Support Chart (i.e., a deviation).

The payee parent’s income was considered, if at all, a factor supporting a deviation instead of a required step in calculating child support.3 Though courts could consider the custodial parent’s income, they were under no obligation to do so. This is no longer the law in Arkansas.

“As with most substantial revisions to the law, the New Guidelines present potential opportunities and challenges.”

The New Guidelines

The New Guidelines represent Arkansas’ take on the Income Shares Model, a framework which “is based on the concept that children should receive the same proportion of parental income that they would have received had the parents lived together and shared financial resources.”4 In broad strokes, the process is similar to the Old Guidelines in that it considers income, allowed deductions, and number of children. However, the actual formula has changed profoundly.

Under the New Guidelines, courts will:

1) Add the gross incomes of the parents to determine their Combined Gross Income (“CGI”); 2) Find the amount on the Support Chart that corresponds with the CGI and number of children shared by the parties; 3) Assign each parent, based on their proportional shares of the CGI, their respective share of the Basic Child-Support Obligation (“Basic Obligation”); 4) Add up the Allowed Additional

Child-Rearing Expenses (“Additional

Expenses”), such as health insurance premiums and daycare fees; 5) As with income, assign the parties their respective shares of the Additional Expenses, resulting in the Total Child-Support Obligation (“Total Obligation”); 6) Deduct the Additional Expenses that the payor is paying out of pocket from the total amount assigned them. This final amount, the Presumed Child-Support Order (“Presumed Amount”), is what courts will presumptively order the payor to pay.5

That’s kind of a lot to take in in the abstract. Let’s try an example–fortunately, there’s one included in the New Guidelines.6

Consider two parents, Payor and Payee, who share one child, Junior. Payor grosses $2,000 per month and Payee grosses $1,000 per month. This results in a CGI of $3,000. Under the new chart, the Basic Obligation based on one child whose parents have a CGI of $3,000 is $469. Based on the share of the combined income that each parent’s pay represents, Payor will be responsible for 2/3 of that amount, in this case, $312.67. Payee will be responsible for 1/3, or $156.33.

Then, assume that the court finds that raising Junior requires $300 per month in Additional Expenses: $100 for Junior’s health insurance premium and $200 for childcare. Based on their respective incomes, Payor will be responsible for $200 of the $300 in monthly Additional Expenses, increasing Payor’s obligation to $512.67 (Payor’s $312.67 share of the Basic Obligation plus $200 in Additional Expenses), and Payee’s to $256.33 (a $156.33 Basic Obligation and $100 in Additional Expenses).

The court will then look to the facts of the case to see who is actually paying which Additional Expenses and adjust Payor’s Total Obligation accordingly. The facts of this case are that Payor pays $100 per month for Junior’s health insurance premium, and Payee pays $200 per month for childcare. Therefore, the $100 Payor is paying for health insurance is deducted from his Total Obligation.

The resulting presumptive obligation will therefore be $412.67 per month.

The shift that the Income Shares Model represents comes into a bit more focus when we consider what the obligation for the noncustodial parent would be if all the facts above were the same except that both parents gross $2,000 per month. Because they have the same income, the parents’ division of both the Basic Obligation and Additional Expenses will be 50/50. Per the Support Chart, the Basic Obligation for a single child whose parents gross $4,000 per month is $612. Based on their relative income, both parents would have a Basic Obligation of $306. Similarly, the $300 in Additional Expenses under these facts is divided equally, for $150 each. This would result in a Total Obligation of $456. However, Payor would still be credited for the $100 they pay out of pocket. Therefore, the Presumptive Amount would be $356 per month.

The only amount the court would have been required to consider under the Old Guidelines was the payor’s net income; most of the other key elements used to arrive at the above amounts would have been a matter of discretion. The express, required consideration of both parents’ income offers the possibility of a child support system that ensures that children are supported at a level that is in line with their parents’ combined income while dividing the financial responsibility for the children more equitably.

child support amount is the most profound change to the Guidelines, it is not the only adjustment that merits attention. Namely, the standard and factors for obtaining a deviation seem to have changed somewhat.

Heightened Threshold for Deviations?

To a substantial extent, under both the Old Guidelines and the New, calculating the amount that a noncustodial parent should pay in child support is simply math. The information that a court needs in order to decide what amount to order is contained in pay stubs, tax returns, and receipts for a limited class of expenses, and the figures that result are plugged into the Support Chart. However, there are often reasons to order an amount either higher or lower than the number that comes up on the Support Chart. This ordering of an amount different from what the Support Chart dictates is known as a deviation. Though the New Guidelines’ approach to deviations is similar to that of the Old Guidelines, there are some potentially meaningful differences.

The language governing deviations in the New Guidelines largely echoes that of the Old Guidelines.7 For instance, under both versions, support orders must demonstrate that the court took into account the parties’ income and recite the presumptive amount under the operative Support Chart. Moreover, regarding deviations, both versions recite an “unjust or inappropriate” standard8 and require a court to make express findings on all “relevant factors.” Also, both state that courts are to presume that the Guidelines amount is correct. However, the New Guidelines contain a sentence and sentiment not found in the Old Guidelines: “A

deviation from these Guidelines should be

the exception rather than the rule.”9 The meaning of this sentence might well be a flashpoint in future child support litigation.

Certainly, it is possible that this addition is a distinction without a difference; the Guidelines amount has been presumptively correct for some time, meaning that, by its very terms, a deviation is not supposed to be the norm. However, relevant provisions of the Old Guidelines simply do not contain such strong language concerning a court’s power to deviate. Moreover, this does not seem to be the mere implementation of an idea that already exists in Arkansas case law.

Indeed, Arkansas appellate courts have tended to respect a circuit court’s determination regarding the propriety of a deviation. Though there is a formal requirement that deviations be supported by the trial court’s written findings,10 on the substance, decisions in this area have evinced a fair bit of trust in circuit courts’ decisionmaking. The failure to comply with the written findings requirement actually seems to be a more common basis for reversal than a determination that the court weighed the factors improperly.11

This deference is in line with the appellate standard regarding child support orders, by which the reviewing court will only reverse the amount of child support if it finds an abuse of discretion.12

Especially given that imprudently granted deviations do not seem to have been a problem under the Old Guidelines, it is difficult to know what to make of this new language. However, the previous (and rare) instances of the phrase suggest that it should be considered meaningful. For instance, six of the cases that include the phrase “exception rather than the rule” are older cases reciting the standard for mistrial, an infrequently granted remedy.13

Though the other instances also come in non-family-law contexts, they still support the notion that this language implies aberrance.14

Additionally, the manner in which other jurisdictions’ courts use similar phrasing in this context suggests it carries some measure of real weight. For instance, the phrase is used repeatedly in South Carolina and Washington deviation cases.15

It is certainly conceivable that appellate courts will review deviations the same way as they have for the past several decades. However, this language is, on its face, a directive from the Supreme Court of Arkansas that a certain outcome should be rare. Therefore, it must be due some significance. If this provision is interpreted as truly restricting courts’ ability to deviate, it should result in fewer deviations. At a minimum, it might require courts to at least make some pronouncement (presumably with citations to the evidentiary record) that the case before it is different from the standard child support case. Ultimately, this issue will be a matter for Arkansas appellate courts to decide.

Modest Expansion of Bases for Deviation?

Though, on one hand, the New Guidelines seem to discourage deviations, on the other, they arguably expand the bases upon which a court may deviate.

The New Guidelines set forth a number of specific grounds for a deviation: a. Educational expenses for the child(ren) (i.e., those incurred for private or parochial schools, or other schools where there are tuition or related costs) and/or the provision or payment of special education needs or expenses for the child(ren); b. The procurement and/or maintenance of life insurance, dental insurance, and/ or other insurance for the children’s benefit (for health insurance premiums, see Section II.2 infra); c. Extraordinary travel expenses for court-ordered visitation; d. Significant available income of the child(ren); e. The creation or maintenance of a trust fund for the children; f. The support given by a parent for minor children in the absence of a court order; g. Extraordinary time spent with the payor parent; h. Additional expenses incurred because of natural or adopted children living in the home, including stepchildren if the court finds there is a court-ordered responsibility to a stepchild; i. The provision for payment of work-related childcare, extraordinary medical expenses for the child in excess of $250.00 per year per child, and/or health insurance premiums. Ordinarily, these expenses will be divided pro rata between the parents and added to the base child support of the payor parent on the Worksheet. In that scenario, it shall not support a deviation. However, if the court chooses not to add them in the total child-support obligation, they could support a deviation[.]16

Additionally, there exists a “catch-all” provision stating that a court may deviate based on “any other factors that warrant a deviation.”17

In comparison, the Old Guidelines listed 12 “Relevant Factors” and eight “Additional Factors” for courts to consider. Though there is no express catch-all provision, these factors were not presented as exclusive.18

All in all, the New Guidelines probably represent an at least modest expansion of the grounds for a deviation. Though the New Guidelines do not list as many factors as the

Old Guidelines, the catch-all provision would seem to accommodate factors that were included in the Old Guidelines but excluded from the New Guidelines as well as factors not yet thought of that might be presented by future parties. Additionally, as discussed above, even if courts were previously allowed to consider non-enumerated factors, the New Guidelines more expressly emphasize a court’s ability to do so.

Conclusion

As with most substantial revisions to the law, the New Guidelines present potential opportunities and challenges. The new approach offers the possibility of support orders that continue to center the best interests of the child while also being more equitable to parents. Moreover, it arguably broadens the bases for deviations at least slightly, a development that is somewhat offset by the apparent diminution of circuit courts’ discretion to grant deviations.

These developments would seem to portend a more straightforward calculation in the great number of cases where both parties are happy enough with the presumptive amount not to aggressively seek a deviation and, overall, a more efficient, uniform child support system. However, no formula can guarantee an outcome that is either perfect in fact or satisfactory to all parties, and there will continue to be parents who, displeased with the presumptive amount, seek a deviation. Given that the New Guidelines themselves constitute a material change in circumstances,19 there will be ample opportunity to suss out the aspects of the New Guidelines that are most open to interpretation. These developments will be interesting to watch for families as well as practitioners.

Endnotes:

1. 2020 Ark. 121. 2. See In re Guidelines for Child Support Enf’t, 301 Ark. 627, 784 S.W.2d 589 (1990). 3. See, e.g., Ceola v. Burnham, 84 Ark. App. 269, 273, 139 S.W.3d 150, 153 (2003) (“Section V of In Re: Administrative Order No. 10, Arkansas Child Support Guidelines, supra, sets forth the following factors to be considered when deviating from the amount set by the chart: food, shelter and utilities . . . and other income or assets available to support the child from whatever source.”). 4. New Guidelines at 2 § 1. Citations to the New Guidelines are to the page number section of the order as found on the Arkansas judiciary website. Available at https:// opinions.arcourts.gov/ark/supremecourt/en/ item/468402/index.do. 5. See New Guidelines at 13-14 § V.1. 6. See id. at 17-18. 7. Compare New Guidelines at 4-5, § II.2 with Old Guidelines at § V. 8. This is also codified at Ark. Code Ann. § 9-12-312(a)(3)(D). 9. New Guidelines at 4, § II.2 (emphasis added). 10. This requirement is still in effect under the New Guidelines. See New Guidelines at 5 § II.2. 11. See, e.g., Gilbow v. Travis, 2010 Ark. 9, at 6-8, 372 S.W.3d 319, 322-24 (discussing law governing deviation and affirming downward deviation in favor of high income payor parent where trial court made findings that Guidelines amount was not necessary to meet the children’s “reasonable needs”); Davis v. Bland, 367 Ark. 210, 215, 238 S.W.3d 924, 927 (2006) (“Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be more appropriate. Any deviations from the chart amount, however, must include written findings stating why the chart amount is unjust or inappropriate. In sum, the court may grant more or less support if the evidence shows that the needs of the child require a different level of support.”) (citations omitted); Callan v. Callan, 2020 Ark. App. 205, at 6, 599 S.W.3d 145, 149 (reversing and remanding where trial court did not make findings in support of ordered deviation); Bass v. Bass, 2011 Ark. App. 753, at 4, 387 S.W.3d 218, 222 (reversing and remanding where “the court’s order does not state the amount of support required by the chart, nor does the order include specific written findings explaining why that amount is unjust or inappropriate after considering all of the relevant factors, including the best interests of [the children].”). 12. See Grimsley v. Drewyor, 2019 Ark. App. 218, at 19, 575 S.W.3d 636, 647 (citations omitted). 13. See, e.g., Back v. Duncan, 246 Ark. 494, 496, 438 S.W.2d 690, 691 (1969) (“An award of a mistrial is a step so drastic as to be the exception rather than the rule as a means of correcting an error. For such a step to be warranted it must be apparent that justice cannot be served by a continuation of the trial.”); Johnson v. State, 254 Ark. 293, 295, 493 S.W.2d 115, 116 (1973) (citing Back). 14. See Brewster v. Johnson, 260 Ark. 450, 456, 541 S.W.2d 306, 309 (1976) (election law case applying United States Supreme Court precedent and declining to apply heightened standard of review to durational residency requirement in part because “[t]he individual interests affected by the classification,” in this case, being able to run for office in an area to which one was a relatively new resident, “are the exception rather than the rule”) (abrogated on other grounds by State v. Jernigan, 2011 Ark. 487, 6, 385 S.W.3d 776, 780); Woolbright v. State, 357 Ark. 63, 87, 160 S.W.3d 315, 331 (2004) (Thornton, J., dissenting) (quoting New Jersey case warning against allowing dual-jury trials); see also Ark. Code Ann. § 28-68-115, Uniform Law Comment (“While as a matter of good practice an exoneration provision should be the exception rather than the rule, its inclusion in a power of attorney may be useful in meeting particular objectives of the principal.”). 15. See, e.g., Klein v. Barrett, 427 S.C. 74, 90-91, 828 S.E.2d 773, 781-82 (Ct. App. 2019) (listing exclusive list of deviation factors and quoting regulatory directive that “[d]eviation from the guidelines should be the exception rather than the rule.”); In re marriage of Wilson, No. 52160-1-II, 2020 WL 2029378, at *8 (Wash. Ct. App. Apr. 28, 2020) (“Further, deviation ‘remains the exception to the rule and should be used only where it would be inequitable not to do so.’”) (quoting In re Marriage of Burch, 81 Wn. App. 756, 760, 916 P.2d 443, 445 (1996)); see also Lewis v. Hicks, 108 Nev. 1107, 1116, 843 P.2d 828, 834 (1992) (reversing and remanding where trial court granted deviation to payor parent due to new marriage and stating that “such a decision should be the exception rather than the rule.”). 16. New Guidelines at 4-5 § II.2. 17. Id. at 5 § II.2. 18. See Old Guidelines at § V(a) (“Relevant factors to be considered by the court in determining appropriate amounts of child support shall include ….”) (emphasis added); id. at § V(b) (“Additional factors may warrant adjustments to the child support obligations and shall include ….”) (emphasis added). 19. See New Guidelines at 3 § II.1. ■

Practice Tips on the New Child Support Guidelines

By Lauren White Hoover

Q. As a general rule, are you seeing smaller awards of support under the new guidelines than under the old?

A. The answer is most certainly yes where one of the parents is a high-income payor. The new guidelines provide a cap on child support (subject to deviation considerations) at a monthly gross income of $30,000.00 per month. Hypothetically, under old guidelines, payor parent has monthly net income of $20,000.00. For 1 child, this payor parent would be paying $2,941 for one child without consideration of the payee parent’s income. Under the new guideline, a payor parent with a $30,000 monthly gross income would be capped at $1952 and that figure is before allocating any responsibility from the payee parent. If there is no work-related childcare and minimal health insurance costs, then the payor parent is going to see a reduction in support.

Q.Where there is joint custody and a substantial difference in income, is there an offset under the new guidelines?

A. Section II of Admin. Order No. 10 as amended on July 1, 2020 “assume[s] that the payor parent has the minor child(dren) overnight in his or her residence less than 141 overnights per calendar year.” (emphasis added) 141 overnights is roughly 38.6% of the year. As we have seen in cases such as Cooper v. Kalkwarf and the language of 9-13101, joint custody does not require a precise 50/50. Since the guidelines are new, we do not yet have guidance from the appellate courts on the proper approach to handle joint custody. From our experience, we have seen courts in Central Arkansas offset the two amounts, divide the payor’s amount in half, or make no additional modification.

Q. Where there is a traditional custody/ visitation arrangement, how is support allocated?

A. The chart seems to spell out for joint and split child(ren) but not for standard. The chart presumes that time is shared with the payor parent having less than 141 overnights, but provides specifically in Section V.2. that the Court may consider the time spent by the child(ren) with the payor parent to deviate downward where there is joint or shared custody.

Q. The guidelines reference that the payor is assumed to file taxes as a single person with one dependent. Does and/or how does the analysis change if the payor is married with several dependents?

A. I have not had this issue come up, but we look to gross income and not taxable income and that is not a change.

Q. Does the standing case law on what is “income” still apply to the new chart?

A. Yes, intentionally broad definition of income for child support purposes are included in Amended Admin 10, Section III. 2.

Q. What do you predict will be the most litigated issues under the new chart?

A. Until there is clarity on what should occur when there is joint custody, this issue will be litigated with the approach that you argue what benefits your client for that case until a general rule is developed in the case law or in local practice.

Q. If a party has lost 20% income since the entry of an existing decree, will the reduction in support owed be ordered under the new or old system? What is the best way to get the previously nonpaying spouse’s income information in this scenario?

A. New rules apply. Best practice is to immediately file a motion where there is a reduction in your client’s income because you will want any new amount ordered to be retroactive to the date the motion was filed. In this scenario, I would propound discovery to obtain the payee parent’s income information.

Q. How are bonuses being treated under the new guidelines?

A. Unlike under the old guidelines, a payor would typically pay on his or her regular earnings and the courts would apportion a percentage of any additional net income from bonuses by the payor parent to the payee parent based on the number of dependents. Unless a bonus or other one-time payment is an outlier event for a parent, my experience to date is that these bonuses are included in the average of a person’s monthly gross income. Like most family law issues, the trial court has discretion to determine how variable income such as commissions, bonuses, overtime, military bonuses, and dividends will be treated including ordering a one-time support amount based on a percentage.

Q. Do you have any helpful tips to offer?

A. Collect the information on the cost of health insurance for the children and work-related childcare as those amounts are proportioned like the chart child support amount. This will impact the total amount paid from one parent to another.

Income is imputed for underemployed parents, but understand in this COVID year that courts are being flexible with those parents who have experienced income loss due to this pandemic. ■

Lauren White Hoover is an attorney with Lacerra, Dickson, Hoover & Rogers PLLC in Little Rock.

The National Football League’s Most Recent Collective Bargaining Agreement: Some Ins and Outs

By J. R. Carroll and Chris Turnage

Carroll Turnage

J. R. Carroll is a partner at Kutak Rock LLP.1

Chris Turnage is a partner at The Law Offices of Travis Berry.2 J. R. and Chris are both licensed NFL agents. For more information on their unique bios please see the endnotes on page 29. This fall the average National Football Fan will see more scheduled football games—and potentially more parity among the teams (which is the ultimate goal of the NFL)— come playoff time. By parity we mean more teams with identical records and therefore more teams with the opportunity to make the playoffs going into the last few weeks of the regular season. More teams in the playoff hunt mean more TV markets will be interested in watching football late into the season. And the increased parity among teams will be due in large part to the ratification, in March 2020, of the latest iteration of the NFL Collective Bargaining Agreement (CBA). While most fans may not consider the behindthe-scenes deals and negotiations that get their favorite players onto the field after the coin toss, there is no doubt that this year’s season will be shaped by recent changes to the players’ CBA.

The NFL prides itself on parity every year; parity is what makes the NFL the most popular sports league in America. For example, the San Francisco 49ers recently coined the phrase “from Mobile to Miami.” Here is what that phrase refers to. The Senior Bowl is the top all-star game for NFL draft hopefuls, and it is held annually in Mobile, Alabama. The coaching staffs for the North and South Senior Bowl teams are comprised of the complete coaching staff of two separate NFL teams. These two NFL teams are selected by taking the two teams that had the worst record the previous NFL year, unless the team hired a new coach, in which case that team is excluded from the requirement of coaching. To use the 49ers as an example, that team went from being near bottom of the NFL to almost the top team in less than 12 months. Very rarely do you see such a dramatic change in Major League Baseball or the National Basketball Association (save the occasional free-agency acquisitions that can lead to dramatically

“While most fans may not consider the behindthe-scenes deals and negotiations that get their favorite players onto the field after the coin toss, there is no doubt that this year’s season will be shaped by recent changes to the players’ CBA.”

different seasons quickly). But overnight successes are more likely in the NFL. This is one of the reasons why the NFL has such a loyal fan base: almost every team has a genuine chance at the start of the season to make the playoffs.

Why is this possible? It is possible because of the NFL’s hard salary cap. In general, this means that a team’s total salary payments can’t go above a certain number. Additionally, the NFL has a salary floor, which means that teams have a minimum that they must pay their players or get fined up to that amount by the NFL. Very few sport organizations or leagues have a mandated salary floor. By squeezing the payroll down with a salary cap and pushing the payroll up with a mandatory salary floor the NFL helps create parity among the teams. As we mentioned at this article’s beginning, the NFL’s CBA is essentially a labor agreement between employees (via their union) and their employers. The “employees” happen to be professional football players represented by the National Football League Players Association (NFLPA) and the NFL team owners. As with other labor agreements, the NFL CBA is the result of negotiations between the players’ union and the owners, which are conducted through the league’s commissioner, to address operational matters, safety concerns, pensions, and benefits. In the case of professional football, however, collective bargaining also includes other features, such as mechanisms for players to bring injury grievances, draft and agree on player free-agency language, and negotiate other terms like season length and active roster limitations.

During the most recent negotiations, the main—some would say the only—“carrot” that the NFLPA and players had to offer to the team owners was a 17th game, an item that owners have desperately coveted. The players (just barely) felt like they received enough of what they wanted during the negotiations to include an additional game. The players agreed to the 2020 CBA, and a 17th game, by a vote of 1,019 to 959. The ink is not yet dry on the agreement, and there is already a movement, spearheaded by Eric Reid (a safety who is a free agent), for a revote. While many high-profile players were adamantly opposed to the new CBA, the reality is that almost 60% of the players in the league make the league minimum, and the new CBA provides a substantial increase in the league’s standard minimum salary. In addition to the minimum salary raise, the players received additional concessions from the owners—such as a different discipline system, essentially non-existent marijuana use requirements, a reduction in contact/practices, an increased percentage of total revenue, an increase in incentives, and a modification of the antiquated “funding rule.” With all this in mind, it is easier to see how the new CBA might better serve the players than prior agreements have.

Some Terms of the 2020 CBA

We will now touch on two main reasons why the CBA was accepted by the parties. First, as we just mentioned, 17 regular season games will be played beginning in the 2021 season. Technically, the owners have an option to expand the 16-game season to 17 games; but rest assured the option will be exercised. The additional game is no small matter. For example, the injury rate in the NFL is 100%. If you play in the NFL, you will get injured. Not only is the game a very physical one, but each athlete tends to expose himself to the possibility of injury over many plays across a season. Simply put, the more one plays, the more wear and tear the body experiences. But collegiate football is not necessarily the same. If you are a Razorback fan (or follow some other collegiate football team) then you know that college football teams have up to 85 players on scholarship. Each player tends to (but not always does) play fewer games over any one season. In fact, up to 70 players may see action during a single game. In stark contrast, the NFL limits its teams to 46 players, though the league is now expanding the game-day roster from 46 to 48 players because of the 17-game option. Study an NFL sideline and you will see how few players remain there when either the team’s offense or defense is on the field. In other words, when compared to college teams, fewer NFL players are playing significantly more games each season (college teams normally play 12 games).

Add to the additional game day the fact that the NFL will not be allowing an extra rest (or bye) week in the season; instead, it is reducing the number of preseason games from four to three. The fourth preseason week will now become a bye week. But the

teams already had in place an unwritten rule that any high-value player did not play in the fourth preseason game. Thus, by removing the fourth preseason game in the new CBA, the NFL arguably provided no real benefit to the players.

Smaller team rosters also mean that the length of the season has a significant impact on an organization’s ability to separate itself from the rest of the teams in the NFL. Every team has a bell curve of talent regarding their players, and throughout the season every team will lose one or more players to injury. This in turn means that each team will have fewer players who can separate the team from the rest of the league as the season wears on. That said, the attrition of talent that occurs within each team throughout the season also helps increase the parity among all the teams. This is so because, toward the end of the season, each game played will not necessarily be a game played by the best players on each team. The later games will be played by whatever players are left standing on each team. For example, in 2019, 413 players were hurt and placed on injured reserve. (This number will likely increase with the introduction of a 17th game.) And once a player is placed on injured reserve, there are only a limited number of instances in which he can play again that league year.

A second major change that the 2020 CBA is expected to yield is that it removes the bye week for the team that is ranked second in the playoffs. Now, only the number one ranked team will receive a rest week during the first week of the playoffs. Consequently, only two teams in the NFL will get a week off during the first week of the playoffs instead of the traditional format of four teams. This addition of making the team with the second seed in the NFC and AFC divisions play an extra game also expands the teams that make the playoffs from 12 to 14 teams as the second seeded teams will need an opponent. This is a historically significant fact. Since 1975, a team that received a bye week in the playoffs went to the super bowl 71 times. All other teams, however, went to the super bowl only 17 times. And since 2013, every team that has made it to the super bowl has been a team that had a bye in the playoffs. Under the current CBA, only the top seeded team in each division will receive a bye. History tells us that these teams will most likely not have the luxury to rest their starters in the final weeks of the season and therefore increase the chance of getting a bye week in the playoffs. (All of you fantasy football players will not have to worry about a team resting its key players.)

We have discussed two important consequences of the new CBA, but that is not all there is to it, of course. To help round out this overview, here is a summary of some other terms of the agreement between players and owners and how CBAs affect the National Football League’s play.

1. Increase in percentage of total

revenue received. This deal could potentially increase the players’ share of total revenue from 47% to 48.5%. Each percentage point is worth approximately $150 million per year to the players. Therefore, this increase equates to billions of new dollars that revert to the players over time. The increase in revenue was a significant reason the players agreed to the 2020 CBA.

2. Increase in the league minimum salary. As previously mentioned, the new CBA increased the league’s minimum

salary by almost $100,000. Although it goes without saying that the league’s minimum pay is much higher than the average worker’s, the average NFL career is also just longer than three years. And the bump in the league minimum will be felt by the players regardless of how long they have been in the league, not only by the rookie players. For example, the league minimum for a rookie will be $610,000; a player with three years of experience can expect $825,000; and a player with seven or more years of experience can expect a minimum pay of $1,050,000.

The downside to these minimum standards is that they can pressure teams to overly favor a roster of younger players. A team can average almost $400,000 in savings per player by keeping a first-year player on its roster instead of a veteran, even if the veteran is a better player. In fact, more than 30% of the players on the opening day of the 2019 league year were undrafted. Presuming that teams are not uninformed when it comes to drafting players, one can see that teams keep in mind the need to maintain a workforce that is as inexpensive as possible considering the hard and unforgiving salary cap.

Consider the 2020 Super Bowl. In that game, the two best teams the NFL had to offer played each other, and 28 of 53 of the total players were undrafted. Due to the salary cap restraints each team must face, the NFL is an accounting puzzle with some football thrown in, not a game based on who can afford the best players. For example, in 2010, Sam Bradford, the first pick in the draft, signed a six-year deal worth $78 million, with $50 million guaranteed. Under the new 2011 CBA, Cam Newton, also a first pick in the draft, signed a five-year contract worth $36 million. A third example is Seattle Seahawk’s quarterback Russell Wilson. In 2014, the Seattle Seahawks had super bowl winner Russell Wilson making $662,434, his back-up quarterback Tarvaris Jackson (a former Razorback) making $1,250,000, and QB3 Terrelle Pryor making $705,000. So thanks to the new CBA, Russell Wilson, a Super-Bowl-winning quarterback, will be the third highest paid quarterback on his own team. The new CBA places a major restriction on rookie contracts and places Wilson’s rookie contract well below the fair market value of his services for three years. For example, in 2019 Patrick Mahomes, due to the rookie salary restrictions, made just under $2,000,000 for his services. After Mahomes completed his three-year rookie salary restriction, he was able to sign a 10-year deal with a maximum payout of $53,000,000. Consequently, there is a large advantage regarding salary cap purposes for teams who have a star player still under the rookie contract.

3. Funding rule change leads to more

guaranties for players. A recent change in the funding rule is another key component for the players. Many fans clamor for guaranteed contracts for players and often ask why the NFL’s contracts are not guaranteed. During negotiations between agents and management, the clubs often use “the funding rule” as an excuse as to why they cannot fully guaranty a deal. The funding rule was put in place in the early years of the NFL, and it requires owners to put on deposit with the League 100% of the amount of any guaranteed contracts. At the time, this was to ensure the owners had the money and didn’t leave the players empty- handed later. Times have certainly changed, however, because the 32 NFL owners are

some of the richest people in America. The new CBA will ultimately allow for a $17 million exclusion—meaning a contract can be guaranteed up to $17 million without the owner having to put more money on deposit with the league. This will allow for more guaranteed contracts for the players because the owners will not have to take money from their investments and put on deposit with the league.

4. The players will now receive better

incentives. This was achieved using a performance-based pay pool, which helps alleviate some of the inequities in rookies’ salary contracts. Simply put, there is a pool of money from which bonuses are paid based on a formula that compares how many snaps a player played compared to his current salary. An example helps make the point. As a rookie, Dre Greenlaw, who is an outside linebacker and plays for the San Francisco 49ers, made $495,000, as do all first-year players. Ultimate first-year pay is differentiated only by signing bonuses. More to the point, because Greenlaw played so many downs for the 49ers during the 2019 season, his player performance bonus was $339,981. You can see the importance of this pool, and the influence that an expanded pool of money is for many players.

5. Non-monetary benefits were received, too. Some of these include concessions by the ownership in the form of discipline, drug testing, and off-season

practices. Pursuant to the 2011 CBA, NFL Commissioner Roger Goodell was the judge, jury, and appellate court regarding fines and discipline. Consequently, some players received punishments that many have strongly questioned. For example, numerous players have been fined more than $7,000 because their NFL-issued socks were worn too high or because an undershirt hung below their jersey. You also have the issue of fines during preseason games in which the fine would easily exceed the player’s pay for playing in the game. A player may receive approximately $2,500 for a preseason game, but get fined $20,000 during the same game, which means that after taxes the player is likely to lose $19,000 for playing a game. As for fines that occur due to actions on the field, Deatrich Wise, a former Razorback, was fined $38,000 for a late hit on Cowboy quarterback Dak Prescott. This fine was appealed, and Wise eventually had to pay $9,000. All the above-mentioned fines were during the old CBA, and Goodell had full control over the fines including the appeal process. Under the new CBA, however, Goodell does not have complete control over the disciplinary process, so fines will likely begin at a much lower amount.

Regarding changes in the NFL drug policy, the major difference between the current CBA and those of years past is the NFL’s position regarding marijuana. In December 2019, Major League Baseball removed marijuana from its banned- substance list, and marijuana is now treated by MLB in the same category as alcohol use by its players. As for the NFL, it has increased the threshold for a positive test from 35 nanograms to 150 nanograms of THC. But the two biggest changes in the 2020 CBA regarding marijuana use is that a positive test will not result in a suspension—and the testing period will only be during a stated and known twoweek window for the entire year.

Lastly, there will be additional concessions regarding practices for the players. Here, the NFL has agreed to limit Organized Training Activities from 14 days to 10. Also, the number of training camp practices that will be conducted in full pads will be reduced from 28 practices to 16, with no more than three in a row. This will help reduce the physical stress that the athletes must bear during preseason. Furthermore, no practice can last more than two-and-a-half hours; if there are multiple practices in a single day, then the total practice time cannot exceed seven hours. Finally, players are no longer allowed to be at the team facility longer than 12 hours a day.

Conclusion

Time will tell whether the players or the owners “won” the negotiations that spawned the new CBA. Although the 32 billionaire owners have some obvious advantages over the players, the current CBA is more favorable to players than some prior CBAs have been, especially for those players who will have short careers. The average NFL career is just under three-and-a-half years. The current agreement also better accounts for the unavoidable physical risks associated with the contact sport. One thing that all fans can surely rejoice in is that, for the next decade, professional football will be played with no fear of strikes or lockouts.

Endnotes:

1. J. R. has been a licensed NFL agent since 2011 and has represented a player drafted in the NFL almost every year since. In 2018, J.R. represented a player who was drafted in the first round. The list of Razorbacks represented by J. R. include: Ryan Mallett, Jarius Wright, Cobi Hamilton, Travis Swanson, Jonathan Williams, Frank Ragnow, Hjalte Froholdt, and Dre Greenlaw. J.R has been named to The Best Lawyers in America© list by US News for the years 2017 through 2021. Given J. R.’s background in accounting he focuses on complex commercial litigation at Kutak Rock LLP. Since 2013, J. R. has been an adjunct professor at the University of Arkansas School of Law teaching Sports Law. 2. Chris Turnage has been a licensed NFL agent since 2008. Chris founded Comprehensive Sports Management which has evolved into the trade name of United Athlete Sports and he operates out of Hot Springs. UA Sports is a full service agency and currently represents approximately 25 professional football athletes and eight coaches. Chris has negotiated millions of dollars in contracts and endorsements and collectively has represented a player drafted in every round of the draft and also represents an NFL Hall of Famer. UA Sports has negotiated two contracts which made those players the highest paid in the NFL at their positions. In addition to working as an agent, Chris also practices law, specializing in contracts, civil litigation, and complex family and criminal law matters. For his law practice, Chris recently merged his practice with the Law Offices of Travis Berry with offices in Conway, Arkadelphia, and Hot Springs. ■