The Daily Briefing Thursday, November 4, 2021

GREEN BAY

For some temporary peace from howling pro-vax media, QB AARON RODGERS now is revealed as, at best, sneaky.  Kevin Seifert of ESPN.com:

News that Green Bay Packers quarterback Aaron Rodgers tested positive for COVID-19, is unvaccinated and will miss this weekend’s game against the Chiefs shocked the NFL world on Wednesday — and not just because he said in August that he had already been “immunized.” Since training camp opened in late July, Rodgers had not been publicly observed to be following any of the obvious protocols for unvaccinated NFL players, as agreed upon this summer by the NFL and NFL Players Association. The NFL is currently reviewing the situation with the Packers, per a league statement on Wednesday afternoon.

So what’s the deal here? Did Rodgers mislead everyone about his vaccination status? Was he flouting NFL rules? Were the Packers or the league looking the other way? What follows is our best attempt to separate fact, assumption and outright fiction in this evolving story. We lay out what we definitively know about the situation right now and run through the league’s protocols involved, potential fines that could be in play and when Rodgers could be back on the field for Green Bay.

What happened?

Rodgers tested positive Wednesday morning for COVID-19, and the Packers confirmed that backup QB Jordan Love will start Sunday night’s game against the Chiefs. That sequence made clear that Rodgers is unvaccinated.

Why is that?

Unvaccinated players who test positive must isolate at least 10 days, even if they are asymptomatic. Vaccinated players, however, can return following a positive test as soon as they produce two negative tests with 24 hours in between, as long as they are asymptomatic. In other words, Rodgers would at least have a chance to play Sunday if he were vaccinated.

Didn’t Rodgers say he had been vaccinated?

No. In August, a reporter in Green Bay asked him if he had been vaccinated for COVID-19. He answered by saying, in part: “Yeah, I’ve been immunized.”

Is there a difference?

No one thought so at the time. The Centers for Disease Control (CDC) defines vaccination as “the act of introducing a vaccine into the body to produce protection from a specific disease.” Its definition for immunization is “a process by which a person becomes protected against a disease through vaccination.”

So if you want to parse words in retrospect, you could interpret Rodgers’ response to mean he believed himself to be protected against COVID-19 without overtly saying he received an approved vaccination.

Why did he think he was protected against COVID-19?

According to ESPN’s Rob Demovsky, Rodgers pursued an alternative treatment and then petitioned the NFL to recognize him as vaccinated. The NFL refused, citing the clear language of the NFL-NFLPA agreement reached this summer.

What did that agreement say about vaccination?

It offered multiple paths toward a “fully vaccinated’ status. They include:

14 days past a two-shot regimen of the Pfizer or Moderna vaccine

14 days past a one-shot regime of the Johnson & Johnson vaccine

One shot of any vaccine if the player had also tested positive after August 26, has a total antibody level of 100 U/mL or greater and a positive antibody test to the COVID IgG nucleocapsid protein.

Absent one of the outcomes, Rodgers was required to follow protocols for any other unvaccinated player.

What are those protocols?

Many of them are listed here. They include daily testing and elevated mask wearing, and they are overall nearly identical to the rules that players and coaches followed during the 2020 season, before vaccines were available.

Are those the only rules unvaccinated players must follow?

No. An unvaccinated player, for example, can’t gather in a group of more than three players, coaches and other members of the football operation staff.

Didn’t Rodgers attend a Halloween party dressed as John Wick?

Rodgers definitely dressed up as John Wick. Video of him dancing surfaced on the Instagram story of teammate Marcedes Lewis. From that video, at least, it couldn’t be determined whether the other people were teammates.

Don’t the protocols also say unvaccinated players must wear masks at all times when indoors at the team facility or at the stadium on game days?

They do, and Rodgers has not been wearing one during indoor press conferences with reporters at Lambeau Field, where the Packers practice and play games. In some instances, the Packers have conducted interviews with unvaccinated players over Zoom, but Rodgers’ have all been in-person.

Rodgers hasn’t been wearing a mask on the sideline during games. Wasn’t he supposed to?

The NFL-NFLPA rules were amended this summer. Masks are required for unvaccinated players at games only if they are inactive, meaning they are not in uniform and not eligible to play. Active players are encouraged but not required to wear masks unless local or state guidelines require it, according to the current protocols. None of the four teams that the Packers have played on the road so far have required active players to wear masks on sidelines.

Did that include the preseason?

A reasonable reading of the protocols would suggest that, yes, the preseason should be included. And Rodgers was not in uniform for any of the Packers’ three preseason games. But there are no gameday roster limits for preseason games, so from a technical standpoint, there are no “inactive” players. For this reason, a source said, the league would not consider an unvaccinated player who is not in uniform for a preseason game to be in violation of its protocols if he were not masked.

Did the NFL discipline him for any of this?

As of this moment, the league has not responded to questions about that. The NFL has the ability to fine players at least $14,650 on first offense of violating COVID-19 protocols, with a maximum of $50,000.

Does Rodgers get paid while he is in isolation?

Yes. The only reason a game check could be lost is if an unvaccinated player sparks an outbreak that leads to a forfeit. In that case, no player from either team would be paid.

Well, it sure sounds like Rodgers was in violation of multiple COVID-19 protocols.

We’ll know soon enough. Ultimately, the Packers could face more culpability. The NFL issued a statement late Wednesday afternoon noting pointedly that “the primary responsibility” for enforcing COVID-19 protocols is with the team, not the league. It pledged to “review the matter” and noted that teams have been disciplined in the past for protocol violations. Among the teams fined were the New Orleans Saints ($500,000), Las Vegas Raiders ($500,000), Tennessee Titans ($350,000), New England Patriots ($350,000) and Baltimore Ravens ($250,000). The Saints were also stripped of a seventh-round draft pick, and the Raiders lost a sixth-rounder.

How worried should Rodgers and the Packers be?

The most important thing to worry about is Rodgers’ health in both the short- and long-term. The best-case scenario is that he will re-join the team the day before the Packers’ Nov. 14 game against the Seahawks. So it’s not out of the question that he could miss two games, and that’s assuming he tests negative and is asymptomatic at the 10-day mark.

Chatter throughout the day Wednesday centered on the surprise of Rodgers’ unvaccinated status, but the health of all involved should be the top priority.

DALLAS

An update on the Cowboys injury situation from Michael David Smith of ProFootballTalk.com:

Cowboys wide receiver CeeDee Lamb suffered an ankle injury in practice on Wednesday and is limited in practice today.

But the Cowboys have better news on the injury front with quarterback Dak Prescott still trending to play on Sunday against the Broncos. Coach Mike McCarthy reiterated today what he said on Monday, which is that Prescott’s Thursday status will be full practice, and the expectation is that he will play on Sunday.

Prescott likely won’t have left tackle Tyron Smith blocking for him. McCarthy said it will be tough for Smith to play this week because of his ankle injury, but that he doesn’t expect Smith to miss much time beyond Sunday.

McCarthy also mentioned that defensive end DeMarcus Lawrence is looking good in his rehab from a foot injury, but there’s no word on when Lawrence will be off injured reserve and back on the field.

WASHINGTON

DE MONTEZ SWEAT is out 4-to-6 weeks.  Nikki Jhabvala of the Washington Post:

Football Team defensive end Montez Sweat suffered a non-displaced jaw fracture during the team’s loss to the Denver Broncos on Sunday and is expected to miss 4-6 weeks, Nicki Jhabvala of the Washington Post reports.  This according to two people with knowledge of the situation. The injury, according to one person, will not require surgery, but Sweat will have to adopt a soft-foods diet and avoid any physical contact.

The team could place Sweat on injured reserve for at least three weeks, but it likely won’t decide until after it returns from this week’s bye.

Washington hosts the reigning Super Bowl champion Tampa Bay Buccaneers in Week 10, then travels to Charlotte to face the Panthers before returning to FedEx Field for a meeting with the Seattle Seahawks.

Sweat’s absence will leave Washington’s defensive line without one of its bookends and extends the team’s injury list just when Coach Ron Rivera was hoping his roster would be regaining its health.

NEW ORLEANS

QB TAYSOM HILL is back at practice, four weeks after being concussed.  Luke Johnson of NoLa.com:

After starting quarterback Jameis Winston was lost for the season with a torn ACL, the New Orleans Saints saw one of his primary backups return to practice.

Taysom Hill was officially listed as a limited participant in the Saints’ Wednesday practice. It was his first time appearing in uniform since he sustained a concussion against the Washington Football Team Oct. 10.

With Hill back at practice, he could conceivably reprise his role as the team’s starting quarterback, which he filled last season while going 3-1 as the starter while Drew Brees recovered from broken ribs.

Last week, that duty went to Trevor Siemian, who stepped in for Winston and led the Saints to five scoring drives in a win against the Tampa Bay Buccaneers.

Since news of Winston’s injury, the Saints have steadily declined to say who would start for the team at quarterback next week and beyond. Wednesday morning, Saints coach Sean Payton said, “I can’t share anything,” relative to the starting quarterback.

Jeff Kerr of CBSSports.com on options for the Saints with QB JAMEIS WINSTON gone:

The New Orleans Saints won’t have Jameis Winston for the remainder of the 2021 season after the starting quarterback suffered a torn ACL in Sunday’s win. Winston was having a good season for the Saints — his first as the team’s starting quarterback.

Winston’s touchdown to interception ratio was by far the highest of his career at 4.7. He completed just 59% of his passes, but threw for 14 touchdowns to just three interceptions for a 102.8 passer rating. Winston’s touchdown percentage of 8.7 was also first in the NFL, as he became the reliable quarterback head coach Sean Payton envisioned when he named Winston the starter back in August.

“We definitely were encouraged,” Payton said earlier this week. “We felt like we saw the arm strength, the leadership, all of those things. Remember, the thing we talked about all the time is that they’ll evaluate you by your record. He was 4-2 and it wasn’t always perfect, but absolutely. He’s someone who had become a vital part of what we were doing.”

The Saints don’t appear to be looking at any outside quarterback options with Winston out, with Payton dismissing the notion by saying “we’re satisfied with our quarterback room.” While its too late to bring in an outside option this week to start, there are still 10 games left on the Saints schedule. The Saints are 5-2 and in prime position to make the playoffs too, which is why all options need to be considered — no matter how well the internal options fare in Payton’s system.

What will New Orleans do at quarterback going forward? Let’s take a glance at Payton’s options and what he should do in the days and weeks ahead.

Taysom Hill

All things considered, Hill is the most likely option to be the starting quarterback for the Saints going forward. The Saints do have Hill signed to a $7.259 million contract to be on the roster — and Hill was the starting quarterback last season when Drew Brees went down with a rib injury.

Payton knows what he has regarding Hill based on the sample size in the four games he started last season. Hill completed 71.9% of his passes for 834 yards with four touchdowns and two interceptions while rushing 39 times for 209 yards (5.36 yards per carry) with four touchdowns in those four games. Hill recorded a 96.9 passer rating in his four starts as the Saints went 3-1 during that stretch.

Expect the Saints to use the same offensive philosophy they did last season with Hill — be heavy on the run and use Hill’s ball-carrying ability as an added dimension to the offense. They have the personnel to accomplish this with Alvin Kamara and Mark Ingram in the backfield, the 1-2 punch New Orleans wanted when the Saints acquired Ingram last week.

Hill is expected to clear concussion protocol this week. He’s the short-team answer for the Saints — and has the opportunity to extend his stay as the starter.

Trevor Siemian

Payton could be pressed to go with Siemian based on how he performed in Sunday’s win. With Hill out, Siemian was the No. 2 quarterback and played in his first NFL game since 2019 once Winston was lost with the injury. Siemian played admirably, completing 16 of 29 passes for 159 yards with a touchdown and zero interceptions.

Payton showcased his confidence in Siemian throughout the game, going for it on fourth down twice on the team’s opening drive in the third quarter — converting both (which led to a touchdown). This is significant since Siemian had thrown just six passes in a game since the start of the 2019 season prior to Sunday.

Siemian has been in Payton’s system for nearly a year, and has started 25 games in the NFL. This isn’t his first rodeo in the league and Payton certainly has a liking to him. Payton compared Siemian to Ty Detmer, who he was the quarterbacks coach for in 1997 with the Philadelphia Eagles — his first coaching job.

“He’s one of those guys who is pretty calm,” Payton said. “He’s never (flustered). It’s a good trait for him. It was not perfect. There were a number of things that we are going to be able to coach off of the tape on. I thought we played with energy, and that was a big concern of mine coming off of the Monday night west coast trip. I thought we played with a lot of energy.”

If Siemian starts for a few games, it would be hard to fault Payton. As the long-term answer for this season, that’s debatable.

Philip Rivers

Hard to count out the possibility of Rivers being the starting quarterback of the Saints a month from now. Rivers, whose high school season just ended (first year as a head coach), said he would listen to the Saints if they were to give him a call.

“Like I told you guys six or eight weeks ago, I’m going to stay somewhat ready in case the perfect storm hits,” Rivers said to Mark Heim on WNSP-FM 105.5 Tuesday. “There’s been no dialogue, but you can’t shut the door on anything. Although I still stick by it’s a super, super slim chance. It’s got to be the right situation for our family.”

The Saints would be the perfect opportunity for Rivers to make another run at a Super Bowl, especially since the Saints have a strong running game with Kamara and Ingram along with a defense that generates turnovers and puts pressure on the opposing quarterback. All Rivers would have to be is a game manager, one who has thrown for for 63,440 yards and 421 touchdowns in his 17-year career — ranking fifth all-time in both categories.

Rivers just retired last season, and the 38-year-old quarterback played well in his only year with the Indianapolis Colts. He completed 68% of his passes for 4,169 yards with 24 touchdowns to 11 interceptions (97.0 rating), leading the Colts to the playoffs with an 11-5 record — and played well in that postseason loss on the road in Buffalo.

If the Saints were to sign Rivers, it would take him until Thanksgiving to get ready to start — but he would be ready for the stretch run of the season in December and January. Rivers would be the long-term answer for New Orleans, who are contenders in a loaded NFC. He may be the quarterback they need for a deep playoff run.

Drew Brees

Don’t bank on Brees coming out of retirement for another shot at a Super Bowl. The future Hall of Fame quarterback and current NBC analyst said he’ll be calling the Notre-Dame-Navy game Saturday and will be in the studio Sunday, fulfilling his obligations with the network. As for the next week and future weeks? Don’t count on it.

Brees suffered plenty of injuries in his final season in New Orleans, which led to his retirement in the first place. Brees’ wife, Brittany, revealed in an Instagram post this offseason all the injuries her husband suffered in 2020. According to Brittany Brees, Drew Brees had a torn rotator cuff, torn fascia, a collapsed lung, and 11 broken ribs.

“I only really felt good in one game, from the perspective of, I had all the tools in my toolbox,” Brees said in April. “I had a lot of limitations throughout the season as to what I could and couldn’t do, and I recognized that. And that’s really hard for a competitor. That’s really hard when you know what you should be able to do, and yet you can’t because of various injuries, or things that are taking place with your body.”

Even with a nearly 11 months to get healthy, Brees appears to have no interest in a return. He seems at peace with his decision to retire — and appears in line to be the next color commentator for “Sunday Night Football.” Hard to pass up the opportunity Brees possesses for one more season of football.

LOS ANGELES RAMS

EDGE VON MILLER has been crying for a number of reasons this week:

@LATimesklein

Von Miller: “I cried a lot on Monday but all the tears weren’t sad. I had tears of joy too, coming here to play with Aaron Donald.”

– – –

If he keeps it up, and with the help of a 17^th game, WR COOPER KUPP will be challenging some major season records by season’s end.  Michael David Smith ofProFootballTalk.com on his progress to date:

Rams wide receiver Cooper Kupp is putting up numbers to start this season like the NFL hasn’t seen in decades.

Kupp leads the NFL with 924 receiving yards and 10 touchdown catches this season. And he’s the first receiver with 900 yards and 10 touchdowns in his team’s first eight games of the season since Jerry Rice in 1990.

Although NFL passing numbers have skyrocketed in recent years, that has come more from quarterbacks spreading the ball around to multiple receivers than from individual receivers putting up huge numbers. It’s telling that besides Kupp and Rice, the receivers who previously had 900 yards and 10 touchdowns through their team’s first eight games were Don Hutson in 1942, Raymond Berry in 1951 and Elroy “Crazy Legs” Hirsch in 1960.

Rice, Hutson, Berry and Hirsch were all Hall of Fame receivers. The 28-year-old Kupp hasn’t had that kind of career yet, but since the arrival of Matthew Stafford in Los Angeles, no receiver has produced more than Kupp.

Bill Barnwell of ESPN.com looks at each team in the AFC North – all of whom could win the division (we put his comments on each team in the team slot below):

In 2020, the AFC North was the only division in the NFL to send three teams to the postseason. In 2021, the race to win the league’s best division has only gotten tougher. The emergence of the Bengals as a legitimate contender has led to a four-way race for the division title through eight weeks. These four teams could realistically finish in any order by the time the season ends.

BALTIMORE

Bill Barnwell:

Baltimore Ravens (5-2)

Chances of winning the AFC North: 47.4%

When we last saw the Ravens before their Week 8 bye, they were getting run off the field at home by the Bengals in the most lopsided loss of the Lamar Jackson era. This was new territory for both teams, given that Baltimore had beaten Cincinnati five straight times with Jackson at the helm, outscoring its division rivals by a combined score of 161-57. Just as the Browns beating the Steelers in consecutive weeks to get into the playoffs and then advance to the next round last season told us that the traditional order of things in the AFC North was being upended, the Bengals blowing out their tormentors tells us that everything is up for grabs in the division.

Even before the Bengals game, though, it was clear that the 2021 Ravens were a little different from our prior perceptions. The offense isn’t the same, and that might be for the better. For them to stay atop the North and make a deep playoff run, though, it’s the changes on the other side of the ball that might be more important.

For more than two decades, one of the few things you could count on in the unreliable, inconsistent world of the NFL is that Baltimore would have a great defense. From 1999 through 2020, it fielded a top-10 defense by DVOA 20 times in 22 tries. One of the two exceptions, surprisingly enough, came in 2012, when the team was beset by injuries and finished 19th in defensive DVOA. Stars such as Ray Lewis and Terrell Suggs made it back for the postseason, and the Ravens promptly won Super Bowl XLVII, buoyed by an improbable run from Joe Flacco.

Now, this season the Ravens rank 20th in defensive DVOA through their first seven games. That ranking doesn’t mean they’re out of the title race — the Chiefs ranked 22nd in defensive DVOA a year ago and went 14-2 — but it’s out of character for Baltimore. A brutal fourth quarter against the Bengals dropped the defense down the charts, but Don Martindale’s unit also allowed 25 points to the Colts, 33 points to the Raiders and 35 points to the Chiefs. It also let the Lions score 10 points on two fourth-quarter drives to take the lead before Justin Tucker bailed Baltimore out with the longest field goal in NFL history.

The biggest problem for the Ravens is also something unfamiliar: They can’t tackle. Outside of the Texans, the Ravens might be the league’s worst-tackling team so far. Pro Football Reference’s advanced metrics suggest that they are whiffing on 8.3 tackles per game, the most of any team this season. Opposing runners are averaging 2.2 yards after first contact with a Baltimore defender, which ranks 31st.

The Ravens are also allowing an average of 7.1 yards after catch, which is the worst mark in football and more than 1.5 yards per catch worse than any other of their defenses over the past decade. They can allow big plays with and without physical whiffs on tackles. Jonathan Taylor’s long touchdown came on a third-and-15 screen in which he lured Jimmy Smith into a blocker and then accelerated past nonexistent backside pursuit, while Ja’Marr Chase broke three tackles en route to his 82-yard score. Travis Kelce is a great player, but there’s no way he should have been able to take this pass 46 yards to the house.

Play-action has also been a nightmare for the Ravens. Their 80.1 QBR against teams using a play-fake ranks 31st in the NFL, with only the Chiefs worse. Opposing teams are 43-of-60 passing for 629 yards with five touchdowns and no picks on play-action. The Ravens are an aggressive team and can gamble at times to try to create big plays, but they were the sixth-best defense in the league against play-action between 2019 and 2020, so this is a new problem.

Other issues we would expect to be strengths aren’t in 2021. After losing players such as Za’Darius Smith and Matthew Judon in recent years, the Ravens have the ninth-worst sack rate in football. They rank better by pass rush win rate (10th) — and they’re creating pressures at close to a league-average rate — but they’re not typically an average pass rush.

They’ve also created seven takeaways in seven games, with just one multi-takeaway game so far, the win over the Chiefs in Week 2. They typically force turnovers in clumps; this is a defense that has averaged more than seven two-plus takeaway games per season over the past five years. Losing Marcus Peters for the season due to a torn ACL cost them a key contributor, but after averaging 25.2 takeaways per 16 games over the prior five seasons, they are on pace for 17 in 17.

With Tuesday’s trade deadline coming and going without an addition, the Ravens have to hope their young players continue to develop. They’ve recently made one major change. Patrick Queen, a 2020 first-round pick, had been a notable disappointment at middle linebacker, leading them to move him to the weak side two weeks ago while making him a part-time player. Journeyman linebacker Josh Bynes doesn’t have Queen’s range and upside, but if he can tackle, he’s going to play.

The Ravens have also made a subtle-but-significant shift on the other side of the ball. Ben Baldwin’s RBSDM site tracks how frequently a team throws in neutral-script situations on first and second down. Here’s how frequently the Ravens have passed in those situations since Jackson took over midway through the 2018 season, and where that ranks among NFL teams:

2018: 35.4% neutral pass rate (32nd in NFL)

2019: 42.6% (32nd)

2020: 43.9% (30th)

2021: 54.9% (14th)

That’s a jump! The Ravens haven’t morphed into the Chiefs or Bills, but their offense is suddenly throwing the ball more frequently than ever before.

So far, Jackson has been up to the challenge. While he hasn’t been as good as he was during his 2019 MVP season, his passing numbers are better than what we saw in 2020, which is promising given the rise in volume. Jackson’s completion percentage and interception rate are right around league average, but where he stands out is by averaging 8.6 yards per attempt, the fifth-highest mark in the league so far. His average pass travels more than 10.5 yards in the air, a full yard ahead of the rest of the league.

By net yards per attempt, Jackson is a top-10 passer this season independent of the (significant) value he adds with his legs. His numbers would look even better if it weren’t for a series of drops by the Ravens’ receivers on deep passes; 13% of his throws 25 yards or more downfield have been dropped, the second-highest rate. Marquise Brown has made some spectacular catches, but he has also dropped a handful of long touchdowns. Jackson is one of the outside candidates in a murky MVP race.

I wouldn’t be surprised if the Ravens kept passing around this rate in neutral situations. They are going to integrate first-round pick Rashod Bateman into the lineup and should get back Sammy Watkins in the weeks to come. Star blocking tight end Nick Boyle is also practicing for the first time since suffering a serious knee injury last November, so they should have more formational flexibility than they’ve had in years past.

Of course, injuries still loom as the biggest problem for this team. Baltimore has already lost Peters, Ronnie Stanley, J.K. Dobbins, Gus Edwards and L.J. Fort for the season. While the Ravens are typically one of the NFL’s deepest teams, they can’t afford to lose many more key contributors. Given how good this defense has been for so long, the safe money is on them figuring things out on that side of the ball after the bye. Games against the Dolphins and Bears in the weeks to come will help.

CINCINNATI

Bill Barnwell:

Cincinnati Bengals (5-3)

Chances of winning the AFC North: 27.3%

I wrote about the Bengals at length a couple of weeks ago, so I won’t add much more to what I wrote then. Since that column, we saw the Bengals enjoy the high of blowing out the rival Ravens and the low of somehow losing to the Jets.

When a team loses unexpectedly, there’s usually some sort of one-game outlier explanation for what happened. Every one of those easy explanations doesn’t apply here. The Bengals won the turnover battle 3-1 and recovered both of the game’s fumbles. The Jets were better on third down, but the Bengals still converted 40% of the time. Both teams were 4-for-6 in the red zone. Cincinnati had much better average starting field position, beginning its drives with an average of 60 yards to go for a touchdown.

The differences were subtler. The Bengals scored four touchdowns in six red zone trips, but one of their failures saw them come away with no points despite starting with first-and-goal from the 1-yard line. The Jets scored on every one of their trips to the red zone. New York held the ball for nearly 40 minutes and ran 78 plays with Mike White at quarterback, gassing out the Bengals’ pass rush; their pressure rate fell from 30% in the first three quarters of the game to 18.2% in the fourth. And while the Jets were penalized more frequently, the Bengals were denied an opportunity to get the ball back at the two-minute warning by an inexplicable, unnecessary roughness call against Mike Hilton.

I’m not sure there’s a formula or some fatal flaw revealed by this loss. The reality is that we’ve seen a wide range of performances for the Bengals this season, independent of their record. They blew out the Ravens, manhandled the Steelers and gave the Packers a real scare. They also went down 14-0 against the Jaguars before coming back in the second half, turned the ball over four times in a loss to the Bears and just followed up the biggest win of the Zac Taylor era with a loss to the Jets.

As tempting as it is to write off the Jets game as an aberration and pretend that the “real” Bengals are the ones who blew out the Ravens, we can’t just pick and choose the games we want as proof that they’re a great team. We know they’re capable of looking like one of the league’s best, because we’ve seen that multiple times in 2021, and we also know that they’re capable of laying an egg against an opponent that looks inferior on paper. Their average performance is way higher this season than it has been in seasons past, but with the fifth-highest variance in the league so far, the Bengals need to find some level of consistency.

CLEVELAND

With the Battle of Ohio looming in Cincinnati, the Browns don’t even want WR ODELL BECKHAM, Jr. to practice with them.  Mike Florio of ProFootballTalk.com:

The Browns are in checkmate. They just don’t realize it yet.

When it comes to dealing with receiver Odell Beckham, Jr., there’s nothing to negotiate. Nothing to discuss. With a trade not an option, their choices are to let him return to work, to suspend him without pay for conduct detrimental to the team, or to release him.

They’re trying to carve out another approach, “excusing” him from team activities while figuring out what to do. Per multiple reports, he’s “excused” again on Thursday. Even if he wants to practice.

Basically, they’re suspending him with pay. Starting with the 2006 CBA, teams lost the ability to do this. If he fights it, he’ll win. They can’t keep him out of the facility, or off the practice field.

They could, in theory, suspend him without pay for four weeks for conduct detrimental to the team and force him to file a grievance. At the end of the day, Beckham would get his money after prevailing. In the interim, the Browns would delay his arrival with a new team.

But that would be a horrible look for the Browns, exacerbating the distraction while also sending a bad message to current and future players about the way the Browns do business. Look at the Steelers. As coach Mike Tomlin has said many times (and most recently this week), it’s better to have volunteers than hostages. If Beckham wants out, let him go. While that can become a dangerous precedent, the broader goal should be to create an environment that makes players want to be there. The Browns failed to make Beckham wants to be there.

The Browns are better off without Beckham. Beckham is better off with the Browns. Although the Browns may not want to see Beckham end up with the Chiefs or the Bills or the Ravens or the Steelers, the best play is to let him go. The only play is to let him go.

The fact that, as coach Kevin Stefanski said on Wednesday, G.M. Andrew Berry is talking to Beckham’s representatives suggests that there’s something to talk about. There isn’t. They can welcome him back, suspend him without pay, or cut him. That’s it. And the sooner they make the decision to move on, the better off they will be.

– – –

Bill Barnwell:

Cleveland Browns (4-4)

Chances of winning the AFC North: 11.1%

This wasn’t the plan for the Browns, who were supposed to be building on last season’s hot finish by ascending to the top of the AFC. They started 3-1, and even that lone loss was a game in which they outplayed the Chiefs for most of the contest before a dropped punt flipped the field and turned things around for Kansas City. After four games, the Browns mostly looked on track as one of the best teams in football.

Four games later, they look adrift. They’re in last place in the AFC North after losing three of four, with their only win coming by three points over the Broncos. One of those losses was a heartbreaker against the Chargers, but Kevin Stefanski’s team was blown out by the Cardinals and repeatedly frustrated by the Steelers, limiting it to one win from its three-game homestand. Three of the Browns’ next four games now come on the road before their Week 13 bye, including divisional matchups against the Bengals and Ravens.

What’s gone wrong shouldn’t necessarily be a surprise. Before the year, I mentioned that they were one of the teams in the league most likely to decline from their 2020 record in 2021. The jury’s still out, given that they went 11-5 a year ago and could go 8-1 or better the rest of the way, but some of the factors we saw as possible problems for them are popping up already. Let’s run through the issues:

The Browns were lucky in close games. The 2020 team was 7-2 in games decided by seven points or fewer, something that is awfully difficult for teams to repeat year after year. Some of those games weren’t as close as the final score indicated, but the Browns were certainly winning a disproportionately high percentage of the games that came down to one possession or one play. This year’s team is 3-3 in those same games. Of course, just about every one of those games could have gone either way; the only one that wasn’t as close as it seemed was the win over the Broncos.

The Browns were great on offense in the red zone. They scored touchdowns on 73.6% of their trips inside the 20 last season, the third-best mark in the league. It’s tough to be that effective in the red zone from year to year, and in 2021, they have converted just 55.6% of their red zone possessions into touchdowns. They rank 23rd in the league in that same category.

Cleveland’s offensive line was extremely healthy. One of the biggest reasons this team took a leap forward in 2020 was a much-improved offensive line, owing to the arrival of coach Bill Callahan, new starters at both tackle spots and a relatively healthy campaign. Its five starters up front missed a total of seven games all season. It was reasonable to expect the line to play well in 2021, but counting on Jack Conklin to be healthy for the vast majority of the season was a big ask.

The five starting linemen have combined to miss four games so far, but that doesn’t tell the whole story. Left tackle Jedrick Wills Jr. has played more than 75% of the snaps twice. Conklin, the right tackle, missed two games and was forced out of his return against the Steelers after 21 snaps with a dislocated elbow, which is expected to keep him out for several weeks. Swing tackle Chris Hubbard, who would be the first tackle off the bench to replace Wills or Conklin, is out for the year with a triceps injury.

In reality, the injury bug has attacked the entire offense with impunity. After ranking 11th in Adjusted Games Lost on offense last season, per the Football Outsiders Almanac, the Browns have one of the league’s most injured offenses. Star running backs Nick Chubb and Kareem Hunt have each missed time with injuries, with Hunt currently on injured reserve. Wideout Jarvis Landry also made it to injured reserve with a sprained MCL, while Odell Beckham Jr. was out early while recovering from his torn ACL before coming in and out of games over the past month with a shoulder injury.

Quarterback Baker Mayfield s battled his own shoulder injury, one which caused him to miss the win over the Broncos in Week 7. He will need to undergo shoulder surgery to heal the injury, but the fourth-year passer is naturally hoping to put the surgery off until after the season. It’s impossible to say how much the injury is affecting his performance, but that was also a concern …

Mayfield wouldn’t be as effective without all those great linemen on the field. In 2019, when he was playing behind one of the league’s worst offensive lines, the 2018 No. 1 overall pick lost his confidence and comfort in the pocket and developed bad habits. The concern was that he would struggle if opposing teams pressured him more frequently in 2021.

I don’t think Mayfield has really been pressured much more often in 2021 — he’s at 26.1%, just up slightly from 25.9% in 2020 — but his numbers when under pressure have collapsed. Last season, he posted a 28.0 QBR when under duress, which was the 11th-best mark in football. This season, his QBR under pressure is all the way down to 5.1, which ranks 30th. His traditional numbers are up across the board, as his completion percentage, yards per attempt and interception rate are all improved from what we saw in 2020, but he has gone from averaging 0.17 EPA per play last season to 0.06 EPA per play this season.

The play-action game Stefanski brought to Cleveland that helped unlock Mayfield a year ago also hasn’t been as productive. In 2020, Mayfield posted a 90.7 QBR using play-action, which ranked second in the NFL. He averaged 9.5 yards per attempt and threw 13 touchdown passes against just one pick. Mayfield’s 42.4 QBR on play-action this season ranks 25th.

One thing that certainly wasn’t clear before the season has now become obvious: Beckham’s future lies elsewhere. There was speculation that the Browns would try to deal him at the trade deadline, but with $8 million in prorated salary attached for his contract, there weren’t any takers. Beckham’s father then took to Instagram to criticize Mayfield. On Wednesday, the Browns excused Beckham from practice amid reports that the front office was meeting with Beckham’s agent.

It’s clear that the Beckham move, as obvious as it seemed when the trade was made with the Giants in 2019, hasn’t worked out. Mayfield’s numbers have continued to be better with his top wideout off the field than they’ve been with him in the lineup. Beckham is averaging a career-low 6.8 yards per target, and we’re now five years removed from the brilliant three-season opening to his career. At this point, a clean break is probably best for both sides, and it could come as early as Thursday.

There’s one other thing I suggested in my preseason column before the season that applies here:

The Browns will be a better team, but worse luck will lead to a less impressive record. By most advanced measures I can find, they are playing better on a snap-by-snap basis this season. The 2020 Browns were outscored by 11 points. The 2021 Browns have outscored their opponents by three points. The 2020 Browns ranked 18th in DVOA, with their minus-5.7% mark placing them behind teams such as the Falcons and 49ers. The 2021 team ranks sixth in DVOA, ahead of the Packers and Titans.

In the big picture, the Browns are on the right path, even if injuries and a regression toward the mean in close games is threatening their chances of living up to lofty expectations in 2021. Stefanski and general manager Andrew Berry are building one of the league’s best young cores, and the Browns are going to be competitive with anyone they play this season. Unless they suddenly get healthy or start pulling out 78% of their close games again over the remainder of the season, they might have to target 2022 for their first division title since the Bernie Kosar era.

PITTSBURGH

Bill Barnwell:

Pittsburgh Steelers (4-3)

Chances of winning the AFC North: 14.1%

Every Steelers game, on the other hand, feels the same. Each team scores about 20 points. The Steelers run the ball for roughly 3.5 yards per carry, have a handful of plays in which their receivers don’t appear to be on the same page with a frustrated Ben Roethlisberger and then suddenly explode for one successful downfield shot. T.J. Watt makes a big play, the game gets decided by a possession in the fourth quarter, and the whole cycle repeats the following week.

I’ll admit that’s a little simplistic, but Pittsburgh is simultaneously good enough to compete with any team and not good enough to distance itself from any team. Sunday’s win over the Browns added a rare new flavor to the mix when the Steelers called for a fake field goal at the end of the first half, only for Chris Boswell — one of the team’s best players this season — to suffer a concussion on an uncalled roughing the passer penalty. It seemed like the sort of decision that inevitably comes back to bite a team in a close game, but they managed to survive their missing kicker for a half and held on for a 15-10 victory.

By traditional measures, Roethlisberger’s season looks virtually identical to what we saw from the future Hall of Famer a year ago. His completion percentage in 2020 was 65.6%. It’s 65.1% this season. He averaged 6.3 yards per attempt last season and is now up to 6.6. His interception rate has moved all the way from 1.6% to … 1.5%. After averaging 253.5 passing yards per game a year ago, he’s at 254.4 this season.

QBR, though, sees a diminished player. Roethlisberger’s 52.5 QBR ranked 22nd in the league a year ago, but the 39-year-old is down to 41.4 this season, which ranks 28th. What gives? It’s the non-pass plays giving QBR pause. He has already taken more sacks in 2021 (14) than he did through the entirety of 2020 (13). He has also fumbled five times, which matches his 2020 total. When the offense is as low-reward as the Steelers are for most of their drives, Roethlisberger can’t afford to take sacks or lose the football. Pittsburgh doesn’t typically have the ability to get right once it gets off schedule.

The preseason insistence that the offensive line would undergo addition by subtraction and improve by shedding four of its five starters from 2021 has not held up. Roethlisberger’s sack rate has doubled despite getting the ball out after an average of just 2.37 seconds, the quickest rate in all of football. The Steelers as a whole rank 30th in pass block win rate, down from 28th a year ago. First-round pick Najee Harris has averaged 2.03 yards before first contact, which ranks 37th out of the 50 backs with 50 carries or more this season. The line is certainly cheaper, which was hugely important for a team in dire cap straits, but it still hasn’t been good.

The offense is about what we would have expected heading into the season. The defense, on the other hand, isn’t doing the things we would have put down on paper. It’s certainly not bad. Watt and Cameron Heyward have been excellent, and Alex Highsmith is coming into his own as Bud Dupree’s replacement. The Steelers rank sixth in scoring defense and 10th in defensive DVOA; the expectations in Pittsburgh on defense are always going to be high, but they haven’t struggled in the way that the Ravens have on defense this season.

The two things I think about when it comes to the Steelers’ defense, though, haven’t really been there. One is takeaways. They came up with a crucial fumble when Joe Schobert stripped Jarvis Landry of the football in the fourth quarter against the Browns, but that was just the sixth turnover for Minkah Fitzpatrick & Co. in seven games. They racked up 27 takeaways in 2020 and turned over opposing offenses a whopping 38 times in 2019.

Mike Tomlin’s team had two or more turnovers 13 times in 16 games that season; the Steelers haven’t pulled that off once this season despite playing quarterbacks Geno Smith and Teddy Bridgewater. They get Justin Fields and Jared Goff over the next two weeks, which should help their chances of breaking that streak. They can be good without forcing a high number of takeaways, but it’s hard to be great.

Those missing takeaways are what helped bring down the Steelers from their 11-0 start a year ago. Over those first 11 games, they created 23 turnovers. From that point forward, they forced four takeaways in their six remaining games and went 1-5. When your offense isn’t good enough to reliably march the ball down the field for 70-plus-yard scores, the onus falls on the defense to create short fields and defensive scores.

The other missing element has been pressure. The Steelers posted the league’s top pressure rate (36.7%) in 2020. This season, though, they have pressured quarterbacks only 26.6% of the time, which ranks 27th in the league. It seems weird to suggest this when Watt already has 8.5 sacks, but we’ve seen a philosophical shift from them on defense.

In 2020, alongside that sack rate, the Steelers blitzed on 40.5% of their dropbacks, the league’s highest rat. They have cut their blitz rate in half this season and sent an extra man on just 20.2% of their rushes. They are the second-best team in the league at turning pressures into sacks, which explains why Watt has been able to remain near the league leaders in takedowns, but they have gone in a different direction when it comes to pressure so far .

For Pittsburgh to make a deep playoff run, something in this formula has to change. We saw the 2015 Broncos win a Super Bowl with a more limited quarterback in the then-39-year-old Peyton Manning, but their defense forced 27 takeaways in the regular season and delivered one of the most impressive postseason performances in recent memory, generating seven takeaways and knocking down Roethlisberger, Tom Brady and Cam Newton a combined 33 times. Those Broncos also had home-field advantage throughout the postseason and got to play an injured Roethlisberger. To win with a marginal quarterback, just about everything has to go right.

We know the Steelers have that sort of performance in their range of outcomes if they can make it to January, although they have just a 1.7% chance of coming away with the top seed in the conference, per FPI. Given that the offense has shown few signs of explosiveness or looking much different than the moribund slog we saw for most of 2020, the Steelers are going to go as far as Watt & Co. can take them.

HOUSTON

Attorney Tony Buzbee says he and his plaintiffs weren’t willing to include non-disclosure agreements as part of a settlement with QB DESHAUN WATSON.  John Barr and Sarah Barshop of ESPN.com:

The attorney representing 22 women suing Houston Texans quarterback Deshaun Watson says settlement talks between the two sides broke down before the NFL’s trade deadline because of language Watson’s legal team insisted they include in nondisclosure agreements.

“In what was submitted to us, there were nondisclosure agreements and many of the women pushed back on those,” attorney Tony Buzbee told Houston television station Fox 26 in an interview Tuesday evening.

Buzbee said he and his colleagues modified the language in the proposed nondisclosure agreements “substantially” but added that “there were still some women who said, ‘I’m never going to sign that.'”

He told Fox 26 that the NDAs were ultimately a “deal breaker” in efforts to settle the cases.

Buzbee’s interview is the first confirmation from either of the legal teams involved in Watson’s civil cases that the two sides had entered a period of mediation.

“Now that the heat is off I probably won’t be getting calls from the other side wanting to settle the case,” Buzbee said, a reference to the pressure involved in settling the lawsuits prior to the NFL’s Tuesday trade deadline.

Watson’s attorney, Rusty Hardin, did not respond to ESPN’s request for comment about the settlement talks. In July, Hardin told ESPN that Watson would not sign any settlement that included a confidentiality agreement. “I do not want anybody to be saying that this guy paid off women to stay quiet,” he said at the time.

Buzbee also said in his interview with Fox 26 that Watson’s team appeared willing to settle a portion of the 22 civil cases.

“First it was, ‘We need to get 22 cases settled’ and then it was, ‘Well, maybe we can get 20 cases settled,’ and, finally, there was some discussion of maybe even less than that,” Buzbee said. “But based on the terms that were submitted to us, we weren’t going to get 22 settlements. Period.”

Watson is the defendant in 22 civil cases filed by women in four different states. The lawsuits allege that he sexually assaulted or behaved inappropriately during massage sessions. At least 10 women have filed complaints about Watson to the Houston Police Department and a criminal investigation is also ongoing.

“From my point of view, I’m looking forward to taking Mr. Watson’s testimony in February,” Buzbee said Tuesday.

INDIANAPOLIS

Something to keep an eye on from Stephen Reed:

@NiceReedSteve

If the #Colts somehow find a way to lose tonight to the #Jets, it’ll be in the team’s best interest to have Carson Wentz sit out the team’s next handful of games with a mysterious injury or an “re-aggravated” ankle injury in order to keep their RD1 pick in 2022.

JACKSONVILLE

Two JOSH ALLENs, both early first round picks, will meet on Sunday.  Or at least the Jaguars Josh Allen hopes he has game contact with the Bills QB, the other not so much.  This is written by another Josh A, Josh Alper of ProFootballTalk.com:

Jaguars defensive end Josh Allen got an email offering him something that “would have been good if it was on me,” but he realized that he wasn’t the NFL player that was the target of the message.

It was Bills quarterback Josh Allen, who was the seventh overall pick a year before Jacksonville made their Josh Allen the seventh overall pick. The two players have never met in person, but that will change this Sunday when the Bills visit the Jaguars for a Week Nine game.

“I’m just looking forward to playing against this team and looking forward to playing against him,” Jacksonville’s Allen said, via the Associated Press. “He’s been playing at a high level recently. He’s been evading sacks recently. He’s been getting out the pocket. He’s been scrambling. His O-line does a really good job protecting him, so I love this challenge.”

Buffalo’s Allen said that his namesake is “coming into his own right now and we’ve got to be prepared for him because he can ruin a game plan,” so the Bills will do their best to avoid any Allen-on-Allen crime this Sunday.

NEW YORK JETS

QB JOE FLACCO is now a Jet, but he doesn’t seem to be in their plans to play in a game anytime soon, not after the brilliant debut of QB MIKE WHITE.  This from 4StateNews:

Mike White will start for the Jets this week. Then, when Zach Wilson is ready to return from his knee injury, the Jets will decide the future at the position.

That’s what coach Robert Saleh said earlier this week, and it’s what General Manager Joe Douglas reiterated Tuesday.

“I’m in lockstep with the coach,” Douglas said, via Al Iannazzone of Newsday.

After White threw for 405 yards and three touchdowns in the victory over the Bengals, Saleh did not rule out White remaining the starter when Wilson is healthy. White will start Thursday night against the Colts.

The question is: Who will the Jets start in Week 10 against the Bills?

“I’m going to piggyback on everything coach said and we’re going to cross that bridge when we get to it,” Douglas said. “Our sole focus is the Indianapolis Colts.”

If White puts in another performance like Sunday’s, the Jets will have a hard time putting him back on the bench. In fact, they would probably lose the locker room if that happened.

Wilson, the No. 2 overall choice, has four touchdowns and nine interceptions in six games.

The Jets, though, still believe in Wilson’s long-term future.

“I feel like he was on his way to really taking off in that New England game prior to the injury,” Douglas said. “He’s a tough-minded young man. He has great work ethic. I think you’re going to continue to see him just shoot up. His arrow is pointing straight up. He’s going to continue to get better every day once he gets back on the field.”

– – –

The Jets have a bad primetime record, no surprise.  Rich Cimini of ESPN.com:

A butt fumble and a butt wipe. Mangled ligaments. A ghost sighting. The return of a villain. Blowouts, lots of blowouts. Tears in the locker room. A regrettable Snapchat in the locker room. An enemy celebration that went long and high into the night, with margaritas, lots of margaritas.

Get ready, America: The New York Jets are back in prime time, which usually means night terrors for the franchise with the NFL’s longest active playoff drought.

“When the Jets are in prime time,” former quarterback Boomer Esiason said, “expect the unexpected.”

The Jets have lost six straight and 17 of their last 23 games at night, dating to the infamous Butt Fumble in 2012, but there’s more to their recent nocturnal history than the record. You see, they don’t just lose; they sometimes lose in calamitous fashion, with everything from quarterback injuries to embarrassing moments.

The franchise that delivered one of the greatest games — the Monday Night Miracle in 2000 — also is responsible for memorable clunkers. Desperate to change their losing culture, the Jets (2-5) hope to start a new trend Thursday night in their only scheduled prime-time appearance in 2021 — a matchup against the Indianapolis Colts (3-5) at Lucas Oil Stadium (8:20 p.m. ET, Fox/NFL Network).

THIS AND THAT

ST. LOUIS

Lawyer Daniel Wallach is all over the upcoming trial of the Rams.  He has gone back to some 1999 NFL testimony which he feels does not put the move from St. Louis in a favorable light.  Edited version below, full thing here at his “Conduct Detrimental” website.

A billion-dollar-plus jury award? A new NFL expansion franchise?

It’s amazing what a summary judgment denial will do.

It has transformed the once unthinkable into the now plausible.

Judge Christopher McGraugh’s denial of summary judgment on Sept. 13 meant that the City of St. Louis’s lawsuit against the NFL over the relocation of the Rams’ franchise would finally be going to trial before a St. Louis jury.

And that prospect has unleashed a tsunami of speculation over the recovery potential for St. Louis.

But so much of the high upside potential—such as a 10-figure damages award or the promise of a new NFL expansion franchise—is contingent on the NFL’s relocation policy being enforceable in court. That’s because the City’s claims for breach of contract and unjust enrichment—which seek the disgorgement of the $550 million relocation fee paid by the Rams to the NFL as well as the increased value of the Rams franchise resulting from its relocation to Los Angeles (an amount likely exceeding $1 billion), plus other damages (such as lost revenues)—are grounded on their contention that the NFL relocation policy is a binding, unenforceable contract to which cities (such as St. Louis) are intended third-party beneficiaries.

The NFL has pushed back heavily against that theory, arguing, albeit, unsuccessfully so far, that the relocation policy is simply a “self-imposed” policy that was “unilaterally issued” by the NFL Commissioner and, because it is “subject to change at any time,” cannot constitute a binding contract under Missouri law. On the third-party beneficiary issue, the NFL represented in court filings that “there is no evidence that the Relocation Policy was made for the primary benefit of host cities.” To the contrary, the NFL argued, “the undisputed evidence shows that the NFL’s primary purpose in promulgating the Policy was to benefit the League and its member clubs.”

These statements, however, are at variance with representations that the league made to governmental authorities in the late 1990’s, when the relocation policy was last amended.

Archival documents obtained by Conduct Detrimental reveal that the NFL’s amended relocation policy—the same one at issue in the St. Louis case—was the byproduct of a collaborative effort between the NFL and The United States Conference of Mayors (whose membership included the City of St. Louis) to create objective criteria that would govern franchise relocations. This led to the creation of a joint document entitled The United States Conference of Mayors and The National Football League Joint Statement of Principles (the “Joint Statement of Principles”), which sets out many of the same relocation criteria that are now part of the NFL’s amended relocation policy. In testimony before Congress in June 1999, then-NFL Commissioner Paul Tagliabue acknowledged that the NFL’s amended relocation policy “incorporated” the Joint Statement of Principles. Further, high-ranking NFL executives have stated—both in written correspondence with the U.S. Conference of Mayors and in testimony before Congress—that the NFL’s relocation guidelines were intended to protect cities (and not just the NFL and its member teams).

These stunning revelations—which are not mentioned in any of the unsealed court records in the St. Louis lawsuit—can be found in Congressional hearing materials that are publicly available online.

The NFL’s collaboration with the U.S. Conference of Mayors on new relocation guidelines

Several weeks ago, I began a quest to locate online records that could provide some historical context to the amended relocation guidelines in the hope that there would be some indication that the guidelines were intended to protect home markets, and not just the NFL and its 32 member teams. I hit the motherlode on Oct. 4 when I found 155 pages of hearing materials from a Senate Judiciary Committee hearing on S.952, a bill sponsored by Senator Arlen Spector entitled the “Stadium Financing and Franchise Relocation Act of 1999,” which would have given the NFL an antitrust exemption for franchise relocations and to require, as a condition of such exemption, that the NFL set aside 10% of their national broadcast revenues to finance up to 50% of new stadium construction.

S.952 was never enacted by Congress, but the hearing testimony and exhibits that are part of the congressional record—and to which a court could take judicial notice—offer a revealing look at the NFL’s interpretation of its own relocation policy, which perhaps not coincidentally, was amended just one week before the congressional hearings on S.952. (Hearing, at p. 85).

Commissioner Tagliabue was one of the witnesses at the June 22, 1999 hearing. His testimony highlights the central role that the U..S. Conference of Mayors played in the conception and development of the amended relocation guidelines. Tagliabue testified that the NFL had “worked for several years with the U.S. Conference of Mayors and [had] come to an understanding on issues of franchise movement.” (Hearing, at p. 78).  He then asked the Committee Chair, Senator Spector, to insert into the hearing record an exchange of correspondence between the NFL and the U.S. Conference of Mayors that “reflects this working relationship.” (Id.). This exchange of correspondence—consisting of a June 11, 1999 letter from NFL Senior Vice President Joe Browne to New Orleans Mayor Marc Morial, and a June 21, 1999 letter from Mayor Morial to Commissioner Tagliabue—confirms that the two organizations had “worked closely” on the issue of franchise relocation and had reached an “understanding” on a new relocation framework that provided  better protection for cities. The league’s correspondence, in particular, contains some candid admissions that contradict its litigation position today.

In his June 11, 1999 letter, NFL Senior VP Browne acknowledged that the league and the U.S. Conference of Mayors “have worked for many months to develop an approach to address . . .  common concerns” regarding franchise relocations, and noted that “[a] draft Statement of Principles was written to set forth our understanding.” (Hearing, at p. 78). Browne’s letter then states that “consistent with those discussions and grounded in sound business policies, the NFL has amended its franchise movement guidelines,” adding that the amended guidelines “bring to reality our mutual ideas on these issues, and are the direct result of our discussions.” (Id.).

Key here is the acknowledgement by Browne that the two organizations worked closely for many months to develop a joint approach to franchise relocations and had reached an “understanding” on the issue which culminated in the enactment of new relocation guidelines that were the “direct result’ of those discussions. Sound like a contract negotiation, doesn’t it? Two parties dealing at arms’-length with one another.

Now get ready for the money quote—the one where the NFL openly acknowledges that the amended relocation guidelines were intended to protect municipalities. In the opening sentence of the third paragraph of his June 11, 1999 letter, NFL Senior VP Browne represented to Mayor Morial that “[t]he amended guidelines balance and protect the interests of the cities, the League and individual teams.” (Hearing, at p. 78). He explained that the amended guidelines “establish an orderly process, ensuring municipal interests will be heard and addressed, and that franchise moves occur only after exhausting all reasonable options in a team’s existing home territory.” (Id.). Browne revealingly characterized the relationship between the NFL and the U.S. Conference of Mayors on the issue of franchise relocation as akin to a partnership, stating that “[t]he amended guidelines, and the cooperative discussions that preceded them, reflect the strengthened partnership between our two organizations.” (Id.).

Mayor Morial echoed Browne’s characterization of the parties’ collaborative efforts in crafting new relocation guidelines. His June 22, 1999 letter to Commissioner Tagliabue acknowledges that “[t]he United States Conference of Mayors has worked closely with the National Football League to develop mutual positions on matter such as franchise movement,” noting that “these discussions led to a draft Statement of Principles on these and related subjects.” (Id.). Mayor Morial conveyed to Commissioner Tagliabue that the U.S. Conference of Mayors was “pleased to receive the news that the League has amended its franchise movement guidelines in a fashion consistent with our discussions.” (Id.).

And just like his counterpart at the NFL, Mayor Morial believed that the league’s amended relocation guidelines were intended to protect home markets. In the last sentence of the second paragraph of his June 22, 1999 letter to Commissioner Tagliabue, Mayor Morial (speaking for the U.S. Conference of Mayors) stated that “[w]e believe these amendments improve upon past policies and should give city interests a greater measure of recognition and protection.” (Id.).

The incorporation of the Joint Statement of Principles in the NFL’s new relocation guidelines

There is one other crucial piece to Commissioner Tagliabue’s witness appearance before the Senate Judiciary Committee on June 22, 1999.

In addition to providing in-person testimony and copies of the June 1999 correspondence between the NFL and New Orleans Mayor Marc Morial, Commissioner Tagliabue submitted a prepared statement to the Senate Judiciary Committee that, among other things, describes the interplay between the Joint Statement of Principles and the amended relocation policy.

In a critical footnote (for reasons which will soon become obvious), Commissioner Tagliabue stated that “[i]n conjunction with the U.S. Conference of Mayors, we have developed a ‘Statement of Principles’ relating to relocation of NFL teams.” (Hearing, at p. 85). And here’s the key language from the last sentence of Tagliabue’s footnote: “Last week, I issued an updated set of relocation policies and procedures that incorporates the terms of that Statement of Principles and reflects the procedural framework sought by the Conference of Mayors.” (Id.).

So, there it is: the NFL commissioner–an accomplished lawyer (and long-time partner at Covington & Burling) who previously served as the league’s outside counsel for many years and presumably understands basic contract law–is stating unequivocally that the NFL’s amended relocation policy “incorporated” the terms of the Joint Statement of Principles between the NFL and the U.S. Conference of Mayors.[1]

Talk about burying the lede. A billion dollar-plus footnote (potentially).

Why is this revelation so important?

Several reasons.

First, it gets the document into the case. Under basic contract law principles, when a contract expressly refers to and/or incorporates another document, that other document becomes constructively a part of the writing, and in that respect the two form a single instrument. The incorporated matter is to be interpreted as part of the writing. (See Saint Luke’s Hosp. of Kansas City v. Benefit Mgmt. Consultants, Inc., 626 S.W. 731, 747 (Mo. Ct. App. W.D. 2021)).

This interpretive principle–recognized by Missouri’s appellate courts–will allow the jury to consider the Joint Statement of Principles as part and parcel of the NFL’s amended relocation policy. This will be helpful to the St. Louis plaintiffs because the Joint Statement of Principles includes numerous statements that bolster their contention that they are intended third-party beneficiaries of the NFL’s amended relocation policy. 

For one thing, the Joint Statement unequivocally shows that the cities (through the U.S. Conference of Mayors) played an active and influential role in crafting the amended relocation guidelines. Not only did the cities have a seat at the table, but they helped formulate the new relocation criteria that were  incorporated into the NFL’s amended relocation policy.

As shown on page 2, the Joint Statement of Principles specifies ten (10) “objective criteria” that are to govern league decisions on requested franchise relocations. And almost all of these criteria were carried forward and included in the NFL’s amended relocation policy—nearly verbatim.

In other words, the cities (through the U.S. Conference of Mayors) jointly created the league’s new relocation criteria.

But it gets even better. The Joint Statement of Principles also puts the “public interest” regarding franchise relocation on equal footing with the league’s interest.

– – –

These documents make it even more crystal clear that the NFL’s amended relocation guidelines were designed to protect host cities from unwarranted relocations. The NFL/USCM Joint Statement of Principles, together with the June 11, 1999 letter sent by NFL Senior Vice President Joe Browne to Mayor Morial, are replete with admissions from the NFL that the new relocation criteria protect and/or account for the interests of cities.

This is especially relevant because, under Missouri law, a party claiming third-party beneficiary rights under a contract has the burden of showing that provisions of the contract were intended for its direct benefit.

Mission accomplished–provided, of course, that the trial judge takes the necessary precautions to ensure that these ‘smoking gun’ documents are properly within the jury’s consideration and, equally important, that the jury is given proper guidance– through well-crafted jury instructions–on the critical and contentious third-party beneficiary issue.