The Denver Broncos and quarterback Russell Wilson appear headed for a divorce in the offseason, and it’s one that—like some failed marriages—could spark a legal battle.
Wilson’s contract with the Broncos—a five-year deal worth $242.6 million signed in 2022—includes a $37 million payment for 2025 that would become guaranteed if Wilson is unable to pass a physical after the 2024 league year begins in March. The Broncos reportedly approached Wilson about renegotiating that provision more than two months ago. It’s unclear what the Broncos offered in return, but Wilson declined.
To apply additional pressure and mitigate the risk of Wilson, 35, sustaining an injury during a game, the Broncos allegedly threatened to bench him. NFLPA outside counsel Jeffrey Kessler wrote he was “particularly concerned” the Broncos would sit Wilson “under the guise” of a merit-based coaching decision by head coach Sean Payton.
As recently reported by The Washington Post, Kessler wrote to the Broncos and NFL in early November to warn them of anticipated arbitration and/or litigation stemming from their asks to renegotiate.
Kessler claimed the Broncos would violate the CBA, Wilson’s contract and New York law if they removed the quarterback from the starting lineup. Kessler, who has litigated for Tom Brady and other NFL stars, asserted the Broncos can’t strip Wilson of his starting job as a contractual punishment.
The Broncos (8-8) didn’t bench Wilson in November but did so last week, after losing at home to the New England Patriots (4-12) on Christmas Eve. Payton tapped Jarrett Stidham to start against the Los Angeles Chargers (5-11) on Dec. 31.
In explaining his selection of Stidham—a 27-year-old former Patriots and Las Vegas Raiders backup who had only started two NFL games in his career—Payton insisted the choice was “strictly” based on what he “believes gives us a chance to win.” Payton also claimed he wasn’t “privy” to, or “involved in,” contract discussions between the team and Wilson.
A nine-time Pro Bowler, Wilson has enjoyed an impressive 2023 season. He’s thrown for 3,070 yards, with 26 touchdown passes against only eight interceptions. Wilson has also rushed for 341 yards and three touchdowns. The Broncos are expected to attempt to trade or release him in the offseason—either of which would become more difficult if he were injured, due to his injury guarantee.
If Wilson and the NFLPA believe his late-season benching merits legal action, they’d likely have to pursue arbitration first. Both the CBA and standard player contract require disputes involving “the interpretation or application of any provision of the NFL collective bargaining agreement” or the player’s contract “be submitted to final and binding arbitration.” A player who attempts to sue his team before turning to arbitration would probably see his lawsuit dismissed; judges normally enforce arbitration clauses, particularly in the context of labor-management relations.
To that point, Article 43 of the CBA governs non-injury contract disputes involving players and their teams. It contemplates an arbitration process that can take weeks or months, and features discovery, with the production of emails and taking of depositions.
Kessler could question Payton and other Broncos officials regarding their discussions with Wilson about how—and why—they reached a decision to bench him. Kessler would want to show the decision wasn’t made to improve the team but to instead manipulate Wilson’s contract situation in a way that was anti-competitive (i.e., starting an inferior player over Wilson) and damaging to Wilson’s NFL reputation (he’s now a benched QB).
Wilson and the NFLPA could more specifically argue the benching violates Article 4, Section 8 of the CBA. It mandates a team and player “negotiate in good faith.” A contract-based benching in the context of a failed renegotiation over an injury provision could be portrayed as bad faith. It’s also possible the NFL could find that type of conduct troubling and punish the Broncos via a fine or forfeiting of draft picks.
But in response, the Broncos would argue neither the CBA nor a player contract guarantees a starting job. Coaches have wide, if not unchallengeable, discretion to form lineups; no player has a right to play, let alone start.
The Broncos could also insist that while Wilson has played reasonably well in 2023, the team has overall struggled with him at the helm, amassing an 11-19 record since the 2022 season.
The Broncos could also warn about precedent. If an arbitrator or court held that an NFL player can legally challenge a benching, it could open the door to challenges by other benched players.
There is minimal case law involving players suing over benching. The cases also tend to involve collegiate or youth athletes whose situations are dissimilar from Wilson’s. Last year, Virginia Tech women’s soccer coach Charles “Chugger” Adair and former Hokies soccer player Kiersten Hening settled her First Amendment lawsuit. She argued Adair violated her free speech rights by benching her, allegedly for not kneeling during a pregame ceremony concerning social justice initiatives and Black Lives Matter. Another case in recent years featured a high school baseball player who, along with his parents, maintained his benching was tantamount to bullying.
Lastly, the Broncos could assert nothing nefarious happened. They had the right to present Wilson with a proposal for a restructured contract, and he invoked his right to reject it. The Broncos didn’t bench Wilson until the second to last game of the season, after they had lost to the lowly Patriots at home and by which point their playoff hopes were dim. The team may have also made the decision to see if Stidham might be the answer at QB—they’d only know for certain if he plays.
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