The Saints have already used the tag on Brees for 2012, meaning he can't negotiate with another team and could be forced to settle for a one-year, $16.3 million deal if he cannot reach a new long-term deal by a July 16 deadline specified in the league's collective bargaining agreement.
System arbitrator Stephen Burbank's ruling Tuesday said if New Orleans tries to tag Brees a second year in a row, he would be entitled to a 44 percent raise to about $23.5 million because it would be his third-career franchise tag. The NFL had argued Brees would be due a 20 percent raise because it would have been only his second franchise tag with one team.
Burbank, however, ruled that while the NFL's CBA has some ambiguity on the matter, it is clear that the overarching purpose of the language regarding multiple franchise tags is meant to protect players from being denied their rights to free agency for an undue length of their careers.
"The arbitrator properly rejected the NFL's strained interpretation of the CBA language, which ignored the fact that a franchise player designation is a narrow exception to the overall free agency structure," the NFL Players Association said in a written statement after Burbank's ruling.
Brees has so far skipped the Saints' offseason practices while holding out for a new long-term contract with New Orleans.
New Orleans designated Brees, 33, its franchise player in March after the club was unable to reach a new long-term extension with the record-setting quarterback before his previous six-year, $60 million contract expired.
During the past six seasons, Brees has not only led the Saints to their only Super Bowl title, but has completed more passes (2,488) for more yards (28,394) and more touchdowns (201) than any other quarterback in the NFL. His 67.8 percent completion rate spanning the past six seasons also tops the league.
In 2011, Brees set NFL single-season records with 468 completions, 5,476 yards passing and a completion percentage of 71.2. His prolific passing numbers helped the Saints set a new NFL high for total offensive yards in a season with 7,474.
He led the Saints to a 13-3 regular season record and second NFC South Division title in three seasons. New Orleans defeated Detroit in the first round of the playoffs before falling in the final seconds of their second-round game at San Francisco.
This offseason marks the first time Brees has had the opportunity to negotiate a major, long-term deal with the leverage provided by a string of injury-free seasons highlighted by a slew of individual and team statistical records, in addition to a championship.
He commanded only second-round money when he was drafted by San Diego, and the Chargers placed the one-year franchise tag on him when that deal ran out in 2005. The right-handed Brees then had an injury the following season that required major surgery to his throwing shoulder, and which left him with few major offers during the 2006 offseason.
He wound up signing the six-year deal in New Orleans that left him playing for well below what the top quarterbacks in the league earned during the past few seasons.
Brees is now expecting to be paid in the range of the league's best quarterbacks, and Peyton Manning, who is three years older than Brees and sat out last season while recovering from neck surgery, recently signed a contract with Denver paying him $19.2 million a year.
A person familiar with the negotiations has told The Associated Press that the Saints have offered Brees more than $19 million a year. The person, who spoke on condition of anonymity because negotiations are ongoing, said Brees has sought a five-year deal with an annual average pay of under $21 million.
The NFL declined comment on Burbank's finding or whether it intends to appeal, which the league could do. The Saints also did not return a message seeking comment.
If the Burbank's ruling ultimately stands, Brees would have little reason to accept a proposed long-term contract from the Saints that did not guarantee him at least $20 million during the first two years.
Also, because Brees' salary cap figure would be about $23.5 million under a 2013 franchise tag, the Saints will have more urgency to structure a new long term deal now that would give the club more flexibility under the salary cap in coming seasons.