Collective Bargaining Issues

NFLPA Files Grievance against NFL for Bounty Suspensions

The following article was written by Spencer Wingate.

The NFL Players Association has filed a twofold grievance against the NFL, appealing the suspensions handed down to Jonathan Vilma (New Orleans Saints), Will Smith (New Orleans Saints), Anthony Hargrove (Green Bay Packers), and Scott Fujita (Cleveland Browns) for their involvement in the Saints bounty program. On August 4th 2011, the league and players association entered into a new collective bargaining agreement (CBA). According to Article 43 of the new CBA, the NFLPA has the right to appeal NFL Commissioner Roger Goodell’s ruling, as it involved player suspensions. The NFL has stated that the pay for performance program lasted from 2009- 2011. The NFLPA states that according to Article 3 Section (b) of the new collective bargaining agreement, the players cannot be liable for their actions before August 2011:

The NFL, on behalf of itself, the NFL, and the NFL Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFLPA or any of its members, or agents acting on its behalf, or any member of its bargaining unit, with respect to conduct occurring prior to the execution of this Agreement.

Therefore, they allege the players should be released from their penalties from conduct prior to the agreement between the two sides. They contend that even if the language in Article 3 Section (b) does not stipulate the players are not accountable for past acts, the suspension cannot be brought on by Goodell. The grievance states the issue at hand is being “paid for performance” so it is a cap violation. The system arbitrator, University of Pennsylvania law professor Stephen Burbank, should have ruled on the matter. They are stating that since Goodell did not have the right to hand down the punishment for the violations, they should not be upheld.

Last, the NFLPA references Article 46, Section 1 (b) of the CBA; punishments for unnecessary roughness or unsportsmanlike conduct on the field should again not be determined by Goodell, but a designee of the commissioner. This stance notes even if the first two assertions are not applicable, the appeals must be handled by Art Shell or Ted Cottrell, the league’s hearing officers.

The NFLPA is taking a strategy to establish two separate objections that will remove the player suspensions out of Goodell’s hands. The grievance asserts the issue at hand is undetermined payments, so it should be decided by the cap arbitrator.  If that is deemed false, then the nature of the actions – roughness and unsportsmanlike conduct – mean the league’s hearing officers must rule on the appeals.  Being that the NFLPA has a responsibility to not only the players accused but also the players targeted, the grievance never refutes the players were involved in a bounty program. The strategy allows them to not take either side but attempt to bring the players together against the league. They are claiming the conduct is not punishable; although if the league proves it is, then Goodell should not have handed down the punishments nor should he able to rule on the appeals.

The NFL has since responded to the grievance citing that they expect the arbitrators to reject the union’s assertions.  They contend the players are accountable for their dangerous conduct and the disciplinary process negotiated in the CBA, not even a year ago, must be upheld. During the lockout last year, the NFL and NFLPA never could see eye to eye on a number of issues like the disciplinary process.  They were eventually able to negotiate a new ten-year CBA. However, a lack of coordination and communication resulted in a power struggle that threatened to endanger the 2011-2012 season. The union desired to reduce Goodell’s authority.  They were unsuccessful, as other issues took greater importance in their minds and the commissioner retained his power. The issue for the league is much more than unnecessary roughness, unsportsmanlike conduct, or a cap violation. The bounty program left the league legally liable as their players were intentionally being targeted and their safety was in danger. The Saints had been warned to stop, yet continued and tried to cover up their actions. Now, once again, the league and players association are on two different sides of the spectrum. They are struggling to work together and unfortunately back in a power struggle where they appear more as foes than allies.