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Welcome to the Spin Room: How the NFL’s Personal Conduct Policy is a Microcosm of Labor-Management Relations

A lot has happened between the National Football League and National Football League Players Association these last few weeks regarding the scope and ability of Commissioner Roger Goodell to discipline players. Here is a brief summary of what has transpired:

  1. Ray Rice, the former Baltimore Raven’s running back, is now free to sign with any NFL team after Arbitrator Barbara Jones, a former federal court judge, ruled that the NFL abused its discretion in suspending Rice indefinitely after initially suspending him for two games stemming from a domestic abuse incident earlier this year in Atlantic City, NJ. Jones also suggested that the NFL take a second look at its disciplinary process in these types of matters.
  1. In the wake of the Rice ruling by Arbitrator Jones, NFL legal counsel Jeff Pash issued an executive memorandum to all NFL teams stating in part that Jones’ ruling did not raise any specter of Commissioner Goodell’s credibility, despite the fact that the Jones’ ruling essentially indicated that the testimony of Ray Rice, his wife, and a union attorney were more credible than those of the NFL’s witnesses, which included Goodell.
  1. On November 18, Arbitrator Shyam Das denied Minnesota Vikings’ Adrian Peterson’s petition for removal from the Commissioner’s “Exempt List.”
  1. In a separate grievance hearing held from December 2 through 4, former NFL Labor Policy Director Harold Henderson served as the neutral third-party arbitrator to determine whether Peterson should be reinstated in light of the discipline meted out by Commissioner Goodell and after Peterson agreed to a plea bargain. The plea bargain included a clause that stated his suspension would be for the remainder of this season “at least.” The NFL Players Association has publicly called into question the potential neutrality of Henderson.
  1. After Arbitrator Jones gently excoriated NFL executives in their handling of the Rice matter for a variety of reasons, word came from various reputable publications that the NFLPA, the players’ union representing Adrian Peterson, had requested that former union representative-turned-NFL executive, Troy Vincent, testify at the grievance arbitration for his role in possibly negotiating with Peterson a deal to attend a November 14 hearing in exchange for a “time served” penalty, instead of the full season suspension the NFL dealt a few days later to Peterson. Further, those same reputable outlets are reporting that Adrian Peterson recorded those conversations with Vincent and has a transcript. On December 2, Arbitrator Henderson granted the NFLPA’s request and Vincent testified at the hearing on December 4.

 Authority under the NFL Collective Bargaining Agreement

 Irrespective of whether the transcript or the taped conversations will be allowed in as evidence, or whether Peterson’s grievance is strong, there’s a bigger picture being framed here. The outcome of these disputes will further shape the new revisions to the NFL personal conduct policy.

Presently, NFL Commissioner Roger Goodell has very broad authority under Article 46 of the Collective Bargaining Agreement. Under this article, he has authority to unilaterally rule on player discipline and if such decision is appealed, it is again Goodell or an appointed designee that enters the final judgment on the appeal.

In April of 2007 the initial Personal Conduct Policy was established, which is now part of the Collective Bargaining Agreement, and was agreed to by the players after several off-the-field incidents involving players. An ad-hoc committee that actually included then-current players, in large part, shaped the Personal Conduct Policy. Former NFLPA Executive Director Gene Upshaw also consulted on the Policy.

The Policy at that time was widely hailed as a victory for the NFL, as off-field activity became an important issue. Some of the players immediately affected by the new policy were Adam “Pacman” Jones, Chris Henry, and Tank Johnson. Within months, the NFL applied the same Personal Conduct Policy to suspend Michael Vick indefinitely for his part in a dog-fighting ring. The Policy had, to that point, been utilized by the Commissioner’s office to suspend and fine players without regard for blowback from the NFLPA, individual players, or the public, because (a) it was jointly negotiated and (b) the Policy was being applied in some fairly egregious instances involving weapons charges, animal abuse, and multiple arrests.

Then came the decision from a Goodell appointee (and not coincidentally), his predecessor, Paul Tagliabue, in the New Orleans Saints bounty matter. In the bounty matter, Tagliabue overturned Goodell’s decision to suspend four Saints players because, in part, the investigation against the players had been tainted by the actions of coaches and members in the Saints organization.

Almost two years later, the Ray Rice matter concluded with a decision calling some to question the consistency of the NFL office in meting discipline in domestic abuse matters, and the credibility of NFL executives in their recollection of a meeting they had with Rice.

The NFLPA’s recent allegations against the NFL that one of its own executives, Troy Vincent, may have made a promise to Adrian Peterson to reduce his suspension to “time served” bears watching. Rules of evidence are relaxed in arbitration proceedings, which means there is a chance that the tape (although there are issues involving surreptitious recordings that may arise) and/or transcript of the taped conversation could at least be discussed at the hearing, if not evaluated as part of the overall evidence. Even without this evidence, it is important to note the commonalities between the Rice and Peterson matters, which involve two or more people debating what was said between one another. At a minimum this can serve to again undermine the disciplinary process, because it could be perceived that the NFL is working without a framework or blueprint in disciplining its players. After all, Peterson’s attorneys and the NFLPA have publicly accused the NFL of making things up as to the disciplinary process under the Policy when the Commissioner’s Exempt List is utilized. In fact, Peterson refused to attend a separate and special proceeding before outside experts that was scheduled by the NFL office.

 Labor Law and Collective Bargaining

 In labor matters, leaders of unions and management often tussle on issues prior to them being raised during actual collective bargaining negotiations. Part of what we are witnessing right now is a culmination of the aforementioned background involving the evolution and implementation of the Personal Conduct Policy in various scenarios. The NFL wants to retain as much control over the policy as it possibly can, while the NFLPA wants to rein in the power of the Commissioner’s office in Article 46 and define a process for discipline utilizing in part the Commissioner’s Exempt List, or some version of it. Incidentally, there is a similar dance going on between the NBA and NBAPA regarding what will eventually become a potentially contentious negotiation over basketball related revenue sharing and the NBA salary cap system.

At this time, it is difficult to predict if the NFL’s Personal Conduct Policy will change insofar as the extent of discipline and appeal process. However, with each Ray Rice or Adrian Peterson matter that pops up, the issue of management’s current ability to unilaterally discipline players and the scope of that discipline will come to the forefront. Each side, labor and management, will do the things we have seen in the last several weeks, to spin the message to their own advantage in the hope of either changing the scope of discipline completely or modifying it to some part, if at all.