Late yesterday, news broke that the NFL won a long-standing dispute between the League and the Players Association over the validity of the revised Personal Conduct Policy implemented by the NFL in 2014. The NFLPA filed the grievance in January 2015, shortly after NFL owners voted to ratify the revised policy. When the policy was released, the NFLPA didn’t hide its displeasure:
“Our union has not been offered the professional courtesy of seeing the NFL’s new personal conduct policy before it hit the presses. Their unilateral decision and conduct today is the only thing that has been consistent over the past few months.”
In the grievance and during the proceedings, the NFLPA argued was that numerous provisions of the NFL’s new policy is inconsistent with the League’s collective bargaining agreement and therefore, the policy needed to be negotiated with the Players Association.
Here is a breakdown of each argument:
Commissioner’s Exempt List:
Among other things, the ruling confirmed that NFL Commissioner Roger Goodell is able to place players on the Commissioner’s Exempt List. The Commissioner may place a player on the Exempt List if he is formally charged with a crime of violence and if an investigator leads the Commissioner to believe that a player violated the Personal Conduct Policy.
NFL news: arbitrator decides in NFLPA grievance re Conduct Policy.
Leave w/Pay and Exempt List are ruled valid exercises of Cmmr authority.
— Andrew Brandt (@AndrewBrandt) April 10, 2016
The NFLPA argued that the imposition of the exempt list contradicts the CBA because, under the CBA, the Commissioner is only allowed to punish after a player has been found guilty of conduct detrimental to the League. Moreover, the NFLPA argued that the exempt list is unfair to players found not guilty of conduct detrimental and players who win a later appeal because they are barred from games and practices for an unlimited period of time without ever have committed detrimental conduct.
The NFL counters that use of the exempt list is not “discipline” and not a “suspension”. Rather, the League argues, the practice allows the Commissioner to take “immediate action to address violent and other serious incidents of criminal behavior, on a temporary basis….”, has routinely been used by the NFL in the past (in the Peterson, Hardy, and Carruth cases), and is consistent with established labor law precedent.
While siding with the NFL, the Arbitrator found the CBA language dealt with dealt explicitly with what the Commissioner may do after finding a player “guilty”, and the policy deals with what the Commissioner may do before a determination of guilt. Thus, the policy does not conflict with the CBA because each addresses a different stage of the conduct detrimental review process.
Furthermore, the arbitrator “found no basis for concluding that the Commissioner lacks power to implement the Leave with Pay provisions” of the new policy because the Leagues’ Constitution and Bylaws gives him sweeping power to do so.
However, the Commissioner is still bound by the procedural requirements of Article 46 (from which he derives his power to punish for conduct detrimental). Thus, the Commissioner must sent notice to the player, the player may appeal and is entitled to a hearing on the act of being placed on the exempt list.
The policy provides that initial decisions regarding discipline will be made by a disciplinary officer designated by the Commissioner. Again noting that this provision conflicts with the CBA, the NFLPA argued that the NFL cannot delegate the Commissioner’s exclusive authority to impose discipline. According to the NFLPA:
“If the Commissioner’s conduct detrimental authority could be delegated to someone else, the entire rationale for deference to the Commissioner’s decision-making, and the whole body of precedent the NFL relies on in Article 46 Proceedings, would collapse.”
The Arbitrator agreed with the NFLPA, finding that Goodell “must himself take the conduct detrimental ‘action’ that forms the basis of the notice to a player…” However, he found that Goodell may appoint and make extensive use of a disciplinary officer during the process. The Arbitration suggested that the parties work together to redraft this portion of the policy, suggesting that a disciplinary officer may conduct the hearing, compile the evidence, and make a “recommendation” to Goodell, who would, in turn, issue the decision.
Involvement of Other Advisors During the Disciplinary Process:
The new policy provides that “to assist in evaluating a potential violation, expert and independent advisors may be consulted by the disciplinary officer.” These include people with law enforcement, academia, judicial, and mental health backgrounds. The NFLPA argued that this ran afoul of the CBA because the CBA does not confer this power to the Commissioner and it has been the custom and practice of the league, for confidentiality purposes, to not allow in outside parties during the disciplinary process.
Again disagreeing with the NFLPA, the arbitrator found “no bar in Article 46 or the CBA” that would prevent the use of advisors. However, the arbitrator suggested the parties rewrite the policy to include a procedure for each party to present the facts and law to any expert.
Finally, the Arbitrator ruled that the parties should revise language pertaining to whether the Commissioner can require a player to “submit to counseling, treatment, therapy, and enhanced supervision.”
Arbitrator Jonathon Marks’ ruling also cements, at least for the time being, that a neutral third party appeal process will not be put into place. Currently, as we have seen in many cases including Deflategate, Goodell has the power to hear the appeal of discipline rulings given out by him or his designee. Recently, Goodell announced that he would hear the Kansas City Chiefs’ appeal over two lost draft picks for violating the League’s anti-tampering policy.
Marks had encouraged the parties to negotiate a settlement but talks broke off when the NFL would not agree to 3rd party negotiations for all disciplinary cases.
The NFL, in a letter to its owners, claimed victory:
Jeff Pash memo to NFL teams says that arbitrator's 54-page decision "upholds the new [personal conduct] Policy in all material respects."
— MarkMaske (@MarkMaske) April 11, 2016
Jeff Pash wrote in memo that "the authority of the Commissioner has been reconfirmed and strengthened" by arbitrator's ruling.
— MarkMaske (@MarkMaske) April 11, 2016
The following is an excerpt from NFL counsel Jeffrey Pash’s letter (via The Washington Post)
“As part of those negotiations, we offered to make changes in the Personal Conduct Policy that would have benefitted players in ways that the union could not obtain from the Arbitrator. Those proposals included giving suspended players credit for a substantial portion of the time spent on the Exempt List (so-called ‘time served’), refraining from imposing discipline until a player’s underlying criminal case was resolved, and expanding the scope of permitted activities and club contact for suspended players. The union elected to terminate negotiations because we would not agree to fundamentally limit the Commissioner’s authority by using third-party appeal officers in all disciplinary matters. The result is that players have obtained very little from the grievance–certainly much less than was available as part of a negotiated resolution–and the authority of the Commissioner has been reconfirmed and strengthened.”
The NFLPA has yet to comment on the arbitration ruling and it remains to be seen whether it plans on appealing the ruling in federal court.
Here is the full opinion: