Last season, the NFL declined to penalize the (then) St. Louis Rams after the Rams’ coaching and training staff, as well as an NFL injury spotter in the booth who had the authority to contact the officials to call a medical timeout, failed to remove Case Keenum from this game after his head slammed into the turf and was obviously concussed:
Keenum was diagnosed with a concussion after the game and was held out of the next week’s game. At the time, NFLPA President Eric Winston vehemently disagreed with the NFL’s decision not to punish the Rams:
[pullquote align=”full” cite=”” link=”” color=”” class=”” size=””] “Complete failure to adhere to the protocol. Show me someone that says, ‘No, the Rams did exactly the right thing.’ They didn’t. Everybody knows they didn’t. So, there has to be discipline then, right? Because when a player doesn’t do something that he’s supposed to do, he gets fined for that when it comes to health and safety.” [/pullquote]
In an effort to incentivize teams to make sure that the Keenum fiasco never happens again, yesterday the NFL and NFLPA jointly announced a new policy that sets out a penalty structure for team’s failing to abide by the NFL Game Day Concussion Protocol. Because the full policy has not yet been released, many of the details of the policy are still unclear the following is what we can gleam from the NFL’s press release.
What We Know.
The NFL and NFLPA worked together: Unlike the NFL’s Personal Conduct Policy, where the NFL unilaterally enacted the policy, here the NFL and NFLPA collectively bargained and jointly announced this policy. While the NFL Constitution and CBA allows the league to introduce policies without gaining the NFLPA’s approval, the parties working together on the front end makes it less likely (but not impossible) that we will see legal challenges in the future.
There is a third party arbitrator, but Goodell has final say on discipline: Under the new policy, the NFL and NFLPA will each select a representative to investigate potential violations. After the investigation, if both the NFL and NFLPA agree there was a violation, they will jointly recommend a disciplinary response to the Commissioner. If the parties do not agree, the investigation will be brought to a third party arbitrator to determine whether a violation occurred and what discipline should be recommended. However, because the parties’ and/or arbitrator’s findings are only recommendations, Commissioner Goodell has “absolute discretion” in determining penalties for violations of the policy.
Potential penalties: The new policy does not alter teams’ obligations to address the diagnosis of concussions on the field and the management of concussions after diagnosis. Rather, it only implements penalties for failing to abide by the existing rules. Potential discipline includes:
–First violation: club employees or medical members involved will be required to attend remedial education and/or a fine not to exceed $150,000 against the club.
–Any additional violation(s): A minimum fine of $100,000 against the club.
–“Aggravating circumstances”: If the NFL and NFLPA agree that a violation involved “aggravating circumstances”, the club shall be subject to at least a $50,000 for the first violation, and subject to “appropriate discipline” levied out by Commissioner Goodell for any subsequent violations.
–“Competitive Considerations”: If Commissioner Goodell determines that the club’s medical team failed act based on “competitive considerations”, the Commissioner may require the team to forfeit draft pick(s) and impose additional fines.
What We Do Not Know.
The appeal process: As described above, the NFL’s press release describes how it will be determined whether there is a violation and who will be in charge of determining discipline. However, the release is silent as to how the discipline given out by Commissioner Goodell can be appealed. Namely, it is unclear whether Goodell will have the power to preside over a team’s appeal (as he can do under the Personal Conduct Policy and Article 46) or whether there will be a third party arbitrator presiding over the appeal (as is the case for player violation of the NFL drug policy).
Where the money goes: Currently, all fine money collected by the league goes to programs for former players such as the NFL Player Care Foundation and the Gene Upshaw Players Association’s Player Assistance Trust. The NFL’s press release does not explain whether fines collected under this Policy will be lumped in with the other fine money or whether it will be donated to concussion related fund.
What the terminology means: Specifically, in this context, what is an “aggravating circumstance” and what are “competitive considerations.” These are important considerations because they change the discipline from a meaningless fine to a punitive draft pick loss. It will be interesting to see whether the policy specifically defines and gives examples of each of these phrases, or whether a determination of what they mean will be solely left up to Commissioner Goodell.