Chalk up another big legal win for the NFL. Earlier today, in a long anticipated ruling, the Eighth Circuit Court of Appeals in Minneapolis, in a 3-0 decision, overturned the lower court’s ruling and reinstated Minnesota Vikings RB Adrian Peterson’s discipline stemming from his May 18, 2014 child abuse incident. Since Peterson already served his suspension, he will not have to miss any more games but he will be forced to pay the $4.1 million fine (equal to six games worth of Peterson’s salary) levied by Roger Goodell and the NFL.
This marks the third consecutive significant legal victory for the NFL over the NFL Players Association, joining the League’s arbitration victory over the NFLPA’s Personal Conduct Policy grievance and Deflategate. Similar to those two decisions, the NFL’s most recent victory confirms – and potentially strengthens – Goodell’s discipline powers.
How did we get here?
After a Minnesota doctor contacted the authorities after noticing injuries to Peterson’s son’s legs, police discovered that Peterson had hit his son with a “switch,” reportedly inflicting “cuts and bruises to the child’s back, buttocks, ankles, legs, and scrotum” as a form of corporal punishment. Peterson was indicted by a Texas grand jury and charged with felony injury to a child. He ultimately pleaded no contest to a reduced charge of misdemeanor reckless assault and was ordered to pay a $4,000 fine and complete 80 hours of community service.
Just weeks before Peterson’s indictment, Goodell sent a memo to all NFL personnel announcing that violations of the Personal Conduct Policy would be subject to “enhanced discipline.” Specifically, the memo announced that a first domestic violence offense would be subject to a six-game suspension without pay. The previous version of the Personal Conduct Policy did not establish a minimum number of games that a player must be suspended for a domestic violence offense. Notably, in a cover letter to NFL owners attaching the memo, Goodell said that the enhanced discipline was “consistent with [the League’s] Personal Conduct Policy.”
Two weeks after Peterson pleaded no contest, Goodell suspended him indefinitely (which turned out to be six games) without pay. The Players Association appealed the decision under Section 46 of the NFL Collective Bargaining Agreement to Harold Henderson, the NFL’s former VP of labor relations who was selected by Goodell to oversee the appeal. Henderson affirmed Goodell’s punishment, and the Players Association filed a complaint in federal court seeking to vacate the suspension. Judge Doty of the U.S. District Court of Minnesota vacated Goodell’s arbitration decision, finding that Goodell retroactively applied the new disciplinary standard to Peterson. The League appealed Judge Doty’s order to the Eighth Circuit and here we are.
Timeline of Events
Because the order of events – particularly the intertwined timing of Peterson’s acts and the NFL’s new Personal Conduct Policy – is critical to the legal arguments in this case, here is a timeline of relevant events:
- June 1, 2013 – Earlier version of NFL’s Personal Conduct Policy takes effect.
- May 18, 2014 –Peterson hits son with a switch.
- August 28, 2014 – “New” version of NFL’s Personal Conduct Policy takes effect.
- September 11, 2014 – Peterson indicted for felony injury to a child
- November 4, 2014 – Peterson pleaded no contest to a reduced charge of reckless assault, a class A misdemeanor.
- November 18, 2014 – Peterson suspended indefinitely and fined six-week’s salary.
- April 16, 2014 – Peterson reinstated by Commissioner Goodell.
How did the Eighth Circuit Rule?
The Eighth Circuit’s reversal surprised many, including myself, who followed the case closely. As was the case in Deflategate, this was a complete victory for the NFL.
I will address each issue separately:
Whether Henderson ignored the “law of shop” that forbids the retroactive application of the August Personal Conduct Policy.
The “law of the shop” is a rule(s) created by past practices of an industry (here the NFL) and is just as binding on the parties as provisions in the NFL’s CBA. The Players Association argued that the Ray Rice case created a “law of the shop” that NFL Policy’s could not be applied retroactively, thus constraining the League to impose no more than a two game suspension (which was prior practice before the new policy that upped the minimum suspension to six games).
In Rice, Goodell originally suspended the running back two games and then upped the suspension to indefinite after an additional video was publicly released. The second and indefinite suspension was later overturned by former federal Judge Barbara Jones.
In his written opinion, Henderson distinguished this case and Rice, finding that Rice involved an improper second discipline, whereas Peterson dealt with the first discipline imposed:
The District Court disagreed, finding “no valid reason to distinguish this case from the Rice matter”:
The Eighth Circuit, noting the deference that courts are required give to arbitration decisions, found that all Henderson had to do was “construe or apply” the law of the shop and he “undoubtedly” met this burden (without actually explaining how he construed anything):
Under this reasoning, even if the court thought Henderson got it wrong, a district court still should not overturn his decision.
Did Goodell apply the new or old Personal Conduct Policy? Does it matter?
As noted above, the Players Association’s strongest argument was that Goodell improperly retroactively applied the new six-game penalty in the August 2014 Personal Conduct Policy to Peterson, even though the conduct in question occurred before the new policy was in place.
There was a factual question of whether the memo that Goodell sent to NFL Personal in August 2014 constituted a “new” Personal Conduct Policy. Goodell made conflicted statements on the issue. On one hand, suggesting that there was a new and changed policy, in a letter to Peterson he referred to “the modifications to the Personal Conduct Policy that were announced on August 28” and, in a press conference, said that the League “made changes to our discipline.” On the other hand, in the August memo to owners, Goodell described the new six-game domestic violence penalty as “consistent with our Personal Conduct Policy.”
Henderson concluded that the August 2014 Personal Conduct Policy did “not constitute a change” and was not a new policy at all. He also held that Goodell was allowed to dish out enhanced discipline even under the pre-August Policy (which did not have minimum penalties). Henderson relied on the following language, determining that it was “the law of the shop”, from a 2010 arbitration decision affirming the one-game suspension of then Miami Dolphins defensive end Phillip Merling, who was charged with felony battery of his two-month pregnant girlfriend, to justify a departure from the traditional two-game “the law of shop” suspension for domestic violence:
The Eighth Circuit, again giving deference to the arbitrator’s decision, ruled that since Henderson considered the Merling’s case and Goodell’s broad Article 46 powers, his ruling cannot be second-guessed by the courts. It also ruled that, since the NFL and Players Association agreed to delegate the job of reconciling conflicting evidence to the arbitrator, Henderson’s conclusion that the August 2014 memo did not constitute a “new” policy was not subject to the court’s review – even if Henderson made factual errors.
Did Henderson improperly alter the issues presented to him?
The Players Association argued that only one issue was presented to Henderson –Could Goodell apply the new Personal Conduct Policy retroactively? – and that Henderson strayed from this question in finding that Goodell had authority under the old policy. If two parties submit an issue to arbitration, then the arbitrator can only decide that issue. Here, at arbitration the Players Association presented the question above during its opening statement. However, the NFL presented the issue more broadly: “Is the discipline appropriate.” Thus, since both parties presented different issues, the Eighth Circuit ruled that Henderson was not forced into only ruling on whether the new Personal Conduct Policy applied.
Are evident partiality and fundamental fairness required?
Finally, similar to the Second Circuit in the Deflategate reversal, the Eighth Circuit addressed two remaining issues that the lower court did not address. This precludes Peterson from re-litigating these issues in the district court, which could have dragged this litigation on for years.
First, the Players Association argued that Henderson was “evidently partial” because, given his 16 years working in the League office, he was so partial to the NFL that “a reasonable person could assume that [he] had improper motives.” While conceding that the procedure may present an actual conflict of interest, the Eighth Circuit states that the Players Association is stuck with what it bargained for:
Second, the Eighth Circuit dismissed the Players Association’s argument that the arbitration was “fundamentally unfair” because the statute governing labor arbitrations (the Federal Arbitration Act) does not allow arbitration rulings to be vacated on these grounds. Even so, the court went on, “the Players Association did not identify any structural unfairness in the Article 46 arbitration process for which it bargained.”
What is the Impact?
What a turn of events since March. At that time, the NFLPA was riding a streak of winning legal battles – including this case and Deflategate – and Roger Goodell was even considering giving up his discipline power. Now, less than five months later, the NFL has won three consecutive and it is impossible to see Goodell conceding any of his discipline power prior to the next round of CBA negotiations in 2020 (barring a major concession by the NFLPA such as extending the current CBA or moving to a 18-game schedule). Even then, given the suddenly overwhelming NFL-friendly legal precedent, it is difficult to imagine the NFL budging much in 2020. As ESPN’s Andrew Brandt notes, such a huge concession will have to be made that owners will welcome the players taking a hard stance on this issue in 2020:
Owners can only hope they make this an issue, see what they can leverage out of it. https://t.co/x1Baso4lsp
— Andrew Brandt (@AndrewBrandt) August 4, 2016
Taking into account both the Deflategate and Peterson decision, Goodell’s power to discipline is now nearly unlimited. As I explained in more detail here, the Second Circuit in Deflategate came to the following NFL-friendly conclusions:
- The arbitrator does not have to “fully explain his reasoning.”
- The arbitrator can discipline and impose more significant penalty to a player for any conduct — even if it is covered by another provision in the CBA — as “conduct detrimental.”
- It is completely up to the arbitrator to determine the severity of the penalty.
Today’s decision adds a few more troubling issues for the NFLPA:
- The arbitrator is not bound by the penalties enumerated in League policies if he or she determines that the previous discipline imposed for certain types of conduct has not been effective in deterring that conduct.
- Since the parties “bargained” for it, the arbitrator can “present an actual or apparent conflict of interest.”
- Retroactive application of League polices is (at least arguably) not “the law of the shop” and therefore Goodell has the power to implement a policy after conduct occurred and issue discipline based on the new policy (the opinion is somewhat unclear on this issue but regardless, if Goodell classifies a future discipline under Article 46, it won’t matter).
This decision is also likely to have a negative impact on the NFLPA’s possible request to the Supreme Court in Deflategate. The most important criterion for the Supreme Court to accept a case is a circuit split in order to resolve a conflict among the lower appellate courts on a question of federal law. While the Supreme Court may take cases that do not have a circuit split if they have extraordinary importance (not to suggest that this case and/or Deflategate do), it is very rare. If Peterson had won, the 2nd and 8th Circuits (at least arguably) would have had a split on the issue of arbitrator authority. Since the NFL won both cases, there is no split and both cases face even longer odds of advancing to the Supreme Court than previously thought.
What are the next steps?
After the loss, the NFLPA issued this statement, which is unclear on whether it plans to proceed or not:
— Ian Rapoport (@RapSheet) August 4, 2016
Similar to what we saw happen in Deflategate, the NFLPA now may (they could skip this step) ask the three judges who just voted against them to rehear the case and all of the active Judges to rehear the case. Because Peterson lost 0-3 and there was no dissent, it is extremely unlikely that rehearing will be granted. After that, the NFLPA’s last chance at appeal is to the United States Supreme Court and, as mentioned above, this is also a long shot.