Conduct policy dialogue between NFL, NFLPA shows lack of union inclusion
Over the last few months, as the NFL sought to formulate a new and amended personal conduct policy in the wake of the Ray Rice and Adrian Peterson scandals, a valuable entrant into the process -- the NFL Players Association -- felt snubbed along the way. As NFLPA assistant executive director of external affairs George Atallah told SI.com Thursday there were key parts of the path to a new conduct policy that saw the union involved tangentially, if at all.
"Our union has not been offered the professional courtesy of seeing the NFL’s new personal conduct policy before it hit the presses," the NFLPA said in a statement following the league's announcement of the conduct policy on Dec. 10. "Their unilateral decision and conduct today is the only thing that has been consistent over the past few months."
The NFL, NFLPA, players and owners had several different meetings before the policy was put into place, according to Atallah, but the first formal acknowledgement to the union came in the form of a response to the proposal the NFLPA sent to the league on Oct. 28. A letter from NFL EVP Jeff Pash to the NFLPA, dated Nov. 30, addressed the union's proposals for a new conduct policy, and a short response from the NFLPA dated Dec. 3 asked the league to send a counterproposal, and/or to engage in further discussions, before a new policy was announced.
The league and the union failed to see eye to eye on several aspects of the new policy, and the union believes the policy to be a violation of the current Collective Bargaining Agreement. SI.com has received copies of the correspondence between the NFL and NFLPA, and below, I have summarized the biggest discussion points.
NFLPA proposal: The NFL could not take any action against a player, including suspension or contract termination, after just an arrest. After an arrest, the new and automatic "deactivation with pay" model would have been voluntary, based on player and club meetings, with no specific discipline from the Commissioner's office. If the player didn't agree to paid leave, the player could be put on leave, but only with the consent of the NFLPA.
NFL response: The NFL would not agree to the limitation of discipline and paid leave to acts that it called "narrowly defined." The NFL cited the differences in state law and changing practices among local prosecutors, and the fact that the same crime could be charged as misdemeanors in one jurisdiction and felonies in another.
"We believe that everyone -- clubs, players, fans and the public -- has a common interest in uniform treatment," the league said in response. "The limitations identified in the NFLPA's proposal would make it impossible to have such a consistent approach to either paid leave or discipline."
The NFL went on to say that in a recent meeting, the NFLPA said that discipline could only be applied after a conviction, and on this, the league completely disagreed. It makes sense, as the application of discipline in the pre-conviction phase is the whole point of the new policy. The league disagreed that the Commissioner's authority should be limited to cases involving a criminal conviction.
The league refused to consider paid leave as a voluntary step in any part of the process, saying that "paid leave should be applied on a uniform and mandatory basis whenever a player is charged with a crime of violence." The league did agree, however, that no discipline would be imposed by the Commissioner or the club until the charges had been adjudicated.
NFLPA proposal: Upon the filing of charges or an arraignment, the Commissioner could ask the player to meet with a psychiatrist of the player's choosing, in order to protect doctor/patient privilege. Upon conviction of a crime, a player would seek mandatory counseling under the care of a therapist or therapists decided by a joint NFL and NFLPA recommendation. After that treatment has been concluded, the player would enter into a counseling program jointly created by the NFL and the NFLPA.
NFL response: The league stated that while it respected the concern regarding doctor/patient privilege, "we know of no instance in which a player has been prejudiced by having had a clinical evaluation or participating in a program of counseling or therapy." The league said that it has countless examples in which a player's participation in counseling has been viewed positively by the legal system. The league dismissed any concerns regarding doctor/patient privilege once a player has been convicted, and also said that the current joint evaluation and counseling program for substance abuse could be modified for matters of personal conduct. In other words, the player's choice for a therapist was dismissed as an absolute.
NFLPA proposal: An NFLPA attorney must be present at the hearing of any player, and all hearings must be recorded and transcribed. If a player chooses to invoke his Fifth Amendment rights, it will not be held against the player. If there is an independent investigation involved in any way, the NFLPA will have the right to review the results of investigation before those results are released, and there will be no public statements from the league during the course of any hearing or investigation.
NFL response: The league agreed with the concern over a player's Fifth Amendment rights, and agreed to the terms regarding independent investigators. However, the league disagreed with the idea that NFLPA lawyers be present for any hearing, and that those hearings be recorded and transcribed.
"This is entirely inconsistent with current business practices and will likely deter witnesses from coming forward or sharing information."
Note: Given the ways in which the Ray Rice case was bungled -- the Commissioner can't seem to keep his facts straight at this point -- one would think that recording and transcription of all hearings would be best for both parties, current business practices be damned.
NFLPA proposal: All appeals of Commissioner discipline will be heard by a neutral arbitrator, pursuant to Article 43 of the current Collective Bargaining Agreement regarding Non-Injury Grievance. Article 43 refers to an "Arbitration Panel" of four people, whose appointment must be approved in writing by the NFLPA.
NFL response: The league sees player conduct appeals and other grievance appeals differently, it seems. "The process set forth in Article 43 guarantees lengthy delays, discovery disputes, and inconsistent processing of appeals," the league said. "We believe that the process set forth in Article 46 has been and remains appropriate." That process, of course, has the Commissioner as the final arbiter in all appeals.
The league also said that it was prepared to discuss the modification of Article 46 to modify the initial disciplinary decision, but "any appeal would continue to be to the Commissioner, as currently provided for in Article 46."