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Deflategate, one year later: The anatomy of a failed controversy
2:51 | NFL
Deflategate, one year later: The anatomy of a failed controversy
Tuesday March 15th, 2016

Could a potential agreement between the NFL and NFLPA on reduced disciplinary powers for NFL commissioner Roger Goodell cause the NFL’s Deflategate appeal to lose all of its air?

That is one possible outcome, according to the Wall Street Journal’s Matthew Futterman. On Monday, Futterman reported on discussions between the NFL and NFLPA that would revise the league’s disciplinary process, and strip commissioner Roger Goodell of his current powers. Futterman stresses that the talks have been ongoing for six months and there is no expectation of an agreement anytime soon. Still, NFLPA executive director DeMaurice Smith is quoted in Futterman’s story as saying that any agreement would need to end active litigations over player discipline. There are two such litigations: the NFL’s appeal of U.S. District Judge David Doty’s Feb. 26, 2015 order in favor of Adrian Peterson and the NFL’s appeal of U.S. District Judge Richard Berman’s Sept. 3, 2015 order in favor of Tom Brady.

Designing a new player conduct policy

Under Article 46 of the collective bargaining agreement, the NFL’s commissioner has unchecked power on addressing most types of player misconduct. The commissioner is empowered with determining whether a player has engaged in behavior that constitutes “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Interpreting this ambiguous standard of conduct is entirely up to the commissioner. The commissioner is further entrusted with calculating an appropriate punishment, whether that is a fine or a suspension. Moreover, the commissioner or a designate of the commissioner’s choosing hears any player appeals. At no point does a neutral person, or a person with a legal background (Goodell is not an attorney), serve as a decision-maker.

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To be clear, the NFLPA voluntarily agreed to Article 46 as part of a collective bargaining process in 2011. Attorneys for the NFLPA, however, have effectively chipped away at Article 46 since that time. They have done so by defeating the NFL in five recent court or arbitration hearings: Bountygate, Ray Rice, Peterson, Greg Hardy and Brady. These hearings were presided over by an active federal judge (Judges Doty and Berman), a retired federal judge (former U.S. District Court Judge Barbara Jones), former NFL commissioner Paul Tagliabue and former NFL vice president Harold Henderson. Based on these five matters, it is fair to say that the unlimited wording of Article 46 seems to bother decision-makers other than Goodell. Moreover, these matters collectively showed that players are entitled to procedural safeguards even when those safeguards are not spelled out in Article 46. For instance, Tagliabue and Judge Berman stressed that players must receive advance notice of a punishment.

It thus makes sense for the NFL to explore changes to how the league addresses player disciplinary matters. To make the NFL’s player disciplinary policy more in line with policies found used by other professional sports leagues, Goodell could be removed as the person who decides all or certain types of player appeals. Someone neutral, or a panel of neutral persons, could instead take on that function.

Consider how other leagues address this topic. The NBA uses a form of neutral review for player suspensions that exceed 12 games. The NHL does the same for player suspensions that exceed five games. These leagues and their respective player associations recognize that a neutral person reviewing the commissioner’s original decision-making—and ensuring it is logically consistent and in line with past punishments—only strengthens the credibility of the commissioner’s punishments.

Why the NFL may be willing to drop their appeals in the Adrian Peterson and Tom Brady cases as part of a new discipline policy

The Peterson and Brady cases are similar in that they are fundamentally about whether the NFL fairly treated two of its superstar players. They are dissimilar in that they involve different kinds of disputes about different applications of disciplinary procedures.

Peterson contends that the NFL wrongfully applied a new and stricter domestic violence policy to conduct (reckless assault on his four-year-old son) that occurred during a previous and more forgiving policy. Judge Doty agreed with Peterson. The NFL appealed to a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit. On Oct 19, 2015, Judges James Loken, Diana Murphy and Steven Colloton heard oral arguments in the appeal and have yet to issue a ruling.

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Brady’s challenge to his four-game suspension is premised on an argument that he was unlawfully denied notice that he would receive a four-game suspension for alleged involvement in a supposed ball deflation scheme. He also maintains that he was unlawfully denied access to key materials and witnesses. Judge Berman agreed with Brady, which prompted the NFL to appeal to the U.S. Court of Appeals for the Second Circuit. On Mar. 3, 2016 Judges Robert Katzmann, Barrington Parker, Jr. and Denny Chin heard oral arguments in the Brady case. They are are expected to issue a decision sometime over the summer.

It is certainly possible that the NFL could win both the Peterson and Brady appeals before the respective three-judge panels. Two of the three judges (Judges Loken and Colloton) in the Peterson case are considered relatively “pro-management” and two of the three judges in the Brady case (Judges Parker and Chin) seemed mostly hostile to the NFLPA’s legal theories during the Mar. 3 oral arguments. But the league knows that even if the three-judge panels side for the league, both players would pursue additional appeals. The subsequent appellate process for both cases could extend into 2017 or beyond. These cases have been damaging to the league’s reputation. This is especially true of the Brady case, which centers on a controversy—allegations that the New England Patriots hatched a scheme to slightly under-inflate footballs—that various scientific commentaries express did not happen. In short, closure to the Peterson and Brady cases would be valuable to the NFL, just as it would be valuable to the NFLPA and to both Peterson and Brady.

The NFL also knows that appellate judges are notoriously hard to predict and the league could easily lose both cases on appeal. With that in mind, it would be better for the NFL to drop the appeals in the Peterson and Brady cases through a settlement than for appellate courts to confirm these players’ wins. As it stands, other players suing the NFL on player disciplinary matters could take advantage of Judge Berman’s order in favor of Brady as precedent. This is particularly true since the NFL is headquartered in Judge Berman’s federal district (the Southern District of New York), which would provide a player with a compelling argument that his case should be heard there. In a settlement, the NFL and NFLPA could contractually agree that Judge Berman’s order is expressly limited to Tom Brady’s case, thereby limiting its precedential effect in future player disputes.

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Lastly, the NFL knows that despite the massive media attention player conduct disputes tend to receive, this is a topic that impacts very few players each season. Consider that there are roughly 1,700 NFL players each season (not including practice squad players). Each year, only a handful or so of NFL players are punished under Article 46. In other words, approximately 99% of NFL players don’t run afoul of the much-maligned player conduct policy. The league, therefore, may be willing to relinquish authority on a policy that impacts so few players, particularly if the league obtains concessions from the NFLPA in return that are financially consequential.

What the NFL could demand in exchange for dropping its appeals in the Adrian Peterson and Tom Brady cases

As noted above, the NFL would likely demand that any settlement express that Judge Doty and Judge Berman’s orders in favor of Peterson and Brady, respectively, are limited to those specific player matters. This would make it much more difficult for a player to rely upon those orders in future disputes.

The NFL would also expect the NFLPA to provide additional reason to strike a deal. The league would stress that no matter how it is portrayed, a reduced role for the commissioner in player discipline would be perceived as a demotion for Goodell and as a repudiation of his decision-making. The league might thus demand, for instance, that the NFLPA agree to extend the current CBA—which is considered favorable for the NFL and its owners and set to expire after the 2020 season—for another year. A longer period of guaranteed labor harmony would benefit NFL owners in many ways, including in negotiating licensing contracts. It would also benefit owners who put their teams up for sale: a league with guaranteed revenues is more attractive to prospective franchise buyers. The NFLPA, however, would likely reject such a substantial concession. The NFLPA would insist that player conduct is, as explained above, a matter of significance to a tiny percent of players while the economics of a CBA impact 100% of players.

A more reasonable area for the NFLPA to “give up ground” would be in testing for performance-enhancing drugs and painkillers. Both sides could reason that stricter testing would benefit players’ health. Stricter testing would also communicate to the public—including lawmakers—that the league is serious about health matters. The league is particularly sensitive to how lawmakers perceive issues of player health. This concern was perhaps only amplified after Jeffrey Miller, the NFL’s senior vice president for health and safety, reportedly told the House Committee on Energy and Commerce on Monday that there is a link between playing football and developing CTE.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law is on the faculty of the Oregon Law Summer Sports Institute.

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