He may not be popular. He may not always be fair. Transparency isn’t his thing. And his determination of “facts” sometimes warrants serious critique. But one thing is for sure: Roger Goodell is powerful. A ruling today by three judges on the U.S. Court of Appeals for the Eighth Circuit only expands that power. The Eighth Circuit has found that the NFL lawfully suspended Minnesota Vikings running back Adrian Peterson in 2014. As a result, Peterson will have to pay back the value of three game checks (approximately $2 million) but will not face any additional suspension. This decision is a reaffirmation of Goodell’s sweeping authority to discipline players and reminds the nation why words used—and not used—in collective bargaining agreements between leagues and players associations matter so much.
Peterson’s long journey in court
The Peterson case has taken years to play out. In Sept. 2014, a grand jury in Montgomery County, Texas, indicted Peterson for reckless or negligent injury to a child in May of that year. Peterson was alleged to have severely beaten his 4-year-old son with a tree branch after his son and another of Peterson’s sons argued over a video game. Graphic photographs of the injuries surfaced on the Internet. Following the Vikings’ victory over the St. Louis Rams in Week 1 of the ‘14 regular season, Goodell placed Peterson on the “Commissioner’s Exempt List”—a form of administrative suspension where Peterson would be paid while ineligible to play.
Peterson remained on the exempt list until he struck a plea deal with prosecutors in Nov. 2014. Peterson agreed to plead “no contest” to the misdemeanor offense of reckless assault, meaning he conceded the underlying charge but neither admitted guilt nor offered a defense. In exchange, Peterson accepted probation as well as requirements that he perform 80 hours of community service and pay a $4,000 fine.
Peterson likely believed that his plea deal would pave the way for him to return to the NFL. He was wrong. Goodell suspended Peterson, without pay, until at least Apr. 15, 2015. Peterson appealed the suspension, as was his right under Article 46 of the collective bargaining agreement. While Goodell has the collectively bargained right to serve as the arbitrator for player appeals, Goodell delegated this particular assignment to former NFL executive Harold Henderson. Henderson considered Peterson’s appeal, but sustained the punishment on the grounds that Goodell was within his collectively bargained authority to punish players as he sees fit.
The NFLPA and Peterson were unsatisfied by Henderson’s handling of the arbitration. They believed that Henderson badly misunderstood which conduct policies applied to Peterson’s misconduct. Timing was key to this argument. Peterson’s misconduct occurred in May of 2014. Back then, NFL players were typically suspended only two games—at most—for first-time offenses related to domestic violence.
In Aug. 2014, the NFL announced a new domestic violence policy that responded to criticisms about the league’s handling of Ray Rice’s assault of his then fiancée and now wife, Janay Palmer Rice. The new policy called for six-game suspensions, among other remedial steps, for players whose misconduct is connected to domestic violence. This new policy was not collectively bargained with the NFLPA, but the league asserted that the policy did not require bargaining since Article 46 empowers Goodell with unlimited discretion on punishments. The NFLPA nonetheless insisted that Peterson’s misconduct occurred at a time when players normally received two-game suspensions for first-time acts of misconduct and thus that custom should apply to Peterson as well. Under this view, a suspension of Peterson for six games was an unlawful retroactive application of a new rule. The NFLPA and Peterson brought this argument to court in Dec. 2014. It filed a lawsuit in the U.S. District for the District of Minnesota and asked that Henderson’s award be vacated.
Two months later, in Feb. 2015, U.S. District Judge David Doty ruled in favor Peterson and vacated Henderson’s arbitration award. Judge Doty reasoned that the NFL could not apply a new policy to misconduct that occurred prior to the new policy’s existence. Judge Doty was particularly critical of Goodell, who in Aug. 2014 told the public that the new domestic policy was a “change” from prior policies. To Judge Doty, the commissioner’s own words indicated that Peterson was the recipient of a retroactive punishment.
Although logical, Judge Doty’s decision was nonetheless surprising since federal judges rarely vacate arbitration awards. The two most relevant federal laws, the Labor Management Relations Act and the Federal Arbitration, provide substantial discretion to arbitrators in reaching conclusions about facts and in applying the law. The NFL appealed Judge Doty’s order and felt confident it would prevail, just as it did following U.S. District Judge Richard Berman’s decision to vacate Goodell’s arbitration award against Tom Brady.
Eighth Circuit rules for NFL and reaffirms Goodell’s power
In Oct. 2015, a three-judge panel on the Eighth Circuit consisting of Judges Steven Colloton, James Loken and Diana Murphy heard oral arguments in St. Paul, Minnesota delivered by attorney Jeffrey Kessler on behalf of the NFLPA and Daniel Nash on behalf of the NFL. Nash’s central argument was that Judge Doty exceeded the bounds of his authority in vacating Henderson’s award. Nash maintained that the punishment of Peterson was not retroactive, at least not in the sense that it would undermine Article 46. As referenced above, Article 46 is worded in such an expansive way that Goodell can—at least in theory—issue suspensions of any length when he finds that a player has committed conduct detrimental to the integrity of, or public confidence in, the NFL.
On Thursday, the three appellate judges issued an opinion in full agreement with Nash. On behalf of the panel, Judge Colloton’s opinion echoed themes that were enunciated in the Apr. 25th opinion by Judges Barrington Parker, Jr. and Denny Chin against Brady. Judge Colloton emphasized that federal courts possess very limited authority in vacating arbitration awards. Judges can only focus on whether the arbitrator (which was Henderson in this instance) plausibly applied Article 46 and reasonably interpreted the so-called “law of the shop,” which requires consistency in arbitration awards. Put another way, Henderson did not need to be “correct” about Peterson’s punishment. He only needed to reach a plausible decision about the punishment. This was a point similar to one made by Judges Parker and Chin in regards to Brady: even though Goodell punished Brady over an alleged ball deflation conspiracy that lacked direct evidence and that various scientists contend did not occur, Goodell reached the decision in a sufficiently plausible way.
Building on that point, Judge Colloton reasoned that Henderson was within his authority as an arbitrator to determine that Goodell did not change the policy in Aug. 2014. This is true, Judge Colloton maintained, even though Goodell actually used the word “change”. Of particular significance to the judge was how Goodell stressed that the change “was consistent with our Personal Conduct Policy,” meaning it was not a change in policy. Judge Colloton amplified that “the Commissioner is not forever bound to historical precedent if prior discipline under the Personal Conduct Policy provided insufficient deterrence . . . in other words, the League might change its discipline without changing its policy.” Judge Colloton therefore thought it was “unnecessary” under federal law for Henderson “to decide whether the Commissioner applied an ‘old’ policy, a ‘new’ policy, or simply a ‘single’ policy that encompassed the writings from both June and August.”
Judge Colloton also rejected the significance that Judge Doty placed on the Rice decision. In Nov. 2014, former U.S. District Judge Barbara Jones, while serving as an arbitrator, found that the NFL had wrongly double punished Rice for the same misconduct. Judge Doty thought the Rice decision was applicable to the Peterson matter since both concerned punishments that violated the law of the shop. Judge Colloton firmly disagreed, highlighting that Rice’s matter involved a second discipline whereas Peterson’s “sanction was the first discipline imposed.”
Brady’s case even less likely to be heard by the U.S. Supreme Court
The Eighth Circuit’s decision is a blow to any hopes by the NFLPA that the U.S. Supreme Court will review Brady’s case. As I explained in another SI.com article, those hopes were already extremely slim. The Supreme Court only considers about 1% of cases. Had Peterson won at the Eighth Circuit, there arguably would have been a “circuit split” between the Eighth and Second Circuits in regards to interpretation of Article 46. But the Brady and Peterson cases entail very different disputes—Brady’s is about notice and access to evidence while Peterson’s is about retroactive application of a new policy. Even if the disputes were similar, it is doubtful the Supreme Court would find employment controversies between football players and a football league worthy of its time.
Goodell’s power to discipline is stronger than ever
The federal appeals decisions in the Brady and Peterson cases make the past successes of NFLPA lawyers Jeffrey Kessler and his fellow Winston & Strawn attorney David Greenspan even more impressive. The two were victorious in challenging suspensions levied against four New Orleans Saints players in Bountygate, as well as former Carolina Panthers defensive end Greg Hardy and Rice. They also found interim success with Judges Doty, Berman, and Chief Judge Ronald Katzmann in the Peterson and Brady matters. Kessler and Greenspan faced long odds in those legal fights and yet they adroitly configured arguments that resonated with a diverse group of judges and arbitrators. They persuasively argued that even though Article 46 doesn’t express certain protections for NFL players, those protections ought to be assumed as part of the Article 46.
Yet as the Brady and Peterson appeals show, some judges are unconvinced that protections not actually expressed in a contract should be recognized. Judge Colloton made that clear in his opinion, carefully stressing that the NFL “bargained for this procedure, and the Association consented to it.” Put another way, if the NFLPA wants certain protections for its players, it needs to get them mentioned in the CBA.
With the Second Circuit and Eighth Circuit enunciating this shared view, Goodell has likely ensured that he will prevail over any future player discipline matters that are brought to court. It is possible that a legal challenge involving an NFL player suspension could be raised in another federal circuit. Such a circuit, moreover, would only need to view the Brady and Peterson decisions as persuasive and not binding authority. Yet the two circuits that most often hear NFL disputes—the Second Circuit and Eighth Circuit—now have unmistakable precedent on their books that decisively champions Goodell’s authority.
NFLPA might wave the white flag on matters of player discipline
So where does the NFLPA go from here? The current CBA is set to expire after the 2020 season, meaning Article 46 is set to remain as the player conduct policy for the next five NFL seasons. The NFLPA could attempt to negotiate changes to Article 46 prior to 2020, but the NFL would demand substantial terms in return. For instance, the NFL might insist on stricter drug testing or even an 18-game schedule. It seems unlikely the NFLPA would be willing to strike a deal that would demand such significant concessions.
It is also not clear that the NFLPA will fight hard over Article 46. The reality is that very few NFL players engage in misconduct or alleged misconduct that would trigger discipline under Article 46. The percentage is likely around 1%, particularly given the infrequency of NFL player arrests as revealed by Mark Maske in the Washington Post on Wednesday. It just so happens that some of the NFL’s biggest stars—Brady, Peterson and Rice—are among the players implicated by the policy. As a result, media attention (including by yours truly) over NFL disciplinary matters has the effect of exaggerating the perceived prevalence of players who encounter problems with Article 46.
A better use of the NFLPA’s bargaining chips might be to focus on employment terms that impact 100% of NFL players—such as policies involving healthcare, pensions and disability—or terms that impact NFL players who earn toward the bottom of the pay scale, such as practice squad players.
We’ll find out in 2020 which path the NFLPA takes. Until then, and likely thereafter, players better not get in trouble with Goodell.
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. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.