NFLPA boss DeMaurice Smith and president Eric Winston speak out strongly against what they see as commissioner Roger Goodell’s unilateral and arbitrary enforcement of new discipline. If “Everything is on the table,” the union asks, why won’t the NFL come to the table?

By Jenny Vrentas
November 21, 2014

nflpa-demaurice-smith-800 Smith: “My relationship with Roger is fine. His relationship with the players is not.” (Peter Foley/Bloomberg via Getty Images)

WASHINGTON, D.C. — You didn’t have to be at Upshaw Place on Wednesday afternoon to know what was being discussed inside the NFL Players Association’s downtown headquarters. With president Eric Winston, the former right tackle, in town, the union was preparing to file its formal appeal of the league’s suspension of Adrian Peterson without pay for the rest of the season. The NFL’s personal conduct policy on this day, as on most days this season, was front and center in this office. The most important storyline of this roller-coaster NFL season has been off the field, but what a stronger, clearer personal conduct policy should look like, and how it should be rewritten, are issues nearly as controversial as the off-the-field events that have necessitated change. As these questions continue to swirl, The MMQB editor-in-chief Peter King and staff writer Jenny Vrentas sat down with NFLPA executive director DeMaurice Smith and Winston, the labor leaders who represent the workplace rights of Peterson, Ray Rice and Greg Hardy, as well as the hundreds of players who will never face legal trouble. This is part of our conversation with Smith; the rest will appear in the next Monday Morning Quarterback column.

THE MMQB: What have the union’s contributions been toward the crafting of the new personal conduct policy?

SMITH: Well, the league’s refusal to engage in collective bargaining has meant that we necessarily have not had any role in crafting the new personal conduct policy.

THE MMQB: The league and the union have met in person; what, if anything, came out of those meetings?

SMITH: We have had three meetings. But if the league takes the position that they don’t want to collectively bargain about it, then I don’t think you can say the union has been involved in fashioning a new personal conduct policy.

THE MMQB: Are there any steps that you can take, or are taking, to get the NFL to collectively bargain?

SMITH: If they don’t collectively bargain, it can’t be a part of our CBA. There is always recourse, but the loss to the NFL is you won’t have a policy that is part of the CBA, like the drug policy, or on-field discipline, or shares of revenue, or what happens with respect to workers comp, benefits, retirement or injury grievances. The [CBA] is about 500, 600 pages of torturous agreements between the players and the NFL. Why would you lack the courage to make your policy a part of that?

THE MMQB: What “recourse” do you mean?

SMITH: Next.

THE MMQB: Going back to the 2011 CBA negotiations, what was the conversation at the negotiating table regarding the personal conduct policy?

SMITH: We wanted to address changes in the CBA; the league wasn’t interested in making any of those changes. I can’t recall how many times it came up, but it did, because that was important to our players. But so were other things. And one issue that we know is the personal conduct policy, as written, was included in the 2006 CBA. It lays out procedures, but the other reality is that many, if not all, of the major concerns that players have with the current personal conduct policy were only issues that arose with this commissioner, post-2006 CBA.

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THE MMQB: Some critics, including former union executive committee member Scott Fujita, have said that the players should have made the personal conduct policy more of a priority in the last negotiations. What’s your response to that?

Eric Winston. (Frederick Breedon/Getty Images) Eric Winston: “Yes, there were certain powers that were given to the commissioner in the CBA. But there are also limitations.” (Frederick Breedon/Getty Images)

WINSTON: Hindsight is 20/20, and it’s always easy to say, we should have done this, or we could have done that. The guys who were in the room fought tooth and nail for everything that we got. And it has always been that way. We have never been given anything. Our guys who were in the room, day in and day out, fought their butts off. I think you were trying to say, well then, why did you agree in the CBA about commissioner discipline? I think there is a big misunderstanding in the concept of what was actually agreed to. Yes, there are certain powers that were given to [the commissioner]. But there are also limitations that were supposed to box him in. I guess to rephrase, if the negotiations were tomorrow, do you think that the calculus changes? Of course, right? Of course the calculus changes. Because he is no longer going by what the agreement was. There wasn’t a problem before, because there was a due process. There was fairness.

SMITH: The CBA, and precisely the clause about commissioner discipline, does not green light commissioner misconduct. It doesn’t permit the commissioner to avoid due process. It doesn’t allow the commissioner to act arbitrarily. It doesn’t excuse unfair treatment. It is a mistake to look at these as individual episodes. The commissioner was overturned twice in [the Saints’ Bountygate case, by former commissioner Paul Tagliabue, acting as an arbitrator]. Why? The failure to follow the right process. So why wouldn’t you take the lessons from Bounty itself and say now we are going to institute and collectively bargain the right process?

The MMQB: Does the union share a responsibility in the issues of domestic violence and sexual assault being overlooked until this point, and in there not being a strong policy to directly address these issues seriously? What would you recommend in terms of punishment to show you take the problem seriously, as you have, say, with increased penalties for DUI?

SMITH: Everyone in the business of football has a responsibility to ensure that we reduce and hopefully eliminate all types of misconduct. I was a prosecutor of violent crimes for a long time and I know, unfortunately, misconduct by a few people in any community is a reality. We have a criminal justice system with checks, balances and neutral and impartial judges because we want punishment to be both fair and to appear fair. We share responsibility because owners, players and management produce the business and game of football. For the same reasons that we question the lack of oversight in cases involving a death of a person at a home owned by an owner, criminal investigations into an owner’s company and court rulings finding owners who have engaged in fraud, we believe that sharing responsibility has to be demonstrated by holding everyone equally accountable. [Editor’s note: On March 2, Kimberly Wundrum, an acquaintance of Colts owner Jim Irsay, died of a drug overdose in a home given to her by Irsay. Wundrum’s death was not referred to when commissioner Roger Goodell handed Irsay a six-game ban after his substance-abuse and DUI arrest in Indiana earlier this year.]

THE MMQB: On the visits you took with all 32 teams, what was the attitude of the players toward the commissioner?

WINSTON: I went on one visit, and I am on the phone constantly, talking to player reps and non-reps, executive committee calls. There is a growing discontent. There is a strong questioning. There is confusion, and then the anger sets in, and then [they ask], “What is he doing?” All we have ever heard is, We have to protect the integrity of the shield. I think guys are starting to ask themselves now, how can we protect the integrity of the shield if you are not going to act with any integrity? That’s what I keep hearing from guys in different ways. Very rarely do I have a call when [the player says], “Yeah, everything is good; I’m totally happy with everything.” Because even the guys who say, There is no way in hell that I will be facing this [type of discipline from the commissioner], they still say, This is hurting our game, this is hurting our business, and therefore it is hurting me. And what are we going to do?

“We spend a lot of time dispelling the myth that the commissioner is somehow a neutral party. If he is answerable to the owners, why do they tolerate things being run so poorly?”

SMITH: This is the first time I have heard, more than once, players saying some version of, “Why are the owners allowing him to act this way?” Look, we do a great job of making it abundantly clear to our players that there is no uber-person sitting at the head of the NFL that is just there to make sure everything is good for the players in the game. We spend a lot of time dispelling a myth that the commissioner is somehow a neutral party. No. You could have sold that a few years ago. That’s done now. That said, they now are wondering, if he is answerable to the owners, why do they tolerate things being run so poorly? Because [players] don’t see Rice or Peterson or the DEA thing or Irsay or Haslam or the Wilfs or other stuff as these disparate dots that are just spun off in the universe. They see it all as a whole. The one thing I think people who aren’t inside of our locker rooms as much as we are forget is all 2,000 of these guys know they are a part of that very thin level of professional football where things are run well inside of a team. It’s the best trainers, it’s the best meals. Everything is professional, professional, professional. Coaches harp on them to act like professionals. And [when] they see all this stuff spinning out of control, that’s inconsistent with their concept of what it means to be a part of something professional. Eric’s word, ‘confusion,’ is the best. They look at this, and none of it makes sense. And that is now reflecting far more on ownership than on the league office.

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THE MMQB: The credibility gap that, in your opinion, exists with the league office, what do you think should done be to fix that?

SMITH: Two things: One, collectively bargain the right process. And No. 2, I think our players need their commissioner—our players need Roger—to visit every one of our locker rooms and explain what is going on.

THE MMQB: You’d like that to happen?

SMITH: It has nothing to do what I like. If you are asking me what prescription I would give you to restore the credibility of the league office and the respect that players would want to have for the commissioner, those are the two things I would say to do.

THE MMQB: What would personal visits accomplish?

WINSTON: I think he would have to go in there and explain to them why his process and what he is doing is better and more fair than what an independent arbitrator would provide. I think he could go in there and explain to them what he really meant when he got to the podium six, seven weeks ago and said, “We are going to work together with the NFLPA; everything is on the table.” Because, obviously, everything hasn’t been on the table. If they’re out of hand saying, no, we are not going to bargain; no, I am going to retain all my power, what has changed? What’s on the table, then? He came out and told that to America, to every football fan, to every player, to us, everybody: Everything is on the table. We’re going to get this right. We are going to fix this. We are going to get our house in order. But hardly anything has been on the table. Nothing has been on the table. So go in there and explain to them what he meant by that. Go in there and explain to them how that is beneficial to the players. How that is fair, and how the NFL, over the last five years, six years, has been better for it because of this, than the other way.

THE MMQB: Is it your opinion, then, that his taking on a reduced role in player discipline via the personal conduct policy is now off the table?

SMITH: I’m not sure I would characterize him saying “Everything is on the table” as only dealing with whether he has a reduced role. One, when you say everything is on the table, everything is on the negotiating table. So when they mandated a non-collectively bargained hearing for the first time and threatened Adrian Peterson with showing up at that hearing, does that sound like everything is on the table? No. You made it up yourself, you picked the experts yourself, you gave them roles yourself, they were going to have a role in the discipline process that you created yourself—that’s not everything on the table. If you aren’t willing to talk about neutral arbitration for all commissioner discipline issues, that means that’s not on the table. So to Eric’s point, if you continue to act unilaterally, that simply means nothing is on the table. It never was.

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WINSTON: And that’s the problem when you say something and don’t do it. That adds to the confusion. That adds to the mistrust. That adds to the frustration, to the anger. Because in a player’s world, when they go in the film room and they [are told], ‘Hey guys, this is what we are going to change,’ you bet your butt in about an hour and a half they are going to be on the field doing that exact thing. So you can understand a little bit now, why they have seen the lead up to this, and seen the press conference, and seen where we are at now and say, “Wait, how does this work? You told us this is going to happen, and now it is not."

“What I feel about the appropriate discipline for X or Y doesn't matter. I care about the process. Is the process of hearing evidence, gathering evidence, evaluating evidence going to be fair?

SMITH: Has the league made a proposal to us about changing the discipline process?  The answer is no, they haven’t. That’s not on the table. We made a proposal to them about changing the discipline process two and a half weeks ago. They haven’t responded to it. So when Eric goes to our executive committee and says, “The commissioner says everything is on the table, we are going to sit down and negotiate with them, and try to come up with, or at least discuss, a new policy,” and nothing is happening on the table, what would you expect would be the reaction from our senior leadership? It’s disrespectful.

THE MMQB: You feel like you have been disrespected by this commissioner?

SMITH: It has nothing to do with how I feel. If they have yet to submit a proposal, and they have yet to respond to the proposal we have sent them, and yet you continue to unilaterally create new things in the disciplinary area, does that mean that everything is on the table? If that’s the message to that group of players, that executive committee, who have probably 60 combined years of playing time … Going back to your word, “disrespectful.” It has nothing to do with how I feel. Is that disrespectful or not? It simply is. I don’t have to feel it, it just is. So once again, that reflects on ownership.

THE MMQB: Is it your position that that nine weeks being away from football is enough of a punishment for what Adrian Peterson did?

SMITH: I don’t have an opinion about that. I care about the process. What I feel about the appropriate amount of time for X or Y doesn’t matter. It doesn’t even matter what I believe. I care about the process. Is this player being treated like other players have been treated? Did the league agree to take him off the [Exempt/Commissioner’s Permission] list once his criminal case was over? Is the process of hearing evidence, gathering evidence, evaluating evidence going to be fair? Is the person going to hear this evidence compromised because he is going to have to make judgments about whether people in his own office were telling the truth? Is there a neutral person who is going to review what the decision is? That’s all I care about. I don’t have the luxury, [Winston] doesn’t have the luxury of [saying], I think “blank” is appropriate when a player does “blank.”

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THE MMQB: Is it important, or unimportant, for you to have a good working relationship with Roger Goodell?

SMITH: My relationship with Roger is fine. His relationship with the players is not. That’s all I’ve got on that one.

THE MMQB: Do you believe there are fundamental differences between the sides?

SMITH: Come on. Yeah. But we’re labor. They are management. Since Ludlow, or Triangle Shirtwaist, there are always going to be monumental differences between labor and management. That’s the business of labor and management. Unions exist because of those differences. Those differences have existed, will always exist. When does your employer not want more out of you? When do you not want more for yourself? So that tension always exists. You want more money for what you do. You want more benefits. You want more job security. You want more safety. Management wants more control. They want more out of you. They want to pay you less for you to do more. It’s no different if Eric were a longshoreman than if he were a football player. No one should ever think for a minute that the differences we have with each other are the causes of the problem. The causes of the problem are when one side refuses to collectively engage with the other because they want to maintain their power. That’s where problems arise.

THE MMQB: How do you view balance of power between the players and the league at this point in time?

SMITH: We have a CBA that is the result of an equal balance of power. But issues of power typically come up when one side wants to make the other side do something. The conversation should be, what can we do together? So the issue here, when it comes to discipline, results from the lack of courage of one side to be willing to collectively engage the other side into a mutually beneficial solution. That is simply a lack of courage. I can show you 350 other pages [in the CBA] where they have exhibited the courage to do that. Where we have come up with something really, really good.

THE MMQB: What is your idea for how the personal conduct policy should look?

SMITH: There should be a collectively bargained policy for how investigations occur. There should be a collectively bargained policy for what happens with players who are accused of misconduct. There should be a collectively bargained policy for how the process works between the league office and the player and the union before discipline is imposed, and there should be a collectively bargained process for a neutral arbitrator to review the final decision of the league office. In a nutshell, those four things. If those four things were in place, would we be here now?

THE MMQB: There are a lot of other issues the NFL and the union will have to consider in the coming years. One, for instance, is London. How do you feel about a team in London?

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SMITH: We don’t have that much time. Because here’s the thing: If the league is interested in things like London, there are issues our players are very interested in. What’s in the best health and safety interests of the players? How does it work with their families? If we are moving to L.A., and under the CBA there are questions about stadium credits that could be used by the league, given by the players, to build new stadiums, what should that look like? If teams are going to relocate to L.A. and you are looking for cost offsets to make that feasible in the first few years, is that something the league wants to talk to us about? If the league is interested in expanded playoffs, what would be of interest to the players about how that could work or the obstacles to make that work? That’s collective bargaining. All of those things are things that grow the pie. Instead no one is talking about it, and we are in Week 12. Good business? No.


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