Still Judge, Jury and Executioner
The decision by Judge Barbara Jones to lift the indefinite suspension of Ray Rice is the latest setback for Commissioner Goodell and the NFL in a disciplinary matter that appears to have missteps at every turn. Yet despite the result, and continued questions regarding the league’s credibility in the area of discipline, I wonder about the impact of this critique. It is fair to ask whether it will foster change regarding Goodell’s power over player conduct, independent arbitration and inclusion—or exclusion—of the NFLPA? Let’s examine.
This was a clear rebuke of not only Goodell but also his associates and in-house counsel, especially those in attendance at Rice’s June 16 disciplinary hearing.
Labor law requires considerable deference to the original hearing officer, in this case Goodell, before overturning the prior decision. Judge Jones found those extreme circumstances here, using the striking phrase “abuse of discretion.” Her opinion parallels the arguments of Rice’s legal team: (1) Rice received upgraded punishment for conduct of which Goodell was previously aware, (2) There was no precedent here, as the largest domestic violence penalty given during Goodell’s tenure was a two-game suspension, and (3) The penalty was a knee-jerk reaction to public outrage over the video released by TMZ on the morning of the suspension.
With no transcript of the June 16 meeting—a curious fact in itself—much of the appeal hearing was devoted to putting the pieces together of that meeting. In doing so, Judge Jones valued the detailed note taking of Rice’s team—which included the notation that Rice told Goodell “He hit her” —over the sparse notes on the NFL side. Judge Jones also diminished the value of the testimony of Goodell and counsel Adolpho Birch and their “vague recollection” of the hearing. In reading the opinion, I got the sense that Judge Jones was saying to the league, You really didn’t take this incident very seriously at all until that video came out, did you?
And then there is the word in the decision that rings the loudest: “arbitrary.”
As we know, Goodell has been accused of being overreaching with player discipline as the “judge, jury and executioner,” yet with the initial two-game suspension of Rice, he was excoriated for being too soft. The real problem is the lack of clarity and consistency of punishment without adherence to precedent. Judge Jones’ words feed into the “they’re making it up as they go along” mentality now in vogue about NFL discipline. No arbiter wants to be called out as “arbitrary.”
Whither the NFLPA?
The NFLPA wants the exact process that just occurred with the Rice appeal: an independent arbitrator skilled and experienced in judicial proceedings such as Judge Jones. That is their requested model for all player conduct disciplinary hearings. But, as they say, good luck with that.
At his press conference in September, Goodell spoke of being more inclusive of the union and perhaps even abdicating his role as the arbiter of player conduct. And since that presser, the two sides have met three times, the latest occurring Tuesday in New York. So, progress? No. When I asked a top union official about whether there was hope coming out of Tuesday’s meeting, he replied “Hope died.”
After the clumsiness of the Ray Rice matter and the plodding investigation by Robert Mueller, where are we? In the same place we were before the September 8 video release.
In talking to both sides, these meetings have had the same tone of distrust and even dislike that has characterized the relationship since prior to the 2011 CBA negotiations. While the NFLPA views these meetings as an opportunity to collectively bargain a new personal conduct policy, the NFL does not.
The NFL is willing to “include” the NFLPA in discussions about a new policy, and Commissioner Goodell has sought out present and former players on his own, but they are not going to let the NFLPA achieve something they could not achieve in the 2011 CBA (which has six years remaining). Of course, if the NFLPA was willing to give something up in return—it is hard to know what that would be—that might tell a different tale.
So, after the continuing clumsiness of the Ray Rice disciplinary matter and the plodding investigation by Robert Mueller, where are we? Really, in the same place we were before the September 8 video release. Goodell has wanted the power over player conduct, has the power and is using the power. He just wielded it over Adrian Peterson, and named the hearing officer, his longtime associate Harold Henderson, for this Tuesday’s appeal.
Sure, there will be some sort of change in process and standards as promised by Goodell, but my sense is it will not be a drastic departure from where we have been.
Perhaps there will be an independent panel and perhaps there will be defined criteria. However, to think that Goodell will be outside the process looking in is, well, naïve. As noted in this space constantly, he has been, is and will always be the Conduct Commissioner. Even with a powerful rebuke from an independent arbitrator critical of his conduct, his collectively bargained power has yet to be diminished.
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