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When the league discusses a new personal conduct policy at the winter’s owners meetings, the NFLPA is one voice that won’t be heard

By Andrew Brandt
December 09, 2014

The NFL has many partners with whom it fosters amicable relationships: broadcast networks, sponsors, advertisers, licensees, charitable organizations, etc. In sharp contrast, the relationship with the NFL Players Association—their most important partner—is anything but amicable. It has long been characterized by mistrust, lack of communication and even contempt.

The public demeanors of the two leaders reflect the deep divide. Commissioner Goodell is corporate and unrevealing, NFLPA head DeMaurice Smith is caustic and combative. It is a poor fit; there are times when literally months pass between conversations between the leaders of this “partnership.”

Divisions between leaders of opposing sides are common in all businesses, yet usually grounded with an underlying respect to grease the skids when resolution of an important issue is needed. It’s not the case here, as every issue is a struggle. And that friction is now playing out in the attempt to remove the specter of domestic violence casting a shadow over the NFL.

As the NFL tries to “protect the shield,” the NFLPA is concerned about protecting the rights of the players, the vast majority of whom do not behave badly. And we are once again stuck in the quagmire of hardened positions impeding progress towards a mutually agreeable solution. Let’s examine.

Process over people

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The NFLPA has been in a tough position this year, representing truly bad behavior against a dismissive partner in the NFL. The union has advocated on behalf of someone who struck his wife, Ray Rice, and someone who struck his child, Adrian Peterson. Many wonder—I am asked this question all the time—why the union strenuously supports players who have behaved so poorly when most individual players do not. The reason is for the greater good.

While the actions of Rice and Peterson are horrific, the NFLPA must defend their rights so that the collective rights of all players are protected. Similarly, the union filed a grievance last year on behalf of another truly unsympathetic player, former Patriot Aaron Hernandez, because he was released with deferred money remaining on his signing bonus. Regardless of the optics, signing bonuses are earned upon signing; the Patriots cannot shed their obligation as if Hernandez never signed the contract. The union must ensure that no matter the behavior, there is a level of fairness and consistency in employer discipline.

The focus on “process over people” can lead to internal friction, something I saw during the Rice appeal. Rice’s private attorney Peter Ginsberg had a simple objective: have Rice’s suspension lifted. The union, while also wanting Rice cleared to play, argued from a more collective angle. In covering the appeal, I detected some jockeying for position between Rice’s individual and collective representatives, even differing on who would be designated “lead attorney” for Rice.

In contrast, Adrian Peterson chose not to use private counsel in his appeal hearing last week, with NFLPA counsel Jeffrey Kessler, a longtime advocate of player rights, representing him. Unlike the NFLPA’s preferred structure of the Rice appeal—with a truly independent arbitrator—the Peterson appeal reverted to a hearing officer designated by the person who levied the discipline, Roger Goodell. Kessler, who has railed against the process, may not be done with this matter if the ruling goes against Peterson. There is a good chance he takes further legal action against the league, outside the grievance system, in federal court.

Change ahead? Not likely

To me, the takeaway from Goodell’s press conference on September 19—after a week of hiding while public outrage simmered—was that he was going be more inclusive of the union in formulating a new conduct policy in abdicating some of his power regarding player conduct and discipline.

Well, that was then; this is now. The NFL has had “meetings” with NFLPA leadership on the issue, but the hallmark of mistrust between the two sides has surfaced again. One union executive told me the meetings are “a farce.”

With the opening provided by Goodell, the NFLPA saw these meetings as an opportunity to change the status quo and collectively bargain a new player conduct policy. The NFL has made it clear, however, that the union is not going to win something they could not achieve in the 2011 CBA, at least without giving something up (it is unclear what they could give). Thus, the NFL is receiving “input” from the union—as they are from many groups such as domestic violence experts, military, retired players, etc.—but they are certainly not “negotiating” with them.

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Wednesday in Dallas, NFL owners will hear a presentation of what has been developed as the new conduct policy. It will be presented—and perhaps voted upon—with no union representative present nor any NFLPA voice being heard. This speaks volumes about the NFL’s inclusion of their “partner” in this process.

Players’ proposal

The union submitted a proposal regarding commissioner discipline on October 28th. Among its highlights are the following, with the NFL’s response:

No discipline—from either the commissioner or a team—following an arrest. Discipline only levied after final legal disposition of the matter.

This is a nonstarter with the NFL. They are adamant that players arrested for violent crimes not be allowed to play due to creative lawyering and the extended timeframe of judicial proceedings. The Adrian Peterson/Greg Hardy model of taking players off the field using the Commissioner/Exempt list was handled clumsily, but the new policy will include this “administrative leave” concept for players arrested for violent crimes. With sponsor and public pressure this year, the NFL achieved its objective of keeping these players off the field, despite ongoing grievances and negative arbitration decisions. That objective will continue to be in place.

Truly independent investigations into potential discipline, with an NFLPA attorney present and the sessions recorded and transcribed.

This echoes the union’s theme of transparency, one that resonated with Judge Jones in her rebuke of the NFL for not transcribing the Ray Rice disciplinary meeting in June. The embarrassment of the Rice matter—along with expected prodding of Robert Mueller, now investigating the league—should lead to, at a minimum, transcripts and recordings of disciplinary meetings and perhaps all investigative inquiries. This union request has the best chance of being accepted in some form.

As to the prospect of an NFLPA present for NFL investigations, well, good luck with that.

Appeals of commissioner discipline to be heard by a neutral arbitrator, jointly selected solely for the purpose of hearing these appeals.

This is where the rubber meets the road. The NFL will allow for an independent disciplinary officer to review and apply initial discipline, a notable change from their previous position. However, the NFL maintains that Commissioner Goodell (or his designee) will retain appeal power. While he would not be the initial judge and jury, Goodell would have the more important role of the final arbiter.

Although Goodell recently surrendered appeal power in the revised drug policies, he will not do so with player conduct. It is important to him, for reasons both personal and business. Ultimately, it is a matter of power and control.

With Wednesday’s discussion by NFL owners and a full unveiling of the conduct and domestic violence policy by the Super Bowl, it is clear the league has operated with little regard for the union in this process. The union is going to be told what the new policy is, rather than being part of the solution. As to their next step, well, it would certainly not be a surprise if there will be lawyers… with the NFLPA arguing in front of the NLRB that the conduct policy represents a "mandatory subject of bargaining."

And so we wait for a new conduct policy that, in a few important ways, may look a lot like the old policy. Stay tuned.

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