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The latest Deflategate decision looms, but in the meantime the court gave its stamp of approval to the commissioner and the league on the use of the exempt list in overseeing player conduct

By Andrew Brandt
April 11, 2016

As we await the Second Circuit Court of Appeals ruling in the Tom Brady case and whether Roger Goodell’s powers over player conduct will be sanctioned or again rebuked, those powers received an endorsement from an arbitrator last night.

Following the volatile fall of 2014—with league missteps in the Ray Rice case and harried handlings of situations involving Adrian Peterson and Greg Hardy—the NFL recast its efforts in discipline, culminating with a new personal conduct policy announced at an owners meeting that December. The league sought input from many sources in formulating the policy: women’s groups, military, corporate and, begrudgingly, the NFLPA. The union’s input, however, was limited and ultimately ignored, and the NFLPA ultimately filed a grievance after being disregarded in that way.

The NFLPA challenged the system, invoked clumsily in the Peterson and Hardy cases, that allows players to be put on leave with pay and the use of the commissioner’s exempt list. The NFLPA claimed that those tactics amounted to “discipline” and argued, as we noted often during the Peterson and Hardy situations, that the exempt list had never been used for this purpose, and thus doing so required bargaining with the union. The NFLPA also challenged the commissioner’s delegating of the initial application of punishment to a disciplinary officer (currently Todd Jones, former Director of the Bureau of Alcohol, Tobacco and Firearms). Finally, the union objected the NFL’s use of consultants, experts and advisors and differed in treatment and counseling methods.

The ruling is a strong endorsement of the commissioner’s continuing powers in the area of player conduct.

After months-long settlement negotiations broke off a couple of weeks ago, arbitrator Jonathan Marks ruled on Sunday that the policy’s features of leave with pay and the exempt list are within the commissioner’s CBA powers. Rather than terming those statuses “discipline,” as the NFLPA had argued, the arbitrator ruled that they were essentially “cooling-off” periods for the player, allowing for the commissioner to further evaluate whether the conduct was detrimental before applying discipline. The arbitrator further endorsed the NFL’s use of its many experts and advisors in this area (the league has hired several in the domestic violence area alone). Simply, the ruling is a strong endorsement of the commissioner’s continuing powers in the area of player conduct.

The NFLPA did “win,” however, in two areas. On the issue of the commissioner’s delegation to Jones or any other disciplinary officer, the arbitrator disallowed such delegation. Other figures, such as the disciplinary officer, can advise and recommend punishment but cannot actually punish; that is the sole province of the commissioner. Also, although placement on the exempt list was not ruled to be discipline, the NFL must provide the player and the NFLPA with notice of being placed on the list and an opportunity for a hearing with counsel as to the reasons for such placement.

• THE WHEN AND WHAT’S NEXT OF THE DEFLATEGATE RULING: Andrew Brandt looks at what’s going on behind the scenes in the Tom Brady case, and what it might mean

As often said in the space, we have a 10-year labor agreement in the NFL, but we have hardly had labor peace during the first half of that CBA. Although it appeared the NFLPA had an opening for inclusion into the disciplinary process in 2014 after the Rice mistakes, that window quickly closed. The NFL essentially ignored the union and enacted the policy. Then, as so often happens with these two sides, came the lawyers. The arbitrator pleaded for the two sides to settle this matter without his intervention, but, to no one’s surprise, settlement talks broke down. Thus we have this ruling: The NFL can legally proceed with its policy and its concepts of leave with pay and an exempt list. Roger Goodell can continue to use those powers expanded by the new policy. The reign of the Conduct Commissioner persists.

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