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Legal issues still ahead in the NFL's suspension of Adrian Peterson

The NFL has suspended Minnesota Vikings running back Adrian Peterson for at least the remainder of the 2014 season under the league’s personal conduct policy. The following are the key legal issues for Peterson and the NFL going forward.

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The NFL has suspended Minnesota Vikings running back Adrian Peterson for at least the remainder of the 2014 season under the league’s personal conduct policy. The suspension reflects Peterson’s no contest plea on Nov. 4 in Texas to the misdemeanor offense of reckless assault. The suspension also reflects public reports that graphically depict injuries purportedly suffered by Peterson’s 4-year-old son at the hands of Peterson and his tree branch used for discipline.

Peterson has missed the last nine games, with pay, while on the NFL's Exempt Commissioner Permission List ("exempt list"). On Tuesday, neutral arbitrator Shyam Das ruled that the NFL can keep Peterson on the exempt list. Peterson is now expected to appeal his suspension under the personal conduct policy. The NFLPA is actively advocating for Peterson’s interests in his appeals.

The following are the key legal issues for Peterson and the NFL going forward.

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The NFLPA’s demand for a third-party arbitrator is not clearly warranted

The NFLPA demands that a neutral third-party arbitrator hear Peterson’s appeal of his personal conduct policy suspension, rather than commissioner Roger Goodell. The commissioner allowed for an arbitrator in Ray Rice’s appeal, which was recently heard by former U.S. District Judge Barbara Jones.

In response, expect the NFL to portray appeals by Rice and Peterson as apples and oranges. Unlike with Peterson’s appeal, Goodell’s own conduct is a central issue in Rice’s appeal. Rice charges that Goodell punished him twice for conduct Goodell was already aware of the first time Rice was suspended. Goodell has also admitted to making mistakes in how he handled the Rice matter. With Peterson, in contrast, there is no allegation of a "cover-up," just as there are no rumors of mysterious voice mails and lost videos. Peterson’s case concerns the legal and reputational consequences of his parenting.

Also, the NFL is not contractually obligated to provide Peterson with a third-party arbitrator merely because it provided one to Rice. Goodell, moreover, is unlikely to relinquish authority this time around for fear that other players and the NFLPA would then insist there is established precedent for third-party arbitration.

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Peterson must exhaust his internal NFL appeals before commencing legal action

There is widespread speculation that Peterson will sue the NFL, perhaps as soon as this week. Do not expect him to do so until he has exhausted all of the internal appeals available to him under the NFL’s collective bargaining agreement. Courts generally dismiss legal claims when the plaintiff has not yet exhausted internal appeals. The basic logic is that courts should be the last resort to resolve disputes. Additionally, the factual record necessary for judges to fully understand a dispute is usually not complete until all of the internal appeals have been heard.

Under Article 46 of the CBA, Peterson has an opportunity to internally appeal his suspension, albeit to the same person who issued it: Goodell. The obvious conflict of interest of Goodell reviewing his own decisions is lawful since the CBA allows this. While many players and agents object to Goodell serving as his own appellate court, the NFLPA has assented to this arrangement.

It is possible that the NFL will voluntarily change its system for reviewing off-field conduct. As part of the league’s review of the Rice matter, the league plans on forming an advisory committee that will review policies and procedures for disciplining players. It is unclear when the committee will meet or issue recommendations, and any implemented changes would likely have no impact on Peterson’s appeal.

If Peterson's NFL appeal fails, he could petition a court for temporary restraining order

Assuming, as expected, Peterson appeals his season-ending suspension to Goodell and Goodell sustains the suspension, Peterson could turn to the courts.

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As Peterson and his attorneys contemplate a legal strategy, they would keep in mind Peterson’s primary goal: to play again in the 2014 season. Filing a lawsuit and commencing the litigation process would not help him accomplish that goal. A lawsuit would take months, if not years, to litigate, while the Vikings’ regular season will end on Dec. 28, 2014. The 4-6 Vikings are also in fourth place in the NFC North and seem unlikely to extend their season into the playoffs. The fact that Peterson is a star and the fact that the public and media would be more interested in his lawsuit than most lawsuits are irrelevant in regards to court timing. The litigation process moves at its own speed and does not accelerate for celebrities.

Instead of filing a lawsuit, Peterson could petition a federal judge for a temporary restraining order. This petition could occur as soon as Goodell decides on an appeal. If a temporary restraining order were granted, the order would likely last several weeks. The order would not expire until the judge held a hearing on a motion for a preliminary injunction, a similar but more lasting form of injunctive relief.

Peterson’s odds for obtaining a temporary restraining order would be very low, but not zero. These orders are considered extraordinary forms of relief, and judges are often reluctant to grant them. Plus, even if a temporary restraining order is granted, it would likely be limited to his suspension, not his placement on the exempt list. As a result, a temporary restraining order would get Peterson paid but probably not get him back on the field.

The legal significance of Peterson showing he will suffer "irreparable harm"

In order to obtain a temporary restraining order, Peterson would need to convince a judge that unless he is allowed to play again this season, he would suffer irreparable harm. Peterson arguing that his NFL suspension will cost him money in lost salary would not be a winning argument for purposes of irreparable harm. Courts are generally skeptical of irreparable harm arguments when monetary damages can later repair the harm. As a result, Peterson would need to establish harm beyond merely lost salary. He would likely insist that not playing again this season would cause lasting and permanent damage to his NFL career and image. More specifically, he might insist that his football skills and physical abilities would atrophy if he doesn’t play again. Similarly, Peterson might assert that the Vikings and other teams would be less interested in his services if he misses nearly an entire season.

The NFL would reject these so-called "harms" as speculative at best. The league would also stress that Peterson’s predicament is a result of his own misconduct as a parent.

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Has the NFL harmed Peterson through the exempt list?

A judge would also demand a convincing argument from Peterson that his NFL suspension is arbitrary and unwarranted.

As a starting point, Peterson would insist that he has already been suspended for nine games through his placement on the exempt list. Peterson has been paid in full while on this list but was unable to play or practice. In other professions, this type of paid separation from employment is often called administrative leave. The exempt list is controlled entirely by Goodell. Carolina Panthers defensive end Greg Hardy, who seeks a jury trial to review a judge finding him guilty of domestic violence, is also on this list.

To advance his argument that placement on the exempt list is akin to a suspension, Peterson might highlight how the exempt list is not described in the CBA but is instead contained in a less authoritative document: the NFL Player Personnel Policy Manual. It is not clear that the manual, which is not publicly available, was subject to collective bargaining with the NFLPA. For its part, the CBA only mentions the exempt list in passing and in regards to financial calculation of accrued seasons. Peterson would implore a judge that the absence of clear protocols for the exempt list in the CBA renders it an unfair disciplinary tool for the NFL.

The NFL would be well-positioned to rebut Peterson’s exempt list argument. For one, while the exempt list is not explained in the CBA, it is referenced in the CBA, and terms agreed to by a league and players’ association outside of the CBA are usually incorporated by reference into the CBA. Second, the NFL would stress that the commissioner has complete discretion in regards to the exempt list. Third, the league would reject classification of the exempt list as a form of suspension for the very simple reason that Peterson was paid and received other employment benefits while on the list prior to his suspension.

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Is the NFL's punishment of Peterson "excessive"?

Peterson’s representatives and the NFLPA have portrayed the NFL as acting outside the CBA with respect to disciplining Peterson. For instance, they object to a request made by the NFL that Peterson meet with Goodell last Friday as inconsistent with normal procedure for discipline. They are also expected to contend that Peterson’s suspension for the remainder of the 2014 season -- a total of six games -- plus any Vikings playoff games and potentially regular season games in 2015 -- is grossly excessive and arbitrary.

In any legal case, Peterson would surely cite lower disciplinary punishments by Goodell for other players who, like Peterson, pleaded no contest to misdemeanors. For instance, Goodell suspended Cincinnati Bengals running back Cedric Benson for only three games (later lowered to one game) after Benson reached a plea deal with prosecutors over misdemeanor assaults in 2011. Benson’s misconduct was arguably "worse" in the eyes of the Texas criminal justice system, as Benson received a 20-day jail sentence, whereas Peterson received no jail time. Yet Goodell has suspended Peterson at least twice as long as he suspended Benson.

The challenge for Peterson and the NFLPA is that Goodell has total discretion in determining suspensions under the personal conduct policy. Goodell can be inconsistent and seemingly unfair and yet act in accordance with the policy agreed to by players. While many legal commentators (including myself) believe that the NFL commissioner should have more independent checks on his disciplinary authority, the fact is those checks do not currently exist. The NFLPA has failed to obtain checks through collective bargaining.

Also, Goodell can make an effective argument that his suspension of Peterson does not contradict his prior suspensions. Peterson’s misconduct is unlike the misconduct of other NFL players, who have gotten into trouble for hurting adults (or, in the case of Michael Vick, hurting dogs) but not hurting children. Along those lines, Peterson was accused of using a tree branch to "whoop" a 4-year-old child over an argument about a video game. The child's apparent injuries were extensive, including in the anus area. Peterson’s alleged conduct is thus arguably worse from a social and moral perspective and more damaging to the NFL’s image.

In that same vein, notice how the NFL’s statement explaining Peterson’s suspension repeatedly highlights the significance of Peterson allegedly hurting a child and precisely how he allegedly hurt the child. The NFL’s choice of words was intentional, as the league wants to isolate Peterson’s misconduct as uniquely egregious among NFL players.

Lastly, while Peterson might emphasize that he pleaded “no contest” -- meaning he did not admit guilt to the allegations -- as evidence that Goodell’s punishment is excessive, Goodell isn’t obligated to rely on a conviction or guilty plea in enforcing the personal conduct policy. The policy explicitly states that the commissioner can rely on a plea of no contest in punishing a player.

Questionable relevance of new domestic violence policy

It was somewhat surprising to see the NFL cite the league’s new domestic violence policy in its statement explaining Peterson’s suspension. On one hand, the reference makes sense given that Peterson’s suspension for the remaining six games of the 2014 season matches Goodell’s edict in August that a first-time domestic violence offense warrants a six-game suspension. Peterson pleading no contest to a case that centered on Peterson hitting his own son also raises a matter of violence at home.

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But in any legal challenge, watch for attorneys for Peterson and the NFLPA to stress that Goodell’s wording of the new domestic violence policy does not expressly cover violence against children. Goodell’s announcement of the domestic violence policy highlighted the following circumstances for its use: “a prior incident before joining the NFL, or violence involving a weapon, choking, repeated striking, or when the act is committed against a pregnant woman or in the presence of a child.” While children are referenced, it is in the context of a child witnessing domestic violence. Also, in the legal system, domestic violence is often defined to include acts of violence against an intimate partner, such as a spouse or significant other, but not against children. Usually, but not always, violence against children is described as child abuse, not domestic violence.

It would be difficult for Peterson to appeal an arbitration decision to a federal court

Also working against Peterson's legal case is the fact that federal courts are normally unwilling to review arbitration decisions. This is relevant to Peterson on two fronts. 

Das sided with the NFL in keeping Peterson on the exempt list, a decision that may no longer seem as significant in light of Peterson's new suspension, but it’s still important. Peterson and the NFLPA would welcome a federal court intervening by reviewing Das’ decision. Peterson could then open the door for a court to more broadly review how the NFL has treated him. Unfortunately for Peterson, it would be extremely difficult for him to convince a federal court to review and vacate Das’ decision. The Federal Arbitration Act and other federal laws make it clear that courts should only vacate an arbitration award under extraordinary circumstances. Those circumstances include arbitration decisions that disregard basic principles of the law and are arbitrary. None of those circumstances are readily apparent in the Peterson matter. Das is a longtime and well-respected arbitrator and attorney. It is extremely unlikely a federal court would find that his decision warrants their review.

Second, whether Peterson’s appeal of his personal conduct policy suspension is heard by Goodell (most likely) or by a neutral arbitrator, it would constitute a form of arbitration and thus be subject to federal laws on judicial review of arbitration. A court would be unlikely to hear any appeal. Rarely has a court reviewed the NFL’s discipline of players, with Jonathan Vilma’s defamation lawsuit over his “Bountygate” suspension a unique exception. To that end, the NFL has avoided making public statements that could potentially trigger a defamation suit by Peterson. The league's statements about Peterson’s misconduct have been carefully prefaced by citing his no contest plea and by citing public reports about how he allegedly disciplined his son.

Bottom line: Peterson's legal options are limited and his best bet for returning to the NFL is to meet with Goodell and present a compelling case to be let back in.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.