By Doug Farrar
December 11, 2014

Throughout the NFL's current season of discipline and disorder, there has been one common refrain. Through the Ray Rice and Adrian Peterson incidents, through the public evisceration of Roger Goodell and through whatever attempts the league has made to mitigate the mistakes made by all involved, the NFL Players Association has felt like a bystander at best. Ideally, the league and the union would collaborate in matters of serious import, but when the NFL announced its newly modified Player Conduct Policy on Dec. 10, the NFLPA's response was clear.

FARRAR: Conduct policy dialogue between NFL, NFLPA shows lack of union inclusion

"Our union has not been offered the professional courtesy of seeing the NFL's new personal conduct policy before it hit the presses," the NFLPA said in a statement. "Their unilateral decision and conduct today is the only thing that has been consistent over the past few months."

The details of the policy can be dissected elsewhere;'s Jenny Vrentas provides an excellent breakdown here. To get into the specifics of how the policy was authored, and to learn the extent of the NFLPA's participation, was given three documents: A proposal from the NFLPA sent to the NFL on Oct. 29, in which several additions and amendments to the previous conduct policy were proposed; a response from Jeff Pash, the NFL's EVP and most important attorney, sent Nov. 30; and a note from NFLPA general counsel asking that no announcement of a new policy be made in a public fashion before a counterproposal could be made and heard.

NFL owners vote to approve revamped personal conduct policy

Based on the content of the NFLPA's proposals and the NFL's reply, it's obvious that didn't happen. The NFL disregarded the suggestions from the NFLPA and moved forward without looking back. 

On Thursday, I spoke with George Atallah, the NFLPA's assistant director of external affairs, regarding the dialogue between the two parties and where things stand now. Does the CBA require the NFL to have the NFLPA's approval before amending the current conduct policy?

Atallah: The answer to that question is, "It depends." If the NFL imposes or implements changes to our Collective Bargaining Agreement, then yes, it does require collective bargaining. That included any material changes to Article 46. At first review, it's evident that changes to Article 46 were made. And what were those changes?

Atallah: Primarily with respect to changes to the arbitration process; changing the Commissioner to be the ultimate arbitrator, as opposed to the Commissioner or his designee. More specifically, the person who would be designated to oversee any arbitration. Under what conditions is the NFL allowed to amend the CBA without union approval?

Atallah: If it falls within the framework of things that don't have to be collectively bargained. If there are changes to working conditions, health and safety issues, wages, hours or benefits, those five categories would require collective bargaining. Disciplining an employee falls under a change in hours, working conditions, and employment status. These things are in their employment agreements, and must be collectively bargained. So, you are saying that on first blush, the NFL has violated the current CBA with its new policy?

Atallah: At first blush, yes. Let me also respond this way: Why would we as a business, when faced with a problem, decide that the best solution is to ignore the opinions and the material input of the employees who work there? Beyond the question of whether it's legal or not,  or whether it requires collective bargaining, why would the NFL engage in a process that essentially ignores the opinions of its most important stakeholders? With that in mind, what recourse do the players have -- with or without the NFLPA involved -- if they collectively deem this to be unfair?

Atallah: There are a number of legal remedies we can take. We're not prepared to talk about any of those specifically in public, because we don't want to compromise our legal strategy. But there are system arbitrator remedies, and other remedies that we're looking to pursue. We would have rather spent our time engaging in a process that resulted in a personal conduct policy that everybody would have committed to. I asked Richard Sherman about this yesterday -- a bunch of Seattle media people did -- because he's one of the team's player reps. I asked him if he'd seen anything from the NFL regarding the new policy before it was implemented, and he said no. What had the players seen before Dec. 10?

Atallah: What did we see in writing? We only saw the letter from Jeff Pash that was sent to us on Sunday, Nov. 30. That was the only thing we had seen. Did you or anyone else in the NFLPA offices hear anything regarding a counterproposal or a finalized policy in any way before Dec. 10?

Atallah: No. Beyond the Jeff Pash letter, no. In fact, to take it one step further: Before our meeting with the NFL on Nov. 25, I told DeMaurice Smith and Eric Winston that I had credible information that the NFL was planning to announce a new personal conduct policy on Dec. 10. So, I told them to ask the NFL, and the team owner who was present at that meeting, if that was true. And the NFL and the owner did not deny it. So, we had a sense -- a confirmation by silence, if you will -- that the train had already left the station regarding the NFL and what it wanted to do. In his letter, Pash says that he was disappointed that the NFLPA refused to discuss any aspect of the proposal the week before Nov. 30. To what is he referring?

Atallah: I have no idea. I have no idea what he's referring to. We had met in September, we had a number of discussions, we had another meeting between both sets of staff members on each side, we obviously sent them a proposal, they didn't respond until a month later... I don't know what he's referring to. I mean, obviously a negotiation requires both parties to exchange proposals and discuss the issues. To have an open dialogue about the tough issues at hand. There was no indication that they had any interest in doing that. When did you send your proposal, and when was the aforementioned meeting?

Atallah: October 28, and the meeting was on Tuesday, Nov. 25. And was there any inference at that time that the league wanted to discuss things in line with what Pash said in his letter?

Atallah: No. I mean, there were four meetings -- let me try to be accurate without being flippant about this. There were a number of meetings that took place between union officials, league officials, players and owners. There's no question that this happened. There's no question that these issues came up, and discussions about what to do with violent crimes, and when to take players off the field. All of those conversations happened. But when it came time to discuss and put down in writing what a new personal conduct policy might look like, our proposal on the 28th was the first time that it was formalized. They were never interested to be part of the collective bargaining process. They were never interested in negotiations. They were interested in, "We're going to get your input. If we don't like your input, we're going to do whatever we want, anyway."

That's where we have a very fine line between, "Yeah, sure we asked the players for input, and sure, we had discussions..." but the first time we saw anything formal from the league office was the letter sent on Nov. 30. Let's get into specifics. Will the NFLPA be involved in the appointment of the Special Counsel for Investigations and Conduct?

Atallah: I don't know right now. In principle, if that change is found to have violated the CBA, the only way we would be involved in that is to fight it. Why do you oppose mandatory paid leave once charges are filed?

Atallah: At the start of the legal process, every citizen is innocent until proven guilty. And the mutually agreed-upon language we used is intended to preserve that right. Well, I could be Devil's Advocate here and say, what about a player who is guilty of anything from domestic abuse to multiple murders, and he plays under a voluntary policy, and he's later found guilty? How is that feasible?

Atallah: There are always hypothetical scenarios that can lead to issues with certain points of any proposal. But we wish we would have heard that from the NFL in a counterproposal, rather than through the press. In its response, the NFL sets aside doctor-patient privilege, asserting that "we have countless examples" of how a player going through counseling has a favorable effect on his ultimate outcome. The league then says that once a player is convicted of a crime, doctor-patient privilege doesn't matter at all. Why is that so? Because it doesn't appear to be a legal construct.

Atallah: That is not a legal construct. Frankly, it's very troubling that they'd take that position. It's the same type of position they tried to take with the Fifth Amendment. When Jeff Pash said that the Fifth Amendment doesn't apply because this is a workplace, and if an employee, i.e. player in the NFL, tried to exert his Fifth Amendment rights under the Constitution, that would be considered an admission of guilt.

So, the language you describe, as it relates to why doctor/patient privilege doesn't exist... that is dangerous at best, and illegal at worst.

NOTE: Here's what Pash said on Dec. 10 regarding the Fifth Amendment issue: "The Fifth Amendment is a very important principle in our country, but it is also a limited principle. It only applies in the context of where someone has criminal jeopardy. If somebody were to sue you -- even though the lawsuit was based on an act -- maybe beating them up -- that could be a criminal violation. But if it’s just a civil lawsuit, you have no privilege not to testify. You could be compelled to give a disposition. You could be compelled to show up in court and the Fifth Amendment wouldn’t apply. The same is true in workplace investigations. It’s very common in workplace investigations and I’m not aware of any workplace -- whether it is a law enforcement, a college, the military, a private company, government agencies -- where someone who is believed to have violated a workplace policy can refuse to participate in an investigation on Fifth Amendment grounds. If someone were to refuse to participate, one possible response would be to say, “Well, fine. We obviously cannot waterboard or something like that, but we will go ahead and make the best judgment we can based on the information made available to us. If you have chosen not to participate and not give your side of the story, then we’ll have to make the best decision we can on the evidence that we have." The league insists that having NFLPA attorneys present for any hearing, and requiring recording and transcription, would deter players from coming forward. This is the same league that talked to Janay Rice with Ray Rice and members of the Baltimore Ravens' staff in the room -- a mistake you wouldn't see on a horrible legal drama. Why should the league be believed in this regard? And given the discrepancies in the Rice matter, don't you think the league would WANT everything recorded and transcribed at this point?

Atallah: My only response to that specific question is that they have not learned from their mistakes. We are dealing with serious issues, and a disciplinary hearing should be taken with a lot more seriousness than they have done in recent weeks and months. Because isn't that standard operating procedure in any hearing?

Atallah: Yes, it is. And Judge Jones' ruling (in the Ray Rice matter) confirms that these hearings have been run poorly, and the members of the league office who have participated in them are not credible. How is it that a system in which Roger Goodell maintains final appeal power will ever be perceived as fair?

Atallah: Well, that's an easy one -- it's not. It is not. And more specifically to the power of the office of the Commissioner: We are not disputing that there are powers granted to the Commissioner's office per the Collective Bargaining Agreement. We are not disputing that player misconduct should be dealt with by the Commissioner's office with some sort of discipline. How is the relationship between the NFL and the NFLPA at this point? Because it doesn't seem good.

Atallah: The relationship between the league and the union is good when they follow the rules, and it's not when they don't. It's good when we collaborate and negotiate and work together toward improving our game, and it's bad when we don't. The NFL and the owners have been in a place over the last three months where they have actively antagonized the players, by making promises that they have been unwilling to keep. That is the most frustrating and disappointing aspect of our current state. Because we had an opportunity to resolve this issue in a way that would have improved and enhanced the ways in which we run our business. And they squandered that opportunity. 

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