Will Adrian Peterson’s next play be in court? There is a strong possibility of legal action in the aftermath of Peterson losing his personal conduct policy appeal Friday night. Serving as NFL commissioner Roger Goodell’s designee, former NFL executive Harold Henderson found “no basis to vacate or reduce” Peterson’s suspension. The suspension, which will last until at least Apr. 15, 2015, stems from Peterson's no contest plea to the misdemeanor offense of reckless assault. It also reflects the associated controversy of images showing injuries to Peterson’s 4-year-old son. Peterson has missed the Vikings’ last 12 games, with pay, while on the NFL’s Exempt Commissioner Permission List (“exempt list”). Henderson’s ruling backdates Peterson’s suspension to when it was announced on Nov. 18, 2014. This effectively means that Peterson will forfeit six game checks, totaling about $4.1 million.
In a statement this evening, the National Football League Players' Association criticized Henderson’s ruling as ignoring facts, evidence and the collective bargaining agreement. The NFLPA also highlighted Henderson’s “financial ties to the NFL.” Lastly, the NFLPA warned it is “considering immediate legal remedies.” As explained on SI.com at the time of Peterson’s appeal hearing, Peterson, with help from the NFLPA, can now seek intervention from a court.
If Peterson goes to court, his best move would be to seek a temporary restraining order
Peterson’s most likely legal strategy is to petition a judge for injunctive relief. If Peterson instead files a lawsuit and demands monetary damages, his case would not be resolved before the end of the 2014 season and might take years to play out. A remedy in equity, however, could in theory place Peterson back on the field for the Vikings before their season ends on Dec. 28, 2014. To get there, Peterson would need to swiftly petition a court for a temporary restraining order that would prevent the NFL from suspending him under the league’s personal conduct policy.
Keep in mind, a temporary restraining order against the NFL would not ensure that Peterson returns to the field this season. If the order only restrains the NFL from suspending Peterson pursuant to the personal conduct policy, the NFL could simply place Peterson back on the exempt list and deny his return. Nonetheless, any temporary restraining order would be a financial and reputational victory for Peterson. It would also further tarnish Goodell’s blemished image on personal conduct matters.
Peterson would need to convince a court that it should hear him
Obtaining a temporary restraining order would be challenging for Peterson. As a starting point, he would need to persuade a court that it should hear his case. This is no small feat. Upon notice of Peterson petitioning for a temporary restraining order, the NFL would immediately tell the court that it has no business hearing Peterson on an NFL suspension. The NFL would likely cite the Federal Arbitration Act and accompanying case law that instructs courts to refrain from reviewing arbitration awards. Courts are only supposed to intervene when one of several uncommon scenarios exist, such as the arbitrator having disregarded basic principles of law. Henderson may be biased in favor of the NFL, but he is also an accomplished attorney and is an experienced designee of Goodell in reviewing personal conduct appeals. It is unlikely that a court would intervene because of Henderson's handling of the Peterson matter.
The NFL would also advise the court it should not hear Peterson because Peterson is a member of a union that has agreed to the NFL’s system of justice. While NFL owners on Wednesday approved changes to the personal conduct policy, Peterson is presumably judged by the policy that existed at the time he was suspended. Under the old policy, Goodell enjoyed unrestrained authority in assessing suspensions for player's off-field misconduct. The NFLPA assented to this policy and, perhaps tellingly, never sued in response to Henderson’s previous 87 rulings as a designee of Goodell. These factors present a crucial obstacle for Peterson. Even if a judge agrees with Peterson that his suspension is morally unfair, a judge would be reticent to disregard a policy agreed to by the NFL and NFLPA that has been in effect since 2007.
Peterson would need to show that Goodell and NFL acted in an arbitrary way
Even if a court agrees to hear Peterson’s case, Peterson would not be assured of obtaining temporary restraining order. He would need to advance a persuasive argument. Peterson would likely argue that the NFL acted outside the scope of the personal conduct policy and the CBA. Most notably, the league requested that he attend a meeting with outside experts, including a psychologist. There is nothing in the old personal conduct policy or CBA that describes this procedure or suggests it is appropriate. The league also allegedly used Troy Vincent, the NFL's executive vice president of football operations, to extend assurance to Peterson that if he cooperates with the NFL and attends the meeting with outside experts, he would win favor with Goodell. Peterson could also insist that the suspension causes him harm beyond lost paychecks. Along those lines, he might contend that he has been deprived of his basic rights as an NFL player and that his future in the league is now in jeopardy. This is an important argument given that judges typically grant injunctions only when there is a risk of irreparable harm, which normally means a harm that money alone cannot remedy. These points would help Peterson contend that Goodell acted in an arbitrary way in suspending him, much like former U.S. District Judge Barbara Jones concluded Goodell acted in twice suspending Ray Rice.
The NFL is undoubtedly aware of these legal arguments and is poised to combat them. The league can distinguish the controversy over Rice’s suspension from the one implicating Peterson. With Rice, Goodell was alleged to have lied about what Rice told him when they met and to have imposed an unjustifiably long suspension compared to other players implicated in domestic violence of women. In contrast, there is no allegation that Goodell lied about Peterson and there is no precedent for which to compare Peterson’s suspension for alleged child abuse. Other players suspended by Goodell have involved players harming adults, with the only exception being Michael Vick and dogfighting. The NFL can rationally maintain that a player who, according to the charge, beats his four-old child with a tree branch deserves a longer suspension than a player who hurts an adult or a dog.
The legal significance of Vincent’s alleged secret deal with Peterson is also dubious. Vincent did not seem to make a binding promise to Peterson, nor was his advice to Peterson particularly nefarious. He suggested to Peterson that if Peterson cooperates and attends the meeting without outside counselors, Goodell would be motivated to reduce the suspension. Vincent did not, it appears, make a specific or binding offer. It is also not clear that Vincent had the legal authority to cut deals with Peterson.
The NFL can also rebut any contention that Peterson has suffered irreparable harm from the suspension. The league would stress that any harm is purely monetary and not appropriate for a temporary restraining order.
The NFL is clearly poised to defeat Peterson in court. But legal analysis is not the only meaningful factor for Peterson in deciding whether to bring a case. From three key standpoints -- labor relations, public relations and government relations -- the NFL is in a uniquely vulnerable position right now. And Peterson knows it. Goodell has been exposed as less than forthcoming (to put it mildly) in the Rice scandal and could look even worse following release of the investigation by former FBI director Robert Mueller. The league is also trying to move beyond the Rice scandal by adopting a new personal conduct policy, albeit curiously without involvement from the NFLPA. If Peterson seeks legal redress, many players would celebrate him and so would his union. It could be wise for the NFL to work out a settlement with Peterson before he does so.
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.