In a surprising and sharply worded decision, U.S. district judge David Doty has vacated the arbitration award authored by former NFL executive Harold Henderson in December 2014 that had sustained the NFL’s controversial suspension of Vikings running back Adrian Peterson. To be clear, Doty’s order does not reinstate Peterson. Instead, it remands Peterson’s suspension back into hands of NFL commissioner Roger Goodell, who had appointed Henderson as his designee to hear Peterson’s appeal. The NFL has since appealed the decision, saying “we believe strongly that Judge Doty’s order is incorrect and fundamentally at odds with well-established legal precedent governing the district court’s role in reviewing arbitration decisions. As a result, we have filed a notice of appeal to have the ruling reviewed by the Eighth Circuit Court of Appeals. In the interim, Adrian Peterson will be returned to the Commissioner Exempt List pending further proceedings by appeals officer Harold Henderson or a determination by the Eighth Circuit Court.”
If Doty’s order stands, it would serve as a significant legal victory for Peterson, who could now seek repayment of the $4.1 million in salary he lost while suspended plus other damages. The victory is arguably even more significant for the NFLPA, which gains a favorable legal precedent on the limits of Goodell’s ability to suspend players.
Brief recap of the legal battle between Peterson and NFL
The legal saga between Peterson and the NFL is complex. It began after Peterson played in Week 1 of 2014, his last game action of the season. On Sept. 17, 2014, the NFL placed Peterson on the Commissioner’s Exempt List. The placement occurred in response to a Texas grand jury indicting Peterson for reckless or negligent injury to a child. The NFL was also influenced by publication of disturbing photos connected to the indictment. The photos revealed injuries suffered by Peterson’s 4-year-old son that were allegedly caused by Peterson hitting him with a tree branch.
Peterson remained on the Exempt List, where he was paid but barred from playing, until November when he pleaded no contest to reckless assault. Following Peterson’s plea, the NFL suspended Peterson (without pay) until at least April 15, 2015. Peterson then appealed the suspension, but arbitrator and ex-NFL executive Harold Henderson sustained it. Through the NFLPA, Peterson then petitioned judge Doty to vacate Henderson’s award. This afternoon judge Doty did just that.
Explaining judge Doty’s decision in favor of Peterson
The NFLPA was clearly disfavored in challenging Henderson’s award. This was not because Henderson’s award was necessarily correct or fair, but rather because federal law and accompanying court decisions compel judges to accord high deference to arbitration awards. Only in exceptional circumstances are federal judges permitted to vacate arbitration awards. In challenging Henderson’s award, the NFLPA had to convince Doty that Henderson acted inconsistently with rules agreed upon by the NFL and NFLPA. The NFLPA’s lead attorneys, Jeffrey Kessler and David Greenspan, met that high bar by persuading Doty that Goodell and Henderson behaved hypocritically and contradictorily.
Doty’s order is reminiscent of former judge Barbara Jones’s arbitration award in favor of Ray Rice. Both judges’ orders are highly critical of Goodell and his questionable adherence to following rules. This is particularly true in regards to Goodell’s use of the NFL’s new domestic violence policy (“New Policy”). The New Policy, announced by Goodell in a memorandum to owners on Aug. 28, 2014, instructs that first-time offenders of domestic violence are to be suspended six games. Previously, first-time offenders were punished under the NFL’s personal conduct policy. By practice those players received two-game suspensions or lighter punishments. While Peterson was indicted on Sept. 11, 2014—after the New Policy took effect—the wrongful act that triggered the indictment (Peterson’s excessive corporal punishment of his son) occurred sometime in May 2014. In other words, Peterson’s act of domestic violence predated the New Policy. This timing was crucial to Doty, who has a history of ruling against the NFL in labor disputes.
“The Commissioner,” Doty stresses in his order, “has acknowledged that he did not have the power to retroactively apply the New Policy ... Yet, just two weeks later, the Commissioner retroactively applied the New Policy to Peterson.” Doty’s order, in other words, bluntly calls Goodell out for doing to Peterson what he said he would not do.
Doty’s order also rebukes Goodell and Henderson for getting their signals crossed. Doty clearly regards Henderson’s conclusion that the New Policy is consistent with the personal conduct policy as contradicted by Goodell’s own words. Recall Goodell’s statement when explaining the New Policy in August 2014. “I made a mistake,” Goodell lamented. “I’m not satisfied with the process we went through, I’m not satisfied with the conclusions. And that’s why we came out last month and said: we’re going to make changes to our policies. We made changes to our discipline.” While Goodell’s use of the word of “change” may have made sense from a public relations standpoint, it undermined NFL attorneys’ ability to frame the New Policy as a mere continuation of the personal conduct policy.
Doty also expressed disappointment in Henderson for ignoring judge Jones’s decision in the Rice matter, which Doty found instructive since it similarly dealt with retroactive application of the New Policy. “Henderson simply disregarded the law …” Doty charged, “and in doing so failed to meet his duty under the CBA.”
NFL's appeal to federal appeals court
The NFL has filed an appeal to the U.S. Court of Appeals for the Eighth Circuit. This is the same appellate court that had ruled in favor of the NFL in the lawsuit filed by Tom Brady and other players during the 2011 NFL lockout. While the NFL prevailed before the Eighth Circuit in Brady v. NFL, appellate hearings are before three judges who are picked from a larger group of judges (the Eighth Circuit currently has 18 judges would could be assigned as one of three judges selected to hear the NFL's appeal, and these 18 judges have varying ideologies).
In an appeal, the NFL will likely petition the Eighth Circuit to stay (suspend) Doty's order. The league would argue that it would suffer irreparable harm if it is barred from enforcing collectively bargained rules for personal conduct. This is a powerful argument that the Eighth Circuit will take seriously.
Doty’s decision could be vulnerable on an appeal since federal courts rarely vacate arbitration awards, and Peterson’s suspension had been upheld through a system of arbitration the NFL and NFLPA had collectively bargained. The NFL will surely stress to the Eighth Circuit that Article 46 of the CBA furnishes Goodell with virtually unlimited authority to punish players for off field misconduct, and the NFLPA—which includes Peterson and every other NFL player—assented to that power. The NFLPA, however, will highlight that Doty’s decision is consistent with a rational interpretation of NFL rules and how the NFL retroactively applied those rules.
If an appeal fails, the NFL would be left with two choices: reinstate Peterson or schedule a new arbitration hearing. Each would have advantages and disadvantages. If the league reinstates Peterson, it would end the legal dispute. By doing so, the NFL would gain closure to one of the major controversies it faces. The NFL might also reason that Peterson’s legal situation is unique and unlikely to be replicated. Remember, Peterson’s wrongful conduct occurred before the New Policy took effect. Going forward players accused of domestic violence will have done so with the New Policy clearly in effect.
Then again, reinstating Peterson would carry risk for the NFL. For starters, Peterson and the NFLPA would likely file a grievance asking for the salary he lost, approximately $4.1 million, plus lost bonus money. Peterson might take this step regardless of how the NFL responds to Doty’s order, but the NFL would be increasing the odds of it happening by admitting Peterson was right and the NFL was wrong. The NFL reinstating Peterson, moreover, would be tantamount to Goodell admitting he was wrong. For a commissioner who is already under fire for how he’s handled Rice and Deflategate, an admission of fault on Peterson could lead to more questions about his job security. Lastly, reinstating Peterson would impact how the NFL addresses the Greg Hardy situation. Hardy, a defensive end for the Panthers, had been facing domestic charges until they were dropped earlier this month. Given that Hardy’s alleged misconduct occurred in June 2014—before the New Policy took effect—Doty’s order on Peterson may provide the NFL with a compelling reason not to suspend Hardy.
Alternatively, the NFL could schedule a new appeal hearing for Peterson and have it heard by Goodell, Henderson or someone else designated by Goodell as the arbitrator. Perhaps the NFL could hire a retired judge to hear Peterson’s appeal. The league utilized this approach in retaining Jones to hear the Ray Rice appeal and it was generally regarded as a fair and equitable response. That approach, however, backfired on the NFL when Jones not only sided with Rice but bluntly criticized Goodell as acting in an arbitrary way.
One reasonable response by an arbitrator in a new hearing would be to reduce Peterson’s suspension to two games (as consistent with rules before the New Policy took effect) and reimburse Peterson for four game checks. A more controversial decision would be to suspend Peterson indefinitely, pursuant to the rules before the New Policy took effect, and equate the indefinite suspension to six games. This response, however, would likely trigger another lawsuit by Peterson and the NFLPA since no player (as Rice argued) had received an indefinite suspension for domestic violence under the previous system.
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.