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Should a dangerous, but not immediately injurious, helmet-to-helmet hit trigger the longest suspension for an on-field infraction in NFL history?

Raiders linebacker Vontaze Burfict and the NFLPA will raise that question when his appeal is heard on Oct. 8.

On Monday the NFL suspended Burfict for the remainder of the 2019 season, plus any postseason games should he be on the roster of a playoff team. Since the 2-2 Raiders have already played four games, Burfict’s suspension will total at least 12 games. Per Spotrac, the suspension will cause Burfict to forfeit approximately $1.16 million in salary from a 2019 contract that has a potential value of $2 million.

Burfict’s suspension reflects, in the NFL’s words, “repeated violations of unnecessary roughness rules.” NFL vice president of football operations Jon Runyan issued the suspension a day after Burfict inflicted a vicious hit on Indianapolis Colts tight end Jack Doyle during the second quarter of a game. At near midfield, Doyle caught a first down pass from quarterback Jacoby Brissett. As Doyle tried to secure the ball, he was in a defenseless position, with his left knee kneeling and right leg elevating. Burfict, who was several feet away, promptly darted at him, head-first, with the apparent intention of making helmet-to-helmet contact. A referee called a personal foul on Burfict and disqualified him from the remainder of the game.

Although head impact injuries sometimes do not become apparent until after time has passed, Doyle did not immediately exhibit signs that he had suffered an injury. He quickly got up, walked away and remained in the game. Notwithstanding the aforementioned caveat about neurological trauma, there is no indication at this time that Burfict caused Doyle to suffer a head-impact injury.

The NFL’s punishment focuses not on whether Burfict injured Doyle, but rather on how the hit fits into a multiyear pattern of Burfict inflicting dangerous and rule-violating contact.

In his statement, Runyan highlighted the absence of any mitigating circumstances and the “flagrant” and “unnecessary” nature of the hit. Runyan also noted how Burfict had been previously “warned by me and each of the jointly-appointed appeal officers” that if he kept breaking the rules, he would suffer “escalated accountability measures.” The phrase refers to a progressive discipline policy, whereby a player faces a more severe punishment if he fails to learn the lesson the first time.

It seems Burfict, 29, has failed to learn the lesson multiple times. The former Arizona State star has now been suspended three times and fined 11 times for on-field incidents during his eight-year NFL career (he has also been suspended once for violating the NFL’s policy on performance-enhancing substances). Those incidents include striking other players in the groin, inflicting headshots, engaging in unnecessary roughness and allegedly trying to injure opposing players’ knees, ankles and other body parts. Unless his 12-game suspension is vacated or reduced, Burfict’s combined suspensions and fines will have cost him $5.3 million in lost NFL earnings.

Uncomfortable position for NFLPA, but union will advocate for Burfict

Despite the fact that Burfict has developed a reputation as a “dirty” player, and despite the fact that he is viewed as repeatedly trying to injure other members of his own union, the NFLPA has a legal duty to represent him and advocate for his interests. The National Labor Relations Act, which governs the relationship between unions and its members, makes this clear.

Under the NLRA, the NFLPA has a duty of fair representation to all of its members. The law requires that a union take reasonable steps in furtherance of a member’s grievance with his or her employer.

The NFLPA must thus treat Burfict as well as it treats other players, including Patriots tight end Ben Watson, who signaled support for the NFL’s punishment of Burfict. If the NFLPA fails to do so, Burfict could file an unfair labor practice charge with the National Labor Relations Board against the NFLPA. An unfair labor practice charge would bring about an investigation by the NLRB, the federal agency that enforces labor law matters related to collective bargaining agreements. Alternatively, Burfict could sue both the NFL and NFLPA under a theory of unlawful conspiracy, much like Eagles offensive tackle Lane Johnson did in 2017. Burfict could that contend the 12-game suspension is excessive and he is the victim of a fundamentally unfair arbitration process.

The NFLPA is also mindful of precedent. The union might fear that Burfict’s suspension will establish a “new normal” for on-field misconduct discipline. Until Burfict’s suspension, the longest suspension for an on-field incident had been the five games imposed on Titans defensive tackle Albert Haynesworth in 2006.

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Haynesworth, who like Burfict had previous infractions, stomped on Cowboys center Andre Gurode in the face while Gurode, whose helmet was off, was lying on the field after a play. Gurode suffered lacerations to his face when the cleats of the 6’6”, 350-pound Haynesworth trampled him. Although he wouldn’t miss any games, Gurode would need 30 stitches under his right eye. He also suffered from blurred vision and headaches. The incident was so horrific that there was talk that Haynesworth might be charged with a crime (no charges were filed).

Burfict’s suspension represents an increase of 140% over Haynesworth’s. This is a massive jump in severity and one that could set a new bar for other players. That goes to the fact that Burfict’s suspension is not occurring in a vacuum—it will be used as a comparator for other players who commit wrongful acts on the field. The suspension could thus lead to longer suspensions for other players, who would lose more of their salary as a result.

The appeals process and key arguments

While appeals filed by players who are sanctioned for off-field misconduct go to commissioner Roger Goodell or a designate of Goodell’s choosing, appeals filed by players who are sanctioned for on-field misconduct receive a neutral forum. The collectively bargained On Field Code of Conduct makes this clear. Under the policy, appeals are heard by one of two appeals officers, Hall of Fame linebacker Derrick Brooks or retired wide receiver James Thrash. Each is jointly appointed and paid by the NFL and NFLPA. Assignment to Brooks or Thrash is also made randomly. Their decision in the Burfict appeal will be final.

Burfict’s strategy in the appeal won’t be to claim innocence. It’s clear that he violated Rule 12, Section 2, Article 10 of the NFL’s rulebook. A player violates this rule if he “lowers his head to initiate and make contact with his helmet against an opponent.” There is no sensible depiction of Burfict’s hit on Doyle where Burfict didn’t lower his head and make helmet-to-helmet contact.

Similarly, Burfict has a lengthy track record of infractions that is undeniably bad. As Runyan’s statement expresses, the 12-game suspension reflects not merely the hit on Doyle but also the cumulation of Burfict’s infractions and his apparent unwillingness to learn the lessons of previous punishments.

Burfict and his representatives will instead focus on the severity of the punishment. Burfict will insist that a 12-game suspension is unreasonably long and illogical in light of previous punishments. As detailed above, the 12-game suspension reflects a 140% increase over what had been the longest suspension for on-field incidents in the NFL’s 99-year history. Such a dramatic jump, particularly in light of the financial consequences for Burfict, is arguably unjustified.

Burfict will also portray a 12-game suspension as an unfair increase from his previous punishments. Until now, his longest suspension had been for five games in 2017, but it was reduced on appeal to three. A jump from five or three games to 12 games is substantial.

The absence of apparent injury to Doyle will also be stressed. Whereas Haynesworth inflicted a serious facial injury on Gurode, Burfict did not (it seems) injure Doyle. To the extent a player should face the longest punishment in league history for a hit on another player, it could be argued that it should occur when the player causes an actual injury.

In response, the NFL will explain the lengthy punishment as necessary in light of Burfict not responding to lesser punishments. His track record suggests that he was not deterred by the punishments previously imposed. While a 12-game punishment is unprecedented, Burfict’s repeated refusal or inability to comply with the rules seems unprecedented its own light.

The NFL will also stress the element of safety. Regardless of whether Doyle suffered an injury, the hit itself was dangerous and invited injury. Burfict has also been repeatedly accused of trying to injure players. The NFL, meanwhile, been sued numerous times over player safety issues, particularly with respect to concussions and other neurological ailments. The league can rightfully argue that it in order to comply with a legal duty to protect the safety of players, it must take decisive action against a player who has repeatedly posed a health hazard.

The league can also correctly emphasize that Burfict’s hit on Doyle lacked mitigating circumstances. The hit was clearly unnecessary and not the result of a muddled situation where a player might unintentionally harm another.

With these dueling arguments in mind, there’s a decent chance that Burfict’s suspension will be reduced. The jump from five to 12 games may prove too much for the appeals officer. That said, the NFL can credibly argue that Burfict deserves a very long suspension and certainly one longer than his previous suspensions. It could get there with a 10- or eight-game suspension, which might be where the appeals officer lands.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.