The NFL and the NFL Players Association are clashing over the power of Commissioner Roger Goodell in a player-disciplinary matter and could be headed for a legal showdown.
Deflategate is over. So, too, are the cases of Ray Rice, Adrian Peterson and Greg Hardy under the NFL’s personal-conduct policy.
But the issues remain. And the NFL and NFLPA again could be headed to arbitration or to a courtroom to have their differences over Goodell’s disciplinary authority resolved, this time as it relates to the league’s threat to suspend James Harrison, Clay Matthews, Julius Peppers and Mike Neal for failing to cooperate with the investigation into allegations related to banned performance-enhancing substances.
“Ideally this would get worked out without arbitration, without a lawsuit,” said Gabriel Feldman, the director of the sports law program at Tulane University. “But certainly the events of the last few years suggest the Players Association will fight this to federal court to try to limit the commissioner’s power and prevent what the players regard as overreach by the commissioner. This is another iteration of the issues we saw in Deflategate and other cases.”
The league informed the union Monday that it would suspend the four players Aug. 26 if they don’t submit to interviews by Aug. 25. The league’s letter said the players would be suspended for conduct detrimental to the league under Article 46 of the collective bargaining agreement, which empowers Goodell to impose such penalties.
The union has contended that the players are not required to submit to interviews under the terms of the sport’s drug policies, which are negotiated between the NFL and NFLPA.
“There is no specific requirement within the drug policy for players to cooperate,” Feldman said in a phone interview. “But does that mean there is no requirement? Or can the commissioner impose it? It’s uncharted territory again. It’s the Players Association believing the commissioner is overreaching and the league saying the commissioner has these powers. It’s the same arguments, just different scenarios.
“It is often difficult to get a positive drug test. The league would like another way to catch players who are not following the rules. All leagues would. You can clearly see why the league wants to question these players. And you can see why the Players Association wants to guard against the commissioner overreaching and subjecting players to being questioned for any accusation. Ultimately the resolution to this might need to be part of a settlement that covers not only this situation, but the next situation. At some point the parties need to sit down and reach an agreement on these issues. It might not be until the next collective bargaining agreement.”
The allegations against the players arose in a report last year by Al-Jazeera.
The Al-Jazeera report also linked quarterback Peyton Manning and his wife to shipments of human growth hormone. The league recently cleared Manning of wrongdoing and said that Manning, now retired from the Denver Broncos after winning his second career Super Bowl title last season, cooperated with the investigation. The NFLPA responded then that Manning was a former player free to do whatever he believed was in his best interests.
“The Union knows that he understands the rights of players under the Collective Bargaining Agreement and would never do anything to hurt or undermine active players in support of those rights,” the union said in a written statement at the time.
The NFLPA has not responded to requests for comment in recent days.
One person on the players’ side of the sport with knowledge of the case termed it “a close call” whether the league can compel the players to submit to interviews. The person, who spoke on the condition of anonymity, called the standoff “a reflection of the relationship” between the league and union and expressed the view that the NFLPA is most likely to file a grievance under the CBA.
NFL executive Adolpho Birch wrote in Monday’s letter to the union: “There is no dispute that players are obligated to cooperate with the league’s investigation, as you have repeatedly acknowledged. This obligation includes not only the responsibility to submit to an interview but also the duty to provide meaningful responses to the questions posed. Nor is there a dispute that a failure to cooperate or an attempt to obstruct the investigation may result in discipline, including suspension from play, for conduct detrimental under Article 46 of the CBA and the NFL Player Contract.
“We cannot accept your unilateral assertion that the cursory, untested statements you have submitted satisfy the players’ obligation.”
The union initially had great success challenging the disciplinary actions taken by the league in the Rice, Peterson, Hardy and Tom Brady cases. But more recently, the NFL has prevailed.
Brady’s four-game Deflategate suspension was reinstated by a three-judge panel of a federal appeals court after being overturned last year by a federal judge. A three-judge panel of another federal appeals court upheld Peterson’s suspension. An arbitrator ruled, following a grievance by the union, that the NFL’s practice of placing players on paid leave with cases pending under the personal-conduct policy is valid.
“The recent decisions have solidified an expanded scope of the commissioner’s power,” Feldman said. “But I don’t think that would mean the Players Association will stop fighting. There are also the individual player’s interests, which might not always coincide with the interests of the Players Association.
“If you’re the Players Association and you believe the commissioner does not have the authority to impose penalties beyond those in the drug policy, it’s a fight you have to fight. … The specific trumps the general. Here you have a specific drug policy. You make that argument that the commissioner can’t override the collectively bargained punishments in the drug policy and if there is no duty to cooperate, the commissioner can’t add a duty to cooperate.”
The sport has third-party arbitration for players’ appeals of discipline imposed under the drug policies. There is no such independent arbitration for appeals of discipline under the personal-conduct policy or integrity-of-the-game rules. That is something the union has been seeking but talks with the league on that subject broke down.
Feldman said he can see the union attempting to contest this case through both the mechanisms provided by the drug policies and the CBA.
“I think you fight both,” Feldman said. “I think you make both arguments simultaneously.”