No one can accuse NFL Commissioner Roger Goodell of leniency in his response to the New Orleans Saints bounty scandal. Four players were suspended a total of 31 regular-season games, including Jonathan Vilma (right) who will miss the entire 2012 season. All four players, with the support of the NFL Players Association have appealed their suspensions. Many analysts have predicted that the appeals process could eventually lead to a lawsuit in Federal Court. The Legal Blitz spoke with attorney Adam B. Marks about the NFL’s appeals process and the potential for ensuing federal lawsuits. Marks is a lawyer for Updike, Kelly & Spellacy, P.C. in Connecticut. He is also the author of Personnel Foul on the National Football League Players Association: How Union Executive Director Gene Upshaw Failed the Union’s Members by not Fighting the Enactment of the Personal Conduct Policy, 40 Conn. L. Rev. 1581 (2008). Marks discusses with the Legal Blitz the NFL’s appeals process, how the latest collective bargaining agreement does (or does not) govern the process, and what the players will need to prove to prevail in federal court.
What is the process for appealing these suspensions, and is there any chance that the players will get a reduction?
The NFLPA has filed two grievances on behalf of the suspended Saints’ players. In the first grievance, the union has claimed that NFL Commissioner Roger Goodell is prohibited from suspending players for behavior that occurred before the latest collective bargaining agreement took effect on August 4, 2011. This argument is based on a section of the new CBA that prohibits Goodell from suspending players for their conduct before that date. The NFLPA is arguing for a broad interpretation of that clause, seeking for it to reach beyond the issues the NFL claims the clause was intended to cover, namely Personal Conduct Policy violations during the labor dispute and lockout. The NFLPA is arguing that the clause is essentially an immunity clause that encompasses any player behavior taking place prior to the effective date of the new CBA, including the behavior underlying these suspensions.
The NFLPA has also filed a second grievance asking an arbitrator to determine that the conduct at issue is not punishable pursuant to the Personal Conduct Policy, but rather that the suspensions are for non-disclosed payments to players, which is a violation of the collective bargaining agreement and would have to be dealt with under the terms of the CBA. If that were the case, then Goodell would not be permitted to levy these suspensions against the Saints’ players. Instead, the discipline would have to be handed down by arbitrator Stephen Burbank of the University of Pennsylvania Law School, who, pursuant to the terms of the CBA, handles discipline related to salary-cap violations.
Additionally, the four suspended players have each filed appeals pursuant to the Personal Conduct Policy. These appeals were filed with Commissioner Goodell, who originally imposed the suspensions. From what I understand, the players are arguing that they have not seen any proof of their guilt and they should not be suspended until they have had an opportunity to review and rebut the evidence against them. This direct appeal to Goodell has the lowest likelihood of success.
It is difficult to determine the likelihood of these suspensions being reduced until it is determined who will be reviewing the suspensions. If the appeals are handled by Goodell pursuant to the Personal Conduct Policy, it is unlikely the suspensions will be reduced. If the suspensions are instead reviewed by another party, whether it is an independent arbitrator or Ted Cottrell and Art Shell, who review on-the-field conduct suspensions for the NFL, then there is a better chance that the suspensions may be reduced.
Talk about why it’s important that the league categorized this as an off-the-field incident. Can this determination be challenged?
The NFLPA has already challenged the determination of this behavior as an off-the-field incident. This is important because it determines who will review the suspensions. Any suspension pursuant to the Personal Conduct Policy for off-the-field conduct is appealed back to Roger Goodell, who imposes the suspensions being appealed. This is akin to a judge sentencing a defendant to prison, and the defendant’s only right of appeal is to the same judge.
If a suspension were characterized as being given for on-the-field conduct, then the suspension is reviewed by Ted Cottrell and Art Shell pursuant to the terms of the collective bargaining agreement. Obviously if the appeal is heard by someone other than the person who levied the suspension in the first place then it is more likely the suspension may be reduced.
Didn’t the players union essentially waive the right to a meaningful appeal under the current CBA?
The right to a meaningful appeal was waived long before the current CBA was agreed to. The right was waived when Gene Upshaw allowed Roger Goodell to put the Personal Conduct Policy in place without requiring it to be collectively bargained. Once the policy was put in place, if the NFLPA wanted to bargain to have Commissioner Goodell give up his right to hear appeals stemming from suspensions pursuant to the Personal Conduct Policy, it would have to give something to the owners at the bargaining table. Upshaw gave the league and the owners all the leverage regarding the Personal Conduct Policy.
You have to remember that during the most recent lockout the players had bigger issues they needed resolved than discipline pursuant to the Personal Conduct Policy, which affects only a few players each season. They were fighting against a longer schedule, for improved safety, retirement benefits, and, of course, revenue sharing between the players and owners—matters that affect all union members. Appeal pursuant to the Personal Conduct Policy was certainly discussed during bargaining, in fact, it was one of the final issues to be agreed upon, but no change to the appeal process was included in the CBA as it was ratified. In fact, the Personal Conduct Policy is still not a part of the CBA at all. When it came down to the eleventh hour of negotiations, the NFLPA backed off its stance that Goodell’s retention of the appeal process was a deal breaker, and instead agreed to the terms of the CBA. The Personal Conduct Policy remains a league policy, and not a policy included in the CBA.
Adam Shefter predicted “a massive legal battle on many fronts” from the suspension fallout. Is he right?
The NFLPA will certainly do everything it can to fight these suspensions. On Friday, the union filed a pair of grievances with two arbitrators regarding Roger Goodell’s authority to suspend the Saints’ players. All four players have filed appeals of their suspensions pursuant to the Personal Conduct Policy. Depending on the success of those grievances and appeals, you could see the NFLPA or the individual players file suit against the NFL in district court. The caveat is that unless the NFLPA can prove that these suspensions in some way violated the terms of the CBA, or that the Personal Conduct Policy itself violates federal law, the players are unlikely to have a persuasive argument in court.
Discuss how the players could take this issue to federal court, and what the players would need to prove there.
These suspensions were imposed pursuant to the Personal Conduct Policy, which is not a part of the CBA. The Policy was not collectively bargained when it was adopted in 2007, and the new CBA does not incorporate the Policy into its terms. This means that unless the NFLPA is successful in one of its grievances, which nothing I have read indicates it will be, the terms of the CBA do not govern any legal action taken by the players with regard to these suspensions.
This means that the suspended players will have to challenge the legality of the Personal Conduct Policy. The players and union would have to argue that the Personal Conduct Policy violates federal labor law because it is a policy that affects union members’ wages that was not collectively bargained for. The National Labor Relations Act requires an employer to bargain with a union in good faith “with respect to wages, hours, and other terms and conditions of employment.” If the players are able to successfully convince a judge that the Personal Conduct Policy is a policy that directly affects player wages because the commissioner is entitled to impose unpaid suspensions, then it is possible the Policy would be declared a violation of federal law. For a more detailed discussion of this argument, as well as an argument that would permit suspended players to play in the Canadian Football League during the term of their suspensions, please refer your readers to my note, Personnel Foul on the National Football League Players Association: How Union Executive Director Gene Upshaw Failed the Union’s Members by not Fighting the Enactment of the Personal Conduct Policy, 40 Conn. L. Rev. 1581 (2008).
Do you think this incident will be a lesson learned for the NFLPA for their next CBA negotiations?
I would have thought that the NFLPA would not have agreed to a new CBA that allowed Goodell to retain his powers to levy suspensions and hear appeals under the Personal Conduct Policy. The new CBA does not address the Personal Conduct Policy, which instead remains a league policy not subject to collective bargaining. It is difficult to fault the NFLPA, which in almost all respects did a good job representing players’ interests during the negotiations of the new CBA, but until the union is willing to give up something valuable at the bargaining table during negotiations, the Personal Conduct Policy will remain beyond the terms of the CBA and Goodell will retain his unchecked power to suspend players and uphold those suspensions himself.
*Adam Marks is an attorney at Updike, Kelly & Spellacy, P.C. in Hartford, Connecticut and the author of Personnel Foul on the National Football League Players Association: How Union Executive Director Gene Upshaw Failed the Union’s Members by not Fighting the Enactment of the Personal Conduct Policy, 40 Conn. L. Rev. 1581 (2008). This interview is a general discussion of certain legal and related developments, does not create an attorney-client relationship between Mr. Marks and any of our readers, and should not be construed or relied upon as legal advice. Anyone whose own legal rights and obligations may be affected by the general legal principles discussed should seek the advice of an attorney with respect to the particular facts and circumstances of their case.