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28 Sep 2017

Bargaining Table vs. Court Room: Player Discipline in the NFL

Guest column by Chetan Tiwari

The NFL is in the middle of another drawn-out legal battle with the NFLPA over player discipline. Ezekiel Elliott, the Dallas Cowboys star running back, was accused of domestic violence in the summer of 2016, shortly before his rookie season began. Prosecutors concluded that the accuser's statements conflicted with those made by Elliott and other witnesses, and so he was never criminally charged or arrested in the case. For more than a year, however, the NFL conducted its own investigation, and announced last August that it was suspending Elliott for six games. Elliott then appealed the suspension to an NFL-appointed arbitrator, who upheld the decision. Shortly after, Elliott and the NFLPA filed a lawsuit in the Eastern Texas District Court to have the arbitrator's decision vacated.

This is a recurring story in the NFL: Questionable suspensions and fines are handed down by commissioner Roger Goodell; they are upheld by an arbitrator; and finally players use courts to push back. Past legal battles such as "Deflategate" illustrate that courts are usually unwilling to change this narrative.

The NFL and NFLPA need to address player discipline during the next round of collective bargaining negotiations. Player punishment under the current collective bargaining agreement (CBA) is a draconian system that prevents players from receiving even the smallest semblance of a fair trial. Under article 46 of the NFL CBA, Goodell dictates how player misconduct is addressed. He decides how allegations are investigated, and how players are punished. If a player appeals, Goodell can choose the arbitrator for the hearing -- he may even choose himself! -- as well as which evidence is reviewed or ignored. When it comes to player punishment, Goodell is an unstoppable force.

In 2016, when Tom Brady appealed Goodell's four-game suspension for the Deflategate accusation, Goodell appointed himself as the arbitrator for the appeal. Goodell also refused to allow evidence and testimony that was relevant to determining the extent of Brady's involvement in deflating footballs. In summary, Roger Goodell appointed Roger Goodell to determine if the decisions Roger Goodell made were appropriate.

Part of the reason for Goodell's strong interest in player discipline is that he believes he must rule with an iron fist to protect his and the NFL's image. In 2014, the NFL was rocked by multiple domestic violence allegations. A video of Ray Rice punching his then-fiancé was released, and Goodell was shamed for his lax stance on domestic violence. In the same year, Adrian Peterson was arrested on charges of child abuse. Goodell was put under more pressure to address the issue of domestic violence in football. Goodell's response was to single-handedly take over adjudication of all player discipline. To protect himself and the NFL from further backlash, Goodell used the text in the CBA to launch a witch hunt against athletes.

The CBA cannot be renewed until 2020. Right now, the only one way to fix the process of player discipline is through appeals to the federal courts. However, the courts have not been created to interpret the NFL CBA. Courts have a long history of deference to arbitrator decisions, especially when it comes to questions about proper hearing procedures. Procedural questions regarding what evidence is admitted or excluded are almost always left to the arbitrator. The rare exception is for cases where the arbitrator refused to hear evidence pertinent and material to the controversy, and as a result violated the rule of fundamental fairness.

Deflategate taught the sports world that an arbitrator must be very bad to violate the principles of fundamental fairness. During Brady's proceedings, Goodell decided to exclude testimony from one of the NFL officials charged with investigating the Deflategate fiasco. The Appeals Court for the Second Circuit concluded that even in light of Goodell's questionable decision-making, the principle of fundamental fairness had not been violated. Brady eventually served his suspension. The practical effect of the Appeals Court Ruling in Brady's case was to set the bar high for a violation of fundamental fairness. It expanded Goodell's power under the CBA. The court upheld a system that permits Goodell to act as judge, jury and executioner.

Now another legal battle has kicked off in Elliott's case. After NFL-appointed arbitrator Harold Henderson upheld Elliott's suspension, Elliott's legal team filed for a temporary restraining order (TRO) and an application to vacate the arbitrator's ruling. The TRO has been granted allowing Elliott to play until the courts decide whether or not to vacate the arbitrator's ruling.

Judge Amos Mazzant III of the Eastern District Court in Texas blasted the NFL in his ruling granting the TRO, concluding that Elliot's case was one of the rare occasions in which the court should intervene. He describes the arbitration in a manner that makes it look like a legal farce and cites "unique and egregious" facts that indicate Elliot did not receive a fair hearing. During the hearing, Henderson denied the NFLPA the opportunity to call Goodell and Elliott's accuser as witnesses, or to produce important evidence such as the investigator's notes. The courts almost always leave these decisions to the arbitrator, but in this case Judge Mazzant ruled that the exclusion of the witnesses and evidence was a violation of fundamental fairness.

NFL investigators Kia Roberts and Lisa Friel were put in charge of looking into the allegations. Friel concluded that Elliott's accuser was telling the truth, while Roberts concluded that the accuser lacked credibility. Goodell only met with Friel to discuss the results of the investigation. Further, the evidence indicates that Roberts' conclusion was never presented to or considered by Goodell. Judge Mazzant also noted that the NFL made a concerted effort to hide Roberts' conclusion from Elliott's legal team. Because of this he reasoned "a cloud of fundamental unfairness followed Elliott" throughout this entire saga.

Regardless, Elliott will likely lose on appeal. Since Roberts eventually testified, her conclusion that Elliott's accuser was not credible was considered by Henderson. Once she testified, the NFL's attempts to sideline her became irrelevant.

Although the attempts to exclude Roberts tainted the proceedings, the basis of Judge Mazzant's decision to grant the TRO was that the arbitrator did not allow the NFLPA to question Goodell or Elliott's accuser. He argues that this breached fundamental fairness. Although I agree in principle, the fact that Roberts testified, and that her notes were available to Goodell when he made his decision, renders everything else irrelevant.

(EDITOR'S NOTE: The ending of this piece was originally published with faulty information concerning court dates and the possibility of Elliott being suspended this year. We have made corrections and re-published.)

So, where do we go from here? After Mazzant granted Elliott's injunction, the NFL filed an emergency application to stay Mazzant's injunction. The court denied the application, mainly because Elliott has a greater chance of suffering irreparable harm than the NFL. In other words, if the court grants the NFL's stay and Elliott is suspended, but then goes on to win his appeal, he would have lost six games that he could never get back. If they deny the stay but then the NFL wins the appeal, the NFL then can and will suspend Elliott in 2018 without missing a step.

The NFL then appealed to the U.S. Fifth Circuit Court of Appeals, which will take arguments from both sides in a hearing that will take place on Monday, October 2. If the court rules in favor of the NFL, Elliott's suspension will begin immediately, starting with Dallas' Week 5 game against Green Bay. If the court rules in favor of Elliott, he will be free and clear to play in 2017, but will then almost certainly be suspended for part of the 2018 season. If the losing side in this appeal wishes to appeal further, they will have apply to the Supreme Court of the United States (this is unlikely).

Regardless, even if the NFLPA wins the appeal, the problem of player discipline remains. The CBA as presently structured allows players to be subjected to a witch hunt. Nobody, even if they are criminally charged, should have to deal with this. The NFL and NFLPA must come to terms on a better system of determining disciplinary measures.

The only way to create a fairer system is for the NFLPA to make this a higher priority during the next round of collective bargaining. Judge Robert Katzmann on the Appeals Court of the Second Circuit said as much in the Brady decision when he wrote that the problem with the contents of the CBA are a problem for the NFLPA and the NFL to fix at the bargaining table. It is time for the NFLPA to stop looking for assistance from the courts and dig in their heels in negotiations. They have to demand provisions that lead to fairer processes for determining player discipline. It is time for the NFLPA to become an immovable object to match Goodell's unstoppable force.

Chetan Tiwari is a civil rights lawyer who represents plaintiffs in employment discrimination, prisoner rights, and immigration matters. Chetan is originally from Canada and presently lives in Roxbury with his spouse and daughter. He is a diehard sports fan who supports almost all Toronto teams (Go Oilers!). One day he wants to represent NCAA athletes to advocate for their rights to earn a fair wage. Chetan has written several blog posts dealing with the intersection of sports and politics. Follow him on Twitter at @ctchetantiwari.

Posted by: Guest on 28 Sep 2017

4 comments, Last at 29 Sep 2017, 8:02am by Jerry

Comments

1
by jtr :: Thu, 09/28/2017 - 3:47pm

The most cynical part of me thinks that Goodell is intentionally being so ham-fisted so as to force discipline reform to the top of the NFLPA's agenda for the next CBA. At which point he'll grudgingly give up some of his disciplinary power, in exchange for an 18-game season or a lower salary cap or whatever it is that the owners want.

2
by PatsFan :: Thu, 09/28/2017 - 5:21pm

It's telling that Article 46 has been in the CBA for over 50 years and caused virtually no problems until Roger Stokoe Goodell came along.

3
by McKrackenfield :: Thu, 09/28/2017 - 7:24pm

The flip side on saying the problem is Roger Goodell is that never before in the history of the league has it been so easy for the public to find out the 'misdeeds' of the players. Deflategate, as an example, never would have been public even 10 years prior, but in the current environment, everything goes public. The league is forced, by public opinion, to try to do something about it. I think any of the previous commissioners would do the same things Goodell does.

4
by Jerry :: Fri, 09/29/2017 - 8:02am

Yeah. Back in the day, how often do you think teams had a guy on staff with a roll of hundreds and a stack of tickets, so that when players tore up a barroom, everything got settled without charges being filed? (And, of course, nobody had a camera handy, let alone one that shot video, or a place to publish their account.)

Now, everything goes public, different groups want to see different sanctions, and whatever decision is arrived at, by whoever arrives at it, will be subject to lots of criticism. That's not to say Goodell's getting these calls right, but he's going to take a beating regardless.