The immediate aftermath of the Ray Rice debacle triggered widespread speculation that the Commissioner had no choice but to yield final say over player penalties under the Personal Conduct Policy.
And then the league unveiled a new Personal Conduct Policy, with the Commissioner still having final say.
The Tom Brady suspension arises not under the Personal Conduct Policy but under the Commissioner’s Article 46 power to impose discipline for conduct detrimental to the integrity of, or public confidence in, the game of professional football. It’s the only other area of player discipline over which the Commissioner has retained the ability to personally process a player’s appeal.
The handling of the Brady appeal and its aftermath have raised new questions regarding whether Commissioner Roger Goodell ever can be truly impartial in cases where he has direct involvement in the underlying disciplinary decision.
As the NFLPA argued at paragraph 151 of the original court filing in Minnesota, “It is hard to imagine any person in Goodell’s position even attempting to serve as arbitrator under these circumstances, but that is exactly what he did. He denied the NFLPA’s Recusal Motion and simultaneously (and summarily) rejected the delegation [of the initial decision to Troy Vincent] argument -- trying to pave his own path to stay on as arbitrator of Brady’s appeal. This conduct shows not merely evident partiality but actual bias, rendering Goodell unfit to serve as arbitrator under any standard.”
The NFLPA also pointed out that Goodell’s public statement of appreciation to Ted Wells made it impossible for Goodell to reach a contrary conclusion in the appeal, “as doing so would undermine his own competency as Commissioner.” Not specifically articulated in the NFLPA’s initial filing (but quite likely to be raised during the federal litigation) are the delicate balance Goodell must strike when placating his 32 constituents (i.e., the owners), along with the very real influence of P.R. concerns on his decisions. Given that he never is criticized for imposing too strong of a punishment on a player but was placed under siege after not going far enough with Ray Rice, the Commissioner will be far more likely to go too far than to not go far enough.
If the Brady case isn’t settled before the first of two scheduled conferences in court, Judge Richard M. Berman could hammer that point home via aggressive questioning of the NFL’s lawyers and, quite possibly, through a direct and pointed interrogation of Goodell in Judge Berman’s chambers as part of settlement efforts. And as Judge Berman potentially peppers the NFL’s non-lawyer CEO with questions about these issues that are difficult for even a seasoned litigator to properly explain, Judge Berman likely will insist that the answers come not from any lawyers in the room with him but from Goodell personally.
That’s why the NFLPA currently believes that, as a result of the Brady case, the NFL may finally be inclined to yield on the issue of Goodell’s power over players. NFLPA outside counsel Jeffrey Kessler addressed this dynamic in an interview with PFT conducted before Judge Berman ordered the parties to tone down the rhetoric.
“The union has been advocating for some time that the Commissioner allow neutral arbitration of all disputes in the NFL, just as there is in all the other leagues,” Kessler said, explaining that the “contradiction between the NFL Commissioner holding himself out as an arbitrator while also being the employer just can’t stand the test of time.”
Kessler added that it’s “better for the league, better for the Commissioner, better for the players if there was neutral arbitration.”
But what of the common refrain that the NFLPA should have insisted on neutral arbitration for all disciplinary issues during the 2001 Collective Bargaining Agreement negotiations?
“We did,” Kessler said. “That’s what people don’t understand. The final CBA has many things that the players demanded such as improved health and safety, reduced practice, and lots of improvement in many areas. And it has many things the league insisted on. The league made its no. 1 priority the ability of Roger Goodell to retain final say over issues of this type.”
And now the NFL may be having second thoughts about that. Kessler pointed out that the NFL doesn’t have to wait until the current CBA expires after the 2020 season to fix the problem.
“The union and the league have issues to address all the time,” Kessler said. “We changed the drug program after the CBA was done, including moving to a neutral arbitrator. There’s really no reason why the parties can’t sit down and re-do the whole Personal Conduct Policy now. . . . It boggles the mind that the league thinks it benefits from having constant legal battles. Why does the league think this is a good idea?”
In theory, it’s possible that the Commissioner’s lingering power over player discipline could be surrendered as part of the settlement of the Brady case. While that would complicate the back-and-forth over Brady’s ultimate punishment, if Judge Berman will be clunking heads together in order to get the NFL and NFLPA to settle their differences regarding Brady, why not push them for a broader settlement that would help prevent lawsuits like this one from ever being filed again?