In response to NFL commissioner Roger Goodell’s imposition of sanctions upon four players due to their alleged involvement in the Saints bounty program, the NFLPA filed a pair of appeals over the weekend. What is the basis for each of these appeals filed by the NFLPA and what is their likelihood of its success in overturning the punishments imposed upon the four players?
1. Non-injury grievance seeking compliance with Article 3, Section 3 (b).
One of the appeals filed by the NFLPA is a non-injury grievance, wherein the NFLPA requests that the NFL complies with the terms of Article 3, section 3 (b) of the collective bargaining agreement it entered into with the NFLPA and players in August 2011.
Article 3, section 3 (b) reads as follows:
(b) The NFL, on behalf of itself, the NFL, and the NFL Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFLPA or any of its members, or agents acting on its behalf, or any member of its bargaining unit, with respect to conduct occurring prior to the execution of this Agreement.
In the Security Report released by the NFL, which laid out its findings related to the Saints bounty program, the NFL alleged that the program was orchestrated from 2009 through 2011. Thus, a portion of the program’s time span preceded the new collective bargaining agreement, which was entered into in August 2011. Therefore, under Article 3, section 3 (b), the NFLPA is asserting in its appeal, that the players it represents cannot be held liable for actions before August 2011.
The issue with this argument set forth by the NFLPA, is that the plain language of Article 3, section 3 (b) seems to relate to releasing players from lawsuits based upon their actions prior to the date when the new collective bargaining agreement was entered into. The language of the clause does not appear to in and of itself prevent the NFL commissioner from punishing players for their past actions. This will likely be the crux of the NFL’s opposition to this appeal by the NFLPA.
In its non-injury grievance, the NFLPA argues that even if Article 3, section 3 (b) does not protect the players from their past acts, then fines or suspensions in this instance should have been brought by a designee of Goodell, and not Goodell. The NFLPA asserted that Article 46, section 1 (b) of the collective bargaining agreement requires that punishments for unnecessary roughness or unsportsmanlike conduct on the field are to be levied by a designee of Goodell.
While the NFLPA has properly set forth the procedure for levying punishments for unnecessary roughness or unsportsmanlike conduct, per the collective bargaining agreement, the NFL has a counter argument. Here, the NFL will likely assert that the bounty program in and of itself did not constitute unnecessary roughness or unsportsmanlike conduct. Rather, it constituted a threat to the integrity of the sport of football. As such, under the collective bargaining agreement, Commissioner Goodell is given reign to levy fines and suspensions against players involved with the program.
Ultimately, the NFLPA is seeking arbitration of this matter. Notably, the arbitrator in this case would be Shyam Das, the same individual who recently overturned MLB’s suspension of Ryan Braun.
In a second appeal, the NFLPA argues that under Article 14, section 1 and Article 4, section 5 (a) of the collective bargaining agreement, punishments for pay-for-play schemes can only be dealt by the System Arbitrator. The NFL and NFLPA’s System Arbitrator is University of Pennsylvania law professor, Stephen Burbank.
In relevant part, Article 14, section 1 of the collective bargaining agreement reads as follows:
Undisclosed Terms: A Club (or a Club Affiliate) and a player (or a Player Affiliate or player agent) may not, at any time, enter into undisclosed agreements of any kind, express or implied, oral or written, or promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind: (a) involving consideration of any kind to be paid, furnished or made available or guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate either prior to, during, or after the term of the Player Contract; and/ or (b) concerning the terms of any renegotiation and/or extension of any Player Contract by a player subject to a Franchise Player or Transition Player designation.
In its Security Report, which included findings related to its investigation of the Saints’ alleged bounty program, Goodell largely argued that the program violated the undisclosed terms provision of the collective bargaining agreement. As noted in Article 14, section 1 above, players and teams cannot enter into undisclosed agreements. The logical reason for this, is so that teams cannot circumvent the NFL salary cap. However, it also serves to protect against things like bounty programs.
The fact that the bounty program falls under Article 14, section 1 is important, as that dictates who deals out punishments for the violations at issue here. In particular, violations of Article 14 are heard by the System Arbitrator. Thus, penalties for violating Article 14 are not assessed by Goodell. Therefore, the NFLPA essentially is arguing that the suspensions levied by Goodell in this instance can’t stand.
Interestingly, under the collective bargaining agreement, the System Arbitrator can impose fines up to $500,000 and order disgorgement of undisclosed compensation. Thus, under Article 14, players cannot be suspended for the actions involved in the bounty program. This would obviously create a huge windfall to the players suspended, especially Jonathan Vilma who was suspended for the entire season.
Here again, the NFL will likely assert that Commissioner Goodell was allowed to levy the suspensions, as the bounty program constituted a threat to the integrity of the game of football. However, the issue that the NFL will run into here, is that the NFL Security Report, which laid out the investigation’s findings, seemed to largely center around the league’s findings that the bounty system ” . . . violate[d] league rules prohibiting non-contract bonuses.” References to the integrity of football being put in jeopardy by the bounty program were only made in passing. Thus, it appears that the NFLPA has greater ground to stand on in this grievance.
Visit RulingSports.com tomorrow for analysis as to how the individual player’s appeals will fare.