Last month, the 2nd Circuit Court of Appeals denied Tom Brady’s request for a rehearing of his four-game suspension for allegedly deflating footballs during a 2015 playoff game. By doing so, the Court essentially approved of NFL Commissioner Roger Goodell acting as the judge, jury, prosecutor, and executioner in league disciplinary hearings.
Afterwards, I wrote that “Tom Brady Got Exactly What the NFLPA Bargained For.”
Today, the 8th Circuit Court of Appeals just provided a nearly identical ruling in Adrian Peterson’s bid to overturn the loss of six games’ worth of salary for his role in alleged child abuse.
Now, you can just reread my prior article and change the headline to Adrian Peterson Got Exactly What the NFLPA Bargained For, because once again, a Federal Court of Appeals has sided with the league’s unfair — albeit mutually bargained for —disciplinary process.
In November of 2014, Peterson pled nolo contendere to a charge of misdemeanor reckless assault on one of his children. A grand jury had originally indicted him on felony charges of reckless or negligent injury to a child after authorities said he hit his 4-year-old son with a switch. Despite skirting jail time, the NFL suspended Peterson indefinitely (for a minimum of the six games remaining in the 2014 season), fined him six-weeks’ salary, and required him to meet with a League-appointed psychiatrist pursuant to the league’s post Ray Rice domestic violence policy.
Peterson appealed his discipline to an arbitrator as per the Collective Bargaining Agreement. That arbitrator, appointed by Goodell, was none other than Harold Henderson. Henderson is the president of the Player Care Foundation, a League-affiliated charity. He previously served for sixteen years as the League’s vice president for labor relations and chairman of the NFL Management Council Executive Committee.
Essentially, Henderson serving as arbitrator was the same as Goodell serving as the arbitrator — and we know how that turned for Brady.
In this instance, it was no different. Henderson upheld the suspension and fine. Peterson then appealed to the Federal District Court, which vacated the arbitration decision. The NFL then appealed to the 8th Circuit. Like the 2nd Circuit, this Court told the NFLPA that it must live with the disciplinary system it bargained for in the CBA.
Allowing the Commissioner or the Commissioner’s designee to hear challenges to the Commissioner’s decisions may present an actual or apparent conflict of interest for the arbitrator. But the parties bargained for this procedure, and the Association consented to it. See CBA art. 46 § 2(a). It was foreseeable that arbitration under the Agreement sometimes would involve challenges to the credibility of testimony from Goodell or other League employees. When parties to a contract elect to resolve disputes through arbitration, a grievant can ask no more impartiality than inheres in the method they have chosen. The Association’s challenge to Henderson’s service as arbitrator is thus foreclosed . . . (internal citations omitted).
Judge Colloton then finished his opinion with the nail in the coffin to the NFLPA’s unfairness argument.
The Association’s fundamental fairness argument is little more than a recapitulation of its retroactivity argument against the merits of the arbitrator’s decision. We have never suggested that when an award draws its essence from the collective bargaining agreement, a dissatisfied party nonetheless may achieve vacatur of the arbitrator’s decision by showing that the result is “fundamentally unfair.” The Association’s fairness argument does not fit within the narrow window left open for consideration in Hoffman, and we therefore conclude that the contention is without merit.
At this point, there is no doubt that the NFL’s disciplinary hearings are essentially kangaroo court, at least in terms of the optics of the league acting as its own judge.
But this is now two different Circuit courts who have found that Article 46 grants Goodell essentially unlimited power to discipline players for “conduct detrimental to the integrity of, or public confidence, in the game of professional football.”
Perhaps that is why the NFLPA is “accepting” this loss.
One the other hand, one of the more influential litigators in sports, Alan Milstein, believes the NFLPA should continue its fight to the Supreme Court.
Yet with two Circuit Courts in agreement and the judicial system set up to provide strong deference to arbitrators and CBAs, the chances of the Supreme Court both hearing this case and reversing the 8th Circuit are slim to none. At this point, the NFLPA should set its sights on the next CBA. It should heed the earlier warnings of the Pittsburgh Steelers and do everything it can to create a more balanced disciplinary process for its members in the future.
Unfortunately, with the vast majority of the NFLPA’s membership likely never going to arbitration and facing very short career spans, the union’s leverage is minimal. Do not expect Goodell, who is now bolstered with two major legal victories, to relinquish much control anytime soon.
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