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Wednesday, May 30, 2007
NFLPA Sends Stern Message to NFL Commish

In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.

Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:
The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''
This is a great strategic move by the NFLPA. And the timing of it couldn't be better as Goodell is currently contemplating Pacman's appeal as well as the disciplinary sanction to impose upon Bears' lineman Tank Johnson who met with the commissioner two weeks ago. David Haugh of the Chicago Tribune recently wrote an excellent piece explaining in legal terms (with my assistance) why Tank, or any other player for that matter, has virtually no chance whatsoever of having his suspension reduced by any judge in a court of law ("Tank released - with a catch"). Haugh interviewed Dan Jiggetts, a former Bear well-versed in labor issues from his time as NFLPA vice president, who couldn't have said it any better when he applauded Goodell's intentions but cautioned that a clearer line should exist between improving the game and impinging on players' rights: "It's one thing that he's trying to clean up the league and everybody understands that, but he can't be making unilateral decisions."

At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.

Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).

It will be interesting to see how Goodell reacts going forward. Any predictions?


"As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents."

Two hundred and eighty players since January 2000 "arrested or charged". I'm guessing that is about one player in about 15 or 20 that have been in the NFL in that time. And this came from Pacman Jones' OWN attorneys. If that 280 number is right, maybe it is time that the new commissiner start cleaning up the league. While I think that merely being at a scene (i.e. had Darrent Williams of the Broncos lived instead of being killed in a limousine) should not be grounds for discipline under the new policy, someone who has been arrested &/or convicted multiple times should be disciplined by the league. Isn't there something in the standard player contract about bringing the team [and/or the league] into disrepute by the player's actions?\

I know the NFLPA is having to do the appeal, but I get the feeling they are doing it by holding their noses--this may get the union a lot of bad publicity even from the union's own members.

Anonymous Anonymous -- 5/30/2007 10:16 AM  

Good post. Wow, this is a close call and a huge challenge for Goodell. Will he rival Commissioner Stern for dictatorial supremacy? Personally, I like the fact that he does not want to talk "legal"--kind of a snub to all the lawyers involved...oh, and then there is always the court of public prediction? He is going to stick to his guns and send the NFLPA lawyers scrambling to appeal this or that and talk "legal"...meanwhile, PACMAN will be out of the league...

Anonymous Anonymous -- 5/30/2007 10:20 AM  

Goodell's desire to clean up the NFL may make sense from a moral standpoint but is wholly unneccessary from a business standpoint. Fact is, the NFL's dominance of the American sports landscape is so complete that its popularity will be unaffected by any sorts of player misbehavior. As I've quipped before, if NFL teams somehow could be staffed entirely by prison inmates on work release, every game would still be a sellout and TV ratings would still be in the stratosphere.

Anonymous Peter -- 5/30/2007 10:24 AM  

Perhaps he should respond that on the basis of the appeal he's happy to reduce Pacman's suspension to eight games with one contingency...

If Pacman is arrested for any other anti-social behavior worse than jaywalking between now and the time the shortened suspension would be lifted, then the full 16 game suspension will be enforced and another four games next year will be added to the suspension.

Now we are talking "accountability" for Pacman Jones AND for the NFLPA when next they appeal a suspension. His behavior now affects their credibililty and so they have a larger stake in his good behavior.

Just a thought...

Anonymous Anonymous -- 5/30/2007 10:27 AM  

Why would the NFLPA agree to a policy that relies on the sole discretion of the Commissioner and then question that discretion in the first application of the policy?

The author, Mr. Karcher, states that the NFLPA agreed to adopt the Commissioners strengthened policy "with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority."

Not true. The newly strengthened Personal Conduct Policy explicitly states, "Discipline for individuals that violate the policy will include LARGER fines and LONGER suspensions."

NFLPA Executive Director, Gene Upshaw, and the six member Player Advisory Council discussed the suspensions before they were handed down and signed off on them.

The strategic move would have been for the NFLPA to understand what the strengthening of the policy entailed before the union agreed to it. Not complain about it after the fact. Sounds like a clear case of "buyers remorse" or last minute posturing to avoid a potential breach of the duty of fair representation suit.

Anonymous Anonymous -- 5/30/2007 1:41 PM  

Anonymous #1:

It might be the case that Goodell is doing what he thinks is right from the league's standpoint, but that's irrelevant when the issue is the proper role of the NFLPA in all of this. The NFLPA's job is to represent the players in a fiduciary capacity similar to a lawyer-client relationship. The union should not be concerned with public opinion or even the league's product. Any time the league or a team disciplines a player or docks his pay, the union's job is to fight that disciplinary action with everything its got. Thus, I disagree with you that the union is fighting this "holding its nose" (at least it shouldn't be). Taking the position that the union should always vigorously defend players against league disciplinary action doesn't mean that one condones the players' behavior (assuming of course that the player even did what he is alleged to have done).

Last Anonymous,

You raise a great point about now complaining after the fact. But we don't know exactly what conversations took place between the union and Goodell regarding the precise disciplinary action to be taken. Having said that, it does appear that the union assented to a "get tough on crime" policy -- the question is how tough. However, I didn't mean to suggest that the union could argue there is an implied understanding that Goodell would implement the SAME EXACT penalties as Tagliabue did, but that Goodell would utilize a just cause standard consistent with what Tagliabue did. In other words, gradual and progressive disciplinary action and utilizing precedent involving similar situations to support the disciplinary action ("larger fines and longer suspensions" is not necessarily inconsistent with that approach).

But I don't disagree with you that perhaps the union should have thought about this earlier and fought the new policy. I think it's important to note that neither Goodell nor Upshaw is a lawyer. As Jeff Pash stated at the conference, Goodell isn't thinking "legal" when he imposes an unprecedented suspension (whereas Tagliabue did because he's a lawyer). Well, maybe Upshaw wasn't thinking "legal" either when he initially condoned a get tough on crime policy.

Blogger Rick Karcher -- 5/30/2007 7:30 PM  

Did Upshaw play offensive guard or defensive back? He'd have been a heck of a defensive back. He seems to have mastered the art of the backpedal. His stance has obviously changed from this ESPN interview from April 2007:

How many of the six members of the Player Advisory Committee advised the union to suddenly back Pacman's appeal? Which players saw fit to defend Pacman? A union can't act without the backing of its' membership.

Anonymous Anonymous -- 5/30/2007 10:27 PM  

"Thus, I disagree with you that the union is fighting this "holding its nose" (at least it shouldn't be). Taking the position that the union should always vigorously defend players against league disciplinary action doesn't mean that one condones the players' behavior (assuming of course that the player even did what he is alleged to have done)."

Rick--your own sentence agrees with my position. I do agree, the union should defend its members with all diligence and without regard to public opinion, as the "precedent" set may come around again in the future; that doesn't mean that the union, its leaders, or its members have to like defending a member in a particular situation. The players' union "holding [its] nose" while appealing the suspension is appropriate.

Anonymous Anonymous -- 5/31/2007 9:59 AM  


I listened to the ESPN radio link you provided. Thanks for sending it. In my opinion, Upshaw views the player discipline issue more as a "player" and not a lawyer. He looks at it like, certain players need to get their act together and most of the players (including Upshaw when he was a player) do not and should not get into trouble with the law. His remarks almost seem "father like" in a way, i.e. he supports some increased discipline on his members with the hope that it will make a difference and they will change their ways. Now, this is not how attorneys look at this type of situation. Attorneys would be very skeptical of whether the increased discipline will actually change the players' ways, and more importantly, would be very skeptical of the commissioner making these unilateral decisions without a review by a neutral arbitrator.

In your comment you mentioned a possible breach of DFR. I don't see that. I think an interesting question is simply, what is the legal effect of this new policy? The new policy involves a mandatory subject of collective bargaining, which means that it must be negotiated with the players. There might be an argument that a 6 player committee discussing it with the commissioner does not suffice for collective bargaining purposes under the labor laws, and thus the new policy is invalid. On the other hand, so what if the new policy is not valid? If it's not valid, the commissioner still has the full discretion under the CBA to impose discipline on players subject to the players' right to appeal back to him. Thus, Goodell can argue that he hasn't exceeded his authority. This never became an issue under Tagliabue because he never imposed such an extreme disciplinary action.

Blogger Rick Karcher -- 5/31/2007 10:32 AM  

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