As the NFL continues to bask in the glow of a narrow, 2-1 appeals court victory in the #Deflategate imbroglio, Commissioner Roger Goodell is now defending his handling of quarterback Tom Brady’s suspension by attacking the NFL Players Association.
“I understand when there is a defense of any violation . . . that is part of the game, we all understand that nobody wants to discipline,” Goodell told ESPN Radio’s Mike & Mike, via Dan Werly of TheWhiteBronco.com. “I understand the union’s position. The union’s position is to eliminate discipline. That is what they do, we are going to protect the player, right or wrong. And I get that, that is understandable, go at it. My job is to protect the game. We are not going to relent on that, we are not going to compromise at all.”
That’s an incredibly cynical view of the union’s role, and an apparent attempt to counter NFL Players Association executive director DeMaurice Smith’s recent explanation on PFT Live about the union’s commitment to fighting for its players. But the union isn’t trying to ensure that players suffer no consequence for wrongdoing. The union wants any consequences to be fair and consistent and within the confines of the labor deal. The union also wants the process that determines those consequences to be fair.
Fairness of the process continues to be the primary problem, since it provides no real protection against the NFL running amok. Although the NFL has (reluctantly) yielded Goodall’s judge-jury-executioner status on matters like on-field discipline, substance abuse, and PEDs to neutral arbitration, Goodell refuses to relent in his position that the league should have full control over the disciplinary decisions and the appeals arising from violations of the Personal Conduct Policy and the rules regarding conduct detrimental to the league.
“I am not going to hand off the integrity of the NFL to somebody who doesn’t understand our business,” Goodell said. “ESPN doesn’t do that. When somebody gets disciplined at ESPN it’s made by ESPN, they don’t hand it off to somebody who doesn’t have an interest in ESPN and the NFL is not going to do that either.”
Without knowing the intricacies of ESPN’s employment structure and relationships, there’s a chance that ESPN has a workforce that is partially unionized and a workforce that partially isn’t. As to the union employees, a Collective Bargaining Agreement sets forth the procedures for resolving disputes arising from the imposition of discipline by ESPN. As to non-union employees, the language of any individually-negotiated contract controls. For some employees, there may be an arbitration clause. Others may be able to go to court.
Regardless, it’s likely that ESPN doesn’t reserve the right to serve as the arbitrator in any of its own employment disputes, for union or non-union employees. That’s the difference between the NFL and ESPN, and that’s the ongoing nature of the problem for the NFL. The obsession with controlling the outcome of any dispute keeps the outcome of every dispute from being regarded as fair and just.
As to anyone who would wag a finger at the union for not insisting during the last labor negotiations that Goodell surrender to arbitration his power over the Personal Conduct Policy and conduct detrimental to the game, his comments underscore just how hard it would have been to get him to give those rights up. Indeed, an as PFT previously has explained, Goodell and the league flatly refused to agree to neutral arbitration under these policies the last time a new CBA was finalized.
Even if the NFL was willing to inject true fairness into the process by allowing someone with no connection to the case resolve it, the league apparently would want plenty of stuff in return from the players. The players at some point would need to ask themselves whether they’re willing to make concessions that would apply broadly to all players in order to obtain a protection that, as a practical matter, applies to a small handful of players each year.
The best defense that Goodell ever can muster for not allowing a truly neutral party to resolve any disputes over player discipline imposed by the league arises from the unreasonably stubborn notion that he doesn’t want “somebody who doesn’t understand our business” to make decisions about whether punishments imposed by the league will be upheld. Here’s the reality, however: Thousands of business routinely submit disputes to third parties for a fair and neutral resolution. Likewise, hundreds of judges and arbitrators are smart enough to understand the issues and make reasonable, fair decisions in cases involving industries far more complex and nuanced than grown men playing a kid’s game.
This isn’t about the union wanting to discipline no one. This is about the NFL wanting to be able, when it so chooses, to discipline anyone and everyone, without having to face serious questions or challenges regarding whether the punishment is consistent and fair with past cases, whether the league even has the power to impose the discipline, whether fair and proper procedures were employed to allow the player to prepare and present his defense, and ultimately whether the league was motivated by some unrelated business interest, with the player becoming a pawn in a much broader P.R. or political (internal or external) agenda.
Using third parties to resolves disputes strips away the possibility that, for example, the Commissioner threw the book at the Saints in the bounty case to create the impression that the league cared about player health and safety during the early days of the concussion lawsuits or that the Patriots faced significant sanctions for #Deflategate because the owners who supervise and compensate Goodell were clamoring for a tough punishment due to the perception that the Spygate penalties were too light.
Any adversarial process benefits from the use of an independent party to resolve the dispute. The integrity of the game and public confidence in the league actually would be maximized if the league were to fully embrace that reality.
But that would keep the league from doing what it wants, when it wants, how it wants. In the Brady case, the federal courts have (to date) sanctioned that practice. The court of public opinion, however, should continue to reject Goodell’s position and demand true fairness and objectivity for all players, through an arbitration process carefully designed to ensure that properly educated and accomplished individuals charged with sorting out the facts and applying the relevant law as applied to the unique (not really) employment and business challenges faced by a business premised on paying folks to run, block, tackle, throw, catch, and kick.