On Thursday, Commissioner Roger Goodell called Bengals receiver Chad Ochocinco, despite a supposed bright-line preventing contact between management and labor during the lockout. They spoke for an hour, despite a supposed bright-line preventing contact between management and labor during the lockout. The league initially explained the one-hour call away as “normal social interaction,” despite a supposed bright-line preventing contact between management and labor during the lockout. And the league justified the do-as-we-say-not-as-we-do perception created by the interaction by explaining that the teams are permitted to engage in “normal social interaction” as well, despite a supposed bright-line preventing contact between management and labor during the lockout.
So when Dolphins receiver Brandon Marshall caught on Friday night the point of something other than a football, the Dolphins were allowed to engage in the “normal social interaction” that would follow a stabbing, right?
Wrong.
“We are aware of the reports and our thoughts are with Brandon at this time,” the team said after the incident. “We will look into the matter, but because we are not allowed to have any contact with any of our players, we will refrain from making any further comment.”
In other words, the league office’s attitude remains, “Do as we say not as we do.”
NFL executive V.P. of business ventures and CFO Eric Grubman confirmed that position, in a roundabout way, during Friday’s session with Associated Press sports editors. “I don’t think either players or league and club employees will reach out more because the Commissioner talked to Chad Ochocinco, and may talk to another player,” Grubman said. “I think the rules of the road are very clear that charity events, purely happenstance, social-type interactions -- that’s going to happen and there’s really no issue with that from either side. Anything that has to do with a player’s health to the extent that there was an injury prior to the work stoppage has very specific rules. There can be interaction and the interaction is defined. Anything else is prohibited and won’t occur. I don’t think as time goes on that the tendency will be for those interactions to go up. That’s actually the other way around. I think when people stop talking to each other and time goes on, they talk less, not more. I think that’s what’s really unfortunate about not being in negotiations.”
In other words, the Commissioner can call players and shoot the breeze for an hour or longer, but teams and coaches can’t, even though the Goodell call to Ochocinco was explained by suggesting that teams can do the same thing Goodell had just done.
The league’s concern arises in part from the possibility that one of these phone calls will become evidence in one of the various potential pending or future legal proceedings between the league and the players. With each interaction, the possibly increases that a player will claim that something was said that wasn’t really said -- something that helps the players’ position on a specific issue in controversy.
“When the litigation attorneys take over, you have to view everything through that lens,” Grubman said. “So the instructions to the clubs are, while this particular behavior may be OK, that’s not the way a litigator will look at it, and therefore, the guidelines are, don’t call. Does that mean if there were a death in the family, or a baby born, that somebody wouldn’t call or send a note of congratulations? No, but people have to understand the risks of all that stuff being viewed by a litigator from the other side. So the consequence of that is that clubs get their instructions from the league, and then they give their instructions to the employees. The easy thing to do is say, you can’t call. That’s the best protection. It doesn’t hurt anyone whose motivations are genuine. To the extent that somebody bumps into one another at the cupcake shop, that’s not going to be an issue.”
That’s fine, even with the reference to a “cupcake shop.” But shouldn’t that same attitude apply to the Commissioner? Perhaps the league office is confident that Goodell won’t say anything he shouldn’t say, given that he routinely must navigate while speaking extemporaneously the potential land mines that could hurt the league’s position in litigation. Or perhaps the league is confident that a player like Chad Ochocinco won’t try to twist and turn Goodell’s words -- or that if Ochocinco tried a lawyer like David Boies would successfully twist Ochocinco into 85 knots.
NFL executive V.P. of football operations Ray Anderson justified the double standard by pointing out that permitting communications between players and teams could tilt the playing field, if abused.
“Further, one of the impetuses behind that prohibition is to make sure that you’re not getting a competitive edge -- coaches or scouts -- talking to players during this time,” Grubman said. “So the prohibition is so that each of the 32 teams understands -- don’t try to get an edge by having these conversations that are charading as social. Just don’t do it. In addition to the litigation risks, that is really important to preserve a competitive, level playing field. But we also advise common sense. If I’m going to a wedding and I run into an assistant coach who is a very good friend with a running back, I’m going to have a glass of champagne and toast with him. I’m just not going to talk about X’s and O’s and the labor issues.”
Again, that’s fine. But if that’s the case, the league shouldn’t have tried to justify Goodell’s call to Ochocinco by implying that it would be permissible for coaches to engage in similar “normal social interactions.”
Bottom line? The league office can, and the teams can’t.