For a pair of entities that recently found long-term labor peace, the NFL and the NFLPA remain at war on a couple of fronts. Most significantly, the NFLPA has declined to proceed with HGH testing, despite agreeing to HGH testing in the new CBA.
Also lingering is a dispute between the two parties regarding the meaning of an August 4 letter agreement regarding the application of the personal conduct policy during the lockout. The agreement exempts first-time offenders from discipline for off-field incidents occurring during the lockout. The agreement seems to permit, by its plain terms, the impositions of fines and/or suspensions on eight repeat offenders who found trouble, or vice-versa, during the work stoppage.
To date, only one active player has been suspended pursuant to that agreement: Bengals running back Cedric Benson. (Cornerback Brandon Underwood also has been suspended, but he is not under contract with any team. League rules allowed him to serve the suspension while unemployed.) Benson has fought the suspension in three ways. First, he appealed the initial three-game suspension, and it was reduced to a one-game suspension with an additional fine in the amount of one game check. Second, Benson filed an unfair labor practices charge with the National Labor Relations Board, arguing that the NFLPA tied Benson’s hands at a time when the NFLPA wasn’t even a union. Third, Benson filed a formal grievance under the CBA, arguing that the league has no authority to impose discipline for anything that happened during the lockout.
As first reported here earlier today, the grievance was denied.
A hearing on Benson’s grievance was held on Friday. Per a source with knowledge of the situation, the NFLPA offered outside counsel David Feher as a witness. Feher testified that the NFLPA believed the letter agreement, sent at the 11th hour as various other documents were being drafted and finalized in advance of the signing of the CBA, primarily was intended to protect the first-time offenders from discipline for incidents occurring during the lockout, and that the status of the eight repeat offenders would be the subject of subsequent discussions and/or proceedings.
Feher also testified that the NFL argued in conjunction with the union’s effort to lift the lockout that the circumstances constituted a “temporary cessation of the employment relationship.” If so, then the NFL has no power to take any action against any player for conduct occurring during the lockout.
This specific testimony from Feher raises questions regarding the union’s refusal to offer a witness to testify at the appeal of Benson’s suspension. If the NFLPA had interjected that point into the appeal, the league may have been forced to scuttle the entire suspension.
As we understand it, the NFLPA offered no evidence at the appeal hearing because Benson had filed an unfair labor practices charge against the union with the NLRB. If that’s the case, it’s possible that Benson will now be filing another one.