It’s easy to understand how Commissioner Roger Goodell got so much power under the labor deal, but it’s far more complicated to come up with a way to change the status quo.
Chiefs tackle Eric Winston recently expressed regret that the players didn’t push harder during the most recent CBA negotiations to remove from Goodell the ability to impose a penalty and then review his own decision under multiple disciplinary policies. Falcons receiver Roddy White was more pointed, blaming the NFLPA for “failing” the players by not stripping this power from Goodell in 2011.
But anyone who claims that last year the players “allowed” Goodell to have his current power either doesn’t get it, or is deliberately distorting the facts. Goodell already had the power, obtaining it not from the current NFLPA leadership but from former union boss Gene Upshaw, via past labor deals. When the time comes to renegotiate the labor contract, the parties come to the table with the rights and duties they already possessed.
And if one side wants to taketh something away, that side had better be ready to giveth something in return.
As it relates to his power over issues like player discipline,Goodell flatly refused to surrender that power during negotiations occurring after the players and the league worked out a deal on the manner in which the money gets divided.
“The answer to that is no, I’m not going to be open to that,” Goodell said at the time. “I’m not going to hand off the brand and the reputation of the NFL to somebody who is not associated with the NFL. I promise you that. That is one of the number one jobs as a commissioner in my opinion.”
The fact that the lockout already had ended when terms like Goodell’s power over the disciplinary process were being debated made it harder for the players to dig in. Still, with Goodell making it clear that he had built a bunker on that point would have made it virtually impossible to change the pre-existing approach.
In theory, the players could have reopened the monetary side of the deal and offered a penny or two on the dollar in order to buy Goodell’s disciplinary power. But at what point should the financial interests of the many players who never get called to the principal’s office yield to the interests of the few who find themselves in water hotter than the average bathtub? Only a small percentage of the league’s 1,900 or so players end up under scrutiny from Goodell.
Should the players have made a concession that affects all of them in order to protect a few?
More importantly, and as explained last night, the CBA doesn’t give Goodell a blank check to do whatever he wants to do. Though he’s the judge, jury, and executioner, his power to be the judge/jury/executioner must be exercised fairly and impartially and in accordance with the rules contained in the CBA. If he fails to do that, Goodell is subject to external oversight, through the federal court system.
In the bounty case, it’s inevitable that Goodell will uphold the suspensions, and that the players will sue. Then, questions regarding, for example, whether the league failed to produce its evidence on a timely basis and whether the suspensions should be dismissed based on that glitch will be resolved by someone “who is not associated with the NFL.”
A far more subtle, but perhaps far more important, point arises from the disconnect between the limited evidence that Commissioner Goodell has made available to the players and the extensive evidence of which Judge/Jury/Executioner Goodell is otherwise aware. In this relatively rare instance in which Goodell has meted out discipline based on facts that are hotly contested, the judge/jury/executioner knows much more than the persons being punished. So how can the persons being punished, who have access only to a sliver of the file, get a fair shake when they don’t know what the judge/jury/executioner already knows?
Think of it this way. You’ve been accused of a crime. Before the trial, the judge and the jury (and, technically, the executioner) are fully aware of the investigation and all evidence that was collected, in large part because the judge and the jury ultimately presided over the investigation. Then, the judge and the jury decide what the sentence should be, before the trial even starts.
Through it all, the judge and the jury never give you any evidence. Instead, they periodically share with you (and the media) summaries and characterizations of evidence, which may or may not be factually accurate. Then, three days before the trial, you get a small stack from the thousands of documents generated by the investigation.
When the trial starts, the prosecutor presents what amounts to an opening statement — and then she rests her case without calling a single witness. Then the judge and the jury, fully aware of and intending to rely on all facts and documents and evidence and testimony that won’t be introduced in support of the allegations or otherwise shared with you, turns to your lawyer and says, “Got anything to add?”
How under those circumstances could your lawyer even begin to know what to say? How could your lawyer change the minds of the judge and the jury without knowing precisely what caused them to reach their conclusion weeks before the trial began — and without having a chance to test that evidence before the judge and the jury adopted a position on what the evidence means?
That example describes a classic kangaroo court, a term that arose from the perception that justice occurs by a series of leaps, not via a deliberate and even-handed process. And while so many are quick to point out that the players accused of participating in the bounty program aren’t having their rights determined by a court of law, the truth is that those rights are being assessed by an informal court of law crafted by the NFL — as demonstrated by the fact that Monday’s hearing was fully transcribed by (you guessed it) a court reporter.
Though the CBA gives the NFL the power to craft that informal court of law, it doesn’t give the NFL the right to create a process that lacks fairness and impartiality for the people whose interests are at stake.
The NFLPA has not given up the right to challenge the NFL’s procedures, and the NFLPA appears to be intent on doing so, aggressively.
As it should.