As the NFL contemplates the question of whether and to what extent the players deemed to have harassed Dolphins tackle Jonathan Martin should be punished, the league has a potentially major problem when it comes to Dolphins guard Richie Incognito.
The Collective Bargaining Agreement states that only one penalty may be imposed on a player.
Article 46, Section 4 -- titled “One Penalty” -- says that there shall be only (duh) one penalty: “The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner’s disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct.”
Per a league source, the NFLPA intends to fight any discipline of Incognito based on Article 46, Section 4. The potential battleground comes from the question of whether the league would be disciplining Incognito for the “same act or conduct.”
The league could argue that the eight-game suspension (two of which were unpaid) imposed by the Dolphins applies only to the treatment of Jonathan Martin, and that Incognito could be disciplined for the homophobic harassment of “Player A,” who has identified himself as Andrew McDonald, and/or the racial harassment of the assistant trainer. The NFL also could discipline Incognito for attempting to obstruct an expected investigation by urging teammates to destroy the “fine book” which contained an admission by Incognito that he had “broken” Jonathan Martin.
Of course, the NFL would have to carefully craft any letter informing Incognito of further discipline in a way that navigates the legal minefield created by Article 46, Section 4. And since any appeal of any further discipline would end up back on Commissioner Goodell’s desk, it would be hard for Incognito to prevail.
That doesn’t make it right, or fair. Incognito could have created a potential mess for the Dolphins and the NFL by declining to convert his maximum unpaid suspension of four games to two games without pay and six paid games, which would have forced the Dolphins to bring him back or cut him late in the 2013 season. He allowed the team and the league to avoid that specific complication; even if he’s subject to further discipline for conduct unrelated to the harassment of Martin, Incognito deserves some consideration for not trying to force his way back to the field last season.