ESPN analyst, De Smith grapple over arbitration provision


We’ve heard of good cop/bad cop. When it comes to the ESPN tag-team of legal analysts, the better term may be bad cop/worse cop.

Two weeks ago, we outlined the many flaws in Lester Munson’s insistence that Tom Brady would not win the case that, a day ago, he won. In the aftermath of that decision, Roger Cossack interviewed NFLPA executive director DeMaurice Smith — and Cossack went after Smith on the decision to give Commissioner Roger Goodell final say over cases like Brady’s.

The exchange between Cossack and Smith was transcribed by SportsBusiness Daily.

“You guys agreed to a process that I didn’t even call an arbitration, because an arbitration as I’ve always understood it is a neutral, impartial person,” Coassack said. “Agreeing to let Roger Goodell, the enemy, be the arbitrator as well as the person who reviews and is the appellate reviewer of his own decision was a way I thought of saying, ‘We know we’re not going to get a fair hearing, and we’ll live with it.’”

“The thing you said earlier is idiotic, because you and I both know as lawyers that there are arbitration proceedings that take place all the time,” Smith said. “We aren’t in a world where any party agrees that an arbitrator can be unfair.”

“De, what did you think Roger Goodell was going to be good for you guys?” Cossack replied. “Did you think he was going to be fair, or did you think he was going to represent the National Football League?”

“If an arbitrator can be unfair, then Paul Tagliabue could not have reversed Roger Goodell,” Smith said, in reference to the Saints bounty suspensions.

“So you’re saying to me that you agreed to let Roger Goodell be the arbiter and the reviewer of his own decision, but implicit in that decision was that he was going to act fairly?” Cossack replied. “Come on.”

“If you are confused, I would urge you to open the cases about industrial due process,” Smith said.

“And I have, Judge Berman agrees with you, I’ll give you that,” Cossack said.

“Well you don’t have to give me anything, Roger. Read the law,” Smith said. “We didn’t let Roger Goodell do this.”

Smith is clearly right, and Cossack is clearly wrong. What’s amazing is that Cossack seems to know he’s clearly wrong, but he nevertheless pushed this goofy point that, when the union agreed to allow the Commissioner to have final say over matters regarding conduct detrimental to the integrity of the game, the union agreed to give the Commissioner a license to do whatever he wants to do in cases like this, regardless of fairness, due process, or any other applicable legal requirements.

Giving the Commissioner the power to be, essentially, a judge doesn’t mean giving him the power to do whatever he wants to do. With the power comes the obligation to do it properly, and if it’s not done properly, it’s subject to a separate challenge.

So, yes, the union gave the Commissioner final say over these matters (in 1968), but the union retained the ability to appeal those decisions if those decisions were not made properly. Even with the very high bar that the court system has put in place when reviewing arbitration awards, the NFL went so far that a federal judge threw out the decision.

It’s not an NFLPA problem. It’s an NFL problem. The NFL thinks it can do whatever it wants to do, and nothing has managed to penetrate an echo chamber in which either those around the Commissioner are telling him what he wants to hear — or they’re telling him what he needs to hear, and he’s ignoring it.

44 responses to “ESPN analyst, De Smith grapple over arbitration provision

  1. As much of a clown as De Smith appears to be he might consider running for the Republican nomination for President…he certainly shouldn’t be running the NFLPA.

  2. “We didn’t let Roger Goodell do this.”


    “We did allow Roger Goodell to do this but we had no idea he would become a maniacal dictator drunk with power”

  3. After years of hearing how ineffective and even how dumb De Smith is/was, perhaps he is as brilliant as advertised. Despite tons of fan pressure to end the lockout by agreeing to a CBA that kept in place (not gave) Goodell arbitration/appeal power, he comes out looking brilliant.

    He essentially gave Roger enough rope, and Goodell did the rest, by appearing too unfair in his ruling for the court to ignore. Smith knew that the players and fans wanted to get back on the field. He signed the agreement and it doesn’t withstand the oxidation outside the echo chamber.

    The NFL rulings are choking from fresh air and sunlight, as if Smith knew it would. Its absurd to imply that the NFLPA signed off on a deal they knew would be biased … unless they knew of the eventual outcome, under examination.

  4. Great article.

    I think that the Commissioner should have the right to rule on conduct detrimental. I think that the commissioner should also have the right to run the appeal.

    That being stated, there is an inherent belief on both sides that the hearings will be fair.

    Both of these points are standard in business.

    What isn’t standard and isn’t accepted is a hearing officer going off the deep end in order to show big a man he is.

    I didn’t fully understand the PAs position regarding letting him keep the power until a couple weeks ago when D Smith explained it.

    This isn’t a CBA problem, this isn’t a PA problem, or a NFL problem. This is a Goodell problem, he is the one that is abusing the power. When that happens you get rid of the abuser not the process.

    The process worked for decades, it will again once Goodell is gone.

  5. .
    In a legal forum, lawyers are officers of the court and bound by a uniform code of ethics. Lawyers may be anxious to win a case, but society and the bar association, have set certain limits and requirements associated with civil society.

    However, the framegate affair, plus the new knowledge about bounty / bully gates, Rice, Peterson, Hardy etc have led me to believe that Goodell operates outside the lines, often, it seems, on a whim .

  6. Bottom line…ESPN looks extremely stupid for trashing Brady 24/7 all summer ….signed an NFL fan not a pats fan….people who only follow ESPN need o branch out and realize they have an agenda

  7. It turned into power corrupting the commissioner via certain owners who didn’t believe there should be any fairness and Godell not pushing back

    Probably what got tagliube fired.

  8. I can’t believe I’m agreeing with De Smith. Munson is a court jester and Cossak in the epitome of a “yes” man.

  9. The low credibility of ESPN demonstrates that the entertainment industry has infected and polluted the sports media to an extent where the truth no longer matters, only the message. The recent action against Curt Schilling was a warning shot against free speech while those who lie are protected. Mortenson, where are you? The biggest news to hit the league was released yesterday but not a peep from you.

  10. I didn’t think it was possible for someone to embarrass themselves more than Lester Munson has on ESPN these last few months, but my god this Cossack yesterday was a total dink. I was throwing up in my mouth a little bit.

    And what was up with Bob Ley? He seemed PISSED about this. He always struck me as one of the good guys at ESPN and it seemed so out of character…

  11. Smith absolutely spanked Cossack in the debate. It was not even close, Smith knew the law and the facts better than Cossack.

    For those still thinking out there consider this. Even if you believe the Patriots should be punished differently because of their history. Why should that apply to Brady who has never been in trouble with the league? Why would the league magnify an equipment issue into a PED like offense with no real proof?

    People cite the texts, but the term “deflator” was used just once in the hundreds of texts and occurred during an exchange during the off season in May of 2014, that is how far back Pash/Wells had to go to find that nugget.

    Finally with respect to fairness and process. Brady asked to have the investigators notes on May 22nd, Goodell did not respond till June 22, just one day before the appeals hearing and denied the request because it was less than three days before the hearing! What was Goodell doing the 30 days before? Something else on his calendar?

    All of this is in Bermans judgement.

  12. Agree with all that EXCEPT Smith’s comment about a world with neutral arbitrators. In the last couple decades since arbitration became fashionable every contract I’ve signed for work credit card etc has the word neutral in front of the word arbitration. This is just more evidence Smith has been in nfl world too long

  13. It’s been my experience rich people have a problem where they believe they can do whatever they want. If something bad arises they just throw money at the problem and it will go away. Unfortunately it is all to common for the legal system to assist them by allowing them to buy their way out of trouble.

    Hence the NFL and the owners doing what they want and not considering annoyances like due process and precedent.

  14. Say whatever else you want about Smith, including him getting a bad deal for the players; however, he knows the law, as he’s beaten the NFL and Goodell in court on too many occasions to count.

  15. Goodell was a liar, the league office was incompetent, ESPN was completely wrong and the sun rose in the east.

  16. If Article 46 is what the NFL is trying to make why would the NFL have pushed to include HGH Testing in the new CBA? They wouldn’t have. Based on what the NFL tried to do with Brady the NFL could accuse a player of taking HGH. Then ask the player to provide the NFL with all possible evidence. If the player didn’t fully give the NFL EVERYTHING that the NFL wanted, they could suspend the player for however long they wanted for non-Cooperation. That is what the NFL was arguing Article 46 does.

  17. That’s the difference between a lawyer who actually practices and keeps current with the law, and a lawyer who sold out to be a TV star and hasn’t read anything but his own press clippings for a decade.

  18. The NFLPA let the NFL hold that clause with a tight grip while negotiating against it on a number of different fronts. In that respect, the NFLPA won big.

    Part of that strategy was that the NFLPA saw Goddell over step his bounds, and knew he would continue to. Thus they could use the courts to chip away at the power the NFL was negotiating very hard to maintain.

    It’s a risky strategy, but it is paying off big time for the NFLPA. One or two more losses, and the NFL is going to be in a corner. Blank sees that, Kraft sees that. That’s why they are trying to get out in front before the courts impose more significant changes.

  19. This is such a stupid point. Paul Tagliabue and Pete Rozelle were able to figure out how to do this correctly. The only thing that the union and De Smith are guilty of is not realizing why a gigantic boob the Idiot Goodell is.

  20. ESPNs analysts most of them disgust me. Finally Teddy Bruschi ripped Goodell and so did Schlereth.

    Teddy Bruschi stopped a yard short though. When asked by Bob Ley if Goodell should be fired, Bruschi said thats up to the owners.

    Intil the media grows some onions and start drmanding that this clown Goodell be fired the owners will continue to think Goodell isnt that big of a problem.

    Goodell is a corrupt human being and so is Oash and Hash and Wells and Kensil and Mortensen and Vincent and Gardi

  21. It’s not the process, it’s the man.

    It’s natural to assume that the NFL commissioner would act fairly. It’s natural to assume that the top man in football would be a man of integrity, of competence, somebody who loved the game, someone with a sense of football history. Goodell is none of the above.

    It worked with Rozelle. It worked with Tagliabue. How would the players know the owners would pick a lemon?

  22. bspn the worldwide joke of sportscasting

    Imagine if they went after Goodell for the league’s lies and mistakes in deflategate ?

    Oh that’s right, they find the guy who did that. Huh, I wonder if Goodell wrote the questions that De Smith was asked last night ?

  23. Equally fascinating is the fact that the OWNERS insisted on this manner of redressing wrongful conduct–then the Patriots throw rocket fuel on the “Free Brady” tire fire. Kraft thought giving Goodell the power he’s got was a good idea when it worked against the Cowboys, Redskins etc. bu then throws a hissy fit when his team gets called out. No one looks good here: The guy who took the balls into the men’s room; Brady, for bullying and perhaps bribing (with signed memorabilia) the lowly ballboys whom he inexplicably texts all of a sudden, Goodell for relying on a wishy washy and vague Wells report, Wells for writing it in the first place & charging $1.5 million to do so, Kraft for being a whiny hypocrite and the NE fans for confusing “Free Brady” with a remotely important social issue.

  24. Oops I left out De Smith for his bombastic strike rhetoric then caving in the negotiations then acting like he somehow got something for the players that he didn’t really get, namely the framework for a “fair” grievance proceeding

  25. 6ball says:
    Sep 4, 2015 10:46 AM
    In a legal forum, lawyers are officers of the court and bound by a uniform code of ethics. Lawyers may be anxious to win a case, but society and the bar association, have set certain limits and requirements associated with civil society.

    However, the framegate affair, plus the new knowledge about bounty / bully gates, Rice, Peterson, Hardy etc have led me to believe that Goodell operates outside the lines, often, it seems, on a whim .

    Good point. But remember Goodell is not a lawyer and he is either getting bad advice from people who are or getting good advice and overruling them. If it’s the latter, he resembles a latter day Hitler who ignored the advice of his military people over and over (good thing for the world) and we know how that turned out for him.

  26. Why is Cossack wrong if, in fact, the NFLPA allowed the NFL and Goodell to have final say in disciplinary matters? I’ve practiced labor and employment law for more than two decades and I’ve never seen a CBA contain a provision allowing for anyone else than an arbitrator mutually selected by labor and management to adjust disputes arising under the CBA.

    If Cossack is correct, this is particularly troubling since disciplinary matters occupy a special spot in labor arbitration jurisprudence. Unlike other CBA disputes which follow the normal civil rules imposing the burden of proof on the grieving party, it’s the employer that bears the burden of proof in discipline and discharge matters. In addition, many arbitrators — i.e., not the NFL and/or Goodell — will sharpen the quantum of proof the employer must satisfy in such cases. Instead of measuring an employer’s decision by a preponderance of evidence standard used in most civil matters, some arbiters will use a clear and convincing or other heightened standard of scrutiny when judging an employer’s discipline or discharge decision.

    And what challenges to the NFL / Goodell’s decision are you talking about Mike? A Petition to Vacate? If so, that’s usually a dead bang loser. And don’t cite me Brady’s case for the opposite proposition. That’s clearly an outlier.

  27. Excellent thread. A couple of points

    1. I think it is becoming abundantly clear that section 46, while weighted in favor of management, is NOT the problem. It’s been around for close to 40 years unnoticed until Goodell made a joke of it, and abusing it to the point where a Federal Judge had to step in to put a stop to it.

    2. Speaking of jokes, BSPN has lost all credibility and has become virtually unwatchable because of it. It’s literally become the League office’s propaganda outlet. What they have done the last 8 months has set journalism back a century. Cossack and Munson are just the tip of the iceberge over there. They make the NFLN look like 60

    3. When the defamation trial comes, and believe me, whether it’s Brady, the Pats, or McNally, etc BSPN will be front and center, and they are making it easier to prove every single day.,

  28. The NFL Commisioner has had the same powers well before the last CBA. It’s just Roger Goodell’s lack of judgment that has caused the conflicts and crisis of legal entanglements.

  29. May we chat about arbitration? Lester Munson and Roger Cossack both know what I’m going to put forward here. Each seem to have forgotten fundamental lawn order to foment controversy.

    Arbitration is discorse directed by a disinterested party with the intent of achieving resolution. Binding Arbitration takes that concept a step further, and allows that the disputing parties accept the final judgement of arbitration.

    Roger Goodell was never a disinterested party. Period. His office, his people, his priorities, and his process drove The Sting Operation, The Public Accusation, The Media Manipulation, The Investigation, The Evaluation of Information Collected and The Conclusion.

    Roger Goodells ‘Arbitration’ could have reached only one conclusion. That is affirmation of the actions, process and conclusion that he directed.

    This is the very essence of a Kangaroo Court. This is what Judge Berman found so very offensive, and this is why The Judge ruled the way he did.

    The facts that both Cossack and Munson speak in overt ignorance of fundamental law ethics and process reveals them to be shills for some agenda. The facts that each continue their specious arguments reveal them to be unworthy of any consideration as serious commenters on any legal subject. A first year Moot Court would leave them desperate to find their pants, their bloomers, their socks and their hat.

    Roger Goodell and his piddling acolytes are rendered equally bereft of any understanding of the rules of law and the fundamentals of due process.

    The only reason Judge Berman took a week to complete his ruling is that he had to edit his contempt, ridicule and fundamental laughter at the ‘legal concepts’ presented by Roger Goodell, League Counsel, League Employees, and The League Office.

    When arbitration is laden with bias… It is no longer arbitration. It is affirmation. Simply, that defines Goodell’s failure.

  30. Associate judges Munson and Cossack of the 22nd ESPN Circuit never really gave Brady’s case a chance, so awed are they of the staggering power granted Goodell under the CBA. Munson was unimpressed with the arguments that Kessler advanced. Cossack didn’t evaluate them at all because the cause was hopeless in his view. Each will now hope that Goodell’s appeal validates his legal wisdom.

    Michael McCann was much more in tune with the unique flavor of the appeal (and the faint odor that trailed Goodell throughout his crusade for integrity) There was always the possibility that Goodell had simply gone too far for a given judge to grant him confirmation. Berman was the given judge.

    Maybe one of the two ESPN luminaries needs to be put out to pasture and replaced by one of its in-house “talent” willing to regularly label his sparring partner an idiot. ESPN likes this format and exploits it frequently to promote its case that the medium itself is the message.

  31. The Judge completely ignored the law….happens every day in my world.

    I’m pretty sure Hall Street didn’t even appear in his decision, but I read it quickly.

    He also forgot what Circuit he’s in….this isn’t the Fifth Circuit, where they give some relief from Hall Street.

  32. Roger Goodell has a serious personality flaw. He demands groveling. Ray Rice groveled and Goodell was so gratified by this that he gave him an unconscionably light sentence. He sees himself as a priest (or more) that can forgive anything if there is contrition.

    Brady showed no contrition and Goodell was psychologically compelled to come down hard. Even to the point of inventing new charges and misrepresenting testimony in his ruling.

    Maybe Goodell is not so much in need of legal advice. He might profit from visiting a shrink.

  33. With Goodell up to his neck in hearings, rulings, arbitrations, etc., where does he find time to spend his $44 million annually?

  34. I’m pretty sure Hall Street didn’t even appear in his decision, but I read it quickly.
    Where is the expanded scope of review that would make Hall Street relevant?

  35. Not sure why everyone keeps ragging on DE Smith, it’s not his fault he has to defend the labor rights of wife beaters and child beaters and such. At least with Brady he got a good one.

    Good on him for standing up to the idiot ESPN legal “experts”.

  36. dmd84, in this case, the ESPN Legal expert Roger Cossack has the better of the argument here. His point is simple: why let Goodell have complete authority over disciplinary matters? Smith whiffed on that answer.

  37. upscaleman says:
    Sep 4, 2015 12:38 PM

    The Judge completely ignored the law….happens every day in my world.

    Every day in your fantasy world, Judge Berman ignores the law?

    That’s weird.

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