With the NFL and the NFL Players Association squaring off over whether and to what extent five players implicated by an Al Jazeera documentary featuring since-recanted allegations of PED use, it makes sense to retreat to square one and determine when and how an investigation regarding PED use based on media reports can even happen.
Arguably, it can’t happen at all, in the absence of “credible evidence” that would justify discipline of Clay Matthews, Julius Peppers, Mike Neal, and/or James Harrison. (Peyton Manning was implicated, but he has retired and is apparently not subject to discipline.)
Most PED violations occur when a player submits a urine sample that reveals a banned substance. Under the PED policy, discipline also may be imposed for (as the title of Section 5 of the policy states) “violations of law and other documented evidence-based violations.”
With no alleged violation of the law happening in the case of the players implicated by the Al Jazeera report, the question becomes whether the Al Jazeera report and any ensuing investigation by the league permits discipline based on “other documented evidence-based violations.”
Under the policy, that clause specifically is triggered when players “are found through sufficient credible documented evidence (see footnote 4) to have used, possessed or distributed performance-enhancing substances.” At footnote 4, the policy defines “credible documented evidence” as “criminal convictions or plea arrangements; admissions, declarations, affidavits, authenticated witness statements, corroborated law enforcement reports or testimony in legal proceedings; authenticated banking, telephone, medical or pharmacy records; or credible information obtained from Players who provide assistance pursuant to Section 10 of the Policy.”
Footnote 4 at no point includes “media reports” or anything remotely close to it, making the Al Jazeera report an insufficient basis for imposing discipline. At most, it can be the starting point for an investigation.
But what is the ending point? According to the policy, a violation can be based only on “criminal convictions or plea arrangements; admissions, declarations, affidavits, authenticated witness statements, corroborated law enforcement reports or testimony in legal proceedings; authenticated banking, telephone, medical or pharmacy records; or credible information obtained from Players who provide assistance pursuant to Section 10 of the Policy.”
Setting aside for now the question of what that laundry list of potential pieces of evidence does and doesn’t include, the structure of the policy indicates that the league must determine that a violation has occurred based on “credible evidence,” impose discipline, and allow the appeal process to unfold.
As crafted, the policy doesn’t contemplate a “probable cause”-type determination of a potential violation that then justifies interrogating players under a proverbial or actual hot light. Instead, the policy requires the league to first find “credible evidence” of a violation, impose discipline for the violation, share the “credible evidence” with the players, and then hear from the players as part of the appeal process.
In other words, there’s no language in the policy requiring the players to provide any information before the NFL concludes based on the information it already has developed that a violation occurred.
The league is blurring the lines in this case, possibly for fear of creating the impression that it regards the Al Jazeera report to be “credible evidence” without having a chance to directly assess the credibility of the players who were implicated. Still, the policy as negotiated by the NFL and the NFLPA requires the league to make an assessment based on “credible evidence,” impose discipline, and then allow the players to defend themselves against the allegedly “credible evidence.”
If the NFL is sufficiently concerned that the players in this case would be able to successfully defend themselves in front of a neutral arbitrator, then maybe the “credible evidence” isn’t.
Critics of the NFLPA routinely blame the union for not doing enough at the bargaining table to, for example, compel the Commissioner to surrender final say over matters like the Personal Conduct Policy or threats to the integrity of the game. In this case, it’s fair to point out that the league signed off on a procedure that requires it to develop and identify “credible evidence” of a violation before the player must potentially implicate himself by answering questions at a hearing.
That seems to be the crux of the problem. Given the relevant language of the policy, the NFLPA’s best approach could be to say, “Impose discipline if you believe you have ‘credible evidence’ of a violation. Until that happens, the players have no obligation to do anything.”