As the NFL and NFL Players Association continue to harden their diametrically-opposed positions regarding the investigation sparked by PED allegations made in an Al Jazeera documentary, more and more aspects of each side’s beliefs have become clear.
In the NFL’s most recent letter to the NFLPA, which was given to the media before it was given to the union, the league dismisses the notion that Charles Sly’s recanting of the allegations in any way disproves them.
“The fact that statements aired in the report may have been since ‘recanted,’ while potentially relevant to any ultimate conclusions reached, does not extinguish our need to investigate,” NFL senior V.P. of labor policy and league affairs Adolpho Birch writes in his letter to NFLPA counsel Heather McPhee. “And it is hardly remarkable or dispositive that an individual would publicly disavow statements for which he may be subject to criminal or civil sanctions.”
Peyton Manning may disagree strongly with that sentiment, given the P.R. push from Camp Manning that Sly’s about-face proves that his claims are false. Still, the NFL is absolutely right on this point. It’s no surprise that a person who said one thing when he didn’t realize he was being recorded said something else once the syntax hit the fan.
Birch’s comments appear in support of the broader position that the NFL has a right to interview players as part of an investigation aimed at determining whether evidence of PED use exists beyond a positive test.
“[Y]our letters do not dispute that NFL players have an obligation to cooperate with league investigations and may be disciplined for failing to do so — a principle that, as you know, has been repeatedly confirmed in recent litigation between the parties,” Birch writes.
It’s also clear that the league believes it has the power to interview players without sharing any of the evidence that has been compiled against them, regardless of whether that evidence suggests innocence or guilt.
“[W]e are under no obligation to disclose all evidence uncovered thus far as a condition to interviewing the parties,” Birch writes, “which would clearly compromise the investigation.”
Here’s where it’s critical for the two sides to have a clear understanding regarding what the rules are regarding investigations. Neither the Collective Bargaining Agreement nor the PED policy contain language expressly acknowledging the league’s power to interview players as part of the investigation or outlining the rules and procedures that apply when an investigation occurs. In litigation, parties to the dispute aren’t expected to tell their stories without knowing what evidence the other side does or doesn’t possess. In investigations like this one, players shouldn’t be required to do it, either.
The fact that the CBA and the PED policy say nothing about the NFL’s and NFLPA’s rights and responsibilities when the league wants to interview players in connection with a possible PED violation suggests that the players aren’t required to provide any information until the NFL has developed enough evidence to justify discipline — and unless the player appeals the suspension. Even if the NFL has the ability to interview players before imposing discipline, the notion that the league can conceal the evidence and hope to coax the players into saying something that conflicts with other evidence that the league is hiding. absent express authorization to proceed in this way, justifies an effort by the NFLPA to resist making the players available.
With #Deflategate being an exercise in jumping to an uninformed conclusion and then launching an investigation aimed not at getting to the truth but justifying a predetermined outcome, there’s no reason for the NFLPA or anyone to believe the NFL will do anything differently in this case. As a result, there’s no reason for the NFLPA to agree to let the players walk into a potential buzzsaw.
Regardless of how this plays out, the NFL and NFLPA should come up with clear rules regarding the trigger for launching an investigation and the nuts and bolts associated with conducting it.