The more things change, the more they stay the same.
In 2020, the NFL and NFL Players Association agreed to make real changes to the manner in which discipline is imposed under the Personal Conduct Policy. As a potential suspension of Browns quarterback Deshaun Watson continues to loom, it’s important to understand how the rules are different -- and more importantly how they aren’t.
The latest CBA, finalized in March 2020, incorporates a Disciplinary Officer who makes the threshold decision as to whether a player will be suspended, and for how long. The Disciplinary Officer is jointly hired and compensated by the league and the NFLPA, a key change to the prior protocol that was run completely by the Commissioner and/or those who report to him.
The process begins with the league notifying the player of the potential violation for which discipline may be imposed. And while it’s not spelled out expressly in the policy, the league undoubtedly will recommend or request a specific duration of suspension. The Disciplinary Officer then proceeds to evaluate the situation. The process can, but is not required to, culminate in a full-blown evidentiary hearing.
Things get interesting once the Disciplinary Officer issues a decision. The Commissioner, or his hand-picked designee, continues to have full authority over the appeal. Based on the language of the policy, the Commissioner has broad powers when it comes to reviewing, revising, or reversing the Disciplinary Officer’s decision: “The decision of the Commissioner or his designee, which may overturn, reduce, modify or increase the discipline previously issued, will be final and binding on all parties.”
There’s an important caveat. While the Commissioner has the power to “overturn, reduce, modify or increase the discipline previously issued,” the Commissioner cannot alter a decision to not discipline the player at all. The league office has indeed confirmed that, if the Disciplinary Officer finds that there should be no discipline at all, the case is over.
That said, if any discipline whatsoever is imposed by the Disciplinary Officer (including, presumably, even a fine), the Commissioner has the power to “modify or increase” the punishment to whatever he wants it to be.
Thus, the Commissioner continues to have full and final say over all discipline under the Personal Conduct Policy. The Commissioner’s powers become short-circuited only if/when the Disciplinary Officer concludes that the player should experience no discipline. If any discipline is imposed, the Commissioner can change it in any way that he wants. With no appeal rights beyond that.
The changes to the policy would have been much more meaningful if the Commissioner made the first decision and then independent appeal rights activated. The policy as revised simply cuts the Commissioner out of the middle of the process, putting the bulk of the work on the Disciplinary Officer before the Commissioner (or his designee) swoops in with full and complete power to do whatever he wants, unless the Disciplinary Officer decides that the player should not be punished in any way.
For Watson, the good news is that if he can persuade the Disciplinary Officer that no violation occurred, the Commissioner can’t do anything about it. If the Disciplinary Officer disagrees and imposes any discipline at all, the Commissioner can rip up the decision and replace it with his own. And Watson will have no recourse.