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Article 46: Burning Down the House

Article 46

by Sheilla Dingus
May 17, 2016

There’s an enormous fire raging within the NFL, one that threatens to burn its foundation to the core. Though the flames have dwindled to embers at times, they continue to spontaneously reignite. The source of this fire? Well actually there are many sources, faulty research, cover-ups and much more in a number of areas, but the flames I’d like to address today stem from three little pages contained in the NFL/NFLPA Collective Bargaining Agreement, known as ARTICLE 46.
Unless you’ve been stranded on a remote island for a lengthy period of time, you’re probably at least “generally aware” of the Deflategate saga that has been playing out for right at a year and a half now. To a casual observer, the controversy seems to center around whether it was “more probably than not” that New England Patriots quarterback Tom Brady was aware of a scheme to deflate footballs used in the 2015 AFC Championship game against the Indianapolis Colts.
Most people have formed an opinion regarding the guilt or innocence of the star quarterback, and before proceeding further, I’d like to state that based on my analysis of the evidence, much of which you can review in the Wells Report in Context, I am emphatically convinced of Tom Brady’s innocence. But that’s not the topic I wish to address today; the reason being, if you care to dig deeper, Deflategate isn’t about deflated footballs at all, but the extent of disciplinary power granted to the commissioner of the NFL. This is a firestorm that affects all teams in the League, and could potentially influence labor relations as well, through collectively bargained union agreements.
It is a polarizing issue that seems to have the National Football League and its Players Union at an impasse, and if not resolved it could dramatically impact and possibly even dismantle the sport of professional football as we know it. This is the topic I wish to explore.

A brief history:

When the current Collective Bargaining Agreement was adopted by both the NFL and NFLPA in 2011 player discipline was not a huge issue.  Instead, the League and the players were more focused on issues such as revenue portions, salary cap, and rookie deals.  In the midst of all this, a seemingly innocuous section, known as “ARTICLE 46 COMMISSIONER DISCIPLINE” was included in the CBA.

article46-snip

The clause, “conduct detrimental to the integrity of, or public confidence in the game of professional football,” is the key in understanding what’s at stake here.
Although the impact of this phrase and the appeals process available to players has been addressed in many recent discipline cases, none illustrate the impact more succinctly than the Brady case.  I’m assuming that most readers are familiar with the origins and challenges therein, but if you’re not I highly recommend Michael McCann’s Sports Illustrated article, “Deflategate, one year later: The anatomy of a failed controversy,” to bring you up to speed.

Judge Berman’s opinion and concerns:

McCann’s article concludes with the District Court ruling by Judge Richard Berman in favor of Tom Brady and the NFLPA for the following reasons:
(A.) inadequate notice to Brady of both his potential discipline (fourgame suspension) and his alleged misconduct
(B.) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash
(C.) denial of equal access to investigative files, including witness interview notes.
It should be duly noted that it is highly unusual for federal judges to reverse an arbitration decision, and when this takes place, a judge must feel highly compelled to do so. Many legal commentators were taken by surprise in Berman’s desire to discern facts pertaining to the case rather than simply focus on how well the contract between the League and Players was written, and as he did so he found the process fundamentally unfair, stating in his 40-page decision:
“Although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute at issue.” Gilmer v. Interstate/Johnson Lane Corn., IllS. Ct. 1647, 1655 (1991) (quoting Shearson/Am. Express Inc. v. McMahon, I 07 S. Ct. 2332, 2340 (1987)). “The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Kaplan v. Alfred Dunhill of London, Inc., No. 96 Civ. 259 (JFK), 1996 WL 640901, at *7 (S.D.N.Y. Nov. 4, 1996).”
Berman further clarified his view of Goodell’s lawful role in the proceedings:
“(A]s the proctor of the bar gain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the ‘industrial common law of the shop’ and the various needs and desires of the parties.” United States v. Int’l Bhd. of Teamsters. 954 F.2d 801, 809 (2d Cir. 1992) (quoting Alexander v. Gardner-Denver Co., 94 S. Ct. I Oil,
I 022 (1974)).”
His conclusions based upon evidence presented in the case, including a transcript of the arbitration hearing, led the federal judge to state that Commissioner Goodell had “dispensed his own brand of industrial justice.”

industrial justice

Ramifications of Second Circuit Court Reversal:

On March 3, 2016 a single attorney from each side presented briefs and time-limited oral arguments to Judges Katzmann, Parker and Chin of the Second Circuit Court of Appeals.  Since Berman’s decisions have only been overruled in about 8% of the cases he has presided over, many legal analysts were caught by surprise on April 25, 2016, with the relatively speedy split-decision reversal of Berman’s opinion.
Equally shocking, since Berman had left a couple of issues open, including whether Goodell had abused his arbitration powers, although the language in his decision, appeared to lean in that direction, Judges Parker and Chin seemed to close the door on this in their majority opinion upholding Goodell’s right to impose discipline.

2ca-decision1

While Katzmann’s opinion of dissent seems very closely in line with the Berman opinion, Judges Parker and Chin chose to interpret the case based on the language of a vaguely written section of the CBA, inferring that if the players union objected to this, they should not have agreed to the article.

2ca-decision2

In plain language, essentially this means that the Court has deemed that the Commissioner can do as he pleases. He is free to potentially deem any conduct “detrimental to the integrity” of the sport, and as such, all perceived or manufactured infractions are under his jurisdiction.
He is free to investigate player matters without concern for bias; he is free to preside over player appeals in those same matters; he is free to invoke the discipline of his choice without regard to precedent; and players must not be forewarned as to the discipline that may be enacted for an accused offense. Goodell is free to manipulate the game of professional football through said player discipline, and worst of all, he must answer to no one, except perhaps a majority of owners who wish to see the same outcome.

Kansas City Chiefs Discipline:

Recently the Kansas City Chiefs were docked two draft picks, and fines of $250,000 for the team, and $75,000 for Coach Andy Reid, for alleged tampering in order to recruit Jeremy Maclin.  When the New York Jets were accused of the same charge in regard to Revis, an even higher profile player, they were simply fined $100,000.  Unlike Robert Kraft, who did not challenge the League regarding the fine and loss of draft picks for the Patriots organization in hopes of making things easier for his quarterback, Clark Hunt did appeal to none other than Roger Goodell, who conceded a slight reduction in fines, but nothing more.  Hunt issued the following statement after Goodell, essentially ruled in favor of himself:

 

“We appreciate the opportunity to make our appeal on this matter, and we acknowledge the minor reduction in fines imposed. However, we continue to believe that the facts of this case combined with the league’s inconsistent enforcement of its tampering policies do not warrant the most severe penalty for player-related tampering in league history.”
“Having exhausted our options under the appeal process, we are turning the page on this issue and look forward to continuing our preparations for the 2016 season.”
Since this was a team and not a player offense, Hunt realized that he had no viable options to pursue legal action because of the constraints placed upon owners in the NFL Constitution which states the Commissioner’s power even more potently than the CBA.  Now, because of Court interpretation of the Commissioner’s authority in regard to that, players have little recourse as well.

Potential Adverse Consequences:

A Pandora’s Box has been opened by the Second Circuit Court of Appeals ruling.  Here are a few situations that might arise from this interpretation of the Commissioner’s power.  Any player, and team is now at the complete mercy of Roger Goodell, and by proxy a majority of team owners, or those who have influence with him.
Hypothetically Goodell might decide for instance, that he doesn’t want to see any more of Cam Newton’s dabbing.  He could, without warning, call it conduct ‘detrimental to the integrity’ of the game and enact a suspension. If he did, Newton would have little in the way of recourse.
While one might think that Goodell’s heavy-handed use of power might curtail rule violations, the very opposite could easily occur.  Consider equipment violations: if such a violation is cited, a team or player might get nothing more than a warning.  See Minnesota Vikings ball warming for example. Or it could receive the minimum fine of $25,000.  Or the punishment could be much more severe as in Brady’s case.  Basically whatever happens now is nothing more than a spin of the roulette wheel, and how lucky a player may be feeling at the time.
Recent interviews with Roger Goodell seem to indicate that he is emboldened by the Second Circuit’s ruling.  What will his next move be?  Could he possibly be so emboldened as to try to manipulate the outcome of games and team rankings through player suspensions?  Sound absurd?  Perhaps, but then again a year-and-a-half ago, who would have envisioned $1,000,000 fines, lost draft picks and a four-game suspension for an unproven “more probable than not,” “general awareness,” of a slight release of air pressure from footballs?

Remedies?

Two pending court actions could have a major impact on the Article 46 interpretation.
 First: Tom Brady has hired former Solicitor General Theodore Olson as new counsel and is expected to file for an en banc hearing before the entire Second Circuit.  The request has been cited as a “Hail Mary” attempt since the Appeals Court has granted less than 1% of the cases that have requested, however factors such as a potential battle of two former Solicitors General, the opinion of dissent by Chief Judge Katzmann, and the overturning of Judge Berman’s decision, may up the odds of being heard considerably.
Should the en banc hearing be granted, the case will be heard by a 14 judge panel.  If Brady’s counsel is able to convince at least 7 of the judges, Berman’s ruling would be affirmed.
The second case that could have impact is that of Adrian Peterson.  Should the Eighth Circuit rule in his favor, opposite Appeals Court interpretations of the Commissioner’s power could lead to further court intervention.
Outside of these cases, negotiations must take place between the NFL and NFLPA.  The current CBA is in effect through 2020, and will not be re-negotiated until then, however the NFLPA has petitioned the League Office for change, focusing on neutral arbitration.  The parties; however appear to be at an impasse.  Finding leverage against the NFL is not an easy task, and reports have speculated that players would have to agree to an 18-game regular season in order for the League to consider relinquishing any disciplinary power.  While fans might cheer this move, players are dealing with battering and injury and hesitate to take on the additional physical punishment.
As stated at the beginning of this article, a fire is indeed raging within the NFL.  Resources must be devoted to court proceedings regarding the important issue of concussion research and CTE compensation, the latter of which is now being contested by another giant, the insurance industry, as well as NFL representation in other player incident cases.
As these fires rage, credible journalists and legal analysts are reporting the truth about the inconsistencies and lack of transparency within the NFL.  One can only hope that eventually a usuable point of leverage will be plainly exposed.