Deflategate and the NFLPA

This past Thursday, amid all of the “Deflategate” news, I came across the following three-minute long discussion between NFLPA Executive Director DeMaurice Smith and ESPN Legal Analyst Roger Cossack on

You should watch it. It’s only a couple of minutes long, there is some verbal conflict, and deep within the conflict, there is an interesting discussion going on about the NFL’s disciplinary process. In order to analyze the discussion, I’ve included below an unofficial transcript of the interview (compiled by me) along with some points that I found interesting. The words in italics are my own:

Unofficial Transcript (and My Notes)

Roger Cossack, ESPN Legal Analyst: You guys agreed to a process that I didn’t even call an arbitration because an arbitrator as I’ve always understood it is a neutral, impartial person. 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 though, of saying “We’re not interested – we know we’re not going to get a fair hearing, and we’ll live with it.” That’s what the Collective Bargaining Agreement agreed to … to allow him to be the arbiter as well as the appellate person

Cossack’s definition of arbitration – submitting a dispute to an unbiased third person to act as an arbitrator (rather than submitting it to a court of law) is the standard colloquial definition of arbitration. The arbitration process is typically quicker, less formal, and cheaper than traditional court proceedings. Of course the parties to an arbitration would ordinarily prefer the arbitrator to be unbiased. And naming someone associated with one of the parties (in this case the Commissioner is clearly associated with the NFL) seems to smack if impartiality on its face.

DeMaurice Smith, NFLPA Executive Director: No that … Roger … Now, what you just said is true. The thing you said earlier is idiotic, b/c you and I both know, as lawyers, that there are arbitration proceedings that take place all of the time.

Arbitration is favored in America, as it is viewed as a cheaper and quicker way of solving disputes. It is very common. If you’ve ever booked a cruise or an airline flight, or made any contract with a large company, you’ve probably agreed to an arbitration clause in the case of a dispute.

Cossack: Yes

Smith: We aren’t in a world where any party agrees that an arbitrator can be unfair. Nobody agrees that an arbitrator can make it up as he goes along.

Cossack: Dee, what did you think Roger Goodell was going to be for you guys? Did you think he was going to be fair or did you think he was going to represent the National Football League?

This is a fair point to bring up. In the last Collective Bargaining Agreement (CBA), the NFLPA agreed to a disciplinary system for players where the Commissioner would serve as the disciplinary decision-maker for players who committed offenses. The NFLPA also agreed that the Commissioner’s decision would be appealed to the Commissioner himself. It’s hard to imagine that the Commissioner would overturn his own decision. Up until this point, Cossack seems to have the upper hand in this debate.

Smith: Well, well, first of all, the Personal Conduct Policy was in existence in the first NFL agreement in the 1940s. If you reach back and take a look at exactly what Paul Tagliabue said in the Bounty case, if that were true, then Paul Tagliabue couldn’t have reversed Roger Goodell, right? If an arbitrator can be unfair, Paul Tagliabue could not have reversed Roger Goodell. If an arbitrator could be unfair, Judge Jones couldn’t have reversed Roger Goodell, right?

Dee Smith makes some really interesting points here. Perhaps the one that stands out the most is  the fact that the parties were not writing on a blank slate when they included the current Personal Conduct Policy in the the 2011 CBA. That’s an important factor to consider. When negotiating a CBA, the league and the union both have to decide which issues are most important to them, because each side has to give and take some things. In 2011, the NFLPA focused on maintaining a 16-game season, gaining some improvements on player safety issues, and securing additional benefits for retired players. The union was unable to negotiate a removal of the Commissioner as arbitrator and reviewer of disciplinary decisions. Probably at the time the issue did not seem particularly important. And, as Dee Smith points out, in cases where the Commissioner has clearly overstepped his authority or acted in an arbitrary way, his disciplinary decisions have been repeatedly overturned.

Cossack: Well…

Smith: So, this isn’t a system where any party agrees to an arbitrator that can be unfair… we tried…

Cossack: 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… C’mon.

Again, it does not seem likely that Roger Goodell would act fairly with respect to both sides, while serving as commissioner. But…

Smith: The law of the shop… Well look – if you are confused, I would urge you to open the cases about industrial due process…

Cossack: … And I have… And I have…

Smith: That says… that says that an arbitrator must be fair.

Cossack: … And Judge Berman agrees with you… I’ll give you that…

Smith: Well, you don’t have to give me anything, Roger. Read the law. And the law says that when it comes to industrial due process, an arbitrator has to be fair. We didn’t let Roger Goodell do this. We opposed and wanted to change the Personal Conduct Policy. The owners did not. And instead they wanted to engage in a process, whereby in Bounty, in Rice, in Peterson, in Hardy, and now in Brady, the law has overturned that.

The underlying law says that an arbitrator must be fair. This means providing some minimum level of procedures to ensure that decisions are made in an orderly, consistent, and fair way. An arbitrator is bound to honor this minimum level of fairness and to maintain certain procedural protections, even if the arbitrator might otherwise be biased. That’s (one of) the reason(s) why Roger Goodell’s disciplinary orders keep getting overturned. He’s failed to follow a set procedure to ensure fairness and as a result, his decisions on punishment have appeared to be arbitrary.

The fact that the Commissioner was set as the arbitrator in the Personal Conduct Policy was based on past labor interactions between the league and the union. Although the NFLPA had been seeking to change that provision of the CBA, other factors dominated the previous negotiations in 2011. So Goodell remains the arbitrator of disciplinary decisions. One could even argue that by keeping the Commissioner in this position, the NFLPA has secured a public relations advantage. Surely the union was aware that maintaining the decision-making power of the Commissioner in disciplinary cases was bound to result in decisions favoring the league. But the NFLPA has shrewdly appealed these decisions to courts and other outside decisionmakers where they have been repeatedly overturned because of a lack of fundamental fairness. Each time the Commissioner’s decision is overturned, it is a black eye for the league.

Some have criticized the NFLPA for securing through litigation what it could not do through negotiation at the collective bargaining table. But the fact remains that the NFLPA has been publicly successful in fighting the Commissioner with respect to disciplinary decisions, even under the current CBA. And it could just be setting the stage to ensure that next time the parties meet at the bargaining table. The current CBA is scheduled to last through 2021, but if the public outcry over the system grows large enough, perhaps the parties could change the current disciplinary system in a special negotiation before then.  One thing is certain, though. As NFLPA Assistant Executive Director George Atallah has said, the NFLPA will continue to fight on this issue:

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