By all outward appearances, the commissioner of the National Football League has unlimited and unfettered authority to discipline players under the collective bargaining agreement between the league and its players (NFL-CBA). Despite that, a federal district court judge recently vacated the four-game suspension handed down by Commissioner Roger Goodell to New England Patriots quarterback Tom Brady in the controversial “Deflategate” matter. This comes on the heels of the Commissioner’s initial punishments being overturned or reduced in other recent high profile cases. Remember the domestic violence matter involving former Baltimore Ravens running back Ray Rice?
There is a moral to this story for all employees subject to collective bargaining agreements. Regardless of the severity of the allegations against you, the words contained in your agreement are not the be-all-and-end-all in determining whether you have been treated appropriately by your employer and whether a punishment you have received will stand. In most cases, regardless of the nature of the alleged offense, there are implied fairness and due process principles that must be followed by your employer and by the arbitrator on appeal.
Regardless of their wealth and fame, NFL players are union employees just like most teachers, steelworkers and truck drivers. As such, through their union representatives, the NFL players association (NFL-PA),they have negotiated and entered into the NFL-CBA and are subject to the same labor laws regarding disciplinary actions as most other unionized employees. Over the last year, the disciplinary provisions contained in the NFL-CBA, and the relevant case law regarding disciplinary punishments and proceedings under collective bargaining agreements, have been in the public spotlight, culminating with the September 3 ruling in “Deflategate.” Despite having a clear contract advantage with the NFL-PA, the NFL is on a losing streak when it comes to its disciplinary decisions getting reviewed by arbitrators and judges.
Article 46 of the NFL-CBA covers player discipline, including “action taken against a player by the [NFL] Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Under the NFL-CBA, the commissioner has the exclusive and broad authority to decide what constitutes “conduct detrimental” and impose punishment. There are no stated limits on the amount of fines or length of suspensions he can impose. There are no explicit “just cause” or due process provisions. Although appeal of a punishment decision by the Commissioner is allowed, all disputes go first to arbitration rather than to court, and the Commissioner himself gets to select who will hear the appeal. The person appointed as arbitrator is not required to be independent, and the Commissioner can select himself to hear an appeal of his own initial disciplinary decision.
The odds, it seems, are stacked against any player subject to a disciplinary proceeding. By looking at the NFL-CBA alone, it would appear that the Commissioner has absolute authority and power to impose discipline in any way he sees fit. Any punished player would be up a creek without a paddle in attempting to challenge their punishment. And in fact, the commissioner has often acted as if that were the case.
In the last couple of years, nearly every high profile punishment the commissioner has handed down has been vacated or significantly reduced on appeal, either by the arbitrator reviewing the initial punishment, or by a federal judge reviewing an arbitrator’s decision. This happened despite the fact that the arbitrator or judge is required by law to give a high level of deference to the earlier decision.
These reversals by arbitrators and judges began with the “Bountygate” punishments meted out against players for the New Orleans Saints. It included the domestic violence punishments handed down to star players Ray Rice of the Baltimore Ravens, Adrian Peterson of the Minnesota Vikings, and Greg Hardy now of the Dallas Cowboys. Of late, it culminated with the suspension given to Tom Brady in connection with “Deflategate.”
Why are so many of the Commissioner’s decisions, that on the face of the decisions seem justified, being overturned on appeal? It seems that Commissioner Goodell is ambivalent to legal requirements to the extent that, in the words of Judge Berman in a “Deflategate” hearing, “there has to be some basic process of fairness that needs to be followed.”
The governing law, which is partially based on case law and partially based on statutes such as the Federal Arbitration Act (FAA), is not easy to synthesize. In general, if a collective bargaining agreement is silent on the subject, an “implied industrial due process” requirement will be applied to disciplinary proceedings under the agreement. This means that private sector employees who are unionized have inherent due process rights requiring fairness in investigation and discipline. There are at least five elements of this industrial due process: (1) notice to the accused of the specific accusations and prior notice that the infraction could lead to the discipline imposed; (2) an opportunity for the accused to respond to the accusations before determination of discipline; (3) a fair investigation free from bias and prejudgment; (4) timely employer action; and (5) no double jeopardy.
It is well established that labor arbitrators must give decisions by the commissioner, and courts must give decisions by labor arbitrators, “substantial deference.” But disciplinary decisions and subsequent arbitration decisions are not inviolate. The arbitrator or court is not required to rubber stamp the previous decision maker’s interpretations and decisions.
The arbitrator or judge can throw out an award if he or she finds that an employee’s rights were prejudiced by corruption, fraud or misconduct. They also have the authority to vacate the award if it is found that the decision-maker acted in an arbitrary and capricious manner, i.e., was not fair and consistent. The FAA allows vacation of an award when there is evidence of partiality or if the decision-maker refuses to hear evidence pertinent and material to the controversy.
In addition, an arbitrator or judge has the authority to vacate the award if it fails to “draw its essence” from the collective bargaining agreement, such that the arbitrator imposed “his own brand of industrial justice,” which is not allowed. The essence of the collective bargaining agreement is derived not only from its express provisions. The past practices of the industry and the shop regarding the meting out of punishment (the law of the shop) is equally a part of the collective bargaining agreement, although not expressed in it.
In “Deflategate,” Judge Berman found that it is the “law of the shop” in the NFL to provide professional football players with advance notice of prohibited conduct and potential discipline. He then found that Brady was not given notice that he could be punished for his alleged misconduct (being “generally aware” of team equipment personnel deflating footballs) or of his potential discipline for such misconduct (a four-game suspension). The judge also found that on appeal the commissioner, by not allowing Brady the right to cross-examine a key witness and examine key documents, refused to hear evidence pertinent and material to the controversy. Therefore, the judge vacated Brady’s entire suspension.
Ray Rice punched his wife in an elevator and knocked her unconscious. The commissioner initially gave Rice a two-game suspension. Then he increased it to an indefinite suspension after video of the incident surfaced. Despite the severity of the offense, a former federal district court judge, who was appointed as arbitrator, determined that the imposition of an indefinite suspension following an initial two-game suspension based on the same incident and the same known facts about the incident was “arbitrary and capricious.” This was because the indefinite suspension went beyond past punishments for similar offenses and was not based on any new evidence.
Adrian Peterson entered a no contest plea on what the NFL called “an incident of abusive discipline” toward his 4-year-old son. He then was suspended for “at least the rest of the 2014 season.” A federal district judge, however, ruled that the commissioner had retroactively applied a new domestic violence policy to Peterson’s actions preceding this policy. This violated both Peterson’s implied due process rights, because it punished him for something he had no notice of, and it punished him in a way not consistent with other punishments up to that time.
Greg Hardy allegedly abused his girlfriend on four different occasions, including choking her and throwing her onto a couch covered in assault rifles. But after reading the district court judge’s opinion in the Peterson case, the NFL appointed arbitrator reduced the punishment from ten games to four games to make it more consistent with punishments at the time of the offense rather than with the new domestic violence policy, which was introduced after the offense.
In “Bountygate,” the players involved were accused of participating in a program awarding bounties for knocking opposing players out of a game and given various lengths of suspensions. A former NFL commissioner was appointed as arbitrator. He ruled that each player’s suspension should be overturned either for lack of notice, inconsistency with past practice (law of the shop), or a combination of both.
The bottom line of all this applies to any employee operating under a collective bargaining agreement. Regardless of how egregious your alleged offense is that leads to disciplinary action, regardless of whether there is any direct language in your collective bargaining agreement covering due process or fairness, and regardless of what your employer claims, there are standards of procedural fairness that apply to your case. Sorting out what those standards are and enforcing them against your employer is a complicated legal business that requires the assistance of an employment law attorney.
Kilgore & Kilgore is highly experienced in these matters and all aspects of employment law. If you believe that you have been unfairly punished in your workplace, or if you have other questions regarding employment law matters, contact Kilgore & Kilgore. Our employment law attorneys are ready to evaluate your situation. Email us today at dem@kilgorelaw.com or call us at 214-969-9099 to set up a free review of the facts of your case with a Dallas employment law attorney.