Monday, September 10, 2012

Not So Fast, Commissioner

The NFL bounty scandal continues to provide worthwhile lessons for unionized employers. The latest development occurred on September 7, when the NFL Collective Bargaining Agreement Appeals Panel reversed an arbitration decision from early last summer, upholding NFL Commissioner Roger Goodell’s ability to discipline players involved in the alleged bounty system used by the New Orleans Saints over several seasons.

Goodell imposed discipline, including fines and suspensions, on four New Orleans Saints players for their “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Specifically, the players were alleged to have participated in a compensation for injury program by either paying into or accepting money from a pool designed to reward players for injuring opposing team members during a game.

The players' union challenged the Commissioner’s discipline on the ground that he did not have jurisdiction to make such a determination. Instead, the union argued that the conduct alleged was a violation of the collective bargaining agreement clause that prohibits players and clubs from entering into undisclosed agreements involving off-the-books payments. In essence, the issue is whether the conduct involved in the bounty system amounted to conduct detrimental under Article 46 of the collective bargaining agreement, or whether it was an undisclosed compensation agreement under Article 14 or 15 of the CBA. The former can only be addressed by the Commissioner (with limited right to appeal), the latter, only by a grievance before the system arbitrator.

After the initial ruling by the system arbitrator in favor the Commissioner, the matter went to the NFL’s appellate Panel for review. The Panel determined that the bounty system, in fact, violated both the “conduct detrimental” provision and the undisclosed compensation provision. As a result, the Commissioner and the system arbitrator each had jurisdiction to impose penalties; the Commissioner for players' participation in a plan to injure, and the system arbitrator for the agreement to receive payments from the bounty pool.

The Panel was not convinced, however, that the Commissioner was disciplining the players just for their engaging in conduct detrimental to the League. Accordingly, the Panel reversed the initial discipline against the four Saints players and returned the matter to Goodell for reevaluation.

Note that this does not preclude the Commissioner from disciplining the players, even to the extent that they were previously punished. In fact, it opens up a new avenue of discipline for the League, based on the violation of the compensation provision. The players, who were immediately reinstated, may wish that they were subject only to the Commissioner’s discipline by the time this is all over. In any event, it provides an interesting window into the various and fine demarcations drawn when assessing the language of a collective bargaining agreement and its application to employees in a disciplinary environment.

UPDATE:  And, no surprise, the Commissioner kept almost all of the restrictions in place, especially for the people the League views as the principals in the scandal.  it will be interesting to see what happens if this ever gets to a court  although I believe that the union will have serious issues trying to get a judge to intervene in a collectively bargained discipline process.

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