Brandt: Breaking down the NFLPA’s suit

July, 5, 2012
7/05/12
2:03
PM ET
In the union’s continuing attempt to take the bounty appeals decision out from under the auspices of NFL commissioner Roger Goodell, the NFLPA has filed a federal lawsuit in the Eastern District of Louisiana. This suit is on behalf of three of the four suspended players -- Scott Fujita, Will Smith and Anthony Hargrove. Jonathan Vilma has asked for similar relief in two lawsuits; the first of which -- his defamation lawsuit against Goodell -- Goodell moved to dismiss Thursday. The following is the essence of Thursday’s filing by the NFLPA:

Hillis
Hargrove
Fujita
Fujita
The suit is an application to overturn the suspensions issued by Goodell based on what the NFLPA claims to be inherent and unfair bias by Goodell and all others involved in the process. It states in part: “The investigation and arbitration process that the Commissioner’s public relations machinery touted as 'thorough and fair' has, in reality, been a sham."

Further, the NFLPA argues:
(1) The NFL violated the CBA by refusing to provide the players with access to critical documents or witnesses;
(2) Goodell launched a vast public relations campaign defending the punishments he intended to arbitrate, rendering him incurably and “evidently biased”; and
(3) Goodell lacked proper jurisdiction to rule on this case, as the system arbitrator -- law professor Stephen Burbank -- has exclusive jurisdiction to arbitrate the “pay-for-performance” conduct here.

The latter argument -- that this matter is a cap issue rather than a conduct issue -- was brought before Burbank last month and denied. It currently is on appeal to the NFL appeals panel, a group of three arbitrators still not formally constituted a year after its creation in the new collective bargaining agreement. Now, in addition to the appealing Burbank’s ruling, the union argues Goodell may not seize Burbank’s exclusive jurisdiction merely by labeling the matter "conduct detrimental."

The NFLPA claims it is not asking the court to "second guess" Goodell on the sufficiency of the NFL's evidence; rather, it is asking it to vacate the suspensions based on the "sham process from which it was born."

The suit’s basic argument states: "It becomes more apparent with each passing day … that the NFL’s objective was not to follow the CBA and provide a fair process, but to validate a biased investigation and to deprive the Players of any meaningful ability to defend themselves against a preordained result."

As I have discussed and written about here, my sense is this will be an uphill battle for the players. Goodell’s power over player conduct -- both the NFL and the system arbitrator have determined this to be conduct -- is well-established and secure in the new CBA. The issue of “fairness” is a relative one; it is the court of Goodell, not a court of law. Federal labor policy favors employers and especially employers resolving differences through a collectively bargained agreement rather than going outside that process into a court.

I admire the creativity and persistence of the NFLPA and its increasingly busy legal team -- the enduring theme of football this offseason is billable hours -- but ultimately they are trying to circumvent a process that they agreed to in the swirl of negotiations to achieve other gains in the CBA.

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