- Andrew Brandt
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One of the priorities for NFL owners in the collective bargaining agreement negotiations with the NFLPA a year ago was to remove jurisdictional oversight of the CBA from the Minnesota district court, specifically one Judge David Doty, the NFL's least favorite jurist. The NFL was successful, replacing Doty with a newly formed appeals panel comprised of two retired federal judges and a Georgetown law professor.
In an example of "careful what you wish for," the panel's first ruling of the 10-year CBA is not a good one for the NFL. Let's examine.
End run around Goodell
When the bounty suspensions were handed down, the NFLPA's legal team sought a course of action to try to divert the appeal process from NFL commissioner Roger Goodell, who was not only adamant about retaining full power over player conduct, but insistent that the bounty conduct flew in the face of two of his primary initiatives as commissioner: integrity of the game and player safety.
Although the NFLPA acquiesced to Goodell having these powers, it filed a grievance in May arguing that the penalties should have been handled by system arbitrator Stephen Burbank, who deals with salary cap and contract issues, rather than the commissioner, whose authority revolves around conduct. That arbitration, heard by Burbank, ruled for the NFL, agreeing with Goodell that the conduct involved was within the commissioner's domain, rather than the system arbitrator's.
The NFLPA appealed. While that appeal would have gone to Judge Doty in the past -- as it did in cases involving Michael Vick and Plaxico Burress -- it now went before the newly formed panel, which ruled Friday.
The panel has, in essence, made a split decision. It recognizes that there are aspects of the behavior that are cap-related -- payments to players outside of their player contracts -- thus calling for the jurisdiction of Burbank. The panel also understands, however, that the players' actions also comprise misconduct revolving around "intent to injure," clearly Goodell's domain.
Thus, the panel divided the misconduct into two categories, non-contract payments and intent to injure. The first is Burbank's province; the latter is Goodell's. This decision overrules Burbank's decision, that Goodell had exclusive jurisdiction over this issue under the broad "conduct detrimental" language in the CBA. In that sense, the panel has slightly chipped away at the power of Goodell, a fact that may have some ramifications beyond this case.
What happens now
The panel has vacated the suspensions, allowing the players to play for the time being (and activating guaranteed salaries for the vested veterans who are on a roster for the first game). The panel remanded -- sent back -- the matter to Goodell for "expeditious redetermination" (Goodell has already announced the rehearing will be soon).
The panel has told Goodell to determine if any of the discipline he is levying is due to the "non-contract consideration" part of the misconduct. If that is the case, Goodell should refrain from discipline, as that "lies within the exclusive jurisdiction of the System Arbitrator," not Goodell, and fines -- not suspensions -- are the only penalties available for non-contract payments, as per the CBA.
Goodell will rehear the case with the panel's ruling in mind. Or will he? Between the lines, the panel may be urging Goodell and the players to forge a settlement that both sides could live with in order to put the matter behind them. It is unclear if this will happen, although there have been reports of settlement talks before.
Nevertheless, Goodell's next ruling is binding. There are no further internal avenues for the players to appeal. Thus, the only way for the players to challenge Goodell's upcoming redetermination -- which I sense will be some lesser suspensions than originally levied -- is to continue their lawsuit with Judge Helen Berrigan in New Orleans.
In the big picture, however, the newly formed panel has done what two years of CBA negotiations by the NFLPA could not: It has struck a blow, albeit a glancing one, to the uncurbed powers of the commissioner. Goodell, who has appeared indomitable in the broad province of player conduct, has been, at least in part, chastised about overextending his powers.
Maybe the NFL wishes the appeals still went to Judge Doty.