NFLPA Sends Stern Message to NFL Commish

In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.

Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:

The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''

This is a great strategic move by the NFLPA. And the timing of it couldn't be better as Goodell is currently contemplating Pacman's appeal as well as the disciplinary sanction to impose upon Bears' lineman Tank Johnson who met with the commissioner two weeks ago. David Haugh of the Chicago Tribune recently wrote an excellent piece explaining in legal terms (with my assistance) why Tank, or any other player for that matter, has virtually no chance whatsoever of having his suspension reduced by any judge in a court of law ("Tank released - with a catch"). Haugh interviewed Dan Jiggetts, a former Bear well-versed in labor issues from his time as NFLPA vice president, who couldn't have said it any better when he applauded Goodell's intentions but cautioned that a clearer line should exist between improving the game and impinging on players' rights: "It's one thing that he's trying to clean up the league and everybody understands that, but he can't be making unilateral decisions."

At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.

Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).

It will be interesting to see how Goodell reacts going forward. Any predictions?

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