Tweeting Victory into the Jaws of Defeat
Sports fans on Twitter and social media are all abuzz at the reversal of the decision of National Football League Commissioner Roger Goodell to suspend NFL players Jonathan Vilma, Scott Fujita and Will Smith for their role in the pay-for-performance/bounty case. But the crowing of victory for the players and defeat of the often maligned Commissioner are decidedly premature. Before all the Netizens continue to get it wrong, let’s set the record straight. In truth, the decision actual makes the situation worse for players.
For readers who are not weekend couch potatoes and sports fans, the players and some of their coaches were charged with establishing a fund from which they would be awarded a “bounty” if they took a player on the opposing team out of a game, presumably by injuring them. When this became public, sports purists were outraged that such a pristine sport like football could possibly tolerate such bounty hunting behavior. In response, Commissioner Goodell, invoking his powers to protect the “integrity” of the game, suspended the three players for the entire season. That did not sit well with many fans. These were not bench players. They were starters who made a difference. Suspending them was seen by many to be a fatal blow to the team most effected, the New Orleans Saints.
Initially, the NFL Players Association, the union representing the players in the collective bargaining agreement with the NFL, appealed Goodell’s decision to a special arbitrator, known as a “System Arbitrator” under the union agreement. The NFLPA claimed Goodell did not have jurisdiction under the union agreement to impose discipline because the bounty was a violation of a provision in the collective bargaining agreement that prohibited undisclosed compensation arrangements with players — a provision where issues of discipline must be resolved through an arbitration before a System Arbitrator, not by a unilateral decision of the Commissioner. The NFLPA argued that since the team’s management and coaches were involved, the arrangement fell within the undisclosed compensation provision and only a System Arbitrator could exact punishment under the collective bargaining agreement, not Goodell. The System Arbitrator disagreed with the NFLPA and held that it was proper to divide the conduct of the players into two distinct violations – first, in establishing the fund and second, it accepting payments. The System Arbitrator saw the two to be distinct, with the former (establishing the fund) being within Goodell’s exclusive jurisdiction to punish and the later (accepting compensation) within the exclusive jurisdiction of a System Arbitrator. The NFLPA appealed again. The three member appeals panel agreed with the System Arbitrator’s decision. While the panel did vacate the suspensions as all the tweets and posts claim, they did so only because the panel believed it was unclear if the discipline letters from Goodell made the distinction between the act of establishing the fund as apposed to accepting compensation (the System Arbitrator found that Goodell did make that distinction but the three member panel was not sure and felt it was important to be clear). So they directed Goodell to clarify his decision.
All Goodell needs to do is write, “Yes, as the System Arbitrator said, I imposed the penalty because the players participated in the establishment of the fund, not because they accepted compensation. Indeed, now that I have affirmed this and the three member panel has found that the acceptance of payment is a separate violation of the undisclosed compensation prohibition of the collective bargaining agreement, we now plan to seek additional penalties under that provision as well.”
Nice job, NFLPA.
Now Goodell can throw the book at them twice. So before the Internet gets too caught up in sports hysteria over a victory for the New Orleans Saints, they’re best advised to note that there is a flag on the play and the penalty for the Saints may be a lot worse than the one they first received. Like I said, throwing victory into the jaws of defeat!
Here’s the link to the summary decision. While the full record may shed additional light supportive of the NFLPA, it does not reverse the finding that what was thought to be one violation is now two.
We Expert Doug Wood