We knew that Adrian Peterson and the NFL Player’s Association were going to appeal commissioner Roger Goodell’s decision to suspend Adrian Peterson indefinitely, and that happened this morning. That’s usually not interesting enough to merit its own post, but ESPN obtained a fully copy of his letter to the NFL, reproduced below, along with my accompanying analysis (I am not a lawyer, but I’ve played one in… a play):
We are in receipt of the discipline notice you issued on November 18, 2014, imposing an indefinite suspension on Adrian Peterson, without pay, to remain in effect for “at least the remainder of the 2014 season” and scheduled for review no earlier than April 15, 2015. This letter serves as a notice of appeal on behalf of Mr. Peterson for the discipline issued on November 18.
The relevant facts of this matter, as we know them, include the following:
- To date, no first-time offender of an NFL disciplinary policy—like Mr. Peterson—has served more than a two-game suspension for an act of domestic violence.1
- On August 28, 2014, the NFL announced a revised Personal Conduct Policy with respect to domestic violence. The revised Policy was a reaction to widespread and intense criticism concerning your prior failures to punish domestic violence sufficiently harshly under the Policy. You publicly admitted that your historic treatment of domestic violence was a “mistake.”
- On September 11, 2014, following an investigation into child abuse allegations stemming from Mr. Peterson’s May 2014 conduct, a Texas grand jury indicted Mr. Peterson for reckless or negligent injury to a child.
- After the charges against Mr. Peterson were revealed, the criticism against the NFL—and you—intensified. NFL and Club sponsors threatened to, and in some cases did, withdraw their sponsorships and support.
- On September 18, 2014, in order to assist the NFL with the negative publicity that caused sponsors to threaten to, or in some cases actually, withdraw their support, Mr. Peterson entered into an agreement that he would not play football and would be placed on the Commissioner’s Exempt List with pay until the criminal charges against him were resolved. Mr. Peterson entered into that agreement with the clear understanding that the League Office would remove him from that list when, per the terms of that agreement, “the criminal charges pending against him [were] adjudicated.”
- League officials, including Senior Vice President Troy Vincent, told Mr. Peterson and his agent that the time Mr. Peterson agreed not to be on the football field would be considered “time served” if and when the NFL assessed discipline against Mr. Peterson.
- On November 4, 2014, Mr. Peterson entered into a plea agreement approved by a Texas state court. Mr. Peterson pleaded Nolo Contendere to a reduced misdemeanor charge for reckless assault and agreed to a fine of $4,000, 80 hours of community service, and no jail time.
- On November 6, 2014, the NFL wrote to Mr. Peterson to inform him that it would begin to determine Mr. Peterson’s discipline and that, pending completion of the disciplinary process, Mr. Peterson’s status on the Commissioner’s Exempt List would remain unchanged; thus, the NFL failed to honor the agreement it made with Mr. Peterson on September 18, 2014.
- In the November 6 letter, the NFL asked Mr. Peterson or his outside counsel to provide documents/materials about the criminal case. Mr. Peterson’s outside counsel promptly wrote to the NFL to inform League officials that a Texas state law that took effect on January 1, 2014 strictly prohibits a defendant or his counsel from disseminating such materials to third parties; the letter also informed the NFL that it could seek a “good cause” showing from the court to obtain the information. To Mr. Peterson and his counsel’s knowledge, the NFL made no effort to seek relief from the court.
- On November 11, 2014, the NFL informed Mr. Peterson that it had scheduled a November 14 “hearing” to review his disciplinary case. The proposed “hearing” was contrary to the Parties’ long-standing custom and practice for Article 46 disciplinary matters. The NFL informed Mr. Peterson that several outside individuals would participate in the proposed “hearing,” but the NFL has refused to answer important questions asked by the NFLPA and Mr. Peterson about the “hearing,” particularly the roles and functions of the outside individuals proposed to be in attendance.
- On November 12, 2014, on behalf of Mr. Peterson, the General Counsel and Associate General Counsel of the NFLPA called Mr. Birch and other NFL officials to ask about the purpose, process and procedures for the proposed “hearing.” The NFLPA followed up with written inquiries, including an email sent to you by NFLPA Executive Director DeMaurice Smith that also inquired about the nature and purpose of the “hearing.” You never responded to Mr. Smith’s email.
- On November 13, 2014, the NFLPA sent Mr. Birch and Mr. Pash a detailed letter expressing Mr. Peterson’s questions and concerns regarding the proposed “hearing” and stating that Mr. Peterson was happy to meet with the Commissioner on the terms that have been the Parties’ long-standing custom and practice for pre-discipline assessment meetings, which have not included individuals outside of the NFL (sometimes including Club officials), the NFLPA and a player’s representatives.
- Mr. Peterson informed the NFL in the November 13 letter that he looked forward to arranging such an in-person meeting for early the next week (November 18) so that he could offer you his frank, honest perspective on the underlying incident. As the NFL acknowledged, Mr. Peterson had the right to attend an in-person meeting with his contract advisor and NFLPA counsel, and as the NFLPA informed the NFL, the proposed date for the “hearing” on Friday, November 14, was not possible for the customary pre-discipline meeting for Mr. Peterson’s representatives.
- The NFL did not respond to Mr. Peterson’s request for a meeting that comported with the Parties’ custom until after the NFLPA sent another letter requesting a response. The NFL refused Mr. Peterson’s request for such a meeting.
- On November 18, 2014, you sent a letter to Mr. Peterson, stating that he is suspended without pay at least for the remainder of the 2014 season and conditioning his reinstatement on your satisfaction with “the results of the counseling and treatment program.”
1 The lone exception is Ray Rice, whose suspension is presently on appeal before Hearing Officer Barbara Jones.
The NFLPA and Mr. Peterson appeal the indefinite suspension on a minimum of the following grounds:
First, your November 18 discipline letter expressly imposes discipline on Mr. Peterson pursuant to the August 28 Policy—enacted after all of the conduct at issue occurred. Well-established principles of just cause and industrial due process require prior notice of consequences for an employee’s actions and prohibit such ex post facto punishment. Moreover, this prohibition on retroactive punishment is “law of the shop” under Article 46. Bounty Final Decision on Appeal, slip op. at 6 (2012) (Tagliabue, Arb.) (“[A] sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change. That is what we see on the record here.”) (vacating
discipline); see also id. at 7-8.
Because the August 28 Personal Conduct Policy cannot retroactively be applied to Mr. Peterson’s May 2014 conduct, any punishment must be assessed and imposed consistent with the Policy and practices prior to August 28. In that light, we note that not only have you suspended Mr. Peterson for the remainder of this season, plus a minimum six-game fine, but the NFL has publicly stated that Mr. Peterson’s punishment accounts for the nine (9) games Mr. Peterson has already missed while placed on the Commissioner’s Exempt List. Accordingly, Mr. Peterson’s indefinite suspension would span at least sixteen (16) weeks and fifteen (15) games, is wildly disparate from that of any previous similarly situated employee, and therefore cannot stand. See Bounty Final Decision on Appeal at 18-19 (“selective enforcement . . . does not satisfy the basic requirements for consistent treatment of player-employees similarly situated”), 3-4, 13.
Second, the imposition of an entirely new and obfuscated disciplinary process—including the proposed pre-discipline “hearing” that would have involved several outside consultants not provided for in the CBA—is inconsistent with the Parties’ long-standing custom and practice with respect to Article 46 discipline. The conditions you purported to impose on Mr. Peterson during his indefinite suspension, such as two forms of mandated psychiatric counseling, with a psychiatrist of the NFL’s choosing, are also without precedent. The NFL is making up the process and punishment as it goes—a blatant violation of the CBA, Mr. Peterson’s industrial due process rights, and any notion of fundamental fairness.
The NFLPA and Mr. Peterson reserve their right to challenge the November 18 discipline on additional grounds.
It is abundantly clear that League Office personnel violated express agreements and failed to honor promises made to Mr. Peterson, as well as promises made about application of the new domestic violence policy. The League Office’s actions in the disciplinary “process” applied to Mr. Peterson included attempts to impose new disciplinary processes and procedures in violation of the CBA and in complete disregard of proper and fair procedures consistent with custom and practice under the CBA. Moreover, given the intense criticism that you and the League office have faced from NFL business partners, Congress, the media, NFL fans and the public at large, and the public pronouncements and commitments you have personally made in response to this criticism, it is clear that you have, by your actions, rendered yourself evidently partial and biased in this matter.
For all of the foregoing reasons, the NFLPA and Mr. Peterson hereby demand that you recuse yourself and anyone from your office from serving as Hearing Officer over Mr. Peterson’s disciplinary appeal. There is simply no way for you to impartially arbitrate Mr. Peterson’s appeal. Indeed, your retroactive application of the revised Policy, imposition of grossly disproportionate discipline, and implementation of unprecedented procedures underscore your inability lawfully to serve as Hearing Officer. Under these circumstances, neither you nor anyone associated with the NFL could issue an arbitration award that would be enforceable under the Labor Management Relations Act or the
Federal Arbitration Act.
We are prepared to commence discussions with you immediately about the appointment of a neutral arbitrator.
I’m not sure they have as strong a case as has been constructed here. The focus on domestic violence is smart, but the NFL domestic violence policy does not necessarily have to apply—especially as it’s written in the context of spousal abuse. I haven’t seen the NFL specifically say that they’re punishing under the purview of the new domestic violence policy and may simply be under the broader Personal Conduct Policy which has very few restrictions. Goodell has broad authority here.
NFL suspensions and bans have a long history, with a ban on Frank Filchock and Merle Hapes for fixing the 1946 Championship Game and Art Schlichter for gambling. Stanley Wilson was suspended for life for use of cocaine. Famously, one year suspensions were laid on Paul Hornung and Alex Karras, along with five Lions players in a betting scandal in 1963. Odell Thurman was suspended for two seasons for a DUI (and another four for missing a drug test). Adam Jones was suspended for one year for ten separate police incidents, and had an indefinite suspension (that ended up being four games) for an altercation with a bodyguard.
Plaxico Burress was suspended for the rest of the season (four games) after accidentally shooting his own leg in a nightclub. Donte Stallworth was suspended the entire season for killing someone in a DUI and Josh Brent was suspended for ten weeks.
Involvement in the bounty program got four players suspended, with Jonathan Vilma out for an entire season and Anthony Hargrove out for eight.
For violations as broad as “personal conduct policy,” Ben Roethlisberger was suspended for six games (reduced to four)—exactly as long as Peterson’s current suspension.
None of those fell under the performance-enhancing drug policy or substance abuse policy, so those may all be used as precedent.
The NFLPA provides a further timeline, some of which is irrelevant—for example, the agreement about the Exempt List, which the arbitrator ruled in the NFL’s favor. They also argue that Troy Vincent (newly promoted!) told Mr. Peterson that his time on the Exempt List would be “time served.” Aside from that sort of agreement being non-binding in nature, the NFL responded by saying they did do that, but “aggravating circumstances” forced them to levy their punishment.
The letter the NFLPA sends indicates that Goodell’s letter to Peterson contains explicit references to the policy changes made on August 28, which is not something I saw in what was available to the public, though commentary surrounding it (and their official press release) make reference to the policy. Regardless, reference to the policy is not enough to establish that Peterson was punished explicitly under the changes made on August 28 (or, “under the Domestic Violence policy”).
The press release says the following: “In modifying the NFL Personal Conduct Policy August 28, Commissioner Goodell established a baseline discipline of a suspension without pay for six games for certain offenses, including a first offense of assault, battery, or domestic violence.”
It does not say that Peterson is being punished under the policy, but that establishing the policy creates a regulatory environment and atmosphere for some kinds of offenses. That means a policy change doesn’t affect Peterson’s punishment in regards to the timeline of events, which is the opposite of what the NFLPA contends. As an example, when a criminal violates a crime that has yet to be codified into law, they cannot be punished when the law comes into effect for that crime—and the NFLPA is saying the same thing is happening to Peterson in regards to an NFL policy change.
But it doesn’t appear the NFL is punishing him under the conditions of the policy change, but with regards to a new disciplinary environment, which though established after the policy change, is not subject to the same timeline restrictions. Further, it doesn’t really matter—players have been suspended for six games or longer (as indicated above) for violations of the Personal Conduct Policy, even if not specifically for domestic abuse.
The NFLPA doesn’t want to get too specific, as there is no precedent for assault involving a child—meaning the NFL is free to establish their own precedent. In fact, the NFL can argue both sides of the issue. Broadly interpreted, the NFL has used the broad category of “violations of the personal conduct policy” for longer suspensions and are free to do so here. Narrowly interpreted, there is no precedent for “injury to a child” and can establish one here. The NFLPA forwards no argument for the specific category of “domestic violence” to be applied here, especially as that category had only been firmly established as a separate quality of violation by the NFL after the Peterson incident occurred; not something they should be happy arguing.
With regards to the NFLPA argument that the time on the Exempt List has been referred to by the NFL as “punishment” publicly by the NFL, I’m a bit skeptical and see no evidence of that (they don’t provide any), and have indicated multiple times to different media outlets that they do not see it as a punishment at all. The argument that this would be a 15-game, 16-week suspension doesn’t make much sense in that context (and it’s the only context that they have—they have not argued that independent of NFL statements that this would constitute a punishment).
Further, the NFL has punished an arbitrary amount of games for violations of the Personal Conduct Policy before, including indefinite suspensions, whole seasons and (six games).
The next argument, about the “hearing” held by the NFL in Adrian Peterson’s absence carries more weight, though I don’t know whether or not it affects the ultimate outcome. The inclusion of outside experts is not accounted for in Article 46 of the CBA, which means it is neither banned nor explicitly included in the disciplinary process. There is also not any language that forbids outside consultation in general (something other sports leagues have done, especially in similar circumstances) nor language that includes provisions to resolve something that is not accounted for in the process.
I’m not sure, but it could be the case that because the NFL followed everything listed in the procedure of Article 46, that they don’t violate this either even if it is extralegal. It is an enormous issue that they did not respond to the email the NFLPA and Adrian Peterson sent about the role the experts played, but it would be an issue if the outside experts were involved in setting the discipline in a way the CBA bars. The hearings all include transcripts (by agreement), so those may be used in the appeal.
Whether or not they can get a different hearing officer than Goodell remains to be seen, but I doubt it. The relevant portion of the CBA is written as follows:
Section 2 (a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designess to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as a hearing officer in any appeal under Section 1(a) of this Article at his discretion.
Emphases mine. For reference, Section 1(a) refers to off-field behavior and Section 1(b) refers to on-field behavior. The phrase “at his discretion” should make it nearly impossible for the NFLPA to get a different hearing officer. If after that the NFLPA thinks the NFL was acting outside of “good faith,” they can appeal to the National Labor Relations Board. I don’t expect it to be successful; the NFLPA negotiated themselves out of position on this one.