With the recent news that NFL owners are seeking to extend their Collective Bargaining Agreement with the NFL Players Association, the question becomes whether the players are interested in such an extension, and what concessions might the players seek from team owners in return for coming to the negotiating table.

One issue that has gained publicity in recent months is the League’s ability to discipline its players for off-field conduct such as domestic violence, as well as the scope of NFL investigations into off-field incidents. Under the current CBA, the League wields significant power and exercises vast discretion when investigating players and determining punishments for various levels of misconduct.

One such example comes in the recent case involving New York Giants kicker Josh Brown. Prior to the 2016 season, the NFL conducted an investigation into allegations that Brown abused his ex-wife. The League was unable to gather sufficient evidence from the relevant law enforcement agencies or Brown’s ex-wife to suspend him for 6 games, the standard discipline for the League’s domestic violence policy. Based on the evidence they were able to gather, the League initially suspended Brown for one-game for detrimental misconduct. Recently, however, new evidence has come to light regarding the domestic abuse charges. Namely, Brown’s diary entries show admissions of domestic abuse, and even Brown referring to his ex-wife as his “slave.”  The NFL has since publicly committed to re-opening its investigation of Brown, and even potentially suspending him indefinitely. Why the NFL was unable to obtain this information from law enforcement during its initial investigation is unclear, but what is clear is that as a practical matter, the NFL is attempting to punish a player twice for the same general misbehavior. A similar situation, whereby the NFL increased its suspension of Baltimore Ravens running back Ray Rice after video of an altercation between him and his fiancee became public was negatively viewed as the League caving to public pressure, and retroactively disciplining at the player only after information about the investigation became public.

The new evidence in the Josh Brown case certainly does not paint the player in a positive light, but the question of whether the League can unilaterally decide to discipline a player twice for the same misconduct is valid nonetheless. Certainly the League should have the incentive to investigate all allegations as thoroughly and accurately as possible, and should not be allowed to discipline players flexibly based on what information may or may not to the public’s attention and when.

As the recent Circuit Court cases involving high-profile players Tom Brady and Adrian Peterson show, the League currently has a historically unprecedented level of autonomy in terms of the way it both implements and interprets its guidelines and discipline policies. In any collective bargaining talks, the NFL is clearly negotiating from a position of strength, as such, the Players Association should rightly ask major structural reform to even consider coming to the table. One great place to start would be limits on the League’s ability to discipline a player more than once after conducting its investigation. The League is well within its rights to hold its players to extremely high standards of personal and professional conduct. Perhaps then, the Players Association should hold the NFL’s investigators and disciplinary decision makers to those very same standards.

Jason Cohen

 

 

 

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