Goodell overreaches with personal conduct policy

Michael Silver
Yahoo! Sports

Kenny Britt(notes), the Tennessee Titans' talented and trouble-prone wide receiver, got summoned to NFL commissioner Roger Goodell's office, presumably to answer questions about several incidents that occurred over the offseason.

When Britt returned to Nashville on Wednesday, he downplayed the ominous overtones of the previous day's meeting to reporters, saying, "I have a smile on my face, I am still breathing. So everything is good."

It's nice that Britt can make light of his situation, but I know a lot of players who believe the possible suspension he faces for conduct that occurred during the lockout is no laughing matter, and I don't blame them for being angry. And if this plays out the way I fear it will, they have a right to direct some tough questions toward NFL Players Association executive director DeMaurice Smith, who should have prevented this travesty of authoritarian abuse.

While it's tough to defend some of Britt's actions – he was arrested for disorderly conduct after an incident at a car wash and was arrested after attempting to elude police trying to make a traffic stop, among other alleged transgressions – the notion that he can be disciplined for having violated the league's personal conduct policy is ridiculous. From the time the lockout began March 11 until it ended late last month, Britt, like others embroiled in legal entanglements during that span, was on what "Fast Times At Ridgemont High" history teacher Mr. Hand would call my time.

Players were not allowed at team facilities, and they were left without health insurance, access to team doctors or protection against football-related injuries that could impact their future employment fortunes. Roster bonuses weren't paid, and other contractual clauses were ignored by their employers. There was no collective bargaining agreement and, with the NFLPA having decertified, no union to represent their interests.

For all intents and purposes, they weren't employees.

To insist that they were nonetheless subject to the prior CBA personal conduct policy defies logic.

[Yahoo! Sports Radio: Issues were rushed to reach labor deal]


It doesn't surprise me that Goodell is eager to ignore the absurdity of this position. I understand why the commissioner wants to "protect the shield" and ensure that those players whose actions he feels tarnished the league's brand face harsh consequences. However, when he presumably informed Smith of this as the final stages of CBA negotiations were playing out, the union leader's answer should have been, "I'm sure you do want to punish them. Well, you and the owners should have considered that before you locked us out."

I don't know for a fact that Smith didn't object, but if he did, he should have fought harder. The mere fact that Goodell summoned Britt and Tampa Bay Buccaneers cornerback Aqib Talib(notes) to his office is a sign that the union went too soft on this issue. It may have been a lot worse than that: One source familiar with the negotiations claims Goodell, before resolving the issue of whether personal conduct violators during the lockout could be disciplined, "wanted eight names off the top who would definitely get punished, and apparently he got his way."

This was confirmed by a high-level union source, who said that in return for Goodell agreeing not to discipline approximately two dozen players for conduct during the lockout, he retained the right to hand down punishment to eight players he regards as repeat offenders.

George Atallah, the NFLPA's assistant executive director of external affairs, declined to comment.

If a handshake deal of that sort was cut, and I were a player affected, I'd immediately file a complaint with the National Labor Relations Board, stating that since the NFLPA was a trade association before it recertified in late July, it had no authority to represent my interests.

And if the union claims that no arrangement regarding personal conduct discipline occurred until the new CBA was formally ratified, I'd still lawyer up, initially in an attempt to get an injunction preventing the league from punishing me for something that occurred when no conduct policy existed (in the absence of a CBA), and possibly extending to a suit against the NFLPA for violating its duty to provide me with fair representation.

I don't know what really went down in Smith's discussions with Goodell, or whether this issue has even been settled, but the union had an obligation to go to the mat on this.

Granted, from a public-relations perspective – and, likely, a moral one – Smith would prefer not to fight this fight. I'm sure he doesn't have a ton of sympathy for players who misbehave on a consistent basis, and there are a lot of players, including some on the NFLPA's executive committee, who share that perspective.

That said Smith, a former federal prosecutor, has to understand that advocating for the interests of guys like Britt, Talib, Dolphins receiver Brandon Marshall(notes), Bengals halfback Cedric Benson(notes) and, yes, Michael Vick(notes) and Ben Roethlisberger(notes) is part of the gig.

Remember when Golden State Warriors guard Latrell Sprewell choked his coach in a December 1997 practice? NBA commissioner David Stern suspended Sprewell for a year and had his contract terminated with $23.7 million remaining. The NBA Players' Association, though surely not enhancing its popularity with the outside world, took up Sprewell's cause and successfully persuaded an arbitrator to reduce his suspension to 68 games and reinstate his contract.

Why? Because Sprewell was a dues-paying member of the union, and it was the players' association's job to fight for his interests.

As one NFL player active in union activities says, "I think a lot of these guys who get in trouble are knuckleheads, and it's tough to sympathize with them. But there's no question we need to stick up for them, especially now, because that's what unions do."

Again, I wasn't there when these issues came up at the bargaining table, and I appreciate that Smith and his fellow negotiators were under a ton of pressure to close a multi-year, multi-faced, multi-billion-dollar business deal in time to salvage the 2011 season.

Yet it sure seems to me that during those final days of discussions before the lockout ended, the owners felt even more pressure to close the deal, and the players were thus the ones with the leverage.

It was the owners who desperately wanted to avoid missing even a week of preseason games, because to do so would have devalued the deal by a reported $200 million, and who sought an on-time opening of training camps. Players, who'd have felt the sting of those lost preseason games much less severely (in the form of relatively minor reductions in future salary-cap maximums), were much less stressed about the possibility of delaying the timetable.

Remember that wild Thursday afternoon in Atlanta when Goodell and his fellow owners announced that they had approved a new CBA that would bring an imminent end to the lockout? Smith sat seething in Washington, perplexed about the premature announcement and insisting that none of the "union" issues – player conduct, health benefits, drug policy, drug testing and others – had been negotiated, much less settled.

Over the next three days, Smith and Goodell, with help from their lieutenants, worked on hashing out those issues, or at least coming to agreements-in-principle that could satisfy both sides enough for the lockout to be lifted. Time was on Smith's side, but in retrospect, some players believe they were rushed into voting on the deal and returning to work. (Remember, the Steelers voted 78-6 against ratifying the new CBA because they reportedly felt they hadn't gotten enough information about the deal from the NFLPA.)

"We got an eight-page PowerPoint presentation [from the union] with bullet points about all sorts of issues, and the basic message from De was, 'Don't worry, I'll take care of these,' " says the player active in union affairs. "Now, after seeing how things have gone down, it looks like some things might have been railroaded through."

Said one team's player representative: "We were always on the NFL's deadline. It was never about receiving and digesting the information in a way that would make us feel comfortable with the deal. Basically, this is the old CBA, with less money and power for the players."

The first sign of player discontent with the deal occurred when, for at least one team, drug testing commenced only three days after players reported for pre-training camp physicals. Given that marijuana, in particular, often remains in a user's system for 30 days or more, this was a problem for many players who'd been assured by union representatives that a post-lockout grace period would be negotiated. Unless they were making like Vincent Chase on "Entourage" or Onterrio Smith back in the day they were now out of luck.

Again, as a matter of principle, this is essentially an instance in which the league has reached into the past to discipline players for conduct that occurred during the lockout. According to two players on one AFC team, several of their teammates have already received notices from the league that they tested positive for a banned recreational substance.

Another area of discipline that has angered players concerns fines for on-field conduct such as dangerous hits or unnecessary roughness. One of the bullet points in the aforementioned PowerPoint presentation, according to the source with whom I discussed it, stipulated that no player could be fined more than 25 percent of his weekly salary for such an offense.

"Already, in the preseason – when we [barely] get paid – we've had guys getting fined way more than 25 percent [of what their in-season weekly salaries would be]," said the player active in union affairs. "It turns out the actual language in the agreement is [something to the effect of] 'Players fined more than 25 percent of weekly salary have a right to appeal.' That's a major difference, and guys want to know, 'What the hell?' "

Added a Pro Bowl player: "This feels like an absolute bait-and-switch with the fine system, promising something and absolutely not delivering."

Some players are also miffed at Goodell's five-game suspension of former Ohio State quarterback Terrelle Pryor(notes) as a precondition of allowing him into the supplemental draft earlier this week. After being selected in the third round by the Oakland Raiders, Pryor said he would leave it up to the team to decide whether to appeal his suspension. Sources say neither Smith nor Pryor's agent, Drew Rosenhaus, currently plans to initiate or support an appeal, though numerous players believe the union should do so to avoid allowing the league to set a precedent.

Whatever happens, this much is clear: When assessing Pryor's Ohio State transgressions, as well as players' personal conduct and drug use during the lockout, Goodell believes he can dole out punishment for offenses that don't occur during times of official employment – and he's not getting as much resistance from the union as he should.

During the lockout, several players took harsh verbal shots at Goodell, and there was talk that they'd insist upon curbing his authority in the new CBA. However, all indications are that Goodell remains both the sole, unquestioned arbiter of off-the-field discipline and retains jurisdiction over appeals.

For players, this should be troubling on many levels. Rather than lay out a clear set of rules and corresponding punishments, Goodell seems arbitrary in his rulings, as his recent decision not to suspend New England Patriots defensive tackle Albert Haynesworth(notes) suggested. When it comes to investigating and disciplining non-players, such as former Oakland Raiders coach Tom Cable, he seems downright hypocritical. And Goodell presumably retains the ability to ignore due process and punish players for offenses for which they haven't been convicted, something on which Smith's late predecessor, Gene Upshaw, signed off early in Goodell's tenure.

Goodell's autocracy, apparently, extends to perpetuating charadesdesigned to help coaches bond with their players and, as Vick suggested in a recent GQ interview, nudging talented free agents toward signing with specific teams. I'm sure Bills fans were thrilled that, according to Vick, Goodell suggested the quarterback sign with the Eagles before the 2009 season, rather than with Buffalo or Cincinnati.

After a tumultuous offseason, the Sheriff has his spurs back, and the union doesn't seem to have the gumption for a duel. Even worse, with leverage on its side, it's possible the NFLPA leadership panicked and didn't take the time to craft an agreement that addressed its members' concerns about the Sheriff's unchecked power.

"We took a leap of faith," said the player active in NFLPA affairs. "Apparently, we should have been more cautious and more deliberate."

Because of that, just as Britt and Talib had to answer to Goodell on Tuesday, a whole lot of players may soon be looking for answers from their union leaders.

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