HomecolumnBrady Appeal: Holding Goodell to the Personal Conduct Policy

Brady Appeal: Holding Goodell to the Personal Conduct Policy

The National Football League (NFL) and its athletes find themselves ostensibly bound by the provisions of the NFL Collective Bargaining Agreement (commonly referred to as the CBA) in all their endeavors.

However, it appears that these binding terms are not as absolute as they sound, especially in the context of mishandled domestic violence sanctions against one of its players. The league’s mismanagement was so grievous that it compelled them to revise the rules amid intense public scrutiny.

Consequently, instead of addressing the underlying issues, this episode ended up curbing players’ rights in dispute resolutions while further amplifying the authority of the league office, thereby exacerbating the problem.

This turn of events leaves one perplexed. The revelations from the Ray Rice investigation, when observed in hindsight, are undeniably troubling.

Commissioner Roger Goodell’s failure to uphold his paramount duty of “protecting the shield” went unpunished. In an unexpected twist, he even extended his authority by implementing an updated personal conduct policy (available in full at this link: http://bit.ly/1zxceSQ).

The question that arises is, how did this series of events transpire? Such a baffling sequence of occurrences could easily be designated as the inaugural entry on a hypothetical dictionary of inexplicable events, perhaps under the acronym “WTF,” as coined by urbandictionary.com.

Central to this entire narrative is the enduring NFL ideal, reminiscent of the 1950s, which envisions the existence of an unwavering and virtuous figurehead to preside over all things ethical – the “Incorruptible Man.”

The very foundation of addressing wrongdoing within the NFL resembles the unsettling taboo topic of marital rape in the ’50s, as exemplified in AMC’s “Mad Men.”

When the very entity responsible for safeguarding integrity is also the primary offender against integrity, it creates a fertile ground for corruption to thrive.

This is precisely why Tom Brady’s challenge to the NFL’s most recent attempt at thinly veiled public relations spin and misinformation is of paramount importance.

This battle must be waged, whether it unfolds through the channels of the appeals process or by resorting to federal litigation.

Allowing the proverbial fox to oversee the proverbial henhouse is a risky proposition, one that should be rejected unequivocally. This holds, especially in the aftermath of the league’s domestic violence enforcement debacle.

Commissioner Goodell’s insistence that the league’s practices are rooted in historical precedent, harking back to the days of Commissioner Rozelle, serves as a hollow deflection.

It is akin to asserting that because women were once denied the right to vote, any historical conflict was, therefore, justified. However, historical continuity does not negate the existence of a fundamental issue that must be addressed.

The current Collective Bargaining Agreement (CBA), ratified in 2011 and effected until the culmination of the 2020 season, is notably deficient in terms of specificity regarding the commissioner’s powers and the rights of the accused in conduct disputes.

This ambiguity is succinctly encapsulated in Article 46, aptly titled “Commissioner Discipline,” located on page 204 (accessible at this link: http://bit.ly/1IThOU4).

Remarkably, the terms and phrases currently prevalent in discussions, such as “full cooperation” and “generally aware,” were not part of the negotiated standards during the 2011 version of the CBA.

In contract law, precision in articulating negotiated terms holds the utmost importance.

The so-called “Deflategate” spectacle thrust into the public discourse the concept that “full cooperation” represents a mandatory prerequisite for any accused player to evade disciplinary action.

However, this notion did not find a place within the most recent iteration of the CBA. It was, instead, introduced in a hasty revision of the league’s personal conduct policy by the commissioner himself.

This revision was unveiled in December 2014 under mounting pressure to rectify the league’s numerous missteps concerning punishments related to various issues.

AP Image. Attorney Jeffrey Kessler represents Patriots QB Tom Brady in his appeal with the NFL
AP Image. Attorney Jeffrey Kessler represents Patriots QB Tom Brady in his appeal with the NFL.

Indeed, it is a reality that most employees in the United States, excluding government employees, do not benefit from the protections afforded by the Fifth Amendment, safeguarding against self-incrimination and ensuring due process.

Employment law is distinct from the fundamental American rights we all enjoy, as the privilege of being employed by a specific private entity is not considered an inherent right.

The newly introduced personal conduct policy essentially operates as an extension of what was collectively negotiated in 2011.

It appears as a transparent effort to project a facade of toughness following previous decisions that were perceived as indecisive. It is, in essence, a blatant assault on anything reminiscent of fairness or genuine integrity.

Wagging a finger about truth when you’re purposely concealing it from the public will bite you in the ass the minute you aren’t the judge.

This situation underscores the importance of labor unions in bridging the gaps and preventing the accused from being compelled to assist their faltering employer in an investigation concerning themselves.

The NFL Players Association (NFLPA) faces a considerable challenge in this regard, and the upcoming appeal presents a pivotal opportunity to undermine the commissioner’s authority, as demonstrated by the willingness of external courts to intervene consistently.

It’s important to note that the appeal’s success doesn’t necessarily hinge on a victory for the NFLPA. Such a win may be a far-reaching goal, considering it would require Roger Goodell to acknowledge the incompetence of his investigation.

The fundamental objective here is not an immediate victory but instead setting the stage for future legal action in federal courts that could strip the commissioner of powers that have become mired in conflicts of interest and dishonesty.

This appeal serves as a means to shed light on the games lost and reveal crucial facts that might never be disclosed by the commissioner, who has been criticized for failing to deliver on numerous occasions.

One of the most significant of these failures is the unaddressed public leaks from the league offices and the misleading information disseminated by the commissioner concerning their association with Ted Wells’ investigation.

The conundrum Roger Goodell now faces is that the language in the new conduct policy appears to place him under the same level of scrutiny to which he haphazardly subjects players. This is particularly evident in the following two segments from the new personal conduct policy.

While Commissioner Goodell may adeptly maneuver through the twists and turns of a press conference, he’ll find himself in a tight spot when facing an appeal, where he assumes the role of a witness, regardless of his dual role as judge.

This predicament becomes even more constricting in the context of external litigation, extending beyond the confines of the NFL’s internal mechanisms. In this arena, Goodell will be compelled to account for the questionable “uniformity” claims associated with this policy.

It becomes evident that Goodell’s enforcement of this policy lacks the purported uniformity, as exemplified by instances such as the Minnesota Vikings’ warming of balls on the sideline.

His ability to evade punishment despite repeated public mishaps and instances of falsehood that unquestionably undermine the league’s integrity and procedural fairness is a matter of concern.

As previously mentioned, raising the banner of truth while consciously withholding it from public scrutiny will inevitably backfire at the moment when one is no longer the sole judge.

The dichotomy between the potential suspension for being “generally aware” of poorly substantiated allegations, as highlighted in a document with questionable credibility, and the repercussions for a commissioner who actively misled and concealed the truth before a national audience raises a compelling question.

In a realm where league management is ostensibly held to a higher standard, it becomes imperative to determine the penalty for such incontrovertible evidence of deception.

It’s worth noting that any missteps made by the NFL Players Association (NFLPA) concerning players’ rights in disputes with the commissioner can be rectified through a dynamic public process.

The NFL’s acknowledgment that the language negotiations within the CBA continue, despite its initial signing in 2011, underscores the ongoing evolution of the league’s policies.

This appeal, therefore, assumes paramount importance as the first crucial step in establishing genuine accountability and repairing the integrity of NFL leadership.

At this juncture, NFL owners will be compelled to confront the reality that their current leader remains consistent with the Paul Tagliabue rebuke, characterizing his approach as “selective, ad hoc, or inconsistent,” particularly in the context of previous rulings on Bountygate.

This pattern can be construed as a repeat offense, and there may well be provisions to address the severity of consequences for repeat offenders.

Without explicit definitions of “full cooperation” and the establishment of reasonable standards wherein players are not coerced into self-incrimination in the court of public opinion, the league’s practices will continue to be considered a source of ridicule.

Repetitioning the term “integrity” alone will no longer suffice to conceal the underlying issues. While the NFL might have managed to skirt scrutiny thus far, when its practices are subjected to genuine external examination, the situation takes a severe turn.

A dedicated individual currently in fourth year of pursuing a BBA degree. Love to spend my free time painting, drawing, and reading books.


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