Valerie Thomas on StarCaps, Congress and the CBA
Valerie Thomas
Valerie Thomas writes a great analysis on the StarCaps case and how it relates to the CBA (Collective Bargaining Agreement) and Congress. The NFL and its owners would love to have its powers expanded stealthily by trying to pull a fast one on Congress. We hope someone calls them on it before it happens!
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The NFL is trying to get Congress to sanction the CBA-negotiated right to be prosecutor, defense, judge AND jury! Commissioner Roger Goodell advocates “narrow and specific legislation that would confirm the primacy of Federal labor law and to respect agreements on this important subject.”
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Valerie explains the potential for a power-grab by the NFL:
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Congressional Oversight: StarCaps – Disciplinary Actions and Arbitration
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The NFL is trying to get Congress to sanction the CBA-negotiated right to be prosecutor, defense, judge AND jury! Commissioner Roger Goodell advocates “narrow and specific legislation that would confirm the primacy of Federal labor law and to respect agreements on this important subject.”
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Currently, the NFL has 32 teams in 23 separate states. The NFL and NFLPA negotiate the terms and conditions of employment for players compiled in the Collective Bargaining Agreement (CBA). Both entities are responsible for the direction and protection of the players’ rights. They are not permitted to agree to terms in the CBA that violate Federal or state law. The StarCaps litigation in the Minnesota court system will test the individual player’s rights versus collective bargaining and jurisdiction.
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Our democratic society is built on a system of checks and balances. There must be review of business practices for transparency and accountability especially since the NFL has anti-trust exemption. The direction that professional sports entities take must not be against public policy. The quest for a positive image must not overshadow fair and unbiased levels of justice.
StarCaps
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NFL/NFLPA Steroid and Conduct Policy
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Situations can arise before the expiration of the CBA and they must be addressed with expediency. Two monumental documents that were developed in and around negotiations of the CBA are: The NFL/NFLPA’s Steroid Policy and the 2007 NFL Personal Conduct Policy.
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The NFL’s Personal Conduct “Zero Tolerance” Policy stated: “Engaging in violent and/or criminal activity is unacceptable and constitutes conduct detrimental to the integrity of and public confidence in the National Football League. Such conduct alienates the fans on whom the success of the League depends and has negative and sometimes tragic consequences for both the victim and the perpetrator. The League is committed to promoting and encouraging lawful conduct and to providing a safe and professional workplace for its employees.”
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The StarCaps case has addressed issues in both policies. Decisions will be made to amend standard rules and regulations and this case will ultimately establish a new direction in sports.
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Disciplinary Actions – The NFL Commissioner does not have a blueprint which lists infractions and the dollar $ amount associated with punitive and preventive measures. Many personal conduct issues, that have recently occurred, were not and could not have been contemplated. Thus, discipline and fines have been subjective. Any person disciplined under this policy shall have a right of appeal, including a hearing, before the Commissioner or his designee.
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Fairness and the Right to Appeal – The NFL has abused their discretion and attempted, after the fact, to modify public policy via newly proposed legislation. They stand to gain an advantage that would circumvent the collective bargaining process. We cannot allow the smoke and mirror tactics of the NFL to overpower and outrank what is inherent of our democratic society – that is, to have the right to impartial, unbiased – mediators, arbitrators, jurors, and judges.
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It’s not just about protecting the integrity of the NFL drug policy. The NFL has every right to enforce its drug policy and programs that were collectively bargained.
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However, the Minnesota players are being admonished for trying to: (1) “clear their names of unfair implications” – including allegations of intentional use of diuretics to mask steroid usage; (2) to have the right to explain their positions to an unbiased arbitrator; (3) to make clear the fiduciary duty of the NFL and NFLPA in this situation; and, (4) to assist in every capacity to have review for fail-safe measures.” Player Responsibilities – The implementation of a regulatory system requires a commitment to diligent oversight by NFL players and their representatives. To the extent that rules are being instituted in uncharted territory, monitoring decisions and outcomes is of the highest importance. Accepting policies without perusal will establish precedents that could alter the letter and spirit of state and federal laws, labor, employment and the appeal process. The program needs review and reform regarding performance enhancing drugs, including compliance with statewide and federal laws
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Compliance and Public Policy – The NFL is crying foul over the appeal by individuals who have inalienable constitutional rights. It has been stated that oversight will “weaken the effectiveness or increase the administrative complexity of the program [NFL Conduct Policy].”
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Arbitration Process – Unlike court decisions, arbitration decisions aren’t readily available to the general public. Thus, there is no judicial review. The NFL has abused their power by including bias in a process that requires, at the very least, the appearance of fairness and equity.
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The choice of an arbitrator should not remain discretionary. The arbitrator should be neutral. It is arrogant to insinuate that only an elite group of sports enthusiasts are qualified to ensure the desired direction of the League. It is unacceptable that the NFL Commissioner can conduct disciplinary hearings and also be the “chief” of appeals. And it is unacceptable that the NFL Commissioner can make an unfettered choice of a designee. Partial or bias arbitration does not meet “public policy purposes” as set forth by Congress via federal regulations.
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Conclusion
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Federal laws for choosing an impartial arbitrator are clear. But the interpretation and application of these guidelines have been misdirected. The Commissioner’s designation of the NFL’s General Counsel as an arbitrator in the StarCaps case is wrong. It has nothing to do with character rather the appearance of inequity – if nothing more than the fact that the arbiter is on the NFL’s payroll (in a job that protects the interests of the NFL). Red flags should be raised.
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The evolution of the arbitration system in sports is unseen and unknown. But a precedent is being established that must be opposed. In 2006 Congress held a hearing on NFL arbitrations and a follow-up is needed.
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The NFL has influenced other sports entities into thinking that there is an attack on national and international drug policies and guidelines. The bottom line is that there needs to be continued discussion as to how to adequately inform, update and guide players on health issues and precautions.
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Until further clarification of duties and responsibilities, I opine that it was a fair decision by Judge Magnuson not to suspend the Minnesota players – – and, it was fair of the NFL to not suspend the New Orleans Saints players. To do so would have been discriminatory. The players are on a kind of administrative leave with pay until the judicial system runs its course.
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The players deserve further consideration in lieu of the constraints of a zero-tolerance policy. Medical professionals are conducting research on ever-changing products. Complete lists and amendments of banned substances should be provided to non-medical, professional players, with frequency. Perhaps the NFL is in over its head. Nevertheless, the NFL should take more responsibility for the flaws in the system. They should not be allowed to have a “field day” against their own team players.
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The players are innocent until proven guilty and don’t deserve the imposition of “punitive” measures without recourse and fairness. Punitive measures also include the attempt to have a system of bias arbitration obtained via “the closing of loopholes” in order to “respect [CBA] agreements.” In the StarCaps case, individual rights must supersede collective bargaining rights and the judicial system is the avenue to ensure compliance with public policy.
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The League stands alone on this issue. They cannot be allowed to build a positive public image without protecting the positive images of the players who want to comply with the “system.”
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Valerie J. Thomas is a former NFLPA Research Analyst and Paralegal. She was responsible for the analysis of arbitration decisions in the Legal Department.
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Copyright ©2009 Valerie Thomas
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Mike Landrum
November 15th, 2009 at 10:40 am #
I have 3 credited seasons 1984 – 1986 and 3 knee surgeries ended my career. I found out recently that post-93 players are vested with 3 years. Why were we left out? How many guys like me are out there? Is this being talked about in next CBA?
Thx
Mike Landrum
Atlanta Falcons
1984 – 1986