At this point, we all know the basics of the bounty accusations that have been levied against current and former members of the Saints organization. The issues of appropriate due process - which we must recognize is not guaranteed in a business setting - are very much up for debate as a result of this circumstance. It’s not the first time that the question of exactly how the commissioner’s office reaches and justifies its findings has been open to considerable and often understandable debate.
This isn’t just a response to Bountygate. It’s something that I’ve contemplated for years now, stretching back to when Roger Goodell was the league's COO under Paul Tagliabue, and he became well known for his constant effort to monetize the league's product (ie. seat licenses, NFL Network). In watching the kangaroo court-type decisions that he’s often handed down over the years, it’s obvious that an elephant in the living room is the underlying distrust and distaste of the players for him on that basis.
I’m not going to go back and hit on specific cases, one by one. Most fans are familiar with several - the substance abuse accusations that resulted in the infamous Star Caps trial, the suspension, eventual reinstatement and subsequent banning of Adam ‘Pacman’ Jones, as well as the various and often inscrutable determinations of fines for different hits on players and so forth - all are common experiences among the fan base. What I want to consider goes deeper than individual debates about those incidents to the continuing pattern of randomness I’ve seen in many of Goodell's rulings.
I understand why this situation has continued, and why it wasn’t something that the NFLPA could approach in this last round of bargaining. Without any suggestion of inappropriateness, it’s simply true that the players association wasn’t prepared to deal with a negotiation that involved that area. They didn’t seem to prepare well for a situation in which they desired to end Goodell’s personal sovereignty over this area. In speaking with USA Today's Jim Corbett recently, Chiefs RT Eric Winston said,
In that CBA bargaining process, you're not going to get everything you want. That's not to say we weren't trying to curb some of that (power). To say we weren't trying to do something about that is false.
Just from what's been told to me, there were attempts made. And there's a tradeoff. To do that, we probably looked at sacrificing playing less games, so you always look at the risk and reward. And try to juggle that.
Former Packers exec and current NFP writer Andrew Brandt told Corbett via email,
Although I admire their creative lawyering with the two bounty grievances to try to remove that power from Goodell, the parties are right back in front of Goodell as the CBA prescribes. Thus, now is not the time for outrage over the appeals process.
I’m not so sure. Actually, I think that now is a perfectly good time for outrage over what amounts to a rigged game in the entire disciplinary process, and for the players to begin to plan to see it changed. It’s unquestionably true that the players can’t force Goodell or his heir to change this until the 10-year period of the current CBA has run its course. There’s a chasm, though, between that cold fact and the recognition that if they want it changed, starting now the NFLPA needs to get its act together and begin to plan and implement a concerted and consistent course of action aimed at making sure that disciplinary power be removed from Goodell or his successor at the next round of bargaining. It’s a matter of not liking the rules, and therefore changing the game.
If the players want to succeed they’re going to have to achieve something that the NFLPA hasn’t been famous for doing - first and foremost, they will have to work together as an organization. The current player reps, for the most part, have been far more visible and vocal recently than at any point that I recall, which is good. Part of that, of course, is simply the visibility of the recent lockout, but there’s also the trend toward social media and increased access to the speech of the reps and of the players themselves. That’s a clue as to their best course of action.
There’s no reason not to run this initiative for a more rational disciplinary approach as you would any political campaign - because that’s exactly what it is. It’s not a campaign for or against an individual, but one to pass a rule that will take the power of discipline from the commissioner’s office and give it to an alternate body: one that has a mutually accepted written structure on which to base its decisions.
In the decade to come, there is plenty of time for the players to put together such a written description of an alternate ruling body, one that covers all of the various aspects of discipline - league violations by the teams and by the the players. It’s not a secret that the various offenses that are commonly dealt with by Goodell may receive penalties that don’t seem to follow any particular pattern. A player who commits domestic violence or risks lives by driving drunk often draws a lighter penalty than one who ingests a banned or potentially performance-enhancing substance either accidentally or by doctor’s prescription in order to treat a disease.
If that ingestion is via a presented doctor’s prescription, the league should have a simple form to be signed and a minimal fine for not filing paperwork on time. The fines and suspensions for a matter of paperwork is pointlessly draconian. This is not a major threat to NFL football, and it shouldn’t be treated as one. The view that there has been an uncomfortable lack of balance or uniformity in the handing down of multiple rulings has been an understandable bone of contention for some time. It’s one area where I find myself in support of the players - total power not only corrupts, it removes any way to appeal the misuse of that power. As a matter of reason, that’s not a course that is fair to the participants. It doesn’t have to be, and that shows in how badly Goodell has handled this area.
While no employee has a reasonable expectation of a legal due process per se, successful companies tend to have established rules, a structure of remedies in response to violations, and established disciplinary avenues that use impartial individuals to view and judge the situation. They usually use a disciplinary committee (often of the peers) to oversee and maintain a quality of fairness and to ensure consistency and reason in handing down disciplinary rulings.
Leaving aside for the moment the individual issues of evidence and evenhandedness with regard to the so-called Bountygate situation, the players do have a legitimate concern with the often-contradictory rulings that have come from Goodell. The appeals process, such as it is, makes no less sense - Goodell also holds sway over that, making him judge, jury, and executioner in most cases. No one can fairly and honestly critique their own arguments, so a change to the appeals process alone would be of considerable benefit to the players.
To obtain a circumstance of fairness in this area, the players should start now. They should get ready to begin presenting a well thought-out and carefully wrought description of a structure of disciplinary obligations and penalties that covers all of the cases that have come before the commissioner’s office in the last two decades. It should list all of the NFL rules, the infractions, the standards of proof, the established penalties (an area where they should expect some give and take when it comes to the table) and a full process of review and appeal. To make the process fair, it has to be taken from a single individual who generally seems to be shooting from the lip in his approach to fines and sanctions, and given to an office established for that purpose. When the players can’t know the outcome of an action, cries of unfairness will be rampant. In this case, they aren’t entirely without substance.
If the players want this to be successful, they’re going to have to have their i’s dotted and their t’s crossed early in the process. The document they develop must pass muster by impartial attorneys and/or professional arbitrators and mediators. It has to be thorough, and it has to be as fair to both groups as they can make it - this is no time to try and score unrelated political points. They need something that’s ironclad - fair to all, carefully crafted. And then, they need to bring it to everyone’s attention. Let people see what they’re suggesting. After all, if any of it is accepted it will be public knowledge anyway. Open the blinds and get people to understand what you’re asking and why.
Long before the collective bargaining begins, the NFLPA then has to bring this message to every aspect of the fandom. Talk to the press, light up the social networking media. The light of oversight and the will of the fans were important in pushing Congress to hold hearings on the vile actions surrounding the league's so-called concussion committee. The heads of that committee were forcibly removed by the league as a result. Based on that series of events, it appears that public opinion can ignite a firestorm that even Congress will not ignore. That is, then, a reasonable approach to this problem.
Most people have, by nature, an essential sense of fairness. I think that the players' grievance is perfectly legitimate and I believe that public opinion would support them and at the very least, lead to concessions by the league to systematize discipline. But the players have committed another of their seemingly endless litany of mistakes - they failed to prepare a reasonable alternative prior to the CBA negotiations. They failed to lay the groundwork for getting it changed; they had no alternative to offer, and had not taken the time and paid the costs involved in developing a fair and reasonable system of discipline to put in Goodell’s stead.
The league will probably bleat and wail about negotiating in the media, but let them. The goal has to be to force the owners, commissioner and league, by dint of public knowledge as well as opinion, to deal with the specifics of the plan. They will generally come up with a couple of major and dozens of petty disagreements, as will happen in any major negotiation. I wouldn’t expect anything different. Certainly, the NFLPA should establish areas where they are willing to give in, as well as those that aren’t negotiable. But the establishment of a functioning body to hand down disciplinary decisions is simply in the best interest of the league, the players and the sport itself.
The worst thing you can do, when faced with a negotiation against an entrenched adversary, is to fail to prepare. The best thing you can do is to be solution-oriented rather than conflict-oriented. Using the bully pulpit that professional football provides to the fans, the players can let the more reasoned and popular among their representatives present this concept to the public and then continue to hammer on it through the efforts of the association and through individual players. Lobbying politicians, using high profile players meeting with lawyers, local politicians and national legislators, showing the number of voters who support such a process via the polls, and all the other common tools of a political situation should be employed to increase the pressure on the league.
Will it work? I believe that it can, but I don’t really know. I do know that the process itself is currently broken, and that the players haven’t established a rational alternative. If they want to see the situation changed, the ball is in their end of the field. What they do with it will make the difference in whether they should expect change in this circumstance or not.