By: Dylan J. Smith
A collective bargaining agreement (“CBA”) is a written legal contract between an employer and organized labor that sets down and defines conditions of employment and procedures for dispute resolution. Typically, a CBA is the result of a process of collective bargaining between an employer and a labor union representing the employer’s workforce. Once a CBA is reached, both the employer and the organized labor unit are required to abide by that agreement. Therefore, it is critical for organized labor to properly protect its interests during collective bargaining to disallow employers from obtaining disproportional conditions and procedures in the CBA.
The National Football League Players Association (“NFLPA”) is the labor organization/union which represents the professional football players of the National Football League (“NFL”). The NFLPA was established in 1956 to assure proper recognition and representation of the players’ interests, which includes negotiating the terms and conditions of a governing CBA with the NFL on behalf of the players. Despite their stated duty to assure proper recognition and representation of the players’ interests and being widely recognized as one of the most powerful labor unions in the United States, the current CBA ratified in 2011 has glaring deficiencies that subvert players’ rights. These deficiencies have been underscored after multiple failed attempts to appeal the ever-growing authority of the Commissioner of the NFL, Roger Goodell, by the likes of Tom Brady, Adrian Peterson and Ezekiel Elliott. These failed attempts have made it clear that under the current NFL CBA, Roger Goodell’s authority cannot be effectively checked through the United States court system. Worse yet, the current CBA will remain effective through the 2020 season and in order to orchestrate changes to Roger Goodell’s power, sacrifices will have to be taken by those who are currently powerless, the players.
Article 46 of the NFL’s CBA gives Roger Goodell a large swath of power to discipline players for “conduct on the playing field . . . [or] conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The appeal process for Commissioner Discipline is limited to the exclusive remedy bargained for in the CBA. Section 2(a), Article 46 of the CBA states that Roger Goodell has the power to serve as a hearing officer (arbitrator) in any appeal or unilaterally appoint one, after consultation with the Executive Director of the NFLPA. This section was especially prominent during the Ezekiel Elliot case, in which Roger Goodell appointed Harold Henderson as the arbitrator, despite the clear conflict of interest he possessed as the current President of the Player Care Foundation, a NFL-affiliated charity, and former NFL Vice President for Labor Relations and Chairman of the NFL Management Council Executive Committee. While a conflict of interest so blatant would typically lead to the appointment of a more impartial arbitrator, the NFLPA and their attorneys negotiated to these provisions under the CBA, thereby leaving the courts with little power but to allow any appointed arbitrator, or Roger Goodell himself, to rule on the matter in question.
In addition to the ability granted to Roger Goodell to appoint any arbitrator or serve as one himself, the current CBA provides no guarantee that a player can compel the NFL to produce witnesses for cross-examination (typical Confrontation Clause of the 6th Amendment concerns) or to turn over key evidence (exculpatory evidence concerns). These issues again surfaced in the recent Ezekiel Elliot saga, as he was not only denied the ability to cross-examine his accuser, but also flatly denied the ability to review the NFL’s notes taken from their multiple interviews with the accuser. However, again left with no express recitation of such due process protections under the CBA, the courts were rendered incapable of correcting these imbalanced appellate practices.
The attorneys and other members for the NFLPA failed to serve their clients’, the players, best interests during the negotiation of the current NFL CBA by essentially granting Roger Goodell the power to unilaterally decide which players should be subject to both short-term punishment (fines, suspensions) and long-term punishment (tarnished reputations), with little due process afforded to the players facing such punishments. Unfortunately for the players, the current CBA cannot be changed until it expires after the 2020 season, upon which it will be the NFLPA’s duty to ensure that the player’s interests are better served under the new agreement. What has happened to the players of the NFL has happened to countless labor forces before them and such occurrences continue to demonstrate the importance of zealous and competent legal representation when negotiating CBAs.