When the NFL collective bargaining negotiations began in earnest over a year ago, one of the clear agenda items for the NFL Players Association (NFLPA)  was to reel in Commissioner Roger Goodell on overreaching discipline through the Personal Conduct Policy (the Policy). Union officials felt Goodell had “jumped the shark” with random and excessive punishment for off-field conduct and were determined to curb his power or – at the least – have an independent appeals process for such discipline.

ICONIt appears the NFLPA has allowed Commissioner discipline for conduct to stand as it had before.

With a new ten-year Collective Bargaining Agreement (CBA) in place, however, it appears the power of the Commissioner regarding player conduct is unchanged.

The NFLPA made it another priority, or so we thought, to prevent Commissioner discipline for lockout misconduct. The NFL had ceased operations; to impose discipline when there were no team operations would seem unwarranted.

Unfortunately for players, it appears lockout discipline, at least for some, has gone the way of the NFL as well. Bengals’ running back Cedric Benson has absorbed the losses by the NFLPA on both of these key issues. And Benson has decided to do something about it.

Let’s look at his case:

Suspension even while no NFL

Benson was arrested on May 30, 2010 and again on July 17, 2011.  He accepted a plea agreement to resolve the two cases at once. As a result of these repeat offenses, on September 22nd Commissioner Goodell suspended Benson for three games for violating the Policy.

Due to a side letter signed on August 4th by both the NFL and NFLPA, eight players including Benson – deemed "repeat offenders" – would be sanctioned for lockout misconduct.  Thus, Benson faced penalties for his summer arrest. He responded by: (1) directly appealing his suspension (right back to who levied it, the Commissioner); (2) filing a non-injury grievance against the NFL for imposing discipline during the lockout; and (3) filing an unfair practice charge against his union, the NFLPA, for misrepresenting his interests as a union member.

As described below, both the appeal and non-injury grievance have been resolved, although with little benefit to Benson. Only the pending NLRB charge remains. Let's examine:

Appeal: Lockout discipline allowed

Commissioner Goodell’s designee, Harold Henderson, heard the appeal and ruled that the Commissioner could discipline for Benson’s repeated offenses, including the one during the lockout.

Benson objected to the August 4th letter and contended that under Article 43 of the CBA, a non-injury grievance is the only process to determine whether the Policy is applicable retroactively to lockout misconduct.

Instead of Article 43, Henderson found Article 46 of the CBA controlling, allowing Goodell – with the cooperation from NFLPA, as per the August 4th letter – to apply the Policy to lockout misconduct.

Benson further argued that since he was not under contract during the lockout – his contract with the Bengals had expired in February – he was not an "employee" of the NFL and thus not subject to the Policy. Henderson rejected this contention, pointing to the definition of "employee" in the National Labor Relations Act (NLRA), which includes those whose work has stopped temporarily due to a labor dispute. Further, the Policy provides that free agents are "covered persons," subject to discipline.

Benson's direct appeal was not entirely unsuccessful – the suspension was reduced from three games to one, with an additional fine equivalent to one week's pay – but this was not the resolution Benson was looking for.

Non-injury grievance v. the NFL: rejected

Benson's grievance against the NFL made similar arguments as the appeal: (1) Article 43 non-injury grievance procedures apply to his suspension, (2) Commissioner Goodell lacked authority to discipline for lockout misconduct since every other NFL rule, benefit, policy, etc. was suspended during this time, (3) Benson was not under contract and in a lockout at the time of the incident, and (4) since the Policy was not in effect during the lockout, the only source of Commissioner Goodell's authority to discipline him was the August 4th letter, which is still in dispute as to its meaning.

Despite the persuasiveness of these arguments, the independent non-injury grievance arbitrator never reached them as she determined that she lacked jurisdiction, essentially "punting" Benson's grievance and allowing the suspension to stand.

Whither the NFLPA?

The NFLPA declined to testify at Benson's direct appeal, reasoning that it was "not the appropriate forum" (translation: "we're upset about Benson filing an unfair labor practice charge against us"). However, NFLPA attorney David Feher did testify at the non-injury grievance, arguing that the August 4th letter does not authorize the imposition of lockout discipline. Benson argued that such ambiguity in the party's respective interpretations of that letter by the NFL and the NFLPA mandated resolution by the impartial arbitrator. However, she passed, claiming to not have jurisdiction to do so.

One has to wonder why a union representative was willing to question the August 4th letter -- signed by NFLPA Executive Director DeMaurice Smith -- at one of Benson's hearings but not the other. 

It appears that the once-important goal of an independent appeals process for Commissioner discipline and no Commissioner discipline for lockout conduct were given up in the horse-trading at the end of the negotiation process in order to make a deal with the NFL.  The NFL Personal Conduct Policy that players and union officials complained about for years lives on for what appears to be another decade. 

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