by Andrew Brandt
October 13, 02010
As Ben Roethlisberger returns from his NFL-imposed four-week suspension for bad behavior and the league looks into “sexting” allegations against Brett Favre, the issue of conduct by NFL players off the field has again become front and center. It is also an issue in play between the NFL and the NFLPA in bargaining for a new CBA to avert a 2011 lockout.
The Personal Conduct Policy (the Policy) is the end result of an admirable and important league initiative: to maintain and improve the reputation, integrity and public confidence in the NFL and its players. The Policy regulates behavior by players – and team and league non-player employees – away from the field. It is an edict on morality and values on which the league espouses and promotes in its message and marketing.
It surprises some to know that the Personal Conduct Policy was not collectively bargained. It was an initiative of then-new Commissioner Roger Goodell in 2006 and acquiesced by then-Executive Director of the NFLPA, the late Gene Upshaw. Upshaw agreed that the players needed an image makeover and agreed to the Policy after a spate of off-field incidents in early 2006 to foster relations with the Goodell.
Under former Commissioner Tagliabue, a lawyer who was quite close to Upshaw, players would not be disciplined until their cases had moved through the legal and/or judicial process. As a team executive with the Packers, I knew that we would have the player’s services despite an arrest and/or charge of criminal behavior while his case was being heard, settled or pled out. Now, there’s a new sheriff in town.
The administration and meting out of discipline under the Policy has become a sticking point for the players. The union and its leaders believe that Goodell should not be the judge handing out discipline and the jury hearing the appeal on these cases. Team discipline is subject to appeal to an independent arbitrator, and it will be a point of bargaining for the NFLPA to have league discipline subject to the same independent appeal rather than the Commissioner serving as judge and jury. The union also fees there are little to no guidelines in the application of fines and/or suspensions due to off-field behavior.
The Policy allows the NFL to act with its own rules for fines and suspensions. It also allows for different disciplines based on criteria that aren’t always clear to the players being disciplined, their representatives or the union.
The NFLPA and many players feel that this morality play by the league is not what was envisioned when Upshaw agreed to the Policy without the need for it being collectively bargained.
The Roethlisberger suspension/negotiation
No one would dispute that Roethlisberger’s actions that fateful night in Georgia showed the worst of the entitled and egomaniac athlete. It was also known throughout league circles that Roethlisberger was a poor teammate and not diligent at his craft.
After a long inquiry by the Georgia authorities into that night in question, Roethlisberger was not charged with a crime. A week later, using the Policy as his guide, Goodell suspended Roethlisberger for six games, 38% of the 2010 season, with a carrot of reduction to four games for good behavior (a reduction now earned as he returns to the Steelers).
Roethlisberger was the first player suspended that was neither arrested nor charged. The penalty was the result of – like everything else – a negotiation, with his camp wanting four games reduced to two (which they thought they had) and the NFL and the Rooneys demanding no less than a four-game suspension.
Whether due to the salacious details of the Roethlisberger case or otherwise, the NFLPA chose not to challenge the league and their non-bargained imposition of discipline. Further, Roethlisberger expressed no interest in the help of the union, preferring representation by his private attorney.
Roethlisberger’s suspension rattled around team locker rooms and has become a much-discussed topic among players. No one defends the actions of Roethlisberger, but they wonder what is next. What happens to a player in a similar situation that is charged with a crime? An eight-game suspension? What would have happened to Roethlisberger had he been charged? A ten-game suspension?
Brett as precedent?
Now comes Brett Favre and allegations he sent inappropriate texts and pictures of his nether regions to a sideline reporter contracted by the Jets when Brett was there in 2008. The NFL is investigating in the name of sexual harassment and the union, as well as all players, is paying close attention to how this one turns out.
A couple interesting notes in the Favre investigation: (1) will a precedent be set about inquiry into workplace harassment in NFL teams? This would appear to force a reaction the next time a team employee claims harassment. And (2) where will the culpability of the Jets organization lie, especially if a staffer was implicit as a go-between?
In the end, this is yet another issue teed up for bargaining as part of this all-important negotiation that has taken no more than baby steps to avoid a potential lockout in March. As always, stay tuned.
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