It began as a series of dramatic, detrimental conduct episodes: First, Ray Rice knocked out his fiancée. Then Greg Hardy was accused of beating his girlfriend. Adrian Peterson and the brutal spanking of his son with a wooden switch came next. And finally, it was Tom Brady possibly tampering with footballs.
The incidents were bad enough for the league. But then NFL commissioner Roger Goodell made a series of unforced errors that further tarnished the league in the public's eyes and also resulted in embarrassing reversals in arbitration and in court. And the National Football League Players Association has tried to capitalize at every turn.
This week, the NFL-NFLPA disciplinary saga reached a level of institutional detrimental conduct, the result of legal actions taken by the NFLPA that pushed the lingering simmering disputes into open hostility. The players and their union are demanding that Goodell and the league be held in contempt of court for the commissioner's failure to follow a court order to reduce the Peterson suspension, and they've launched a scathing attack on Goodell's decision to preside over the appeal of the Brady suspension.
The union accuses the commissioner and NFL owners of "contumacious" conduct. That's a word that lawyers and judges use only in extreme circumstances, and it's a clear signal that the disputes have reached a new level of hostility and are one step short of spinning out of control. It describes conduct that is stubbornly disobedient and even rebellious.
In paperwork that the union filed in federal court in Minneapolis, the players' attorneys use the word at least nine times and at one point twice on a single page. If the label "contumacious" was not enough, they accuse the commissioner of "blatant defiance," "above-the-law behavior," "sidestepping the truth" and "deliberate obfuscation." Arguing on behalf of players who have beaten women, injured a 4-year-old and possibly cheated with game balls, the NFLPA is claiming the high ground and accusing the commissioner of being a liar and a cheat.
All of it is a far cry from the Gene-and-Paul era, when union leader Gene Upshaw and commissioner Paul Tagliabue often presented positions in court before reaching a series of settlements over several years that were advantageous to both sides.
The NFLPA's contempt-of court demand should have never made it to court, and it could have been resolved in a couple of phone calls had the relationship been better.
In the decision that reversed Goodell's indefinite suspension of Peterson, U.S. District Judge David Doty sent the case back to arbitrator Harold Henderson for "proceedings consistent with this order." The union attorneys clearly expected Henderson to modify his ruling and reduce the indefinite suspension to the two-game suspension allowed in the personal conduct policy in effect at the time Peterson beat his child.
But both Henderson and the NFL treated Doty's order "as though it were a meaningless scrap of paper," according to the court filing. When union attorney Jeffrey Kessler demanded that Henderson comply with Doty's instruction, the league attorneys suggested that Henderson defer any action until the conclusion of an appeal that the league had filed immediately after Doty issued his ruling.
The league's request was reasonable and, in a more conciliatory Gene-and-Paul atmosphere, the request might have ended the dispute. The union, however, persisted in demanding action from Henderson, seeking to exploit another stumble by the commissioner in a detrimental conduct case. (The league's appeal will be concluded late in the summer, and the league could easily prevail, relying on well-established legal precedents that protect arbitrators' decisions.)
It is unlikely that the union will succeed in persuading Doty that Goodell and the league should be held in contempt of court. But if the players do prevail, Doty could fine the NFL for each day that Henderson fails to act in accordance with Doty's order. Instead of assessing a fine, Doty, the jurist who presided over the NFL's historic free-agency litigation in the early '90s and led both sides into a settlement that restructured the league, is more likely to convene a conference and try to settle the Peterson dispute.
The players and their lawyers, though, are more likely to succeed in their attack on Goodell's decision to preside over Brady's appeal of his four-game suspension.
The NFLPA's anger over Goodell's decision is understandable. There is no doubt that the collective bargaining agreement between the players and the owners gives Goodell the authority to appoint himself to hear the appeal, but there is considerable doubt that he has the authority to delegate decisions on player discipline to Troy Vincent, as he appears to have done in the Brady situation. Vincent, a former leader of the players' association who switched to the owners' side during heated negotiations in February of 2010, signed the letter that announced Brady's suspension.
Not only does the delegation of authority to Vincent appear to be a violation of the CBA, it is clear that Goodell will be called as a witness in a hearing in which he is the presiding officer. The union lawyers are clearly entitled to demand his testimony. They will ask Goodell to explain his decision to delegate the Brady decision to Vincent; they will ask him about the possibility of a "sting operation" that targeted the Patriots; and they will ask him to explain his approval of the four-game suspension.
In its demand that Goodell remove himself from the proceeding, the union will also question Goodell's partiality as he sits in judgment of his own staff and their work in the deflation incident. In addition to Vincent, there are at least 14 staffers who were involved in the episode, ranging from T. David Gardi, the NFL's senior vice president of football operations, to Milton Britton, the kicking ball coordinator for Gillette Stadium.
If Goodell refuses to remove himself from the Brady appeal, the union will go to court with overwhelming evidence that the league did not provide its biggest star with appropriate due process, and Goodell will face another humiliating defeat.
There is not much doubt that Rice, Hardy, Peterson and Brady indulged in personal conduct detrimental to the league and that it altered the lives of a number of individuals. But there is also little doubt that institutional conduct detrimental to the league is coming from the commissioner and the union. And it's the kind of detrimental conduct that could end up altering the viability of an entire enterprise.