In the Matter of the Arbitration Between:
TERRELL OWENS and
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION
PHILADELPHIA EAGLES and
NFL MANGEMENT COUNCIL
Hearing held November 18, 2005
Before Richard I. Bloch, Esq.
For The Management Council
• Daniel Nash, Esq.
• David Gardi, Esq.
For the National Football Players Association
• Jeffrey Kessler, Esq.
• Richard Berthelsen, Esq.
• Kristen Meister, Esq.
Following a stormy 2005 pre-season and an event-filled start of the season, the Philadelphia Eagles suspended Owens for four weeks and announced that, following the suspension, the team would not play him during the season's remaining games.
The Players Association (hereinafter "Association") immediately filed this protest contending that the Club's actions violate the "Maximum Discipline" provisions of the NFL Collective Bargaining Agreement ("CBA") and contending, as well, that the discipline is arbitrary and excessive.
Was the four-week disciplinary suspension for just cause; if not, what should the remedy be?
Was it a violation of the CBA for the Club to exclude the Player from games and practices, following the four-week suspension?
The Club says that, beginning in camp prior to the 2005 NFL season and continuing thereafter, the grievant made vigorous, disruptive efforts to force it to renegotiate his contract or, alternatively, to release him. Continual counseling, warnings and a disciplinary suspension were useless, says the Club, in attempting to reform his behavior. When it became apparent the team was suffering as a result of Owens' activities, management concluded he was a liability to the team it could not afford. Accordingly, it suspended him, then announced he would not return to the team after the suspension ended, although it would continue to pay his salary.
In the overall, the Club maintains the four-week suspension is properly responsive to Owens' misconduct. Removing him from the playing and practice field thereafter, says the Club, is a function that was fully within the Coach's and Club's managerial authority and discretion. It requests the grievance be denied.
The Association claims the four-week suspension is well beyond any type of discipline called for by the Player's actions. It denies the existence of any concentrated campaign to force the Club to release Owens; indeed, says the Association, following August 18th, when the Player returned from a pre-season suspension, his behavior improved. None of the events cited by the Club should have resulted in discipline of any kind.
The Club's actions in removing him from play or practice for the rest of the season, says the Association, were disciplinary in nature. Because the Collective Bargaining Agreement establishes a four-week maximum penalty for "Conduct Detrimental", the removal actions must be set aside and the Player reinstated to the position he was in prior to the discipline. It requests that the grievance be granted.
Relevant Contract Provisions
Section 3. Management Rights: The NFL Clubs maintain and reserve the right to manage and direct their operations in any manner whatsoever, except as specifically limited by the provisions of this Agreement and the Settlement Agreement.
Section 1. Maximum Discipline: Ejection from the game -- maximum fine of an amount equal to one week's salary and/or suspension without pay for a period not to exceed four (4) weeks.
As a general matter, most critical facts are not disputed, although the parties differ substantially as to their respective characterizations of the events. Following the 2003 NFL season, Terrell Owens signed a 7-year contract with the Eagles valued at about 49 million dollars. During his first season with the team, Owens performed exceptionally well, as did the team, and the Eagles went to the Super Bowl. And, Mr. Owens' relationship with his team, coaches and players, was wholly salutary. Shortly after the Super Bowl, the Player announced that his year-old contract didn't adequately reflect his playing level, and he demanded a new deal. His agent, Drew Rosenhaus, announced the Player had "out-performed the contract" ; Owens, for his part, claimed "I know I'm a top player in the game, and my current contract doesn't justify that." The Club says that, starting about that time, Owens engaged in a consistent "pattern of disruptive misconduct intended to force the Eagles either to give him a new contract or cut him loose." His efforts, it is claimed, included skipping mini-camp and team meetings, ignoring coaches and fellow players and publicly criticizing the team, the Eagles organization and his colleagues.
The Association, as indicated above, says the team grossly overreacted. Following his return from a one-week suspension in August, the Player behaved well; examples cited by the Club as misconduct are trivial and, in any event, in no way supportive of the penalties at issue, which in response to "Conduct Detrimental", stand as the most severe in the history of the NFL.
For the reasons to be discussed, the findings are (1) the four-week suspension was for just cause and (2) there was no contract violation inherent in Club's determining that Owens should not return to the team. Resolution of this dispute requires recognition of the highly unusual nature of this case, the existing boundaries of applicable CBA language and, above all, a clear understanding of the facts.
In his quest to secure a new agreement or to have the team release him, Mr. Owens embarked in what the Club accurately characterizes as a "nearly non-stop pattern of disruptive misconduct." In an ESPN interview on April 12, 2005, the Player commented provocatively on his contribution to the Super Bowl and his own efforts to get back in shape after a broken ankle:
"I played every snap they allowed me to play. I wasn't even running until, like, two weeks before the game. But I made sure I was in the best shape possible. I wasn't the one who got tired in the Super Bowl."
That comment was perceived by many, including Head Coach Andy Reid and quarterback Donovan McNabb, as a slap directed at McNabb.
Owens skipped a mandatory team mini-camp in late April and, shortly thereafter, announced his appearance at the pre-season training camp on a "satisfactory" re-negotiation of the contract. Rosenhaus and Owens were unequivocal in letting the team know that Owens' happiness was tied toward renegotiating the contract. Coach Andy Reid testified as to their communications to him:
A. [Drew and Terrell said] ... that things weren't going to be pretty if he did come to camp. Somewhere in there, you know, T.O. mentioned that he knew how I was wired and the discipline that I asked of the Players, and that I wouldn't be happy with what I saw.
In July, prior to training camp, and in the face of renewed threats by the Player, the coach sent Mr. Owens a letter that cited his threats to disrupt the team, warned him of the team's readiness to respond with "all available fines and contractual remedies" and demanded repayment of the 1.725 million dollar signing bonus the Player had forfeited by missing the April mini-camp. The terms of this letter (and subsequent similar documents) are important and, as such, they are set forth here in their entirety:
In light of the numerous recent conversations you and I have had, I thought it was important to communicate with you in writing. I have been intending to do this for quite some time, and after the angry and threatening statements you made in our telephone conversation last night, it became clearer that this correspondence was necessary.
In our recent conversations, you have repeatedly threatened to do things and act in a manner that would be destructive to both the Philadelphia Eagles and to your own career. These are things that are not only inappropriate, but are in conflict with both the promises you have made to me and the obligations under the contract you have signed with the Eagles. You have repeatedly threatened to disrupt our team and to do whatever it takes to force us to cut or trade you, including breaching many provisions of your contract., Last night you specifically told me that you had no intention of coming into training camp and trying your best while you feel you are being underpaid. Although this was the most extreme comment, it is one of many such comments you have made to me and others within the organization. This letter is meant to inform you that if, in fact, upon arrival at training camp you carry out any of these threats, the team intends to use all available fines, and contractual remedies to deal with this behavior. Your stance is unacceptable and will not be tolerated.
As we have discussed previously, you breached your contract by refusing to report to the club's mandatory mini-camp. Your refusal to report is a default under the Signing Bonus addendum in your contract. In accordance with the terms of the Signing Bonus addendum of your contract, the club hereby demands repayment of $1,725,000 (i.e., the portion of your Signing Bonus that you are required to repay to the club as a result of your breach) by August 12, 2005. Should you fail to repay that total amount by August 12, 2005, we will begin deducting the above amount in equal installments from your game checks, and any other compensation owed to you by the club, or we will initiate a non-injury grievance for repayment of money owed to the club due to your breach.
Please be advised that any additional breaches of your contract and/or violations of club rules will result in the club imposing fines against you in accordance with the Collective Bargaining Agreement and club rules. Repeated violations of club rules will result in escalation of the discipline imposed by the club and increasing fine amounts, up to and including you being fined and/or suspended for Conduct Detrimental to the club.
Executive VP Football Operations/Head Coach
cc: Drew Rosenhaus
Owens reported to camp but, among other things, refused to speak with team personnel. On or around the opening of training camp in August, at Mr. Rosenhaus' suggestion, Coach Reid, Owens and Rosenhaus set up a meeting to attempt to clear the air. Mr. Owens, however, declined to shake the Coach's hand and rejected continuing efforts during that meeting to set matters straight. Thereafter, Coach Reid testifies, the Player declined to speak to him and Reid resorted to communicating with Owens through the Player's position coach. Owens also declined to talk to various Eagles personnel, including the Offensive Coordinator, Brad Childress. Childress testifies that, as contrasted with the first year of their relationship, Owens was incommunicative. From the first time they met in training camp that second year, he says, he was met "with nothing, no response, just kind of a straight-ahead stare." Childress continued to greet the Player for some seven or eight nights until Owens, at one point, said: "Why do you talk to me? I don't talk to you. You don't talk to me. There's no reason for you to talk to me."
Owens would interact with some teammates but not others, including Donovan McNabb, according to the record. His antics were affecting the team. There was, says Coach Reid, a lot of tension: "The Players felt it, the coaches felt it. I think on both sides of the ball, it was a different feeling. I had Players coming to me talking to me about the situation and it just wasn't real healthy. I tried to make that part work."
The year before, according to the Coach, Owens "was great" about attending things such as autograph sessions, which are mandatory. However, as part of his protest, the Player refused to do these. Reid testifies to a confrontation in early August:
"I went up to him and he was in a corner area where there weren't any people around. ... I didn't want to put him on the spot in front of anybody. I don't do that. That's not my style. I said hey, listen, I don't know if you've heard what I said, but you've got autographs today, it's Receiver's day up. And he said I'm not going to do it."
Thereafter, both men got into a heated exchange and told each other to "shut up." Following this interchange, the Coach brought Owens to his room and told him he was going to suspend him for a week. At that time, Coach Reid issued the following Aug. 10 letter:
I write to tell you that we are sending you home, effective immediately, based on your recent conduct at training camp. Your behavior has been unacceptable since you reported to camp. Let me give you a few examples of what I mean.
As you are well aware, your NFL Player Contract requires you to, among other things, give your best efforts and loyalty to the Club. You have failed on two occasions to report to mandatory autograph sessions, per your contract. At least twice, you have been insubordinate to our offensive coordinator. In addition, you have talked back to me and been insubordinate. This disruptive behavior can not be tolerated. In spite of your behavior that violates the terms of your contract, no further action is being taken by the club at this time, but in no way does the club condone your actions. We will reserve the right to take further action based on your recent behavior.
You will be required to report to the NovaCare Facility on Wednesday August 17, 2005 at 7:30 am to meet with Rick Burkholder. If you do not report on August 17, 2005 at 7:30 am, you will be in violation of the terms of your contract. In the interim, you will be required to have twice daily treatment sessions with Dr. Mike Hatrak. You must contact Dr. Hatrak at (phone numbers deleted) to arrange for your treatment sessions. Our club physician will direct Dr, Hatrak on your treatment protocol. We will be monitoring those treatment sessions and follow up with Dr. Hatrak to ensure that you are in compliance with our club physician's directives.
We expect you to return to the Eagles on August 17, 2005 with a renewed attitude and focus. That includes abiding by all terms of your contract, being respectful to your teammates and coaches and playing within a structure that will lead us all to have success.
Executive VP Football Operations/Head Coach
NFL Management Council
The Association says these actions should not be viewed as formal discipline. It notes, among other things, that the term "suspension" is nowhere mentioned in the letter and it imposed no salary penalty. But without regard to whether these actions by the Club should be categorized, from a purely technical standpoint, as a suspension, the more important question is whether the incident, including the Player's being sent home and the accompanying correspondence, should reasonably have put Owens on notice of serious Club concerns. As to that, there can be no real doubt. The letter specifies, in unambiguous language, the shortfalls at issue -- missing mandatory autograph sessions, being insubordinate to the Offensive Coordinator and to the Coach and engaging in generally unacceptable behavior since he reported to camp. According to the record, Mr. Rosenhaus contacted the Club shortly thereafter to inquire about the grounds for the team's actions. In response, on August 12, the Club sent another letter that, in exhaustive detail, catalogued the Club's concerns:
When I sent you home on August 10, it was my hope that you could cool off and return with a renewed attitude and focus. I attempted, in a non-provocative way, to give you a chance to start from scratch. Since that time, you have made a spectacle of this situation, continued to criticize teammate and coaches, and made false statements to the media. I am trying hard to work with you and give you the benefit of the doubt; you are making that almost impossible.
In my initial letter dated July 26, 2005 I notified you that your threats to me during a telephone conversation that "when (you) report to training camp you plan to be disruptive and act in a deviant manner" was an unacceptable stance and would be dealt with accordingly. By your own admission, last night in front of a national television audience, you have ignored me and others and been insubordinate to me and confirmed that you told our offensive coordinator "only speak to me when I speak to you." You also said that you "don't think so: when asked if you can succeed with our QB. Most concerning is your statement that you will not change your behavior when you report back to camp on August 17, 2005. Clearly you have followed through with your threat from our phone conversation and your actions have been totally inappropriate and detrimental to the team. I am now putting you on notice a third time, that this is a violation of Club rules which allows the Club to impose fines against you in accordance with Article VIII of the NFL Collective Bargaining Agreement and the Club's 2005 Maximum Discipline Schedule. Continuing violations of Club rules will constitute Conduct Detrimental to the Club, which will subject you to a fine of an amount equal to one week's salary and/or suspension for a period not to exceed four weeks. You cannot expect me to continue to warn you and not take significant action if this continues.
In addition, we put you on notice on at least two previous occasions, specifically on July 26, 2005 and August 10, 2005, that paragraph 2 of your NFL Player contract states: "(Player) agrees to give his best effort and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game." Failing to appear at two mandatory autograph signing sessions, is a violation of paragraph 2 and a clear breach of your contract. Your actions will not be tolerated any longer and we will deal with any further violation by using all and any avenue available to us.
Lying about signing a non-existent waiver is certainly not constructive in terms of our relationship, and does not further anyone's goals. Especially since the reality is that we bent over backwards to make you aware that we were more than willing to share the risk with you.
We also want to make you aware of at least three instances in which you violated team rules. On August 4, 2005, you did not bring your playbook to a team meeting. At a separate meeting, you also refused to open your playbook. On August 5, 2005 you slept through a team meeting. This resulting in the coaching staff having to correct you during practice to make sure you where in the proper position. Finally, on August 5, 2005 you were late to a mandatory treatment session with our trainers. Although collectively these are violations of the team rules, we are not going to fine you for these violations at this time, but you are on notice that further violations of squad rules may result in doubling and tripling of fine amounts for repeat violations, and continued violations thereafter may result in fines and/or suspension for Conduct Detrimental to the Club.
We expect you to treat our coaches and your teammates with respect and to communicate with the people who attempt to communicate with you. In addition, if there is any mandatory team activity you are required to appear on time, participate in it and behave professionally. If you do not comply with the directives I have outlined above, you will be in violation of the terms of your contract and/or subject to fines and/or suspension.
Let me stress again, that we are putting you on notice for the third time that your actions are inappropriate. If you continue to act this way we will deem this to be conduct detrimental to the club which will subject you to a fine of an amount equal to one week's salary and/or suspension for a period not to exceed four weeks. It is my hope that contrary to your public and privately stated positions, your behavior will change when you return. I have been very clear in what we deem to be appropriate and inappropriate behavior on at least three occasions now, and I advise you to take my words to heart.
Executive VP Football Operations/Head Coach
NFL Management Council
The August 12th letter protests Owens having "made a spectacle" of the situation, lying to the media, violating team rules, disrespecting coaches and the quarterback and continuing in a course of having "followed through with your threat" to disrupt the team. And, the letter details, in two places, that this constitutes Owens being put on notice for the third time and forecasts, as well, potential punishment involving fines and suspension for Conduct Detrimental to the Club. To the extent there had been any misunderstanding as to the Club's view of Owens' behavior, there should have been none thereafter.
During his time away, the Player appeared on a televised interview with his agent. That appearance provides no evidence of intent to turn things around. Asked whether Andy Reid and he could work things out upon his return, Owens responded "My attitude is not going to change." Donovan McNabb, Owens said, was a "hypocrite;" "I have no desire to talk to Donovan," said the Player. Rosenhaus, for his part, reminded all that Owens' attitude "shouldn't be a surprise ... we said from day one that he's not going to be happy if he's treated unfairly." "Owens" said his agent, "will honor his contract. He's going to follow the rules, but he's not going to be happy. And who knows if that will work, but they have options. And we hope that they'll consider all of their options." Owens concluded the interview by noting that his contract did not require him to talk to anyone. His relationship with Andy Reid, he said, was "same as it was when I was in camp. I don't have to say anything. I know how to play football. I don't have to say anything to Donovan. I know how to play football." When asked if he and McNabb could succeed in this climate, he responded: "I don't think so and I'm just being honest."
The Association argues vigorously that, following the Player's return to camp, his behavior was improved. The Coach confirms that Owens' attitude toward him had softened a bit. Nevertheless, there were continuing signs of dissent.
Owens' relationship with McNabb had not improved, and Owens was continuing to defy the Coach and the team by, for example, repeatedly violating the dress code and parking in coaches' spaces and in handicapped spots. On the one hand, these were relatively minor infractions; surely they would not have led to any serious discipline, and they did not. On the other hand, any case to be made for a meaningful change of attitude is severely undercut by Owens' public posturing and continuing reluctance to try to set things straight with his teammates.
During an October 7th radio interview, Owens remarked that, had he known at the end of the 2003 season what he knows now, he probably would have joined a different team. He added that, were he building a new team, he would choose Peyton Manning as the quarterback. Read objectively, (or issued by someone else) the Manning comment might not have gathered much attention. If it was not a particularly statesmanlike response, neither was it necessarily disparaging of McNabb. Nevertheless, Owens, by that time, had actively inspired a red hot media storm. He and the team were living in a media fishbowl and there were few observers unaware of the tension between these two star players. Ultimately, the import of this, and similar remarks, has not so much to do with its actual content as it does with the potential and reasonably predictable impact on others, including McNabb and, significantly, with Owens' outright refusal to attempt to deal with professionally vital, but seriously damaged, relationships. In this regard, the Association's claim that no further contract-related threats or express demands were made after August 18th is unpersuasive; it ignores the ongoing impact of a fire, the flames of which were fueled by untenable behavior early on and fanned by Mr. Owens continuing acts of contempt.
The breaking point was reached as a result of an ESPN interview given by Owens on November 3. He expressed his continued unhappiness with his contract situation, claimed, as he had on an earlier occasion, that the Eagles had forced him to sign a "secret waiver" relating to his medical condition during the Super Bowl and objected to the team's not adequately celebrating his 100th career receiving touchdown:
You know [the Club's] reaction shows you the type of class and integrity of an organization that they claim not to be. You know, they claim to be first class and the best organization. I just felt it was an embarrassment. It just shows the lack of class that they had. My publicist talked to the head PR guy, and he made an excuse about (how) they didn't recognize it, or they didn't realize that it was coming up. But I know that was a blatant lie. If it would have been somebody else, they probably would have popped fireworks around the stadium.
And, Owens engaged in another quarterback comparison:
[Graham Bensinger]: Your friend Michael Irvin recently said that if Brett Favre was the starting quarterback for the Philadelphia Eagles, they'd be undefeated right now. What do you think of that comment?
TO: I mean, that's a good assessment, I would agree with that.
GB: How so?
TO: I just feel like just what he brings to the table ... I mean he's the guy. Obviously, a number of commentators will say he's a warrior. He has played with injuries. I just feel like (with) him being knowledgeable about the quarterback position, I just feel like we'd be in a better situation.
According to Coach Reid, Owens' comments inflamed the team. The Player says his words were taken out of context. There were, he notes, positive comments during the interview as well. The Association also directs the arbitrator's attention to Owens' denial, in that interview, that his earlier comment ("I wasn't the one that was tired [in the Super Bowl]") referred to Donovan McNabb:
I think with that comment, I said it probably in regards to my own conditions because I hadn't practiced with the team since my injury. I never referred to Donovan in that comment. A lot of people speculated, and they just assumed that I was talking about Donovan. That's not what I mean, and that's not what I meant. A lot of people, take a lot of things that I say out of context. If I didn't say his name in particular, then I wasn't talking about him.
Several observations are in order. First, Owens' denial, repeated in his testimony at the arbitration hearing, is unpersuasive. It is difficult, at the least, to accept the Player's contention that his statement "I wasn't the one that got tired" should be construed to mean "I was the one who got tired." But the more significant point in all of this is the one discussed earlier -- the perception, one of which the Player was fully aware, was that he had, once more, taken aim at his quarterback. In this highly charged atmosphere, the perceptions are of substantial importance, and they weigh heavily in evaluating the conduct of the Player immediately thereafter, to be discussed below.
Following the interview, the Coach again confronted Owens and told him "he couldn't do those things" and that he was going to have to suspend him. But, Reid proposed a way out. First, the Coach said Owens would need to apologize to the organization publicly. Second, he told Owens to "get with the quarterback and work this thing out. Work it out." Later, testifies the Coach, he learned of more players being upset. He reviewed the transcript, found supportive comments that Owens had made and spoke to him again. He told Owens:
Hey, man, there were some good things in there. But these things right here are wrong. And this team right now, that locker room isn't right. It's just not right. It's just not right. There's too much questioning going on. And a lot of it right now is they are questioning you. And let's just get it straight, or I have to suspend you.
It was at that point, testifies the Coach that he added a third requirement:
I said you need to stand in front of that team and let them know what you meant, and get this thing settled. I even gave him examples because that's not an easy thing for him to do. But I thought it was important. I just thought at that time the team needed to hear -- again, this is a veteran Player they look up to as a football Player and just say, hey, listen -- one of the examples I gave him -- this thing didn't come out right. It didn't come out the way I wanted it to. I even told him it does not need to be a tear-jerker team. I don't need that. I just need it set straight. It didn't come out the way I wanted it to, and it won't happen again. I'm staying away from the TV's and all the radio and so on. I'm staying away from it all. It's not going to happen again.
But the Player rejected the offer, telling the Coach he couldn't go to McNabb and didn't feel comfortable appearing in front of the team. The Coach solicited Rosenhaus' assistance, and the agent prepared a statement, including an apology to Donovan, which, the Coach assured Owens, need not be read in public. Owens apologized to the Eagles organization in public. But he continued his refusal to speak directly to the team or to Donovan McNabb. At that point, Reid notified him he would be suspended.
The Club then sent the following letter:
We are suspending you for conduct detrimental to the team, for this week's game against the Washington Redskins. I will contact you next week regarding your status going forward. In the meantime you are not to report to the NovaCare facility until I give you notice. If you need to continue treatment or rehab please contact Rick Burkholder so we can set you up at an off-site facility.
Executive VP Football Operations/Head Coach
NFL Management Council
Three days later, on November 8, the Club sent the Player an additional letter advising him that the suspension for Conduct Detrimental to the Club would be for a total of four weeks:
I am writing to follow-up on my November 5, 2005 letter and to confirm our telephone conversation yesterday, in which I informed you that your suspension for conduct detrimental to the team will be for a total of four weeks in accordance with Article VIII of NFL Collective Bargaining Agreement.
On three previous occasions, I put you on notice in writing that your behavior was inappropriate and that if you continue to act in a disruptive manner your actions would be deemed conduct detrimental. In a letter dated August 12th, I specifically stated that "I have been very clear in what we deem to be appropriate and inappropriate behavior on three occasions now, and I advise you to take my words to heart". In addition, there were numerous verbal warnings about the consequences of your actions. Despite these very clear warnings, you have continued to disrupt the team by, among other things, being late to a mandatory offensive meeting, failing to comply with the team rules regarding travel attire on every road trip despite numerous reminders from me in the team meetings, parking in reserved handicap and coaches spots that you were not permitted to park in and being involved in a fight with an employee in the training room.
Then, last week (November 3), in an interview with ESPN you chose to criticize a teammate again and make false, disparaging statements about the organization. We had warned you previously in writing that this was inappropriate behavior and there would be consequences if your behavior continued. The following day, I called you into my office on two occasions to discuss the statements you made during the interview with ESPN. During one of those meetings, I informed you it was necessary to make a public apology to the organization, to get with Donovan and work things out with him and to apologize in front of the team. I was clear that based on your previous behavior and the current situation, failure to comply with my orders would result in a suspension. I also made clear these expectations to your agent. I met with you again on November 5th and further discussed my requested apology to the team and to the Player in question. You said you had not done that and would not. I reminded you that if you did not do the things I asked of you, you would be suspended. You continued to refuse my request. The fact that you blatantly disregarded my directive is unacceptable.
As you know, in accordance with Article VIII of the NFL Collective Bargaining Agreement continued violations of club rules constitutes Conduct Detrimental to the Club, which will subject you to a fine of an amount equal to one week's salary and/or suspension for a period not to exceed four weeks. In accordance with our rights outlined under the CBA, your previous suspension and based on your behavior that we have specifically addressed in writing and culminating with your actions over this past week, we are suspending you for conduct detrimental to the team, resulting in a suspension of four weeks. This suspension without pay began on Saturday November 5th and will run through the Green Bay game on November 27th. During this time period you are not to report to the NovaCare facility. If you need treatment or rehab please contact Rick Burkholder so we can set you up at an off-site facility.
Executive VP Football Operations/Head Coach
NFL Management Council
The Coach also told Owens of his determination that he would not play during the remainder of the season.
The Players Association challenges these actions on several grounds. In the overall, it says, the discipline which, in its view, included not only the four-week suspension but the season-long removal thereafter, is excessive. It claims there has been no comparable penalty for Conduct Detrimental in the history of the National Football League. Additionally, says the Association, any discipline is procedurally flawed because, among other things, the Club failed to properly investigate the matters before taking action. It requests that the four-game penalty be vacated, that the Eagles be prohibited from de-activating the Player for the 2005 season, that Owens be immediately reinstated to the position he was in before the suspension and that he be made whole for wages lost.
The Four-Game Suspension
Article VIII of the Collective Bargaining Agreement establishes a Maximum Discipline schedule that provides, in relevant part:
Conduct Detrimental to Club -- Maximum fine of an amount equal to one week's salary and/or suspension without pay for a period not to exceed four (4) weeks.
While the Association concedes there is room for some Club response under these circumstances, it claims the four-week suspension is overkill and contends, as well, that removal from the Club for the rest of the season may only be viewed as disciplinary in nature. As such, it contravenes the limitations of Article VIII and, in any event, is lacking just cause.
At the outset, the Association protests the Club's actions in escalating a one-game suspension -- the Washington game -- into a disciplinary layoff of four weeks. Nothing in the record, however, suggests that the Club should be found to have somehow changed its tune or imposed some type of double jeopardy. To be sure, the suspension letter refers to the Washington game but in the same sentence makes it clear enough that Owens' "future status" will be discussed after the weekend. The next sentence, too, advises the Player not to report until further notice.
Extent of Penalty
Beyond the technical ("double jeopardy") question of whether Management could ultimately impose a four-week suspension, there exists the accompanying question of whether a suspension of that length meets the dictates of just cause. It is, as the Association notes, an unusually long penalty. But these are remarkable circumstances and unparalleled detrimental misconduct. At the time of the suspension, the Eagles were faced with the specter of a player who, together with his agent, had announced, prior to the season that, failing a successful contract re-negotiation, it would be his intent to disrupt the Club. The Coach wouldn't like, said Owens, what he would be bringing to training camp. And, Mr. Owens' actions from the start, and continuing thereafter, proved him true to his word. While some of the Player's outright insubordination was tempered in some, but not all, respects after the season began, the media circus and general distraction he had inspired and supported continued unabated as, by his own admission, did his own dissatisfaction with the Club, his coach and his quarterback. It may hardly be argued that Terrell Owens was unaware either that he was treading on increasingly thin ice or that his actions, considered individually or taken together, did not constitute conduct that was in fact detrimental to the Club. Without question, fundamental principles of labor law require that, save for cases of so-called "cardinal" offenses, discipline should be progressive in nature. The Association directs the arbitrator's attention to Zellars v. New Orleans Saints, wherein Arbitrator Zumas reduced the player's one game suspension (the Club claimed he had lied to his coaches and refused to participate in practice) to a $2,000.00 fine. In so holding, the arbitrator observed that, while the team claimed a series of past problems, there was no evidence of any previous disciplinary actions. The same may not be said here. To conclude that Owens had not been previously disciplined would be to trivialize to the point of absurdity the explicit and repeated written warnings and verbal counseling from the Coach, as well as the one-week banishment from training camp.
In July, the Coach had written a letter, inspired by "numerous recent conversations" and angry threats, that the team intended to use "all available fines and contractual remedies to deal with this behavior." His threats to act in a manner that would be destructive to the team were, he was told, both inappropriate and in conflict with his personal and contractual obligations. The Club at that time demanded repayment of his 1.725 million dollar signing bonus; this was, as the Club testified, meant as a wake-up call. In August, at the time Owens was sent home from camp, the Coach detailed, in writing, a series of insubordinate offenses and additional disruptive behavior. He was told unequivocally that, upon his return a week later, he would be expected to demonstrate "a renewed attitude and focus" that included "abiding by all terms of your contract, being respectful to your teammates and coaches and playing within a structure that will lead us all to have success." Two days later, in clarifying the Clubs' stance in response to Owens' inquiries, the Coach noted the apparent futility of the situation:
"When I sent you home on August 10, it was my hope that you could cool off and return with a renewed attitude and focus. I attempted, in a non-provocative way, to give you a chance to start from scratch. Since that time, you have made a spectacle of this situation, continued to criticize teammates and coaches and made false statements to the media. I am trying hard to work with you and give you the benefit of the doubt; you are making that almost impossible."
The Coach noted Owens' comments in front of a national television audience that included the Player's conclusion that he didn't think he could succeed with the Eagles quarterback and Owens' prediction that he would not change his behavior upon reporting back to camp. Observing that the Player had, in fact, followed through with his phone threats, Reid expressly put him on notice that his actions were violations of Club rules and that "continuing violations of Club rules will constitute Conduct Detrimental to the Club, which will subject you to a fine of an amount equal to one week's salary and/or suspension for a period not to exceed four weeks." The letter continued with the Coach's warning that "you can not expect me to continue to warn you and not take significant action if this continues." The warning was reiterated later in that same letter:
Although collectively these are violations of the team rules, we are not going to fine you for these violations at this time, but you are on notice that further violations of squad rules may result in doubling and tripling of fine amounts for repeat violations, and continued violations thereafter may result in fines and/or suspension for Conduct Detrimental to the Club.
And, lest there be any possible misconception as to the Club's intent, the Coach concluded by loudly beating the same drum:
If you continue to act this way we will deem this to be conduct detrimental to the club which will subject you to a fine of an amount equal to one week's salary and/or suspension for a period not to exceed four weeks.
The point of progressive discipline is to properly advise an employee of unacceptable behavior, to warn that their tenure is becoming increasingly challenged and to attempt to provide for the possibility of better behavior in the future. The repeated, unambiguous warnings accomplished all of this.
On the basis of numerous subsequent conversations and continuing acts of provocation from the Player, detailed above, the Coach could readily conclude, in early November, that the Player was simply not getting the message. Faced, as it was, with growing, palpable evidence of a disturbed and distracted team, a media storm that continued to be aided and abetted by the Player, and an apparent inability or unwillingness on the part of Mr. Owens to appreciate the destructive impact of his attitude and the jeopardy that surrounded him, the Club could reasonably take the actions it did.
The Association claims the Eagles rushed to judgment by imposing the penalty without properly investigating the circumstances. Specifically, it says Mr. Owens' comments during the offending ESPN.com interview of Nov. 3 should have been considered in the context of the fact that he had, earlier that day, been involved in an altercation provoked by Hugh Douglas. If the suggestion is that Owens was rattled by the encounter, the overall nature, content and length of the interview suggests otherwise. It represents nothing more than a continuation of precisely the same behavior that the Club had loudly protested, pleaded and warned against from the first moment of the pre-season.
Among the most compelling facts in considering the just cause aspects of this discipline is the fact that Terrell Owens could have avoided any and all time off by simply acceding to the Coach's request to step up to his teammates collectively and, in the case of McNabb, privately, to make things right. Mr. Owens believed then, and continues now to assert that because he said nothing negative about Donovan McNabb in the ESPN interview, there was no reason to speak to him.
But the critical issue that continues to elude the Player is that, without regard to who was right on the true meaning of the statements, the team and McNabb were upset by them. Owens knew this. And, he knew that any suspension could be immediately avoided by addressing his teammates, and McNabb, in an effort to make things right. Yet, with full knowledge that discipline was hanging in the balance, he refused to take these steps. The Association suggests that, had Owens been fully aware that the suspension would extend to four games instead of one, he might have complied with the Coach's conditions. Even this possibility, however, speaks loudly to questions of the Player's sincerity, attitude and commitment to a fresh course of conduct.
The Association also says the discipline imposed by the Eagles is unwarranted because it penalizes the Player for speech. The Association suggests Owens' statements are properly viewed in light of the purported mitigating circumstances of the Douglas altercation. Any perceived negative comments, it contends, were "spurred by Mr. Douglas' -- and hence the Eagles' -- outrageous conduct." There is no evidence in the record that would somehow tie the Eagles, as an organization, to the altercation and, as indicated earlier, precious little reason to conclude the Player was so overwrought at the time of giving the lengthy interview that he didn't know what he was saying.
The John Rocker case, cited here by the Association, is instructive. In that case, Rocker, a pitcher for the Atlanta Braves, issued racist and offensive remarks in the course of a Sports Illustrated interview. In so doing, he incurred a substantial suspension that was subsequently reduced by baseball arbitrator Shyam Das. The arbitrator observed that "any attempt to draw a precise line beyond which off-field speech may justify discipline poses real difficulties. ... Clearly, the mark must be set high both with respect to the offensive content of the speech and the harm caused by the speech. ... Inevitably, these kinds of issues must be decided on a case-by-case basis. In this case, the Panel finds that the mark definitely was past." The arbitrator noted that just cause encompasses not only the question of whether discipline properly can be imposed for a particular offense, but also whether the nature and extent of the penalty are warranted. In so concluding, he found that, in terms of proportionality, the penalty outweighed the offense:
In accessing the appropriateness of the penalty imposed in this case, consideration must be given to the absence of a specific rule or policy addressing speech and to the fact that no other Player previously has been disciplined for speech since the advent of the just cause standard in Baseball.
Arbitrator Das went on to weigh the harm and controversy caused by the Player's remarks against the disadvantage the Player would suffer by missing spring training. There are meaningful distinctions between that case and this one. First, Rocker's remarks, however offensive, and with due regard to the obligation of the Club and the League to renounce such views, reflected primarily on Rocker himself. This was not a case where, as here, the speech was aimed directly at his team and teammates, nor were the comments the latest in a string of actions designed to demonstrate continuing dissatisfaction and willingness to disrupt his organization. Secondly, the arbitrator in Rocker noted, as observed above, "the absence of a specific rule or policy addressing speech". The NFL collective bargaining agreement, on the other hand, explicitly references Conduct Detrimental to the Club as a basis for discipline and there can be no serious contention in this case that Mr. Owens' conduct in general and specific comments in particular did not fall reasonably within that definition.
Terrell Owens' stature as a compelling athlete and outspoken public figure contributed meaningfully to the destructive power of his actions. Despite all attempts by the Club to persuade him to modulate his posture and his posturing, he persisted in broadcasting his dissatisfaction and in stirring and stoking the growing attention and dissent around him. In so doing, he engaged in conduct that was manifestly detrimental to the Club.
The Association also claims the decision of the Club to remove Owens from the playing and practice fields for the remainder of the season (albeit with pay) should be considered discipline that is inappropriate on at least two scores: (1) It exceeds the maximum discipline set forth in Article VIII for Conduct Detrimental and (2) it is disproportionate in relation to the offense. The Club, for its part, observes that the CBA provides no basis for directing a club to play or practice particular Players in games. Indeed, it is argued, the CBA expressly reserves to the clubs the right to manage and direct their operations, except as limited by the terms of the Agreement. "No term in the CBA," argues the Club, "limits a club's right to determine which Players will appear on the field or be permitted in the team facility while a team is preparing for its games. The absence of such a limitation is not accidental. No decision is more quintessentially a prerogative of club management than the decision as to which Players will take the field."
The events of this highly unique case reveal a potential tension between the bargained disciplinary constraints of Article VIII, on the one hand, and the important managerial prerogatives reserved to the coach and to the club, on the other. In considering the Coach's decision to keep Terrell Owens away from the team, the attempt must be to assess the limits of the respective boundaries. If the maximum penalty provisions of Article VIII are to have meaning, it follows that a club cannot expand or extend them merely by crying "coach's discretion." Thus, for example, one who fails to promptly report an injury to the team physician or trainer ($200.00 maximum fine under VIII(I)(a)) should not be suspended for the same misconduct under the claimed shelter of coaching prerogative. At the same time, one may not claim that mere professional disadvantage to a player withheld from play or practice is necessarily disciplinary action as contemplated under Article VIII. Recognizing there may be situations that touch both the disciplinary and the discretionary arenas, what counts are the precise circumstances at issue.
The Association concedes the coach has the final say as to who actually plays the game, at least on a week-to-week basis. It claims, however, that this same discretion cannot extend to questions of who practices and otherwise participates off-field. The coach may bench the player, says the Association, but he can't send him home. The "practice/play" distinction, if there be one, is particularly important in this case where, uniquely, the Player's on-field performance has been superb, and is not at issue. The Club's concern is focused, instead, on his articulated intent to engender disruption and dissent off the field. May a coach consider these factors in deciding how to form and field a team? The answer must be "yes". It cannot be that a coach's discretion is limited to Sundays. Surely, the coaching elements of team management take place not only in the games, but in the weeks preparing for them. None of the parties to this relationship, it is fair to say, envisioned the prospect of an arbitrator reviewing a coach's decisions as to, for example, how many reps a player should take in practice, the particular squad to which he should be assigned or, indeed, whether he should practice at all. Nothing in the CBA or in the Player's individual contract requires a contrary conclusion. Concededly, a coach's decision to preclude both practice and play will disadvantage a player, arguably more so than merely riding the bench. This, and the potential overlap between the discretionary and the disciplinary elements of this CBA, is why careful scrutiny is required of all relevant facts of a given case.
This case, then, is about the challenge faced by this team, dealing with this player in these particular circumstances. Mr. Owens and his agent threatened a campaign of disruption and implemented it through repeated acts, large and small, of disrespect, dissent and insubordination, culminating with a well-publicized verbal assault on the team and on the quarterback. The Coach could properly conclude that, however excellent Owens' performance was on the field, his off-field conduct and demeanor were seriously devitalizing the organization. Moreover, and this is important, there was ample reason for the Coach to conclude, in November, that the problem was by no means resolved. At the moment of his being warned of the impending discipline, Mr. Owens was, after all, willing to "sit" rather than attempt to work things out with the team. Indeed, even at the arbitration hearing, the Player made it abundantly clear that his contract issue -- the one that inspired his marked change in attitude during the current season- - was still alive. And, he made it clear, as well, that his view of his obligations to co-exist as a teammate had not changed: In his view, for example, speaking to his quarterback was still not necessary.
Significantly, this is not a case of a coach or a team responding to a discrete event by extending otherwise contractually limited disciplinary sanctions. Involved here was not simply past bad behavior but a current and ongoing threat of continued disruption. This was not merely a question of dealing with the Player's misconduct, a matter to which traditional concepts of discipline are applicable, as discussed earlier in this opinion. The Coach and the Club were faced with far broader issues, given the clear disruption that had occurred: Team unity, cohesiveness and morale are all elements that rest squarely within the wide range of concerns to which a coach is expected to respond.
The Association argues that, to the extent the Coach wished to keep the Player from the fields or the locker room, he should have released him. It is a mark of the highly unusual nature of this case that this should be regarded not only as not disciplinary, but as the desired goal of the Player and his representatives. More to the point, while releasing the Player is an available option, it is not a mandatory one.
In summary, there is ample room to find that the Club could respond to this Player's actions, suspending him without pay to the limits permitted by the collective bargaining agreement for his behavior in this matter. Thereafter, the Coach properly exercised his inherent discretion to conclude that, on balance, the team would be better protected and better off by practicing and fielding a team that did not include Mr. Owens. The problem -- a continuing one -- was almost entirely off-field, and the response properly dealt with that reality.
Both responses, the disciplinary and the discretionary, were specifically understood by these parties and fully countenanced as part of this collective bargaining relationship. The disciplinary side of the equation is expressly established in Article VIII. The non-disciplinary response is part of the core and character of a coach's discretion; significantly, but predictably, it is nowhere constrained by the CBA.
The finding, therefore, is that the Club has shouldered its burden of providing clear and convincing evidence of the Player's misconduct and, moreover, that the four-week suspension was for just cause. Additionally, there was no violation of the labor agreement inherent in the Club's decision to pay Mr. Owens, but not to permit him to play or practice, due to the nature of his conduct and its destructive and continuing threat to the team.
The grievance is denied.
Richard I. Bloch, Esq.
November 23, 2005