Did the NFL fumble Adrian Peterson’s suspension?

On Peterson’s behalf, attorneys for the National Football League Players Association delivered oral arguments today in a federal district court in Minnesota. They hope they convinced U.S. District Judge David Doty that the NFL must immediately reinstate Peterson. Doty has taken arguments by the NFLPA and the NFL under advisement and will issue a ruling in the coming weeks.

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Peterson, the NFL’s Most Valuable Player in 2012, has been barred from playing in NFL games since Week 1 of the 2014 season when he rushed for 75 yards in the Minnesota Vikings 34-6 victory over the St. Louis Rams. Following that game, Peterson was placed on the NFL’s Commissioner Exempt List where he was paid but prohibited from playing. In November the NFL suspended Peterson until at least Apr. 15, 2015, at which point he can petition NFL commissioner Roger Goodell for reinstatement. The suspension has cost Peterson about $4.1 million in forfeited game checks.

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Peterson’s complicated ouster from the NFL stems from his no contest plea in a Texas court to reckless assault and from controversy over images of injuries suffered by Peterson’s four-year-old son. Peterson was accused of viciously beating his son with a tree branch following an argument between his son and another child over a video game. The accusations sparked a national debate over appropriate methods for disciplining children. Peterson appealed the suspension, but arbitrator (and former NFL executive) Harold Henderson sustained it. There is speculation that Peterson seeks reinstatement as soon as possible in part to facilitate the Vikings trading him. Whether or not he is traded, Peterson has obvious incentives to return to active status. For its part, NFLPA has a legal duty to advocate for Peterson and a motivation to counter a precedent being set by his punishment.

Peterson and the NFLPA nonetheless face long odds. Federal courts rarely set aside arbitration awards. Still, the NFLPA raises arguments that are not instantly dismissible and over the years, Judge Doty has issued several rulings against the NFL. Lingering questions about how truthfully and competently the NFL has investigated the Ray Rice and Deflategate controversies may also supply NFLPA attorneys with confidence.

The following analysis breaks down the key issues.

NFLPA’s core legal arguments

The NFLPA’s main argument is that NFL commissioner Roger Goodell has unlawfully changed the rules on Peterson. This type of argument is similar to one used by Rice in his successful challenge of an indefinite suspension. The basic contention is that Goodell arbitrarily alters or ignores rules to fit an agenda.

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To advance this argument for Peterson, the NFLPA stresses -- as it did with Rice -- that no player had ever received a suspension for longer than two games when he was a first-time offender implicated in domestic violence. The suspension’s requirement that Peterson meet with a doctor of the NFL’s choosing also rankles the NFLPA, which contends that this requirement is nowhere to be found in any collectively-bargained documents. The union further insists that Goodell applied a new domestic violence policy retroactively and in a way that caused fundamental unfairness. Peterson’s alleged misconduct occurred in May 2014, whereas Goodell announced the new domestic violence policy in August 2014. The new policy dictates that first-time offenders of domestic violence are suspended for six games. As supporting evidence, the NFLPA cites assurances allegedly made by NFL executive vice president Troy Vincent to Peterson that the new policy would not apply to Peterson.

In addition to attacking Goodell’s application of rules, the NFLPA sharply rebukes both Henderson and his arbitration award in favor of the NFL. In its petition, the NFLPA disapprovingly writes, “If this were not such a serious matter, the award would be viewed as a parody.” The petition also charges that Henderson “had the gall” to reason that Peterson lacked remorse for injuring his son. The NFLPA further alleges that Henderson wrongfully ignored a decision by former U.S. District Judge Barbara Jones in favor of Rice, and specifically on whether a punishment for a first-time offender of domestic violence can exceed two games. Similarly, the NFLPA portrays Henderson as unreasonably biased in favor of the NFL.

NFLPA’s core legal defenses

While the NFLPA raises persuasive points from a policy perspective, the legal merits of those points are far less convincing. The main legal hurdle for the NFLPA is that federal law and accompanying court decisions require judges to accord arbitration awards extreme deference. The underlying logic is that if sophisticated parties in a collective bargaining relationship, like the NFL and NFLPA, agree to resolve their disputes through arbitration, courts should respect their choice and should only disturb arbitration awards when extraordinary circumstances arise. For the most part, courts have vacated awards only when they depart from agreed-upon rules or when the arbitrator is shown to have acted outside the scope of his authority. Crucially, the standard of review by Judge Doty is far less scrutinizing of the NFL than the one employed by former Judge Jones. This is because Judge Doty is reviewing the Peterson matter as a judge, whereas former Judge Jones reviewed Rice’s matter as an arbitrator.

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The NFL has outlined its legal arguments in a memorandum to Judge Doty recommending that he not vacate Henderson’s award. The league’s main defense is grounded in the fact that Article 46 of the CBA provides Goodell with sweeping authority to discipline players for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” This power gives Goodell wide latitude in determining the length of a player suspension and any accompanying conditions for player to be reinstated. The NFLPA, the league stresses, willingly assented to Goodell’s broad authority and can only change it through collective bargaining – not by filing lawsuits that challenge player suspensions.

The league also contends that it plausibly determined that Peterson’s conduct was not only detrimental to the NFL but was arguably worse than other instances of NFL player domestic violence. This determination is premised on the fact that Peterson’s conduct related to injuries suffered by a four-year-old child rather than those suffered by an adult. In fact, in his arbitration decision, Henderson opined, “This is arguably one of the most egregious cases of domestic violence in this Commissioner’s tenure – the severe beating of a four year old child, with a tree branch, striking him repeatedly about the body and inflicting injuries visible days later . . . there is no comparing this brutal incident to the typical violence against another adult.”

As to Henderson’s capacity to serve as the arbitrator, the NFL stresses that Goodell had an undisputed right to appoint him as a designee. The league also emphasizes that Henderson was a designee for Goodell in dozens of other hearings involving player misconduct and the NFLPA had always found him acceptable.

The ball is in Judge Doty’s court

The odds are stacked against Judge Doty siding for Peterson, but stranger things have happened. The 85-year-old judge has sided with the NFLPA in the past in disputes with the NFL, including on collusion and other labor matters. Whether he does for Peterson remains to be seen. Judge Doty has now heard the arguments and will soon decide which side is right.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.