NFLPA outlines proposal for neutral arbitration in personal conduct policy

Tom Pelissero | USA TODAY Sports

In a memo to the NFL Players Association’s board of representatives and executive committee Thursday, executive director DeMaurice Smith revealed a proposal the union sent to the league Nov. 23 for neutral arbitration as part of a revised personal conduct policy.

Under the union’s proposal, obtained along with Smith’s memo by USA TODAY Sports, initial decisions on discipline would be determined by the commissioner or his designee, as they are now under Article 46 of the collective bargaining agreement.

But all player appeals of discipline for conduct detrimental would go to an arbitration panel comprised of three people “with special expertise in the business of football” and some judicial experience, to be jointly selected by the league and the NFLPA.

“The language on neutral arbitration reflects the discussions that we have been having with the league in this area over the last several months,” Smith wrote in the memo. “We have not yet received anything back from the league in response. I will certainly update you once we do.”

Commissioner Roger Goodell first acknowledged publicly in September he’s open to changing his role, perhaps turning over the initial decision to a discipline officer or panel. The league hired former ATF director Todd Jones in April as senior vice president/special counsel on conduct. But the union has said Jones’ role is a direct violation of the collective bargaining agreement.

Smith told reps in a conference call Tuesday that talks were moving slowly.

“This is an important subject that deserves to be addressed thoughtfully and with full consideration for everyone's interests — players, clubs and fans,” NFL spokesman Brian McCarthy wrote in an e-mail to USA TODAY Sports on Wednesday. “‎We are addressing the subject in a serious way and will continue to do so.”

Discussions between attorneys for both sides have gone on for months in an attempt to resolve the NFLPA’s grievance over the enhanced personal conduct policy NFL owners ratified last December. The union’s demand for neutral arbitration and the league’s use of the commissioner’s exempt list to take embattled players off the field have been sticking points.

The full memo from Smith is below:

MEMORANDUM

To: Executive Committee and Player Reps

From: DeMaurice Smith

Re: Neutral Arbitration for Commissioner Discipline

Date: December 17, 2015

As a follow up to our discussions during the Player Rep conference calls earlier this week, below is the proposal that we sent to the NFL on November 23rd regarding neutral arbitration of commissioner discipline and protocols for league investigations into possible violations of the Conduct Policy. The language on neutral arbitration reflects the discussions that we have been having with the league in this area over the last several months. We have not yet received anything back from the league in response. I will certainly update you once we do.

NFLPA PROPOSAL: PERSONAL CONDUCT POLICY INVESTIGATIONS AND COMMISSIONER DISCIPLINE

Protocols Regarding NFL Personal Conduct Policy Investigations Involving Players

1. The NFL must initiate an investigation of a player regarding potential conduct detrimental within 120 days of the alleged conduct, or within 60 days from when NFL should have known about alleged conduct if the alleged conduct was not previously public, whichever is later.

2. NFL employees, including team security employees and/or consultants, cannot seek to speak with a player about any incident potentially involving a violation of the Personal Conduct Policy without the presence of an NFLPA attorney. Rather, the NFL/team person must contact the League office’s investigations personnel to inform them of the incident, and the NFL investigations personnel must then inform an NFLPA attorney of the request to speak with the player.

3. If a player approaches an NFL employee, including team security employees and/or consultants, to inform/discuss a situation that may implicate the Personal Conduct Policy, that NFL/team person must inform the player that the NFL employee/consultants have an ABSOLUTE duty to report ALL incidents that potentially involve a violation of the Personal Conduct Policy to the League office. Such notification to the player of the duty to report must occur prior to the player providing any details of any incident.

4. The NFL will audio record interviews with witnesses, and such recordings will be provided to the player and his NFLPA attorney if the NFL’s investigation determines that the player violated the Personal Conduct Policy.

5. The NFL will not bring law enforcement to interviews of witnesses (including, without limitation, players, player’s wives or partners).

6. Players are not obligated to provide the NFL with contact information of third party entities including family or friends; no negative inference or assertion of failure to fully cooperate will be drawn by a player’s refusal to do so.

7. Questions regarding “past disciplinary incidents” (e.g., college) are prohibited unless directly related to the matter being investigated (e.g., an incident involving the same person accusing the player of misconduct under PCP).

Commissioner Discipline for Conduct Detrimental

1. Neutral Arbitration All player appeals of discipline for “conduct detrimental” currently issued by the Commissioner/NFL pursuant to Article 46 of the CBA will be heard by a Panel of three (3) arbitrators. The Panel of three (3) arbitrators shall be randomly selected by the NFL and the NFLPA (the “Parties”) from among a group of no less than five (5) jointly-selected arbitrators (the “Pool”). If one of the three (3) arbitrators selected from the Pool is unavailable to participate, a replacement shall be randomly selected from the remaining Pool.

The Pool of arbitrators will be comprised of persons having special expertise in the business of football; they shall be active members in good standing of a state bar, preferably with some judicial experience. Unless the Parties agree otherwise, an arbitrator shall serve a minimum two (2) year term, after which he/she may be discharged by either Party, upon written notice to both the arbitrator and the other Party. The first two (2) year term shall expire on May 1, 2018.

On appeal, the burden of proof shall be on the NFL Management Council and the standard of review shall be “just cause,” including without limitation, notice and fair and consistent treatment. The arbitration Panel shall follow applicable legal standards, including arbitral precedents to the extent relevant, and the law of the shop. Any discipline imposed may only be affirmed, reduced, or vacated by the Panel; it may not be increased. The Panel shall have the same power as the Non-Injury Grievance arbitrator to order discovery, compel attendance of witnesses, and conduct hearings.

Discipline is stayed pending the appeal.