The NFLPA needs to step up now and file another grievance - on the sham-appeal
I don't think the NFLPA has been active enough on the evidence issue. We know from PA statements that they were also not provided with the full range of evidence. But this past week, we didn't hear anything from the NFLPA. I think they need to take this to the arbitrator, immediately.
In the CBA, discipline under the "conduct detrimental" article (Article 46) that authorizes Goodell's bounty suspensions, provides for an appeal process. Looking at the language in its entirety, it appears that the appeal process is one that allows for testimony of witnesses, the presentation of "relevant evidence" and "discovery", which is the legal process in a proceeding by which the parties can "discover" what evidence the opposition possesses.
So what exactly does the CBA provide?
Art. 46 Sec. (2)(a) provides for a "hearing" with a hearing officer. Section 2(b) allows the player to be represented by counsel and it allows the NFLPA or NFL to attend and even "to present, by testimony or otherwise, any evidence relevant to the hearing."
At Art. 46 Sec. 2(f), entitled "Discovery", it provides that the parties shall exchange copies of any exhibits they intend to use at the hearing at least 3 days prior to the hearing.
"Discovery" is not the equivalent of an exchange of hearing exhibits. After all, if the opposition intends to use evidence as a hearing exhibit, there's nothing to discover - it will be provided in accordance with the relevant scheduling process. Discovery means that the party can propound requests upon the other side to learn what evidence may be possessed. It is not something that the other side gets to pick and choose - either the evidence must be provided or there must be some sustained objection as to why the evidence should not be provided (e.g. some kind of privilege).
Looking at these two sections together with the greater purpose of the Article's appeal provisions, I think the NFLPA has a fairly compelling grievance that the Commissioner's handling of the bounty appeals violates the CBA. First, in Section 2(a), the NFLPA is allowed to appear and present relevant evidence. Well, we know the NFLPA believes that the league possesses relevant evidence, perhaps evidence that the NFLPA would like to present. But the league will not provide this evidence, thus, eliminating the PA's right under the CBA to present relevant evidence (after all, if the evidence is relevant, the PA has a right to present it ... the CBA does not say that the evidence must be in the possession of the party intending to present it.)
The discovery provision under Section 2(f) further supports the notion that whatever evidence is possessed by one party may be obtained by the other. Yes, the section only describes an exhibit sharing process (and section titles are meaningless) but I think this whole process is based on the presumption that the parties both have access to the greater body of evidence from which they may choose their hearing exhibits.
To argue that all of this truly allows the league to only provide a very small percentage of the evidence to either the player or the NFLPA appears contrary to the intent of the provisions of the article. If that's the case, why even go through the process of a hearing, with exhibits and testimony? If one side has no real access to what formed the basis for the suspension is, then it's all illusory. As Ginsberg said, it's "pure fantasy." It is true that contracts should be interpreted by their language but when the underlying intent is known, the literal interpretation may be secondary to furthering the intent of the section.
Here's what Goodell has been saying publicly for the last few weeks when he's asked about the evidence and why it hasn't been shared:
Quote:
“That’s what the appeals process is for,’’ Goodell said. “You want to hear what the players have to say. When we get to the appeals, we’ll be able to talk about it and we’ll be able to hear from one another.’’
Goodell is suggesting that this is a fair process, and (finally) the chance for the player to present his case - that's the intent of the appeals process. Yet, this is being curtailed by the non-sharing of evidence and the NFLPA is the one to file this grievance. And the PA's acquiescence on this could set this unfair procedure as the 'way it is' for the rest of this CBA period.
I imagine they'll go through the appeals process Monday and then file the grievance after the NFL doesn't follow those guidelines. I would think that it would be less likely for the ruling to go in their favor from the arbitrator if they file the grievance on the sham before anything actually takes place.
But good points. I've been staying away from anything NFL related, including Saints, for the last 3 or 4 weeks because every time I even start to think about something NFL related it gets me too angry and I can't get any work done.
If there is a way to compel the NFL to make evidence available, contacting Ginsberg and/or DeMaurice Smith with this legal theory would be a good idea, to say the least. That said, what would be the result of the NFLPA proving that Goodell violated the CBA? Who would adjudicate that?
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I imagine they'll go through the appeals process Monday and then file the grievance after the NFL doesn't follow those guidelines. I would think that it would be less likely for the ruling to go in their favor from the arbitrator if they file the grievance on the sham before anything actually takes place.
But good points. I've been staying away from anything NFL related, including Saints, for the last 3 or 4 weeks because every time I even start to think about something NFL related it gets me too angry and I can't get any work done.
I disagree on the timing. The sharing of evidence is the issue and that's already supposed to have happened. As a general matter of legal strategy, waiting until after the train leaves the station is a bad idea.
I nominate SuperChuck to be the SR liaison to the nflpa
second
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I don't think the NFLPA has been active enough on the evidence issue. We know from PA statements that they were also not provided with the full range of evidence. But this past week, we didn't hear anything from the NFLPA. I think they need to take this to the arbitrator, immediately.
In the CBA, discipline under the "conduct detrimental" article (Article 46) that authorizes Goodell's bounty suspensions, provides for an appeal process. Looking at the language in its entirety, it appears that the appeal process is one that allows for testimony of witnesses, the presentation of "relevant evidence" and "discovery", which is the legal process in a proceeding by which the parties can "discover" what evidence the opposition possesses.
So what exactly does the CBA provide?
Art. 46 Sec. (2)(a) provides for a "hearing" with a hearing officer. Section 2(b) allows the player to be represented by counsel and it allows the NFLPA or NFL to attend and even "to present, by testimony or otherwise, any evidence relevant to the hearing."
At Art. 46 Sec. 2(f), entitled "Discovery", it provides that the parties shall exchange copies of any exhibits they intend to use at the hearing at least 3 days prior to the hearing.
"Discovery" is not the equivalent of an exchange of hearing exhibits. After all, if the opposition intends to use evidence as a hearing exhibit, there's nothing to discover - it will be provided in accordance with the relevant scheduling process. Discovery means that the party can propound requests upon the other side to learn what evidence may be possessed. It is not something that the other side gets to pick and choose - either the evidence must be provided or there must be some sustained objection as to why the evidence should not be provided (e.g. some kind of privilege).
Looking at these two sections together with the greater purpose of the Article's appeal provisions, I think the NFLPA has a fairly compelling grievance that the Commissioner's handling of the bounty appeals violates the CBA. First, in Section 2(a), the NFLPA is allowed to appear and present relevant evidence. Well, we know the NFLPA believes that the league possesses relevant evidence, perhaps evidence that the NFLPA would like to present. But the league will not provide this evidence, thus, eliminating the PA's right under the CBA to present relevant evidence (after all, if the evidence is relevant, the PA has a right to present it ... the CBA does not say that the evidence must be in the possession of the party intending to present it.)
The discovery provision under Section 2(f) further supports the notion that whatever evidence is possessed by one party may be obtained by the other. Yes, the section only describes an exhibit sharing process (and section titles are meaningless) but I think this whole process is based on the presumption that the parties both have access to the greater body of evidence from which they may choose their hearing exhibits.
To argue that all of this truly allows the league to only provide a very small percentage of the evidence to either the player or the NFLPA appears contrary to the intent of the provisions of the article. If that's the case, why even go through the process of a hearing, with exhibits and testimony? If one side has no real access to what formed the basis for the suspension is, then it's all illusory. As Ginsberg said, it's "pure fantasy." It is true that contracts should be interpreted by their language but when the underlying intent is known, the literal interpretation may be secondary to furthering the intent of the section.
Here's what Goodell has been saying publicly for the last few weeks when he's asked about the evidence and why it hasn't been shared:
Goodell is suggesting that this is a fair process, and (finally) the chance for the player to present his case - that's the intent of the appeals process. Yet, this is being curtailed by the non-sharing of evidence and the NFLPA is the one to file this grievance. And the PA's acquiescence on this could set this unfair procedure as the 'way it is' for the rest of this CBA period.
I want to bake you a cake. Thanks for illuminating this for me.
In Varney's article he said that Ginsberg, after seeing the scant evidence, could not comment on what Vilma may do Monday. And Florio speculated that Vilma may refuse to participate in any discussion with Goodell unless he's provided with specific evidence on the allegations made against him.
So it might be that Ginsberg is indeed contemplating measures to formally call into question the validity of the process. And he's only representing Vilma, so we haven't had any indications on what the other three players are planning. But the clues are there that some kind of dissent is coming.
Chuck - if the appeals process really turns out to be the sham that it seems, would labor law allow the PA to take the league to court over this? I mean if the PA can reasonably show that the league did not follow the procedures outlined in the CBA there would have to be some mechanism to compel the league to comply. Would court have to await an arbitration ruling?
Chuck - if the appeals process really turns out to be the sham that it seems, would labor law allow the PA to take the league to court over this? I mean if the PA can reasonably show that the league did not follow the procedures outlined in the CBA there would have to be some mechanism to compel the league to comply. Would court have to await an arbitration ruling?
I don't think so - labor law establishes the primacy of the CBA and the CBA has the grievance procedure for alleged breaches and for competing interpretations. If the PA were to sue for the league's breach of the CBA, I think the court would dismiss it in favor of arbitration under the CBA.
Gabe Feldman@SportsLawGuy
For those of you who have not fallen asleep during my twitter feed, Judge Berrigan just consolidated Vilma's defamation and Bounty suits
Superchuck, I posted this in the other thread. Is this good or bad? I feel as though it's not good but wanted your opinion. Thx
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