The Power of the Commissioner

By: Samantha Barbere

In 1956, players of the National Football League (“NFL”) created the National Players Association (“NFLPA”).[1] The purpose of the NFLPA was to have a group who would advocate for player needs. The NFLPA became an association which would represent player interest in negotiations with the NFL for years to come.[2] In 1970 the NFLPA was certified by the National Labor Relations Board and recognized by the league as a union.[3] Since then there has been many collective bargaining agreements between the NFL and the NFLPA.[4] However, a question that frequently crosses the minds of many football fanatics is whether or not the NFLPA protects player interest effectively. More particularly, did they allow the 2011 Collective Bargaining Agreement (“CBA”) to grant the commissioner, Rodger Goodell, too much power?[5]

The Collective Bargaining Agreement provides that “the Commissioner may serve as hearing officer in any appeal . . . at his discretion”.[6] Too many times in the agreement the NFLPA allowed the inclusion of the words “Commissioner” and “at his discretion” together. In the recent well known Deflategate scandal, the Commissioner’s excessive power is well evident. The Deflategate case emerged out of a playoff game in January 2015, in which the New England Patriot’s footballs were found to be deliberately deflated. [7] Tom Brady was subsequently suspended for four games by Goodell after he was found to be “at least generally aware” of the deflation scheme. [8] In late May, the AFL-CIO, and a group of labor law and industrial relations professors submitted amicus curiae briefs to the Second Circuit.[9] Those briefs supported the contention that Rodger Goodell inadequately served to be neutral when hearing Brady’s appeal to his suspension which Goodell himself imposed.[10] The AFL- CIO argued that Goodell’s actions were arbitrary and capricious.[11] The NFLPA, along with various other groups, argued that the Commissioner’s actions was were unjust.[12] It was the NFLPA however who signed off on granting the Commissioner this undue power. The NFLPA expressly requested Goodell recuse himself as the arbitrator to provide an impartial forum for the hearing to be heard.[13] Goodell denied the NFLPA’s request, claiming that his basis for denial was rooted in “common sense.”[14] Goodell began his justification for denial by directly citing to the words in the CBA that granted him the power to sit as hearing officer in any appeal at his discretion.[15] He moves on by dismissing the NFLPA’s arguments one by one,[16] ending his letter by explicitly denying to consider any proposals which would amend the CBA to revoke his discretion to hear any appeal.[17]

In April, the Second Circuit found that Goodell did not abuse his power under the CBA and was well within his authority when he chose to preside over the appeal.[18]  A group of labor law professors from prestigious schools such as Harvard Law School and Cornell University’s School of Industrial Labor Relations, claimed the Second Circuits decision completely altered the stature of labor arbitration.[19] The importance of maintaining a reliable alternate forum, other than court, in which people could obtain justice in situations where a dispute arises, is something that cannot be belittled. Many briefs addressed the possible distortion of labor arbitration as a result of the Second Circuits decision. [20] By holding that Goodell was authorized to sit as the arbitrator of the appeal, the panel is permitting arbitrators to ignore the requirement of neutrality.

Distinguished professors supported the AFL-CIO’s stance and in separate briefs wrote that the decision denies remedies to people who have endured even the most egregious violations of due process.[21] The ruling authorizes future arbitrators to make decisions that are reflective of their personal opinions and denies people of a fair arbitration, ultimately limiting an injured parties’ opportunity at obtaining justice. The AFL-CIO alone represents over twelve million employees, and the majority of them are subject to the CBA.[22] In Goodell’s letter denying recusal, he says his justification lies in his desire to protect the integrity of football. [23] A more plausible conclusion however is that Goodell is not willing to surrender any power that was already granted to him explicitly in the CBA. Although the NFLPA in many aspects benefited from the CBA, it seems that between the NFL and the NFLPA the league still holds the majority of the power.

[1] Zachary H. Altman, Who Won: An Actuarial Analysis of the NFL Collective Bargaining Agreement 1-4 (2013) (unpublished B.S. thesis, Schreyer Honors College) (on file with the Schreyer Honors College).

[2] Id.

[3] Associated Press, NFL Labor History, ESPN news,(Mar. 3, 2011) http://www.espn.com/nfl/news/story?page=nfl_labor_history.

[4] Id.

[5] Adam Kilgore, Did Players Hand Goodell Too Much Authority, Wash. Post (May 29, 2015), https://www.washingtonpost.com/sports/redskins/did-players-hand-roger-goodell-too-much-authority-answer-isnt-simple/2015/05/29/44fe7648-0648-11e5-a428-c984eb077d4e_story.html.

[6] See 2011 Nat’l Football League Collective Bargaining Agreement (Aug. 4, 2011) archived at http://perma.law.harvard.edu/0UcXeAWR7o8).

[7] Ian Rapoport, Details On The Investigation of Patriots Deflated Footballs, NFL News (Feb. 1, 2015, 11:19 AM), http://www.nfl.com/news/story/0ap3000000466783/article/more-details-on-the-investigation-of-patriots-deflated-footballs.

[8] Id.

[9] Zachary Zagger, AFL- CIO Tells 2nd Circ. Goodell Wasn’t Fair in Deflategate, Law360 (June 1, 2016), http://www.law360.com/articles/802412/afl-cio-tells-2nd-circ-goodell-wasn-t-fair-in-deflategate.

[10] Id.

[11] Id.

[12] Id.

[13] John Breech, Goodell Explains Why He’s hearing Tom Brady’s Appeal, CBS Sports ( June 02, 2015, 3:34 PM), http://www.cbssports.com/nfl/eye-on-football/25203012/goodell-explains-in-really-long-letter-why-hes-hearing-tom-bradys-appeal.

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] Zagger, supra note 9.

[19] Id.

[20] See id.

[21] Id.

[22] Id.

[23] Breech, supra note 13.

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