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Legal expert: Union may be fighting losing battle in bounty grievances

by | CBSSports.com Senior NFL Columnist
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According to the union, acts from before the new CBA are not subject to league discipline. (Getty Images)  
According to the union, acts from before the new CBA are not subject to league discipline. (Getty Images)  

The NFL strongly believes arbitrators will uphold its position regarding commissioner Roger Goodell's suspensions of four players involved in the New Orleans Saints' bounty scandal -- and I know a legal expert who believes they will, too.

Meet Geoffrey Rapp, professor at the University of Toledo's College of Law and one of two sources I consulted a year ago during the NFL lockout. Along with Stanford Law School professor William Gould, Rapp accurately predicted that the Eighth Circuit Court of Appeals would uphold the NFL and, in effect, bring an end to the lockout.

So I sought him out again Friday after the NFL Players Association filed two grievances that challenge Goodell's authority to penalize the players and that seek to grant them immunity for acts committed before Aug. 4, 2011, when the new CBA took effect.

In the first grievance, the Players Association cites Article III of the CBA, where the league and its teams agree not to sue the union and its members "with respect to conduct occurring prior to execution of this Agreement." In the second, the NFLPA argues that only arbitrator Stephen Burbank, who serves as the "system arbitrator" for the league and its union, should be able to punish players.

Not Goodell.

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Furthermore, the union believes all appeals should be heard by Art Shell and Ted Cottrell -- not Goodell -- because they were appointed by the league and its union to judge appeals of punishments for "conduct on the playing field with respect to an opposing player or players."

Maybe, but an NFL source told me Friday that the league never would have signed off on the CBA without Goodell having final authority over issues that involve conduct that strikes at the integrity of the game -- which is what the league argues the Saints case is all about. An agent I trust thinks the union has a shot to win because, as he put it, there are "lots of shades of gray" to this case, but that's where Rapp comes in.

He disagrees, and here's why:

"What we're dealing with here," he said in an e-mail, "is the legacy of the Chicago 'Black Sox' from nearly a century ago. In the aftermath of that scandal, Major League Baseball -- followed later by each of the prominent American professional leagues -- sought to restore the public's view of the sport by granting the Commissioner the power to make certain decisions in the 'best interests' of the sport, without being subject to any kind of review. The courts have tended to be deferential to this 'best interests' power, taking the view that the league formed voluntarily and that the teams were fully aware of the consequences of handing over this kind of authority ... but chose to do so anyway.

"In the modern era, the commissioners of the various leagues have invoked this power somewhat sparingly, typically in regard to major gambling issues. Now that most aspects of the league are subject to bargaining with a union, if the commissioners were too trigger-happy in claiming an action was covered by a 'best-interest' clause, players might dig in their heels and try to take away that power. In the NBA and MLB, for instance, players have successfully negotiated for some right to appeal 'best-interests' sanctions.

"In the new NFL CBA, the Commissioner has the power (as he had in previous CBAs) to impose discipline on a player for 'conduct detrimental to the integrity of, or public confidence in, the game of professional football.' While an ordinary suspension could be challenged through arbitration, if the Commissioner invoked the 'integrity' clause he has the final say.

"The language of the CBA is broad in this grant of authority -- it would apparently allow the Commissioner to impose 'integrity' sanctions whether the conduct is on or off the field and whether or not the conduct occurred before the CBA became effective or even before the player became a professional.

"I see some stuff in the CBA talking about players waiving claims against the teams/league for conduct prior to the agreement taking effect but didn't find anything in a quick look that would involve the league waiving the right to impose discipline for conduct before the agreement took effect. Even if there is such an agreement it would seem to me the 'integrity' clause would trump that and allow the Commissioner to take virtually any action to protect the game."

Of course, that decision is left to arbitrators, and, as one agent warned, be careful. As he put it, "With any action related to the NFL these days it can be almost career-defining." I understand what he's saying. But I also understand what Rapp is saying, and not only does he make a convincing argument; he has been perfect with predictions before.

"Given the seriousness of allegations of on-field play," he said, "this story is one where the Commissioner's power will likely be upheld."

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