Minnesota Vikings running back Adrian Peterson will make his case today to an arbitrator that NFL commissioner Roger Goodell wrongly suspended him for the remainder of the 2014 season and that he should be reinstated immediately. Goodell suspended Peterson in response to Peterson’s no contest plea to the misdemeanor offense of reckless assault. The suspension also reflected public reports and purported images associated with Peterson beating his 4-year-old son with a tree branch and causing him noticeable injuries. Peterson has missed the Vikings’ last 11 games with pay while on the NFL’s Exempt Commissioner Permission List (“exempt list”). While Peterson seeks immediate reinstatement, the NFL wants Peterson reclassified as suspended without pay pursuant to the personal conduct policy. Each side will present their arguments to attorney Harold Henderson, a former NFL executive vice president of labor relations.
The following are the key legal issues in today’s hearing and in its aftermath.
Rules of arbitration, not court, apply and why that matters for Peterson
As in the hearing for Ray Rice‘s appeal, the Peterson hearing will feature flexible standards of arbitration rather than rigid rules of court. The personal conduct policy and Article 46 of the collective bargaining agreement govern player discipline hearings and impose few restrictions on how they are conducted. As a practical matter, Henderson will be able to consider a much wider scope of evidence and testimony than would be admissible in a trial.
To illustrate why the openness of evidence matters, consider the reported recordings of phone conversations between Peterson and Troy Vincent, the NFL’s executive vice president of football operations. According to USA Today’s Tom Pelissero, Peterson recorded two phone conversations with Vincent in November. It is unlawful to secretly record a telephone conversation in some states and evidence obtained unlawfully is usually inadmissible in a trial. Even when a secret recording is lawfully created, judges will often deem it inadmissible if there are questions about the recording’s authenticity or reliability. These evidentiary concerns are inapplicable to Peterson’s hearing. If the recordings exist, they will almost certainly be played during the hearing or at least their transcripts will be admitted.
Henderson is also not bound by precedent in reviewing Peterson’s suspension. Arbitration hearings, unlike trials, are not constrained by prior rulings. This is significant because former U.S. District Court Judge Barbara Jones issued a harsh ruling against the NFL in the Rice appeal and recommended that the NFL reform its system of justice. Henderson is under no obligation to share Jones’ concerns, and his closes ties to the NFL suggest he won’t.
Henderson may be fair but won’t be impartial
Peterson faces longer odds at winning his appeal than did Rice in part because a designee of Goodell, rather than an independent former jurist, will preside over the hearing.
Barbara Jones, a former federal judge who has no connection to the NFL, was selected to arbitrate Rice’s appeal because Goodell and the NFL were implicated in the Rice controversy. There were no doubts about Jones’ objectivity in reviewing a matter that raised serious questions about the quality of NFL investigations and the veracity of those NFL-managed investigations. If Goodell or a designee had presided over Rice’s appeal, the hearing might not have been taken seriously by the public. Worse yet for the NFL, it may have furnished Rice with stronger grounds to sue the league.
The controversy surrounding Peterson is much more contained and raises fewer questions about the NFL’s own conduct. While alleged assurances made by Vincent to Peterson warrant scrutiny, Peterson’s appeal is fundamentally about whether his suspension is excessive under NFL rules. In that regard, Peterson’s appeal is ordinary.
To the extent Peterson’s appeal is unusual, it is mainly because of two issues. First is Peterson’s placement on the previously unknown exempt list. There is no specific rule on whether games missed while on a paid suspension should “count” in any way toward reducing an unpaid suspension under the personal conduct policy. The exempt list isn’t described in the CBA and is only explained in vague ways in the NFL Player Personnel Policy Manual, which is not publicly available. Second is the NFL’s request that Peterson attend an unconventional hearing with a psychologist and other outside experts on Nov. 14. (Peterson refused.) A hearing with outside experts is not contemplated in either the personal conduct policy or Article 46 of the CBA. Debate about these two issues requires substantive analysis and interpretation of NFL policies. With Rice, in contrast, the debate was more personal and focused on whether Goodell and other NFL officials lied or deliberately ignored evidence.
Despite pressure from the NFLPA to appoint an independent arbitrator to review Peterson’s appeal, Goodell felt no need to deviate from standard operating procedure. As he has done many times in appeals, Goodell assigned Peterson’s appeal to his designee, Henderson. There is no legal requirement that Henderson be fair or neutral. Just the opposite: “Designee” refers to a person who carries out another person’s duties — in this case, the duties of the NFL commissioner. Henderson is a seasoned designee for Goodell. Since 2008, he has heard 87 appeals, including one for Cleveland Browns wide receiver Josh Gordon in August. While there is no available data on Henderson’s record, the consensus is that he tends to rule in favor of the NFL.
Legal significance of Vincent recordings
In the phone conversations purportedly recorded by Peterson, Vincent allegedly promised Peterson that if he attended the hearing with outside experts on Nov. 14, Peterson’s time on the exempt list would possibly count as time served and he might only receive a two-game suspension. Vincent also assured Peterson that he would not be subject to the domestic violence policy outlined by Goodell in August. Vincent is not expected to testify in Peterson’s appeal, although USA Today reports Henderson might speak with him later this week.
At first glance, the recordings of Vincent appear highly damaging to the NFL. A league executive seems to have been cutting deals with a player and inducing the player to attend a hearing that is outside the scope of collectively bargained procedures. Upon closer review, however, there are reasons to question the impact of the recordings.
First, Vincent does not seem to have made a binding promise to Peterson. If media reports of the transcripts are accurate, Vincent essentially told Peterson that if he is agreeable to a demand by the NFL — ie., attending a meeting with outside experts — Goodell would appreciate it. Vincent’s observation seems more commonsensical than manipulative. It is obvious that Peterson complying with a request by the NFL would work more in his favor with Goodell than Peterson refusing that same request. It does not appear that Vincent told Peterson that if he attended the hearing, he had a guarantee he would face a shorter suspension.
Second, even if Vincent made an explicit promise, it is uncertain whether he had the legal authority to make a binding promise. The personal conduct policy refers only to the NFL commissioner determining player discipline. It does not authorize the NFL executive vice president of football operations or other league executives to determine discipline. While Vincent works for the commissioner, there is no indication that Vincent spoke to Peterson on the commissioner’s behalf. It is plausible that Vincent, a retired Pro Bowl cornerback and former president of the NFLPA, was chosen to speak with Peterson because of his background as a former player. Put bluntly, the league probably hoped that Peterson would view Vincent as more of a neutral person with Peterson’s best interests at heart than as a typical NFL executive. The plan backfired, as Peterson distrusted Vincent so much that he started to record their conversations. But that does not mean that the recordings will actually influence Henderson’s decision.
Peterson’s strongest argument: Goodell has again acted in an arbitrary way
In her ruling on Rice, Barbara Jones described Goodell as determining player suspensions in an “arbitrary” way. She found particularly troubling how Rice received a suspension lasting 11 games, whereas other players implicated in domestic violence only received two-game suspensions. In Jones’ eyes, the NFL lacked a persuasive explanation for the stark difference in suspension lengths. Jones believing Rice and, by implication, not believing NFL officials also worked sharply against the league.
Peterson will likewise describe Goodell as arbitrary in the manner in which he has treated Peterson’s suspension. Peterson can cite far lower disciplinary punishments imposed by Goodell on players who, like Peterson, pleaded out to misdemeanor charges. Goodell, for instance, suspended CincinnatiBengals running back Cedric Benson in 2011 for only three games (later lowered to one game) after Benson, like Peterson, reached a plea deal with Texas prosecutors over misdemeanors. Even though Peterson received no jail time while Benson received a 20-day jail sentence, Goodell suspended Peterson for a substantially longer period.
Peterson can also effectively challenge the NFL’s decision to cite the league’s new domestic violence policy as a justification for Peterson’s suspension. The policy, as enunciated by Goodell in a memo to owners in August, does not explicitly address violence against children. The policy appears worded with intimate partners, such as a spouse or significant other, in mind.
The NFL is well prepared to repel an argument that Goodell has been arbitrary. First, the personal conduct policy is worded to provide the commissioner with unlimited authority in determining player discipline. While this type of textual argument failed to resonate with Jones in the Rice hearing, it is more inclined to persuade Henderson given his own experiences in applying the personal conduct policy.
Second, Peterson’s underlying misconduct is arguably much more damaging to the NFL’s image than the misconduct of other players suspended by Goodell. Peterson was accused of using a tree branch to beat his 4-year-old son and causing noticeable welts and bruises, most disturbingly in his son’s anus area. Even some who advocate broad rights for parents to discipline their children have expressed deep reservations about Peterson’s judgment. Other players suspended by Goodell have harmed adults or, in the case of Michael Vick, dogs. The NFL is poised to portray a player who beats his child as engaging in ethically and morally worse behavior than other suspended players and thus deserving of a longer suspension.
Third, while the domestic violence policy may not refer to heightened suspensions for abuse against children, the NFL can stress it does not exclude those heightened suspensions, either. The NFL can depict the domestic violence policy as intended to cover all types of violence at home and not exclusively violence against an intimate partner.
Legal options for Peterson if his appeal fails
Henderson will likely wait several days, if not a week or two, before issuing a ruling. As explained above, Peterson’s appeal will probably fail. Should his appeal fail, Peterson would be faced with a choice. He could accept the suspension and focus his energies on convincing Goodell to reinstate him on April 15, 2015, the first day Peterson would be eligible for reinstatement under the terms of his suspension. This strategy of acceptance would require, at a minimum, that Peterson avoid any controversy over the next four months.
Alternatively, Peterson could wage a legal battle against the NFL. His attorney, Rusty Hardin, is no stranger to waging legal fights on behalf of professional athletes. In addition to Peterson, Hardin has represented Scottie Pippen, Warren Moon, Roger Clemens, Wade Boggs and other athletes faced with assorted legal troubles. Taking on the NFL would certainly not intimidate Hardin.
Peterson could attempt two legal maneuvers against the NFL. Neither would likely succeed.
The first would be to petition a Minnesota court for a temporary restraining order that bars the NFL from carrying out the suspension, likely through the remainder of the 2014 season. Peterson would insist that the NFL, by punishing him for refusing to attend the Nov. 14 hearing and by failing to credit him with time served for his stay on the exempt list, has caused him irreparable harm. The 5-7 Vikings seem unlikely to make the playoffs, meaning the Vikings’ season will probably end with their last regular-season game on Dec. 28, 2014. Still, Peterson would likely relish the chance to play the season, not only to get back on the field but also to send a message to the NFL and Goodell.
Unfortunately for Peterson, even a sympathetic judge who is a diehard Vikings fan is unlikely to grant him a temporary restraining order. Judges rarely grant temporary restraining orders, and the NFL can rebut Peterson’s arguments for reasons explained above. The league would also maintain that Peterson, as a member of the NFLPA, has contractually agreed to adhere to the NFL’s internal system of justice and thus it would be inappropriate for a judge to intervene. Plus, even if a judge grants Peterson a temporary restraining order, it would likely be limited to his suspension under the personal conduct policy. In that scenario, Goodell could simply keep Peterson on the exempt list and deny him an opportunity to play.
The second legal play for Peterson would be to appeal Henderson’s ruling to federal court. Like petitioning for an injunction, an appeal of Henderson’s ruling would likely fail. According to the Federal Arbitration Act and accompanying case law, federal courts are obligated to give arbitration awards high deference. Rarely does a federal court reverse an arbitration award. There usually has to be a finding of fraud or considerable evidence that the arbitrator disregarded basic principles of law. While Henderson might be inclined to favor the NFL, he is a highly respected and experienced attorney. His career has included work for the NFL, Amtrak and Morgan, Lewis & Bockius, a prestigious law firm.
The NFL likely factored in the possibility of Peterson appealing to a federal court when it selected Henderson to hear Peterson’s appeal. All things being equal, it would be much harder to convince a federal court that Henderson disregarded basic principles of law than it would be to convince a court that Goodell, who is not an attorney, did so.
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.