The Importance and Impact of Setting Priorities in Negotiations: The CBA, Deflategate and Tom Brady

football negotiationsFans of American football are watching with great interest the recent developments around “Deflategate.”1 Of course, the drama always increases when a superstar such as Tom Brady is involved.

One of the controversial aspects in this evolving saga is the power of the National Football League (NFL) commissioner, Roger Goodell. Goodell handed the four-game suspension penalty to Mr. Brady, in part for his lack of cooperation in the investigation, but is also the “hearing officer” who reviewed and made the judgement on Mr. Brady’s appeal of that penalty.

How could that be? How could the same person who investigates and imposes a sentence then be the person who hears the appeal and passes judgement on whether the penalty he imposed is proper? In a sense, Mr. Goodell is serving as judge, jury and executioner.

Mr. Goodell has such powers on disciplinary matters as a result of the NFL Collective Bargaining Agreement (the “CBA”). Article 46, Section 1a of the CBA states that:

“All disputes involving a fine or suspension imposed upon a player . . . or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football . . . the player affected thereby may appeal in writing to the Commissioner.”

In turn, Section 2a states:

“For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA [NFL Player’s Association], appoint one or more designees to serve as hearing officers.”

Of course, in the Deflategate case, the commissioner suspended Mr. Brady and, upon Mr. Brady’s appeal, named himself as the hearing officer.

Many are asking: How could the players have allowed these provisions into the CBA?

The answer is strikingly simple. In all negotiations, each side has to prioritize what to fight for. If no one is willing to give up things of less importance for those of more importance, all negotiations would end in a stalemate. In fact, we espouse dividing issues in a negotiation into three categories: Mandatory, Important and Desirable. Mandatory issues are usually deal-breakers. Important are issues that need to be addressed, however could be compromised in part for things that are more important, while Desirable things are nice to have and usually can be compromised as bargaining chips.

From the player’s standpoint, things that were mandatory for them were the broad issues affecting the thousands of past, current and future players that benefit from the CBA. So the Mandatory issues for the NFLPA dealt with player compensation, revenue splits, long-term health issues etc. These are issues that affect each and every player. Governance regarding discipline of individual players, while important, would not supersede other areas. In fact, one would argue that it would be a bad decision for the NFLPA to insist on control of that governance process at the expense of even 1% of the revenue split (which is worth tens of millions of dollars).

From the owner’s viewpoint, provisions dealing with discipline in relation to the integrity of the game have long-term impact on the value of the NFL and the franchises they own. For them, a swift and clear discipline process when the integrity of the NFL is at issue was probably mandatory. It is those very discipline issues that have been attacked in the media over the past few years. In fact, even though the Commissioner has broad powers for swift action, he has been accused as being too slow to hand out discipline in the face of player misconduct involving domestic violence, child abuse and other allegations. While the latest CBA was agreed to in 2011 (prior to the last 3 years of scandals), the provisions giving the Commissioner broad discretion in disciplinary matters for the sake of the “integrity of the game” are not new and were also in prior collective bargaining agreements.

Given the current dispute, my guess is that these provisions will be more heavily debated in the next CBA discussions in 2020, and possibly prior to that time. The owners will argue that swift decisions on discipline matters are necessary in the face of serious accusations such as those dealing with criminal offenses and integrity issues. The players will argue that it is necessary for the process to be fair, especially when it deals with their right to earn a living and the overriding notion of “innocent until proven guilty.” (Although the NFL, as a private organization, is not bound by the Bill of Rights). Now that these provisions are in public focus because of Deflategate, will this set of interests result in an independent appeal process? In the view of this observer, that is the likely result.

1 Per Wikipedia, Deflategate, also humorously called Ballghazi, began as a controversy in the National Football League (NFL), stemming from accusations that the New England Patriots tampered with footballs used in the American Football Conference (AFC) Championship Game against the Indianapolis Colts on January 18, 2015. The league announced on May 11, 2015, that it will suspend Patriots quarterback Tom Brady for four games of the upcoming 2015 regular season for his alleged part in the scandal. Following appeal by Brady, the suspension was upheld by the NFL Commissioner on July 28, 2015.