The obvious headline from the letter sent Monday by the NFL to the NFL Players Association regarding the Al Jazeera investigation is that the league has threatened to suspend Packers linebacker Clay Matthews, Packers linebacker Julius Peppers, Steelers linebacker James Harrison, and free-agent defensive lineman Mike Neal if they don’t submit to interviews by August 25. The deeper message comes from the NFL’s use of the precedent created by the Tom Brady suspension, appeal, and litigation to threaten the players with suspension for failure to cooperate with a league investigation.
“There is no dispute that players are obligated to cooperate with the league’s investigation, as you have repeatedly acknowledged,” the letter states. “This obligation includes not only the responsibility to submit to an interview but also the duty to provide meaningful responses to the questions posed. Nor is there a dispute that a failure to cooperate or an attempt to obstruct the investigation may result in discipline, including suspension from play, for conduct detrimental under Article 46 of the CBA and the NFL Player Contract.”
Never mind the fact that the PED policy says nothing about an obligation to cooperate in an investigation regarding a potential violation of the PED policy due to something other than a positive test or an alleged or actual violation of the law. As written, the PED policy seems to give players the right to refuse to say anything until the NFL has developed sufficient “credible evidence” to justify the imposition of discipline. Then, if the player chooses to appeal, he tells his story within the confines of the appeal process.
Armed with the immense power given to the Commissioner by the federal appeals court ruling in the Brady case, the league can now disregard the terms of the PED policy and invoke Article 46 to compel cooperation with an investigation under the PED policy, despite the plain terms of the PED policy. Before Brady, no player had ever been suspended for failing to cooperate with or obstructing a league investigation. Now, based on the Brady precedent, the NFL has a hammer that it never specifically obtained through bargaining.
Pulling the controversy out of the PED policy also allows the NFL to avoid the neutral arbitration process that was adopted in 2014 for PED violations. Instead, it will be the Commissioner who will handle the appeal of the indefinite suspension that will be imposed on Matthews, Peppers, Harrison, and Neal — and the Commissioner surely will uphold the approach taken by those who work for him.
This is precisely why the NFLPA must roll the dice on an appeal of the Brady case from the Second Circuit (and the Adrian Peterson case from the Eighth Circuit) to the U.S. Supreme Court. As slim as the chances of prevailing may be, not trying to overturn the Brady and Peterson precedent would allow the NFL to use Article 46 not just as a shield against The Shield but as a sword to compel players to do what the league wants, even if the specific policies relevant to a given controversy suggest that the players aren’t required to comply.
