Arbitrator Harold Henderson is a rubber stamp

[Sydla]

Doty stated that the league could not apply new standards of conduct to punish Peterson, it didn't say that it couldn't suspend Peterson or punish him under the previous rules.

He specifically stated that he was not ruling on the fairness of the NFL's decision nor was he overturning his suspension.

But the punishment under the old policy for domestic violence was a maximum of two games. So how does the NFL get away with a 10 game suspension of Hardy if they must apply the old standards of punishment?

 

[Galian Beast]

But the punishment under the old policy for domestic violence was a maximum of two games. So how does the NFL get away with a 10 game suspension of Hardy if they must apply the old standards of punishment?

That's not true. There was no maximum, there is a precedent for 1-3 games however.

 

[Sydla]

That's not true. There was no maximum, there is a precedent for 1-3 games however.

According to Doty's ruling, it clearly states a "likely maximum of 2 games". Granted, the word "likely" throws some doubt on that. I assume that's based on the precedent of 1-3 games?

 

[ccb04]

The NFL would seemingly stall if able to. If offered a 4-5 game reduced suspension...perhaps that's agreed to. They may go to court for anything exceeding 4-5 games. The exempt list is what could possibly cause the most issues, if again potentially applicable in Hardy's case. Not sure?

 

[tyke1doe]

see the bolded text

It probably would have been better if you had not included your response within my response. Had to jump back and forth. But let's see if I can answer your response.

1. I like the way you add "precipitously". You're kind of changing the perimeters of the discussion. But I offer Ricky Williams and Todd Gurley as examples. Gurley came back after a suspension and promptly injured himself. It's my contention that he came back too early and that his body wasn't prepared to be thrown back into battle. And you know the history behind Ricky Williams.
Be that as it may, why would I need to give you examples when what I've said comes from those who've played the game? I would think a person who played the game would know better than I or you. Besides, I'm not a doctor. However, I have participated in kickboxing tournaments, and I can assure you mere conditioning vs. conditioning for contact aren't the same. That's really the point I was trying to make.

2. Well, of course, we don't know how things will progress, silly. That's why we're having this discussion. We're all dealing with hypotheticals not actuals.

3. AP's suspension wasn't overturned?

U.S. District Judge David Doty on Thursday overturned NFL arbitrator Harold Henderson's denial of Adrian Peterson's appeal, clearing the way for the Minnesota Vikings running back's possible reinstatement to the league.

Doty issued his order Thursday, less than three weeks after hearing oral arguments. The ruling sends the case back for further proceedings consistent with the rules of the collective bargaining agreement.

"I was pleased to learn about Judge Doty's decision," Peterson said in a statement Friday released through his agency, Relativity Sports. "It is a positive step in protecting players' rights and preserving due process for all players. It also brings me one step closer to getting back on the football field and playing the sport I love. As I prepare for my return to football, I am still focused on my family and continue to work to become a better father every day."

Peterson expressed "gratitude for all of the support" from fans, the NFL Players Association, union lawyer Jeffrey Kessler and his agents. It didn't mention the Vikings at all, though.

The league had suspended Peterson through at least April 15 under its personal conduct policy for his role in a child abuse scandal that shook the league. Doty said in his 16-page ruling that Henderson "simply disregarded the law of the shop and in doing so failed to meet his duty" under the CBA.

NFL spokesman Brian McCarthy said in a statement that the league disagrees with Doty's decision and will appeal.

"We believe strongly that Judge Doty's order is incorrect and fundamentally at odds with well-established legal precedent governing the district court's role in reviewing arbitration decisions," McCarthy said. "As a result, we have filed a notice of appeal to have the ruling reviewed by the Eighth Circuit Court of Appeals."

McCarthy said that Peterson would be placed back on commissioner Roger Goodell's exempt list rather than being immediately reinstated, "pending further proceedings by appeals officer Harold Henderson or a determination by the Eighth Circuit Court."

McCarthy added, "The commissioner's exempt list permits a player and team to communicate." McCarthy also said players on the exempt list can be traded, released or have contracts restructured after the start of the league year on March 10. ...

The crux of the issue was the application of the enhanced personal conduct policy, increasing a suspension for players involved with domestic violence from two games to six games. Because that was implemented after the injuries occurred to Peterson's son, delivered by a wooden switch that Peterson was using for discipline, the union contended that the prior standard of punishment should apply.

4. True, six is more favorable than 10 and 4 is more favorable than six and two is more favorable than six.

 

[jazzcat22]

My head hurts...LOL...
I think I will wait until May 28th.

 

[Galian Beast]

According to Doty's ruling, it clearly states a "likely maximum of 2 games". Granted, the word "likely" throws some doubt on that. I assume that's based on the precedent of 1-3 games?

It doesn't say anything about any maximum. It says that he shouldn't be treated differently than Rice in the process of his suspension. The conclusion one can come to is that his punishment should be in line with Rice's, which would follow the NFL's precedence set by 1-3 games.

Jones ruled that any suspension if it was the original suspension would have been okay. The question is can you suspend one player for a set of games, and another for a significantly higher set and call it fair? I think ultimately the court would have an issue with that, but it's not necessarily a slam dunk.

 

[burmafrd]

Doty always rules for the players- the NFL knows that. They will not be surprised at all when he laughs in their faces once again. If they pull the same crap as they did with peterson you can expect doty to come down HARDER this time.

 

[burmafrd]

It doesn't say anything about any maximum. It says that he shouldn't be treated differently than Rice in the process of his suspension. The conclusion one can come to is that his punishment should be in line with Rice's, which would follow the NFL's precedence set by 1-3 games.

Jones ruled that any suspension if it was the original suspension would have been okay. The question is can you suspend one player for a set of games, and another for a significantly higher set and call it fair? I think ultimately the court would have an issue with that, but it's not necessarily a slam dunk.

Hardy's case is nowhere near Rice's. No video, no real evidence that could not be chalenged, and in the end the case was dismissed. THEN they hit him with 10 games. I would submit that YES a court would slam dunk the NFL for that kind of hypocrisy and unfairness.

 

[ThreeandOut]

I could see this getting settled down to 4 games. The WNBA recently suspended Brittney Griner for 7 games for her domestic violence incident. That suspension amounts to about 21% of the 34 game regular season. A 4 game suspension for Hardy is 25% of the NFL regular season. So the NFL could make the PR claim that it's suspension was tougher than the WNBA suspension.

 

[Stash]

Hardy's case is nowhere near Rice's. No video, no real evidence that could not be chalenged, and in the end the case was dismissed. THEN they hit him with 10 games. I would submit that YES a court would slam dunk the NFL for that kind of hypocrisy and unfairness.

And I would totally agree with you here. They're flying blind without a parachute. The NFL has no idea how to handle these situations and have shown no indication that they're getting any better at it.

Legally, they've got nothing on Hardy whatsoever. But they're now trying to make their own rules and establish themselves to be above the law.

 

[Galian Beast]

It probably would have been better if you had not included your response within my response. Had to jump back and forth. But let's see if I can answer your response.

1. I like the way you add "precipitously". You're kind of changing the perimeters of the discussion. But I offer Ricky Williams and Todd Gurley as examples. Gurley came back after a suspension and promptly injured himself. It's my contention that he came back too early and that his body wasn't prepared to be thrown back into battle. And you know the history behind Ricky Williams.
Be that as it may, why would I need to give you examples when what I've said comes from those who've played the game? I would think a person who played the game would know better than I or you. Besides, I'm not a doctor. However, I have participated in kickboxing tournaments, and I can assure you mere conditioning vs. conditioning for contact aren't the same. That's really the point I was trying to make.

2. Well, of course, we don't know how things will progress, silly. That's why we're having this discussion. We're all dealing with hypotheticals not actuals.

3. AP's suspension wasn't overturned?



4. True, six is more favorable than 10 and 4 is more favorable than six and two is more favorable than six.

Many players come back from injury and play fine, coming back from not being injured is much easier. He has a full offseason and training camp and preseason.

APs suspension wasn't overturned, the arbitrator's ruling was overturned.

 

[AzorAhai]

Actually he is suspended already. He can perform team activities and play in the preseason, but he has been issued his suspension.

Yes he has been suspended, but that suspension is basically in a holding pattern right now. Once he appealed he would be eligible to play if not on the exempt list. They can't have a player missing games due to suspension, when under an appeal he may have the suspension reduced to 0 games. It's the same reason they expedited Suh's 1 game suspension to be heard so quickly. If they enforced the suspension, then don't hear it until after the playoff game, he would have served a suspension even though it's overturned later.

 

[Galian Beast]

Yes he has been suspended, but that suspension is basically in a holding pattern right now. Once he appealed he would be eligible to play if not on the exempt list. They can't have a player missing games due to suspension, when under an appeal he may have the suspension reduced to 0 games. It's the same reason they expedited Suh's 1 game suspension to be heard so quickly. If they enforced the suspension, then don't hear it until after the playoff game, he would have served a suspension even though it's overturned later.

You're confusing a lot of different situations.

 

[AzorAhai]

You're confusing a lot of different situations.

How am I confusing anything? If a player serves a suspension before his appeal is heard then has it overturned he missed games for a non-suspension. It's the same thing they do in baseball.

 

[Galian Beast]

How am I confusing anything? If a player serves a suspension before his appeal is heard then has it overturned he missed games for a non-suspension. It's the same thing they do in baseball.

You're confusing arbitration and court cases.

The NFL appeals process is pretty quick. A court case is not necessarily quick, though an injunction can be levied to prevent games from being missed. We'll know the result of the appeal pretty quickly.

 

[speedkilz88]

http://www.google.com/url?sa=t&rct=...=h0vwwgNswctAsBfaBW06ow&bvm=bv.93564037,d.b2w

3-4

Specifically, the New Policy 1 announced a “suspension without pay of six games for a first offense, with consideration given to mitigating factors, as well as a longer suspension when circumstances warrant.” Id. at 3; see
Rice initially received a two-game suspension. The public1 and media excoriated the Commissioner for failing to impose harsher penalties on domestic violence offenders. See id. Exs. 37-48. The New Policy, although more severe, did little to quell the public outcry. See id. Exs. 49-62. Peterson’s indictment, discussed in more detail below, came during the firestorm over Rice’s discipline and the NFL’s perceived lenity with respect to domestic violence offenders.
3
CASE 0:14-cv-04990-DSD-JSM Document 39 Filed 02/26/15 Page 3 of 16
also id. Ex. 4. It is undisputed that under the previous Policy, first-time domestic violence offenders faced a likely maximum suspension of two games. See id. Ex. 35, at 181:5-24, 368:5-13; Ex. 119, at 5 & n.4.

The court disagrees. There is no dispute that the Commissioner imposed Peterson’s discipline under the New Policy. See NFLPA Ex. 18. It is also
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undisputed that in the Rice arbitration, the hearing officer3 unequivocally recognized that the New Policy cannot be applied retroactively, notwithstanding the Commissioner’s broad discretion in meting out punishment under the CBA. See id. Ex. 119, at 16. 4 Consistent with that recognition, the Commissioner has acknowledged that he did not have the power to retroactively apply the New Policy: “The policy change was forward looking because the League is ‘required to provide proper notice.’” Id. at 7; id. Ex. 35, at 101:12-13, 99:21-100:15. Yet, just two weeks later, the Commissioner retroactively applied the New Policy to Peterson. The NFL urges the court to ignore Judge Jones’s decision, as did Henderson, arguing that Rice is distinguishable with respect to “critical facts” because it involved a double discipline issue. Am. Nat’l Can Co. v. United Steelworkers of Am., 120 F.3d 886, 890 (8th Cir. 1997). The court finds no valid basis to distinguish this case from the Rice matter. Although Henderson purported to rely on factual differences between Rice and this case, he did not explain how those differences would justify a different result. Nor did Henderson explain why the well-recognized bar against retroactivity did not apply to Peterson.
Retired federal district court judge Barbara S. Jones3 presided over the Rice arbitration. This determination is consistent with prior NFL arbitration4 decisions recognizing the importance of notice in advance of discipline. See, e.g., id. Ex. 82, at 25-26; Ex. 87, at 27; Ex. 101, at 16; Ex. 36, at 6. 13
CASE 0:14-cv-04990-DSD-JSM Document 39 Filed 02/26/15 Page 13 of 16
Even leaving the Rice decision aside, it is not seriously contested that the Commissioner understood he was constrained to apply the New Policy prospectively. See NFLPA Ex. 119, at 7; id. Ex. 35, at 101:12-13, 99:21-100:15; see also United Transp. Union, Local Lodge No. 31, 434 F2d 220, 222 (8th Cir. 1970) (recognizing that the law of the shop includes the understanding of the parties). Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA. As a result, the arbitration award fails to draw its essence from the CBA and vacatur is warranted. See Trailways Lines, Inc. v. Trailways, Inc. Joint Council, 807 F.2d 1416, 1423 (8th Cir. 1986) (finding that failure to consider the law of the shop can be the sole basis to vacate an arbitration award).

B. Exceeded Authority The NFLPA next argues that Henderson exceeded his authority by adjudicating the hypothetical question of whether Peterson’s discipline could be sustained under the previous Policy. The NFL responds that the NFLPA submitted that issue to Henderson. The 6 record belies the NFL’s argument. The NFLPA submitted to Henderson
Having concluded that the arbitration improperly upheld the5 Commissioner’s discipline under the New Policy, the court need not consider the NFLPA’s other arguments with respect to the essence of the agreement. The NFL also incorrectly argues that exceeding the scope of6 authority is not a proper ground for vacatur under the LMRA. See N. States Power Co. v. Int’l Bhd. of Elec. Workers, 711 F.3d 900, 903 (8th Cir. 2013) (affirming the district court’s decision to vacate the arbitrator’s award “for reaching beyond his authority under the CBA”). 14
CASE 0:14-cv-04990-DSD-JSM Document 39 Filed 02/26/15 Page 14 of 16
“the pure legal issue” of whether the New Policy could be applied retroactively. NFLPA Ex. 122, 21:22-22:24; see also id. Ex. 20, at 4. Nothing in the record supports a finding that the NFLPA asked Henderson to determine whether the discipline imposed was consistent with the previous Policy. Moreover, Henderson’s conclusion that the New Policy is consistent with the previous Policy is contradicted by the Commissioner’s own statements in which he acknowledged that the New Policy included “changes” to the Policy. See, e.g., id. Ex. 65, at 1 (“I made a mistake. I’m not satisfied with the process we went through, I’m not satisfied with the conclusions. And that’s why we came out last month and said: we’re going to make changes to our policies. We made changes to our discipline.”); see also id. Ex. 35, at 99:21-100:15. “When two parties submit an issue to arbitration, it confers authority upon the arbitrator to decide that issue.” Local 238 Int’l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988, 990–91 (8th Cir. 1995) (emphasis in original). “[O]nce the parties have gone beyond their promise to arbitrate and have actually submitted an issue to an arbiter, we must look both to their contract and to the submission of the issue to the arbitrator to determine his authority.” John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 561 (8th Cir. 1990) (internal quotation and citation omitted). Here, Henderson strayed beyond the issues submitted by the NFLPA and in doing so exceeded
15
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his authority. As a result, vacatur is warranted on this basis as well. Because the court finds that the arbitration award must be vacated on the grounds set forth above, it need not decide whether Henderson was evidently partial or whether the award violates fundamental fairness. The court will remand the matter for further proceedings before the arbitrator as permitted by the CBA. See U.S. Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 907 F. Supp. 2d 986, 995 (D. Minn. 2012) (holding that the appropriate remedy on vacatur is to remand the case for further arbitration proceedings consistent with the CBA).
CONCLUSION Accordingly, IT IS HEREBY ORDERED that: 1. The petition to vacate arbitration award [ECF No. 2] is granted; and 2. The case is remanded for such further proceedings consistent with this order as the CBA may permit.

 

[Derinyar]

The NFL is trying to get around the rulings about DV cases by calling it something other then DV even though all the instances they site to suspend him are DV. Frankly I could easily see that pissing off the judge. You're trying to get around my rulings by calling a horse a pig.

 

[Sydla]

It doesn't say anything about any maximum. It says that he shouldn't be treated differently than Rice in the process of his suspension. The conclusion one can come to is that his punishment should be in line with Rice's, which would follow the NFL's precedence set by 1-3 games.

Jones ruled that any suspension if it was the original suspension would have been okay. The question is can you suspend one player for a set of games, and another for a significantly higher set and call it fair? I think ultimately the court would have an issue with that, but it's not necessarily a slam dunk.

I am confused now. On Page 4 of Doty's ruling in the Peterson situation, the paragraph at the top of the page it says this:

"It is undisputed that under the previous Policy, first-time domestic violence offenders faced a likely maximum suspension of two games."

 

[Galian Beast]

I am confused now. On Page 4 of Doty's ruling in the Peterson situation, the paragraph at the top of the page it says this:

"It is undisputed that under the previous Policy, first-time domestic violence offenders faced a likely maximum suspension of two games."

likely maximum

Precedence shows players have gotten as many as 3 for first time domestic violence, and I don't think there is any hard fast rule regarding this, as Judge Jones said an indefinite suspension would have been upheld by her in the case of Rice if it were the initial suspension.