"Union's TO ARGUMENTS WAY OFF BASE"..PFT.com

Started by bobbyinlondon, November 10, 2005, 10:26:36 AM

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bobbyinlondon

Kind of a long read.

POSTED 9:35 a.m. EST, November 10, 2005

UNION'S T.O. ARGUMENTS OFF BASE

The NFL Players Association says that it plans an aggressive attack against the actions taken by the Eagles as to receiver Terrell Owens. 

According to The Philadelphia Inquirer, the union will advance three arguments at the November 18 hearing.  First, the NFLPA will contend that the four-game unpaid suspension is excessive.  Second, the NFLPA will argue that the five-game deactivation following the four-game suspension violates the disciplinary procedures set forth in the CBA.  Third, the union will claim that the one-game suspension imposed for the taterskins game makes the punishment complete, and that no further sanction is permitted.

Let's take a look at each of these claims, setting aside for now the quasi-journalist hat and donning the cap of a practicing lawyer who deals with issues of this nature virtually every day.

1.  The Four-Game Suspension.

Article VIII, Section 1 of the CBA permits a maximum fine of one week's salary and/or a suspension not to exceed four weeks, without pay, for conduct detrimental to the team.  (The maximum sanction, then, isn't a four-game suspension but a four-game suspension and a one-game fine.)

The union primarily plans to argue that Owens' punishment is more severe than the penalties imposed by other teams in other circumstances.

"This isn't necessarily about one player and one team," NFLPA General Counsel Richard Berthelsen told The Inquirer.

"Wrong!" the Eagles should shout in response.  Section 3 of Article VIII plainly states:  "Discipline will be imposed uniformly within a Club on all players for the same offense; however, the Club may specify the events which create an escalation of the discipline, provided the formula for escalation is uniform in its application."  (Emphasis added.)  This means, in English, that what another team does or doesn't do under similar circumstances is completely and totally irrelevant.

Sure, it would be helpful if the Eagles had promulgated internal rules stating that publicly dissing the quarterback and generally acting like a butthole is punishable by a four-week suspension.  But the real question is whether the Eagles have been uniform in their imposition of discipline.  The challenge for the union and T.O., then, will be to prove that other Eagles players engaged in similar behavior without similar consequence.

Good luck with that. 

Our guess is that the union will nevertheless point to other players on other Clubs in support of the notion that the conduct of T.O. wasn't sufficiently detrimental to the Eagles to merit a four-game suspension -- or that it wasn't detrimental conduct at all.  But since the CBA does not attempt to codify the specific levels of punishment or the behaviors that will trigger action, the matter is left to the discretion of the Club, and the only requirement for the Club is to be uniform in its imposition of discipline for conduct detrimental to the team.

This means, in English, that the union doesn't have a leg to stand on.

As to the potential argument that the conduct wasn't detrimental, we can sum up the technical legal response in one word.

Please.

Not detrimental?  Look no farther than Paragraph 2 of Owens' contract with the team, which states:  "He agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game."

Game, set, suspension.

2.  The Five-Game Deactivation.

All due respect, the union's argument that a five-game deactivation constitutes "punishment" simply makes no sense. 

Article XXXIII of the CBA expressly contemplates that there will be 53 players under contract, and that 45 of them will be active for any given game.  This means that eight of the players, at any given time and for any reason, will be inactive.

The CBA contains no mechanism for challenging a decision to deactivate a player, and sets forth no rules for making this decision.  Thus, the decision falls within the discretion of the team, and it should not be subject to second-guessing.

With that said, the union might be able to argue that Owens should be permitted to attend practices and to work out at the facility.  Article XXXIII, Section 3 states that "Inactive List players will receive the same benefits and protections as Active List players."  The question is whether the phrase "benefits and protections" refers only to issues like salary and pension rights, or whether the "benefits" include access to the team and the facilities.

The problem with this argument is that the term "benefits" is defined by Article I, Section 3 as the "specific benefits paid to players."  (Emphasis added.)  Thus, the Eagles should argue that, if Owens is getting his game checks during the period of deactivation, he is getting his "benefits."       

The union also argues in this regard that the deactivation prevents Owens from "earning any additional incentives" or from proving to other teams that "he's worthy of playing for them next year."  But couldn't every player on the inactive list raise this same argument? 

The Eagles have decided that, notwithstanding T.O.'s objective ability, the team will perform better as a unit without him on the field or in the locker room.  Nothing in the CBA prevents a team from making that decision.

As to the argument that Owens can't earn any additional incentives, the only additional incentive in his contract is a $250,000 payment for being elected to the Pro Bowl squad.  Again, if one player can challenge a team's decision to make him inactive on the basis that it would keep him from making it onto the Pro Bowl roster, then every player could make that argument.

Bottom line -- it looks like the union's attack on the decision to deactivate will fail.  Badly.

3.  The "Double Penalty" Argument.

This contention is based on the notion that by suspending Owens for the game against the taterskins, the penalty was imposed and nothing more could be done to him. 

It's a real stretch.

On Saturday, the team announced that Owens was suspended "indefinitely."  The Eagles never said it was a one-game suspension followed by a three-game suspension.  It was and is, in the end, a four-game suspension, and the union should worry about losing credibility in the eyes of the arbitrator by arguing otherwise.

Really, both of the final two points raised by the union don't hold much water, in our view.  We believe that the NFLPA is simply aiming as high as possible in the hopes that recovery of the four game checks will then seem like an acceptable middle ground to the arbitrator. 

The union also might be going as far as it is in order to avoid any possible argument by Owens that the union didn't do enough to help him.

But, as we see it, no one can help him now.  He clearly engaged in conduct detrimental to the interests of the Club -- why else would the Club be so adamant about not utilizing the services of one of the best players in the league?  And if the arbitrator applies the CBA as written, and if there's no evidence of other current or former Eagles engaging in similar behavior with no punishment, Owens should lose his grievance.

Rome


DH


RezRob

Nice legal synopsis, although I'm sure the FO did their homework. The NFLPA is just grandstanding and pretending to be active in this process. AR and the FO were judicious in all of thier statements, and I would imagine researched this matter $eriously.
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Sgt PSN

It took legal action to get TO in an Eagles uniform.  Now it's going to take legal action to make him take it off.  Ironic, ain't it? 

Don Ho

"Well where does Jack Lord live, or Don Ho?  That's got to be a nice neighborhood"  Jack Singer(Nicholas Cage) in Honeymoon in Vegas.

EJ72

Upshaw must be an idiot. The suspension and the deactivation are separate actions, for one thing. The 4 games without pay for conduct detrimental to the team is pretty much undebatable, and the deactivation for the final games is allowable according to the language of the CBA and it has a precedent in the Keyshawn/Bucs situation.

No wonder the NFLPA is such a weak union. They probably don't even read the contracts before they sign them.

T_Section224

see, if normal guys like us can see that, what makes it so tough for the nflpa to come to grips with it.
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Don Ho

Quote from: EJ72 on November 10, 2005, 02:07:23 PM
Upshaw must be an idiot. The suspension and the deactivation are separate actions, for one thing. The 4 games without pay for conduct detrimental to the team is pretty much undebatable, and the deactivation for the final games is allowable according to the language of the CBA and it has a precedent in the Keyshawn/Bucs situation.

No wonder the NFLPA is such a weak union. They probably don't even read the contracts before they sign them.

Agreed.  Please keep in mind that Upshaw would defend Pol Pot, Tojo, Bin Laden, Charles Manson if they had played in the NFL.

I believe Hitler was a DB for the old Canton Bulldogs before relocating.
"Well where does Jack Lord live, or Don Ho?  That's got to be a nice neighborhood"  Jack Singer(Nicholas Cage) in Honeymoon in Vegas.

Wingspan

Quote from: Don Ho on November 10, 2005, 02:13:07 PM
Quote from: EJ72 on November 10, 2005, 02:07:23 PM
Upshaw must be an idiot. The suspension and the deactivation are separate actions, for one thing. The 4 games without pay for conduct detrimental to the team is pretty much undebatable, and the deactivation for the final games is allowable according to the language of the CBA and it has a precedent in the Keyshawn/Bucs situation.

No wonder the NFLPA is such a weak union. They probably don't even read the contracts before they sign them.

Agreed.  Please keep in mind that Upshaw would defend Pol Pot, Tojo, Bin Laden, Charles Manson if they had played in the NFL.

I believe Hitler was a DB for the old Canton Bulldogs before relocating.

never made the pro bowl though

but this is true. as the union head, he must act upon the union member's request and file the grievance. regardless of how stupid the argument, that is what the union is there for.
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Diomedes

Quote from: Don Ho on November 10, 2005, 02:13:07 PMAgreed. Please keep in mind that Upshaw would defend Pol Pot, Tojo, Bin Laden, Charles Manson if they had played in the NFL.

I believe Hitler was a DB for the old Canton Bulldogs before relocating.

You left George Bush off that list. 
There is considerable overlap between the intelligence of the smartest bears and the dumbest tourists." - Yosemite Park Ranger

EJ72

Quote from: Don Ho on November 10, 2005, 02:13:07 PM
I believe Hitler was a DB for the old Canton Bulldogs before relocating.

Upshaw would have lobbied for him unsuccessfully when he complained about the league's "No Charlie Chaplin moustaches mandate", and the fact that the team wouldn't let him write or paint in the locker room.

PoopyfaceMcGee

Hitler got kicked off the team for burning all the playbooks.

PhillyFan

Quote from: Diomedes on November 10, 2005, 02:22:12 PM
Quote from: Don Ho on November 10, 2005, 02:13:07 PMAgreed. Please keep in mind that Upshaw would defend Pol Pot, Tojo, Bin Laden, Charles Manson if they had played in the NFL.

I believe Hitler was a DB for the old Canton Bulldogs before relocating.

You left George Bush off that list. 

idiot

PhillyFan

The only real argument they have to stand on is that being sent away for the last 5 weeks is additional discipline.  Every team has the right to inactivate whoever they wish, but this is the rare situation where the inactivated player is banished from all practices, team meetings and team events.  They may have to allow him to come.  But, does anybody really think TO with his ego, would hang around practices and meetings and the facilities while knowing he wouldn't get on the field?  Would he really want to try to be an ever bigger pain in the butt, further threatening the likelihood of getting a good deal from another team?