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ESPN analyst, De Smith grapple over arbitration provision

DeMaurice Smith


We’ve heard of good cop/bad cop. When it comes to the ESPN tag-team of legal analysts, the better term may be bad cop/worse cop.

Two weeks ago, we outlined the many flaws in Lester Munson’s insistence that Tom Brady would not win the case that, a day ago, he won. In the aftermath of that decision, Roger Cossack interviewed NFLPA executive director DeMaurice Smith -- and Cossack went after Smith on the decision to give Commissioner Roger Goodell final say over cases like Brady’s.

The exchange between Cossack and Smith was transcribed by SportsBusiness Daily.

“You guys agreed to a process that I didn’t even call an arbitration, because an arbitration as I’ve always understood it is a neutral, impartial person,” Coassack said. “Agreeing to let Roger Goodell, the enemy, be the arbitrator as well as the person who reviews and is the appellate reviewer of his own decision was a way I thought of saying, ‘We know we’re not going to get a fair hearing, and we’ll live with it.’”

“The thing you said earlier is idiotic, because you and I both know as lawyers that there are arbitration proceedings that take place all the time,” Smith said. “We aren’t in a world where any party agrees that an arbitrator can be unfair.”

“De, what did you think Roger Goodell was going to be good for you guys?” Cossack replied. “Did you think he was going to be fair, or did you think he was going to represent the National Football League?”

“If an arbitrator can be unfair, then Paul Tagliabue could not have reversed Roger Goodell,” Smith said, in reference to the Saints bounty suspensions.

“So you’re saying to me that you agreed to let Roger Goodell be the arbiter and the reviewer of his own decision, but implicit in that decision was that he was going to act fairly?” Cossack replied. “Come on.”

“If you are confused, I would urge you to open the cases about industrial due process,” Smith said.

“And I have, Judge Berman agrees with you, I’ll give you that,” Cossack said.

“Well you don’t have to give me anything, Roger. Read the law,” Smith said. “We didn’t let Roger Goodell do this.”

Smith is clearly right, and Cossack is clearly wrong. What’s amazing is that Cossack seems to know he’s clearly wrong, but he nevertheless pushed this goofy point that, when the union agreed to allow the Commissioner to have final say over matters regarding conduct detrimental to the integrity of the game, the union agreed to give the Commissioner a license to do whatever he wants to do in cases like this, regardless of fairness, due process, or any other applicable legal requirements.

Giving the Commissioner the power to be, essentially, a judge doesn’t mean giving him the power to do whatever he wants to do. With the power comes the obligation to do it properly, and if it’s not done properly, it’s subject to a separate challenge.

So, yes, the union gave the Commissioner final say over these matters (in 1968), but the union retained the ability to appeal those decisions if those decisions were not made properly. Even with the very high bar that the court system has put in place when reviewing arbitration awards, the NFL went so far that a federal judge threw out the decision.

It’s not an NFLPA problem. It’s an NFL problem. The NFL thinks it can do whatever it wants to do, and nothing has managed to penetrate an echo chamber in which either those around the Commissioner are telling him what he wants to hear -- or they’re telling him what he needs to hear, and he’s ignoring it.