Faced with suspension threat, NFLPA’s only option may be to file a lawsuit
The NFL is attempting to impose onto the PED policy an obligation for players to provide evidence that would be used against them (other than the urine samples they routinely provide). With the league funneling that requirement not through the PED policy but through the Article 46 concept of conduct detrimental to the league, the chances of making that approach stick are enhanced, thanks to the recent ruling in the Tom Brady litigation.
The NFL Players Association hasn’t responded to Monday’s letter from the league drawing a clear line in the sand, but at this point the only viable response may be to file a lawsuit or to otherwise seek an expedited ruling from a neutral body charged with interpreting the labor deal.
Although the suspensions have not been implemented and appeal rights (meaningless as they may be) would apply, the NFLPA could seek a ruling that blocks the league from implementing suspensions until the underlying dispute regarding whether the league has the right to compel interviews is resolved.
That’s ultimately the question: Whether the PED policy allows the NFL to force players to provide testimony or other evidence (other than periodic urine samples) in connection with an investigation of a violation unrelated to a positive test.
The PED policy, as written, contemplates that the NFL will impose discipline if it has “credible evidence” of a violation, and that the player then will tell his side of the story if he files an appeal. Since the PED policy says nothing about requiring players to submit testimony or other evidence before a finding of a violation is made, the players arguably have no obligation at all to cooperate with the investigation. The NFL, emboldened by the ultimate outcome (pending appeal to the U.S. Supreme Court) of the Brady case, points to Article 46 as the basis for forcing the players to cooperate.
Ultimately, someone needs to decide whether the PED policy or Article 46 control this situation. If the NFLPA hopes to avoid putting players in a talk-or-don’t-play dilemma, the NFLPA must move quickly to initiate the process of filing the appropriate claim with the appropriate tribunal regarding the conflict between the terms of the PED policy and the league’s powers under Article 46.