So I'm not here to pimp another blog or anything like that, just figured I'd share this story I wrote. I originally wrote it for the Vanderbilt Journal of Entertainment and Technology law blog, which can be found here: http://www.jetlaw.org/?p=9123 if you feel like reading it on it's original page. But I've included the story below, so as to not force you to go there to read it.
I Thought We Were Done Talking About the NFL Lockout…
…and then the NFL has to go and suspend Cincinnati Bengals running-back Cedric Benson. Now, Benson is no saint (and for that matter he is not a member of the New Orleans Saints), having been arrested four times in the past 3 years-twice for boating under the influence and twice for assault-but, due to the process that was used to suspend him, it does not mean that his suspension is justifiable.
To set the scene, the NFL went through a laborious lockout this summer that ended on July 25th. During this lockout, the NFL Players Association (NFLPA) decertified as a union and did not recertify until July 30. Benson’s most recent arrest for assault came in late July. At the time of this arrest, the NFL was still in lockout mode and Benson was an unrestricted free agent. Despite the fact that the NFL was in the middle of a lockout at the time of the arrest and that Benson did not have a contract with any team, Benson was suspended by Commissioner Roger Goodell for 3 games. This suspension was recently reduced to one game.
What makes all of this so very interesting from a legal perspective is that the NFLPA, the very group that is supposed to be representing players such as Benson, is the one ultimately responsible for his suspension. Well, other than Benson himself. He probably should not have punched his ex-roommate.
33 players were arrested during the lockout. As the lockout was coming to an end, the NFLPA began discussing the issue of possible discipline of these players with Commissioner Goodell. The still decertified NFLPA negotiated a deal with Commissioner Goodell that allows 8 of those 33 players that the NFLPA did not represent at the time it made the agreement to be subject to discipline from Commissioner Goodell. These players include: Aqib Talib, Kenny Britt, Albert Haynesworth, Adam Jones, Brandon Underwood, Johnny Jolly, and Clark Haggans. Of these players, only Benson has been suspended. The Bengals’ NFLPA player representative, Andrew Whitworth, believed that at the time the new Collective Bargaining Agreement was ratified Commissioner Goodell would not have the power to suspend players for conduct during the lockout. Benson also believed that Commissioner Goodell would not be able to suspend him for his transgressions during the lockout.
After the suspension was issued, Benson filed an unfair labor practice charge against the NFLPA with the National Labor Relations Board. Benson bases his claim on the groundsthat he was unemployed at the time of the incident and, more importantly, that the NFLPA had no right to negotiate on his behalf because it was de-certified at the time it made this agreement with Commissioner Goodell.
As mentioned above, Benson’s suspension has already been reduced from 3 games to 1 game by the NFL. However, this reduction was not due to the fact that the union was decertified at the time it entered into the agreement with Commissioner Goodell. Mr. Harold Henderson, the hearing officer for Benson’s appeal, found that a 3 game suspension was unwarranted due to the nature of the infraction, not because of the NFLPA’s stealth agreement.
Going back to Benson’s NLRB claim, we probably still have a few weeks until we know the result. In the interim, a question remains as to the possibility of redressing Benson if the NFLPA’s actions are found to be illegal. After all, one game in the NFL can be the difference between being a starter and being a bench-warmer.
The General Counsel for the Regional NLRB may have the power to rectify this situation. The General Counsel can issue a 10(j) injunction for the charging party, here Cedric Benson. The issue then will be whether the NLRB can issue that injunction in order to prevent the NFL from suspending Benson. This is, from my viewpoint, the most desirable result. Benson’s claim is against the NFLPA, that the NFLPA negotiated on Benson’s behalf when it had no power to do so. Thus, an injunction against the NFLPA’s agreement with the NFL to suspend those 8 players could force the NFL to delay Benson’s suspension until a final decision is made on the NLRB claim. If the agreement concerning those 8 players and the NFLPA is deemed void, then the NFL at that point can determine if it still has the power to suspend those players without express approval from the NFLPA. Ultimately, there has yet to be any talk about a preliminary injunction.
For the Bengals, Benson is just one of two players that will be keeping an eye on this decision. Corner-back Adam (formerly known as Pac-Man) Jones is set to make his 2011 debut for the Bengals in week 8 against Seattle. Seeing as how he still faces a possible suspension from Commissioner Goodell, the Bengals have a very strong interest in this NLRB claim being resolved in Benson’s favor.