A Primer on the Greg Hardy Appeal: Why His Suspension Will be Reduced, Even With the New Personal Conduct Policy in place

Last month, 217 days after placing him on the Commissioner’s exempt list, the NFL came down hard on Greg Hardy, suspending the Dallas Cowboys’ new defensive end without pay for the first 10 games of the 2015 season. The suspension was the culmination of the NFL’s investigation into allegations that Hardy, then a Carolina Panther, threatened and committed several acts of domestic violence against ex-girlfriend Nicole Holder on May 13, 2014. The investigation, which was conducted by NFL senior vice president and special counsel Lisa Friel, found that Hardy physically assaulted Nicole Holder at least four times. The NFL’s statement touched on each instance:

 First, [Hardy] used physical force against [Holder] which caused her to land in a bathtub. Second, he used physical force against her which caused her to land on a futon that was covered with at least four semi-automatic rifles. Third, he used physical force against her by placing his hands around Ms. Holder’s neck and applying enough pressure to leave visible marks. And fourth, he used physical force to shove Ms. Holder against a wall in his apartment’s entry hallway.

In his letter to Hardy announcing the suspension, Commissioner Roger Goodell noted that the actions against Holder caused Holder to suffer “a range of injuries, including bruises and scratches on her neck, shoulders, upper chest, back, arms and feet.”[i]

What Hardy did was awful, and he probably deserves the 10-games suspension he got. But in my estimation, it is very likely Hardy’s suspension will be reduced, and the NFL has no one to blame but itself.

NFL’s Inconsistency

Although many have applauded Hardy’s suspension as a sign that the NFL is taking a tougher stance on incidents of domestic violence by its players, others have criticized the league for its haphazard, inconsistent approach.[ii] The Ray Rice and Adrian Peterson suspensions specifically come to mind. You may remember that Ray Rice was initially suspended only two games, then released by the Ravens and suspended indefinitely. Similarly, Adrian Peterson was initially placed on the commissioner’s exempt list after he was charged in Montgomery County, Texas for whipping his 4 year-old son, then suspended indefinitely when the court case was resolved.

For the most part, criticism of the league’s inconsistent approach has been warranted, and the results of Rice’s and Peterson’s respective appeals stand as evidence that the NFL is making things up as it goes along. After he was indefinitely suspended by the NFL on September 12, 2014, the NFLPA filed an appeal on Rice’s behalf. On November 28, 2014, Retired Judge Barbara Jones, serving as arbitrator for the appeal, reinstated Rice and dismissed the NFL’s argument that it could impose an additional suspension on Rice because he misled investigators.

In the case of Adrian Peterson, the NFLPA appealed the indefinite suspension on his behalf, but arbitrator Harold Henderson denied the appeal on December 12, 2014.[iii] The NFLPA then filed suit in federal court, and Judge David Doty of the United States District Court for the District Minnesota ruled on February 26, 2015 in favor of Peterson and the NFLPA on the grounds that the NFL attempted to punish Peterson twice for the same violation.[iv] Importantly, Judge Doty also concluded that the NFL could not indefinitely suspend Peterson because it represented the retroactive application of a new Personal Conduct Policy (“New Policy”) to Peterson’s conduct, which occurred before the New Policy was adopted by owners. The NFL’s appeal of Judge Doty’s decision is currently pending in the 8^th Circuit Court of Appeals.[v][vi]

Change to the Personal Conduct Policy

On August 28, 2014, Roger Goodell issued a league-wide memo announcing increased penalties for certain violations of the NFL’s Personal Conduct Policy. According to Goodell’s four-page letter, any player found to have violated the Personal Conduct Policy by committing assault, battery, domestic violence, or sexual assault would receive a suspension of at least six (6) games without pay for a first offense, and expulsion from the league for a second offense. NFL owners adopted these revisions to the Personal Conduct Policy on December 10, 2014. As a result, many believed Hardy would be suspended for the first six (6) games of the 2015 season.

But that was before Friel’s investigation revealed that Hardy had struck Holder four (4) separate times. The modifications to the Personal Conduct Policy went on to state that certain circumstances could merit a suspension longer than six (6) games for a first offense, including a prior incident before joining the NFL, or “violence involving a weapon, choking, repeated striking, or when the act is committed against a pregnant woman or in the presence of a child.”

A 10-game suspension for Hardy could therefore be warranted under the New Policy, since his conduct towards Nicole Holder involved “choking” and “repeated striking”.

Appeal

But as you likely know, the NFLPA has filed an appeal on Hardy’s behalf. Hardy will almost certainly argue that Commissioner Goodell retroactively applied the New Policy, which was adopted on December 10, 2014, to Hardy’s previous conduct. Goodell has hinted that the NFL will argue that Hardy’s 10-game suspension is identical to what he would have received under the old policy for conduct detrimental to the NFL. Hardy may also argue that the New Policy cannot apply since it was not collectively bargained between the NFL and the NFLPA. The NFL, on the other hand, believes that the Policy does not require collectively bargaining as it is simply a statement of the Commissioner’s feelings on conduct detrimental to the league, and that he is free to suspend more or less than the Policy. It’s not clear which position is correct.

Based on Judge Doty’s finding that the New Policy could not be retroactively applied to conduct that Adrian Peterson committed prior to the NFL’s implementation of the New Policy, I am inclined to say that Hardy’s appeal will be successful on the same grounds. Hardy’s actions occurred on May 13, 2014 well before the NFL announced the new Personal Conduct Policy in August and before the owners approved it in December.

However, Hardy’s appeal will be heard by Harold Henderson, the same arbitrator that initially rejected the retroactivity argument and found in favor of the NFL on December 12, 2014 in the Adrian Peterson case.

Henderson is a former NFL executive and current legal consultant who is known to favor the commissioner and owners in disputes brought before him.[vii] The NFLPA questioned Henderson’s neutrality when he was appointed in the Adrian Peterson case, arguing that Henderson does not satisfy the association’s request for a neutral third-party arbitrator because he was a “long-time NFL Executive and [a] current legal consultant”.

At first glance, it’s an odd play by Goodell and the NFL. Why appoint the same arbitrator that was overturned by a sitting federal judge in the Adrian Peterson case? If Henderson rules in favor of the NFL, the NFLPA will undoubtedly file a lawsuit in federal court, as it did in Peterson’s case, and it is more likely than not the federal court would once again overturn Henderson’s findings.

The best case scenario for the NFL is that the 8^th Circuit Court of Appeals overturns Judge Doty’s decision in the Peterson case, thereby validating Henderson’s December 12, 2014 decision to uphold the Peterson suspension. But I think even Goodell knows that’s unlikely.

At this point, I believe Goodell is more interested in improving the NFL’s public image. Appointing Lisa Friel to conduct the Hardy investigation, adopting a harsher Personal Conduct Policy, and issuing a 10-game suspension against Hardy were all calculated to improve that image. I believe Goodell’s long-term goal is to improve public opinion to show the NFL has cracked down on domestic violence, even if he has to concede defeat in the cases against Peterson and Hardy.

[i]  See http://profootballtalk.nbcsports.com/2015/04/22/nfl-statement-on-greg-hardys-10-game-suspension/ for relevant text from the letter to Hardy.

[ii]  See our NFL Player Discipline Library for more examples.

[iii]  Mr. Henderson’s full decision.

[iv]  Judge Doty’s full opinion.

[v]  The NFL filed its appeal on February 27, 2015.  Each side has filed briefs in the case. The NFL’s reply brief is due June 9, 2015. See our NFL Player Discipline Library for copies of each brief.

[vi]  Judge Doty’s ruling sent the case back for further proceedings “consistent with the rules of the collective bargaining agreement.” The NFLPA has since filed a motion to hold the NFL and commissioner in contempt for failing to comply with Doty’s ruling by holding any additional hearing on the matter. See http://www.nflpa.com/news/all-news/nflpa-files-motion-to-hold-nfl-and-commissioner-in-contempt-of-court.

[vii]  ESPN legal analyst Lester Munson noted in a piece discussing Tom Brady’s appeal that Henderson is “generally viewed as favoring the commissioner and the owners.” See http://espn.go.com/espn/otl/story/_/id/12888612/tom-brady-nflpa-cannot-win-appeal-filed-deflategate.