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Hardy won't be with Cowboys in full pads for the first four weeks of the season. But could he have been? (Photo: Louis DeLuca/The Dallas Morning News)

Could Greg Hardy Have Reduced His Suspension Further? Yeah, Probably…

On July 10, 2015, NFL arbitrator Harold Henderson reduced the suspension of Dallas Cowboys defensive end Greg Hardy from ten games to four. Back in May, I wrote a primer on the Hardy appeal and correctly predicted a reduction.

Soon after Judge Berman overturned Tom Brady’s suspension on September 3, there were some rumblings that, in light of the decision, Hardy intended to discuss with the NFLPA the possibility of appealing the arbitrator’s decision to reduce his suspension from ten games to four. Many believed that the Deflategate decision could improve Hardy’s chances to have his suspension further reduced, or even wiped out altogether. Nevertheless, Hardy announced on Septemeber 10 that he would not appeal to the courts for further review of his suspension.

The Brady and Hardy cases are distinct for several reasons, and there is no guarantee that any judge who heard Hardy’s appeal would find for Hardy as Judge Berman did for Brady. However, the lack of proper notice was a significant factor in Berman’s decision vacating Brady’s suspension, and proper notice was lacking in the NFL’s case against Hardy. In fact, it played a significant role in convincing Henderson to reduce Hardy’s suspension to four games.

Henderson’s Decision

I’ll start first by examining the decision by the NFL’s arbitrator, Harold Henderson, to reduce the suspension from ten to four games. For background on the facts of the case and the procedure leading up to the appeal before Henderson, I recommended reading my previous article on the case here.

In his decision, Henderson found that the CBA granted Goodell the authority to find that Hardy violated the NFL Personal Conduct Policy. He points out that paragraph 15 of standard NFL player contract, which is included as an appendix to the CBA, gives the commissioner the power to discipline players for conduct judged to be detrimental to the league. Further, he reasons that there are no limits on how many games a player can be suspended for conduct detrimental to the league because the CBA does not specifically mention a limit.

Henderson spends most of his conclusion (and the letter in general) explaining why Goodell had the authority to identify conduct detrimental to the league and discipline players for it. His reasoning was so one-sided in favor of Goodell and the NFL that up until halfway through the last paragraph of the letter, one could have reasonably assumed that Hardy’s 10-game suspension would be upheld.

However, it became evident that Henderson might reduce the suspension when he observed that the six-game baseline suspension set forth in the August 28, 2014 letter sent by Commissioner Goodell could not be applied to any conduct which occurred prior to the issuance of the letter. A suspension for domestic violence could be upheld under a version of the Personal Conduct Policy that existed at the time of the May 2014 incident between Hardy and Nicole Holder, but the six-game baseline suspension could not be fairly applied to Hardy’s conduct since he did not have notice of it at the time.

In the second-to-last sentence of the letter, he finally begins his analysis of the reasonableness of the length of the suspension by saying that “ten games is simply too much…of an increase over prior cases without notice such as was done last year [in the August 2014 letter]”. He goes on to reduce Hardy’s suspension to four games in the last sentence.

But that’s the kicker…why FOUR games? Henderson determined that the ten-game suspension was too much because Hardy did not have notice that the baseline suspension for domestic violence incidents was going to be six games when he committed the acts in question in May 2014. Not giving proper notice of an increase in a baseline suspension is a good reason to reduce a suspension, but why reduce it to four?

Henderson’s decision is strange for several other reasons.

First, Henderson appears to say that precedent does not control his decision when he explicitly rejects Hardy’s argument that precedent in similar domestic violence arbitration cases established a “law of the shop” that domestic violence incidents should be met with a two game suspension. However, his decision to reduce the suspension to four was clearly influenced by precedent because he said ten games was took much of an increase over “prior cases”.

Second, Henderson believes that the CBA impliedly allows the commissioner to suspend players for conduct detrimental for as long as he deems fit because the CBA places no specific limit his authority. But in the end he reduces the suspension to four games, thereby ignoring the commissioner’s authority to discipline for as long as he deemed necessary.

Finally, Henderson found “aggravating circumstances” (i.e. the exact language from the August 28, 2014 letter), but nevertheless rejected the NFL’s argument that the six game baseline suspension set forth in the August 28, 2014 letter should have applied.

Deflategate Decision Not Controlling, But Kind of Similar

For a more in depth analysis of Judge Berman’s decision in the Deflategate case, I direct you to others who have examined the case more thoroughly decision (see Ian Gunn’s take here). For our purposes here, it suffices to point out that the Deflategate decision turned on the following points:

  1. Brady did not have notice that he could receive a four-game suspension for generally being aware of, or participating in a scheme to deflate footballs, or that his discipline could be the same as a player who used performance enhancing drugs;
  2. Brady was denied the opportunity for Brady to examine lead investigator Jeff Pash; and
  3. Denial of equal access to investigative files, including witness interview notes.

Gunn and others believe that the notice argument was Brady’s strongest, and that Judge Berman’s decision was mostly based on the lack of proper notice. Berman relied on the Reggie Lanhorne case to conclude that a “law of the shop” in pro football requires that players be provided with advanced notice of potential discipline for certain conduct, and that an “arbitrator is not free to merely dispense his own brand of industrial justice.”

While the decision in Brady would not necessarily be controlling if Hardy appealed to a court, it certainly would be instructive.

Conclusion

Henderson reduced Hardy’s suspension from ten games to four apparently because there was no notice that incidents of domestic violence by players would be met with suspensions that were so drastically greater than previous suspensions. And while four games is significantly less than ten in an NFL season, it could still be argued that Hardy did not have notice that an incident of domestic violence could be met with a suspension of four games. Indeed, Henderson’s decision to reduce to four games seems completely arbitrary in light of other recent cases in the NFL.

While we’ll never know for certain, I think it is very likely that Hardy could have gotten his suspension further reduced had he decided to appeal Henderson’s arbitration ruling.

About John Sigety

John lives in Frisco, Texas and works as a commercial litigator for Hiersche, Hayward, Drakeley & Urbach, P.C., a full-service firm located near Dallas, Texas. John graduated from Tulane University Law School in 2012 with a certificate in Sports Law. He also served as a managing editor for The Sports Lawyers Journal and published an article in the Willamette Sports Law Journal entitled The Cost of Fair Play: An Examination of How Salary Cap Proposals Have Affected Past Collective Bargaining Agreements and Will Affect the Coming NBA Bargaining Negotiations. John graduated from Brigham Young University in 2008 with a Bachelor’s degree in Political Science.

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