Your error here is that you are taking individual items out of the CBA and not considering their impact on each other.
There is inherent fairness implied in the CBA.
When you have deliniated rights that does not mean you have them even when they conflict or create a conflict of interest.
Goodell was incapable of effectively serving as arbitrator in this case, because a central piece of it was based upon his own actions. That is at its face unfair, and a reason to vacate the award.
By the way, people are speculating on why Berman is concerned with guilt.
I think it is very simple. If guilt is in question and the arbitrator walks in assuming guilt, he is flawed.
If Goodell the commissioner did not understand that facts, and is then asked to arbitrate the facts he misunderstood to begin with the process is materially flawed.
I was gonna do a whole long thing, but I think I'll just try to boil it down.
Article 46 of the CBA give Goodell sole authority as to who the hearing officer will be. He can choose himself. It says it right there, Article 46, section 2 -
(a)Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.
Bolded, italicized, underlined. It says it right there.
The NFLPA is not opposing this point.
For some reason, you are. I don't know.
What the NFLPA
is arguing, and I agree, is in Section 16 of the CBA, where the arbitrator MUST be a neutral, impartial arbitrator. THEORETCIALLY, Roger Goodell can serve this role, but his actions in this case and the previous four cases he's lost prove otherwise.
This has little to do with Section 46, save for the fact that Goodell had the right to appoint someone else (and didn't). It's Section 16 which buries Goodell, especially in that "increasing of punishment" part which I think can be reasonably argued.
You're right on your second part about looking for guilt, by the way. It's just super-unusual for a judge to do that in this situation. That's bad, bad news for the NFL, way worse than the sports media is letting on, and that's why your Stradleys, your Wallachs, your McCanns have gone from "50/50-ish" to "I'd be stunned if Brady loses".
UNLESS Berman bought what the NFL had to say, of course. That's always a possibility.
The CBA says what it says, and it was agreed to, and DeMaurice Smith needs to lose his job over it. The upshot is, going forward, Section 46 is going to have very little bite, unless Goodell really enjoys losing in court - because he could very well be looking at 0-5. He would be the Jacksonville of NFL Comissioners.
