Again, there are many, many delicious morsels to chew on in Don Van Natta’s and Seth Wickersham’s latest smorgasbord of NFL insider delights for ESPN The Magazine. But let’s take the revelation that many owners—most especially Jerry Jones—are increasingly unhappy with the shadow bureaucracy Roger Goodell has created to consolidate his power and to insulate his decision-making, and let’s focus on how that applies to player discipline, including—but certainly not limited to—that of Ezekiel Elliott and Tom Brady. Because this near-total dominion is a power the commissioner has always had; Goodell is just the first to truly weaponize it. The great irony is that his overreach may undo his ability to wield that authority without a single concession from the players’ union.
The commissioner’s absolute disciplinary powers, codified in Article 46 of the collective bargaining agreement, have existed since the very first CBA between the league and the players was ratified in 1968. And since then, they haven’t really changed all that much. Mike Florio of Pro Football Talk made this point during the early months of the Ballghazi saga, which feels like it was a dozen NFL scandals ago.
Here is Article 46 of the current CBA, which was agreed upon in 2011:
And here, from the 1977 CBA, is Article VIII, which more or less says the same thing, at least in terms of the broad powers entrusted in the commissioner:
It’s widely understood that the players got thumped during the 2011 CBA talks, and Goodell’s disciplinary command is often lumped in among management’s victories. But, a source told me, the league declared Article 46 non-negotiable during those talks—and, as a result, the union made no effort to chisel into Article 46 by attempting to bargain against it. The reality is that the heavy-handed, fervently-litigated discipline cases since then—Bountygate, Ray Rice, Adrian Peterson, Ballghazi, Ezekiel Elliott—have all happened because Goodell, in various ways, took it upon himself to flex his autocratic clout to its fullest. By actually using powers whose mere existence had long lent authority to the various decrees of various commissioners, and the use of which had basically previously been a threat, Goodell controlled narratives around the NFL. He also fundamentally changed the dynamics of the league—and not entirely in his favor.
Van Natta’s and Wickersham’s reporting has fleshed out the unintended consequences of Goodell’s eagerness to turn every disciplinary case into a nail in need of hammering. Yes, the union has had to spend tens of millions of dollars to fight these cases in court. Yes, they haven’t always won, most notably on Ballghazi and Elliott. But they’ve nonetheless weakened Goodell’s standing. The endless courtroom battles have allowed the public to glimpse the absurdity of the league’s extrajudicial processes while also sowing division among the owners about the effectiveness of Goodell’s stewardship.
As onerous as Article 46 can be in Goodell’s hands, it’s still something that directly affects a very small subset of players. And, as is certainly true of Peterson and Elliott, that very small subset often includes players who have been credibly accused of doing some pretty bad shit. In this context, how much is there to gain by offering some significant concession just to dilute the language of Article 46? The next round of CBA talks figures to be nasty. The NFLPA will have plenty to dig in and fight for—as will owners like Jones who don’t want someone who works for them suspending their top stars. Roger Goodell, by his own hubris, has more or less assured that Article 46 need not be part of that discussion.