CAN THE NFL SUSPEND THE “AL JAZEERA FOUR” FOR NOT COOPERATING WITH AN INVESTIGATION?

After Al Jazeera ran a story late last year accusing several players of using HGH (human growth hormone) including Peyton Manning,  there was a great deal of concern about how this would affect Manning’s legacy now that he is retired. But he participated in interviews with the NFL and was cleared. However, he was not the only player named. Clay Matthews, Julius Peppers, James Harrison and Mike Neal (now dubbed the Al Jazeera 4) were also called out and have so far refused to discuss the matter with the league. These players have denied that they used HGH, and two baseball players who were also accused even went so far as to sue Al Jazeera for libel.

Now the NFL is threatening these 4 players with an indefinite suspension if they don’t talk by the end of August. Why haven’t they interviewed yet and can the league follow through on suspending them?

Code of Conduct

“Upon learning of conduct that may give rise to discipline, the League may initiate an investigation to include interviews and information gathering from medical, law enforcement, and other relevant professionals. On matters involving NFL players, the League will timely advise the [National Football League Player Association] NFLPA of the investigation and outcome. As appropriate, the employee will also have the opportunity, represented by counsel and/or a union official, to address the conduct at issue. Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted.”  From the NFL Code of Conduct.

The NFL Code of Conduct, revised after the Ray Rice incident in 2014, indicates that a player has the opportunity to speak, meaning this is not necessarily required, and players absolutely have the right to have their attorney or union rep present. In this case the NFLPA has advised these current members to not make any statements. The code is unclear on whether the player can be forced to speak or whether the League has the power to suspend over non-cooperation. However, the code does make it clear that criminal proceedings are not necessary for the League to investigate and hold players accountable for inappropriate behavior.

The NFLPA

The players’ association sees the investigation as unwarranted, since the accuser has retracted his statements and other proof is scant. The players who have not yet spoken to investigators are under no obligation to do so, according to the NFLPA:

“The NFL has chosen to initiate an investigation of these players based upon now-recanted statements that appeared in an Al Jazeera report. The NFLPA requested from the NFL any additional evidence supporting an investigation of the players; the NFL did not provide any such evidence, nor did they inform the NFLPA or the players that any such evidence exists. Instead, the NFL has decided to publicly pressure the players into submission. We will continue to advise our players about their rights and hold the NFL accountable.” 

NFL Investigations

Investigations in the NFL have faced a great deal of scrutiny since the domestic violence incident with Ray Rice. NFL investigator guidelines confirm that the general policy is to defer to police investigations and conduct their own investigations independently; however, there was some controversy concerning this during the Rice investigations in 2014. It was believed after a time that the NFL was privy to the full video of the incident and did not take serious enough action (at this point his suspension was for just two games and a fine) until the video went public, which is when Rice’s indefinite suspension was finally issued. The league denies this and Commissioner Roger Goodell apologized for not taking the charges seriously enough at first, but the resulting controversy sparked sweeping changes in the NFL code of conduct.

These changes outlined greater consequences for misconduct and criminal behavior. Therefore, the players’ association may be wary of submitting players to investigation without convincing evidence for fear, in part, of implicating players in police matters or unnecessary disciplinary action.  Keep in mind that players in the NFL cannot assert their 5th Amendment right to remain silent when they are questioned by the NFL.  That privilege exists only when a person is being investigated by the government.  However, statements that a player makes in cooperation with an NFL investigation can be used in a criminal investigation by the government.

Ultimately the power struggle between the League and the Association is nothing new; unions often step in to protect their members from what they deem unfair work policies. And the association understands that there are some very significant implications to talking. First, as discussed above, the NFL may report what is said to police, thereby implicating the individual criminally. Second, the information may be used against the person professionally, in fact, Mike Neal, one of the yet unquestioned players has been a free agent and believes this accusation is affecting his prospects (and he has stated he would actually prefer to interview and clear up the matter). Lastly, the union requested evidence, outside of the retracted statements, that shows there was even a need for an investigation and the league did not (perhaps could not) comply. Most likely, the union sees questioning players about unsubstantiated statements as not only unnecessary but potentially damaging.

It will be interesting to see if the league follows through on their threat to suspend these players or if the union will allow its players to interview and avoid any related discipline.