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Peterson’s appeal likely to focus on September deal with NFL

Adrian Peterson’s appeal of his suspension could hinge on an agreement between the National Football League and its union when the 2012 Most Valuable Player was originally removed from the field in September.

The NFL Players Association, which Tuesday called the NFL’s ban for at least the rest of the season “arbitrary” and “inconsistent,” may also argue that Commissioner Roger Goodell acted outside his power by increasing the Minnesota Vikings running back’s punishment, according to Gabe Feldman, director of the Tulane University Sports Law Program.

Peterson has spent the past nine weeks on the commissioner’s exempt list, collecting his full pay, while resolving criminal charges that he beat his 4-year-old son with a stick.

“There was some agreement that led to Peterson agreeing to be placed on the exempt list,” Feldman said in a telephone interview. “Whether that was written or oral or some combination, the question is: What did the league agree or indicate would happen when Peterson’s criminal proceedings were finished and he was taken off the exempt list?”

Peterson Tuesday was suspended without pay for the final six games of the NFL season for violating the league’s personal conduct policy, which is not collectively bargained. He pleaded no contest Nov. 4 to reckless assault, a misdemeanor, avoiding court on the child-abuse charges, and could face a lengthier suspension without pay from the NFL should he fail to cooperate with the league’s demands, which include a program of counseling and therapy, Goodell said in Tuesday’s decision.

The NFLPA said it will appeal the ruling and “demand” that a neutral arbitrator oversee the decision. The 2011 collective bargaining agreement between league and union says Goodell has the right to hear the appeal himself, or appoint another hearing officer.

The commissioner’s statement doesn’t mention any agreement with Peterson. Jodi Balsam, associate professor of clinical law at Brooklyn Law School and former in-house counsel at the NFL, said “that’s one of the factual questions that needs to be resolved on appeal.”

“The commissioner may believe he’s not competent to resolve that factual dispute because he’s one of the contesting parties,” said Balsam, who worked at the NFL for a dozen years until 2007.

Balsam said the NFL may wait until former U.S. District Judge Barbara Jones rules on the appeal of Ray Rice, the former Baltimore Ravens running back suspended indefinitely after knocking his fiancee unconscious. She said that, if Goodell finds Jones’s ruling well-reasoned and fair, he may ask her to arbitrate Peterson’s appeal. Jones was praised for her handling of Rice’s appeal hearing two weeks ago and could rule as early as this week.

Peterson has collected all of his $11.75 million salary so far this season. He will be allowed to remain on the exempt list, while being paid, until his appeal is decided, according to the NFL.

Effect of CBA

Paul Haagen, a professor of sports and contract law at the Duke University School of Law in Durham, North Carolina, said that if Goodell decides to hear the appeal himself, the union doesn’t have a strong legal claim, given the current CBA.

“He has full and plenary authority to deal with this as he chooses,” Haagen said in a telephone interview. “But in so doing, he may be subjecting himself to levels of scrutiny and hostility that he doesn’t necessarily want.”

The NFLPA said Tuesday that an NFL executive, who wasn’t named, told Peterson that his time on the exempt list would be considered time served. On Nov. 11, the union said there was a “signed agreement dated Sept. 18, 2014” when it filed a grievance to have Peterson removed from the exempt list.

In its explanation of Tuesday’s ban, the NFL said that, while the penalty for first-time offenses of battery or assault is six games, that discipline can be increased in the event of “aggravating circumstances.” In a letter to Peterson, Goodell said the running back’s use of a weapon, the size difference between he and his 4-year-old son and his lack of remorse all counted as aggravating circumstances.