[Long] Official findings of the Owens Arbitration [/Long]

[BBMarley]

A long read- but worth it..

In the Matter of the Arbitration Between:
_________________________________

TERRELL OWENS and
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION

AND

PHILADELPHIA EAGLES and
NFL MANGEMENT COUNCIL

_________________________________

Hearing held November 18, 2005

Before Richard I. Bloch, Esq.



APPEARANCES

For The Management Council
Daniel Nash, Esq.
David Gardi, Esq.


For the National Football Players Association
Jeffrey Kessler, Esq.
Richard Berthelsen, Esq.
Kristen Meister, Esq.


OPINION

Following a stormy 2005 pre-season and an event -filled start of the season,
the Philadelphia Eagles suspended Owens for four weeks and announced that,
following the suspension, the team would not play him during the season's
remaining games.

The Players Association (hereinafter "Association") immediately filed this
protest contending that the Club's actions violate the "Maximum Discipline"
provisions of the NFL Collective Bargaining Agreement ("CBA") and
contending, as well, that the discipline is arbitrary and excessive.


Issues

1. Was the four-week disciplinary suspension for just cause; if not, what
should the remedy be?

2. Was it a violation of the CBA for the Club to exclude the Player from
games and practices, following the four-week suspension?


Management Position

The Club says that, beginning in camp prior to the 2005 NFL season and
continuing thereafter, the grievant made vigorous, disruptive efforts to
force it to renegotiate his contract or, alternatively, to release him.
Continual counseling, warnings and a disciplinary suspension were useless,
says the Club, in attempting to reform his behavior. When it became
apparent the team was suffering as a result of Owens' activities, management
concluded he was a liability to the team it could not afford. Accordingly,
it suspended him, then announced he would not return to the team after the
suspension ended, although it would continue to pay his salary.

In the overall, the Club maintains the four-week suspension is properly
responsive to Owens' misconduct. Removing him from the playing and practice
field thereafter, says the Club, is a function that was fully within the
Coach's and Club's managerial authority and discretion. It requests the
grievance be denied.


NFLPA Position

The Association claims the four-week suspension is well beyond any type of
discipline called for by the Player's actions. It denies the existence of
any concentrated campaign to force the Club to release Owens; indeed, says
the Association, following August 18th, when the Player returned from a
pre-season suspension, his behavior improved. None of the events cited by
the Club should have resulted in discipline of any kind.

The Club's actions in removing him from play or practice for the rest of the
season, says the Association, were disciplinary in nature. Because the
Collective Bargaining Agreement establishes a four-week maximum penalty for
"Conduct Detrimental", the removal actions must be set aside and the Player
reinstated to the position he was in prior to the discipline. It requests
that the grievance be granted.


Relevant Contract Provisions

ARTICLE II

GOVERNING AGREEMENT

1. Section 3. Management Rights: The NFL Clubs maintain and reserve the
right to manage and direct their operations in any manner whatsoever, except
as specifically limited by the provisions of this Agreement and the
Settlement Agreement.


ARTICLE VIII

CLUB DISCIPLINE

Section 1. Maximum Discipline

Ejection from the game - maximum fine of an amount equal to one week's
salary and/or suspension without pay for a period not to exceed four (4)
weeks.


Analysis

As a general matter, most critical facts are not disputed, although the
parties differ substantially as to their respective characterizations of the
events. Following the 2003 NFL season, Terrell Owens signed a 7-year
contract with the Eagles valued at about 49 million dollars. During his
first season with the team, Owens performed exceptionally well, as did the
team, and the Eagles went to the Super Bowl. And, Mr. Owens' relationship
with his team, coaches and players, was wholly salutary. Shortly after the
Super Bowl, the Player announced that his year-old contract didn't
adequately reflect his playing level, and he demanded a new deal. His
agent, Drew Rosenhaus, announced the Player had "out-performed the contract"[1];
Owens, for his part, claimed "I know I'm a top player in the game, and my
current contract doesn't justify that."[2] The Club says that, starting
about that time, Owens engaged in a consistent "pattern of disruptive
misconduct intended to force the Eagles either to give him a new contract or
cut him loose."[3] His efforts, it is claimed, included skipping mini-camp
and team meetings, ignoring coaches and fellow players and publicly
criticizing the team, the Eagles organization and his colleagues.

The Association, as indicated above, says the team grossly overreacted.
Following his return from a one-week suspension in August, the Player
behaved well; examples cited by the Club as misconduct are trivial and, in
any event, in no way supportive of the penalties at issue, which in response
to "Conduct Detrimental", stand as the most severe in the history of the
NFL.

For the reasons to be discussed, the findings are (1) the four-week
suspension was for just cause and (2) there was no contract violation
inherent in Club's determining that Owens should not return to the team.
Resolution of this dispute requires recognition of the highly unusual nature
of this case, the existing boundaries of applicable CBA language and, above
all, a clear understanding of the facts.

In his quest to secure a new agreement or to have the team release him, Mr.
Owens embarked in what the Club accurately characterizes as a "nearly
non-stop pattern of disruptive misconduct."[4] In an ESPN interview on
April 12, 2005, the Player commented provocatively on his contribution to
the Super Bowl and his own efforts to get back in shape after a broken
ankle:

"I played every snap they allowed me to play. I wasn't even running until,
like, two weeks before the game. But I made sure I was in the best shape
possible. I wasn't the one who got tired in the Super Bowl."[5]

That comment was perceived by many, including Head Coach Andy Reid and
quarterback Donovan McNabb, as a slap directed at McNabb.[6]

Owens skipped a mandatory team mini-camp in late April and, shortly
thereafter, announced his appearance at the pre-season training camp on a
"satisfactory" re-negotiation of the contract.[7] Rosenhaus and Owens were
unequivocal in letting the team know that Owens' happiness was tied toward
renegotiating the contract. Coach Andy Reid testified as to their
communications to him:

A. [Drew and Terrell said]. that things weren't going to be pretty if he
did come to camp. Somewhere in there, you know, T.O. mentioned that he knew
how I was wired and the discipline that I asked of the Players, and that I
wouldn't be happy with what I saw. [8]

In July, prior to training camp, and in the face of renewed threats by the
Player, the coach sent Mr. Owens a letter that cited his threats to disrupt
the team, warned him of the team's readiness to respond with "all available
fines and contractual remedies" and demanded repayment of the 1.725 million
dollar signing bonus the Player had forfeited by missing the April
mini-camp. The terms of this letter (and subsequent similar documents) are
important and, as such, they are set forth here in their entirety:

Dear Terrell:

In light of the numerous recent conversations you and I have had, I thought
it was important to communicate with you in writing. I have been intending
to do this for quite some time, and after the angry and threatening
statements you made in our telephone conversation last night, it became
clearer that this correspondence was necessary.

In our recent conversations, you have repeatedly threatened to do things and
act in a manner that would be destructive to both the Philadelphia Eagles
and to your own career. These are things that are not only inappropriate,
but are in conflict with both the promises you have made to me and the
obligations under the contract you have signed with the Eagles. You have
repeatedly threatened to disrupt our team and to do whatever it takes to
force us to cut or trade you, including breaching many provisions of your
contract., Last night you specifically told me that you had no intention of
coming into training camp and trying your best while you feel you are being
underpaid. Although this was the most extreme comment, it is one of many
such comments you have made to me and others within the organization. This
letter is meant to inform you that if, in fact, upon arrival at training
camp you carry out any of these threats, the team intends to use all
available fines, and contractual remedies to deal with this behavior. Your
stance is unacceptable and will not be tolerated.

As we have discussed previously, you breached your contract by refusing to
report to the clubs mandatory mini-camp. Your refusal to report is a
default under the Signing Bonus addendum in your contract. In accordance
with the terms of the Signing Bonus addendum of your contract, the club
hereby demands repayment of $1,725,000 (i.e., the portion of your Signing
Bonus that you are required to repay to the club as a result of your breach)
by August 12, 2005. Should you fail to repay that total amount by August
12, 2005, we will begin deducting the above amount in equal installments
from your game checks, and any other compensation owed to you by the club,
or we will initiate a non-injury grievance for repayment of money owed to
the club due to your breach.

Please be advised that any additional breaches of your contract and/or
violations of club rules will result in the club imposing fines against you
in accordance with the Collective Bargaining Agreement and club rules.
Repeated violations of club rules will result in escalation of the
discipline imposed by the club and increasing fine amounts, up to and
including you being fined and/or suspended for Conduct Detrimental to the
club.

Sincerely,

Andy Reid
Executive VP Football Operations/Head Coach

cc: Drew Rosenhaus


Owens reported to camp but, among other things, refused to speak with team
personnel. On or around the opening of training camp in August, at Mr.
Rosenhaus' suggestion, Coach Reid, Owens and Rosenhaus set up a meeting to
attempt to clear the air. Mr. Owens, however, declined to shake the Coach's
hand and rejected continuing efforts during that meeting to set matters
straight. Thereafter, Coach Reid testifies, the Player declined to speak to
him and Reid resorted to communicating with Owens through the Player's
position coach.[9] Owens also declined to talk to various Eagles personnel,
including the Offensive Coordinator, Brad Childress. Childress testifies
that, as contrasted with the first year of their relationship, Owens was
incommunicative. From the first time they met in training camp that second
year, he says, he was met "with nothing, no response, just kind of a
straight-ahead stare."[10] Childress continued to greet the Player for some
seven or eight nights until Owens, at one point, said: "Why do you talk to
me? I don't talk to you. You don't talk to me. There's no reason for you
to talk to me."[11]

Owens would interact with some teammates but not others, including Donovan
McNabb, according to the record. His antics were affecting the team. There
was, says Coach Reid, a lot of tension: "The Players felt it, the coaches
felt it. I think on both sides of the ball, it was a different feeling. I
had Players coming to me talking to me about the situation and it just wasn't
real healthy. I tried to make that part work."[12]

The year before, according to the Coach, Owens "was great" about attending
things such as autograph sessions, which are mandatory. However, as part of
his protest, the Player refused to do these. Reid testifies to a
confrontation in early August:

"I went up to him and he was in a corner area where there weren't any people
around. . I didn't want to put him on the spot in front of anybody. I don't
do that. That's not my style. I said hey, listen, I don't know if you've
heard what I said, but you've got autographs today, it's Receiver's day up.
And he said I'm not going to do it."[13]

Thereafter, both men got into a heated exchange and told each other to shut
up."[14] Following this interchange, the Coach brought Owens to his room
and told him he was going to suspend him for a week.[15] At that time,
Coach Reid issued the following Aug. 10 letter:

Dear Terrell:

I write to tell you that we are sending you home, effective immediately,
based on your recent conduct at training camp. Your behavior has been
unacceptable since you reported to camp. Let me give you a few examples of
what I mean.

As you are well aware, your NFL Player Contract requires you to, among other
things, give your best efforts and loyalty to the Club. You have failed on
two occasions to report to mandatory autograph sessions, per your contract.
At least twice, you have been insubordinate to our offensive coordinator.
In addition, you have talked back to me and been insubordinate. This
disruptive behavior can not be tolerated. In spite of your behavior that
violates the terms of your contract, no further action is being taken by the
club at this time, but in no way does the club condone your actions. We
will reserve the right to take further action based on your recent behavior.

You will be required to report to the NovaCare Facility on Wednesday August
17, 2005 at 7:30 am to meet with Rick Burkholder. If you do not report on
August 17, 2005 at 7:30 am, you will be in violation of the terms of your
contract. In the interim, you will be required to have twice daily
treatment sessions with Dr. Mike Hatrak. You must contact Dr. Hatrak at
**** or **** to arrange for your treatment sessions. Our club physician
will direct Dr, Hatrak on your treatment protocol. We will be monitoring
those treatment sessions and follow up with Dr. Hatrak to ensure that you
are in compliance with our club physician's directives.

We expect you to return to the Eagles on August 17, 2005 with a renewed
attitude and focus. That includes abiding by all terms of your contract,
being respectful to your teammates and coaches and playing within a
structure that will lead us all to have success.

Sincerely,


Andy Reid
Executive VP Football Operations/Head Coach

cc: NFLPA
NFL Management Council


The Association says these actions should not be viewed as formal
discipline.[16] It notes, among other things, that the term "suspension" is
nowhere mentioned in the letter and it imposed no salary penalty. But
without regard to whether these actions by the Club should be categorized,
from a purely technical standpoint, as a suspension, the more important
question is whether the incident, including the Player's being sent home and
the accompanying correspondence, should reasonably have put Owens on notice
of serious Club concerns. As to that, there can be no real doubt. The
letter specifies, in unambiguous language, the shortfalls at issue --
missing mandatory autograph sessions, being insubordinate to the Offensive
Coordinator and to the Coach and engaging in generally unacceptable behavior
since he reported to camp. [17] According to the record, Mr. Rosenhaus
contacted the Club shortly thereafter to inquire about the grounds for the
team's actions. In response, on August 12, the Club sent another letter
that, in exhaustive detail, catalogued the Club's concerns:

Dear Terrell:

When I sent you home on August 10, it was my hope that you could cool off
and return with a renewed attitude and focus. I attempted, in a
non-provocative way, to give you a chance to start from scratch. Since that
time, you have made a spectacle of this situation, continued to criticize
teammate and coaches, and made false statements to the media. I am trying
hard to work with you and give you the benefit of the doubt; you are making
that almost impossible.

In my initial letter dated July 26, 2005 I notified you that your threats to
me during a telephone conversation that "when (you) report to training camp
you plan to be disruptive and act in a deviant manner" was an unacceptable
stance and would be dealt with accordingly. By your own admission, last
night in front of a national television audience, you have ignored me and
others and been insubordinate to me and confirmed that you told our
offensive coordinator "only speak to me when I speak to you." You also said
that you "don't think so: when asked if you can succeed with our QB. Most
concerning is your statement that you will not change your behavior when you
report back to camp on August 17, 2005. Clearly you have followed through
with your threat from our phone conversation and your actions have been
totally inappropriate and detrimental to the team. I am now putting you on
notice a third time, that this is a violation of Club rules which allows the
Club to impose fines against you in accordance with Article VIII of the NFL
Collective Bargaining Agreement and the Club's 2005 Maximum Discipline
Schedule. Continuing violations of Club rules will constitute Conduct
Detrimental to the Club, which will subject you to a fine of an amount equal
to one week's salary and/or suspension for a period not to exceed four
weeks. You cannot expect me to continue to warn you and not take
significant action if this continues.

In addition, we put you on notice on at least two previous occasions,
specifically on July 26, 2005 and August 10, 2005, that paragraph 2 of your
NFL Player contract states: "(Player) agrees to give his best effort and
loyalty to the Club, and to conduct himself on and off the field with
appropriate recognition of the fact that the success of professional
football depends largely on public respect for and approval of those
associated with the game." Failing to appear at two mandatory autograph
signing sessions, is a violation of paragraph 2 and a clear breach of your
contract. Your actions will not be tolerated any longer and we will deal
with any further violation by using all and any avenue available to us.

Lying about signing a non-existent waiver is certainly not constructive in
terms of our relationship, and does not further anyone's goals. Especially
since the reality is that we bent over backwards to make you aware that we
were more than willing to share the risk with you.

We also want to make you aware of at least three instances in which you
violated team rules. On August 4, 2005, you did not bring your playbook to a
team meeting. At a separate meeting, you also refused to open your
playbook. On August 5, 2005 you slept through a team meeting. This
resulting in the coaching staff having to correct you during practice to
make sure you where in the proper position. Finally, on August 5, 2005 you
were late to a mandatory treatment session with our trainers. Although
collectively these are violations of the team rules, we are not going to
fine you for these violations at this time, but you are on notice that
further violations of squad rules may result in doubling and tripling of
fine amounts for repeat violations, and continued violations thereafter may
result in fines and/or suspension for Conduct Detrimental to the Club.

We expect you to treat our coaches and your teammates with respect and to
communicate with the people who attempt to communicate with you. In
addition, if there is any mandatory team activity you are required to appear
on time, participate in it and behave professionally. If you do not comply
with the directives I have outlined above, you will be in violation of the
terms of your contract and/or subject to fines and/or suspension.

Let me stress again, that we are putting you on notice for the third time
that your actions are inappropriate. If you continue to act this way we
will deem this to be conduct detrimental to the club which will subject you
to a fine of an amount equal to one week's salary and/or suspension for a
period not to exceed four weeks. It is my hope that contrary to your public
and privately stated positions, your behavior will change when you return.
I have been very clear in what we deem to be appropriate and inappropriate
behavior on at least three occasions now, and I advise you to take my words
to heart.

Sincerely,


Andy Reid
Executive VP Football Operations/Head Coach

cc: NFLPA
NFL Management Council[18]


The August 12th letter protests Owens having "made a spectacle" of the
situation, lying to the media, violating team rules, disrespecting coaches
and the quarterback and continuing in a course of having "followed through
with your threat" to disrupt the team. And, the letter details, in two
places, that this constitutes Owens being put on notice for the third time
and forecasts, as well, potential punishment involving fines and suspension
for Conduct Detrimental to the Club. To the extent there had been any
misunderstanding as to the Club's view of Owens' behavior, there should have
been none thereafter.

During his time away, the Player appeared on a televised interview with his
agent. That appearance provides no evidence of intent to turn things
around.[19] Asked whether Andy Reid and he could work things out upon his
return, Owens responded "My attitude is not going to change." Donovan
McNabb, Owens said, was a "hypocrite;" "I have no desire to talk to
Donovan," said the Player. Rosenhaus, for his part, reminded all that
Owens' attitude "shouldn't be a surprise. we said from day one that he's not
going to be happy if he's treated unfairly." "Owens" said his agent, "will
honor his contract. He's going to follow the rules, but he's not going to
be happy. And who knows if that will work, but they have options. And we
hope that they'll consider all of their options." Owens concluded the
interview by noting that his contract did not require him to talk to anyone.
His relationship with Andy Reid, he said, was "same as it was when I was in
camp. I don't have to say anything. I know how to play football. I don't
have to say anything to Donovan. I know how to play football." When asked
if he and McNabb could succeed in this climate, he responded: "I don't think
so and I'm just being honest."[20]

The Association argues vigorously that, following the Player's return to
camp, his behavior was improved. The Coach confirms that Owens' attitude
toward him had softened a bit.[21] Nevertheless, there were continuing
signs of dissent.

Owens' relationship with McNabb had not improved, and Owens was continuing
to defy the Coach and the team by, for example, repeatedly violating the
dress code and parking in coaches' spaces and in handicapped spots. On the
one hand, these were relatively minor infractions; surely they would not
have led to any serious discipline, and they did not. On the other hand,
any case to be made for a meaningful change of attitude is severely undercut
by Owens' public posturing and continuing reluctance to try to set things
straight with his teammates.

During an October 7th radio interview, Owens remarked that, had he known at
the end of the 2003 season what he knows now, he probably would have joined
a different team. He added that, were he building a new team, he would
choose Peyton Manning as the quarterback.[22] Read objectively, (or issued
by someone else) the Manning comment might not have gathered much attention.
If it was not a particularly statesmanlike response, neither was it
necessarily disparaging of McNabb. Nevertheless, Owens, by that time, had
actively inspired a red hot media storm. He and the team were living in a
media fishbowl and there were few observers unaware of the tension between
these two star players. Ultimately, the import of this, and similar
remarks, has not so much to do with its actual content as it does with the
potential and reasonably predictable impact on others, including McNabb and,
significantly, with Owens' outright refusal to attempt to deal with
professionally vital, but seriously damaged, relationships. In this regard,
the Association's claim that no further contract-related threats or express
demands were made after August 18th is unpersuasive; it ignores the ongoing
impact of a fire, the flames of which were fueled by untenable behavior
early on and fanned by Mr. Owens continuing acts of contempt.[23]

The breaking point was reached as a result of an ESPN interview given by
Owens on November 3. He expressed his continued unhappiness with his
contract situation, claimed, as he had on an earlier occasion, that the
Eagles had forced him to sign a "secret waiver" relating to his medical
condition during the Super Bowl and objected to the team's not adequately
celebrating his 100th career receiving touchdown:

You know [the Club's] reaction shows you the type of class and integrity of
an organization that they claim not to be. You know, they claim to be first
class and the best organization. I just felt it was an embarrassment. It
just shows the lack of class that they had. My publicist talked to the head
PR guy, and he made an excuse about (how) they didn't recognize it, or they
didn't realize that it was coming up. But I know that was a blatant lie. If
it would have been somebody else, they probably would have popped fireworks
around the stadium.[24]

And, Owens engaged in another quarterback comparison:

GB: Your friend Michael Irvin recently said that if Brett Favre was the
starting quarterback for the Philadelphia Eagles, they'd be undefeated right
now. What do you think of that comment?

TO: I mean, that's a good assessment, I would agree with that.

GB: How so?

TO: I just feel like just what he brings to the table.I mean he's the guy.
Obviously, a number of commentators will say he's a warrior. He has played
with injuries. I just feel like (with) him being knowledgeable about the
quarterback position, I just feel like we'd be in a better situation.[25]

According to Coach Reid, Owens' comments inflamed the team.[26] The Player
says his words were taken out of context. There were, he notes, positive
comments during the interview as well.[27] The Association also directs the
arbitrator's attention to Owens' denial, in that interview, that his earlier
comment ("I wasn't the one that was tired [in the Super Bowl]") referred to
Donovan McNabb:

I think with that comment, I said it probably in regards to my own
conditions because I hadn't practiced with the team since my injury. I
never referred to Donovan in that comment. A lot of people speculated, and
they just assumed that I was talking about Donovan. That's not what I mean,
and that's not what I meant. A lot of people, take a lot of things that I
say out of context. If I didn't say his name in particular, then I wasn't
talking about him.[28]

Several observations are in order. First, Owens' denial, repeated in his
testimony at the arbitration hearing, is unpersuasive.[29] It is difficult,
at the least, to accept the Player's contention that his statement "I wasn't
the one that got tired" should be construed to mean "I was the one who got
tired." But the more significant point in all of this is the one discussed
earlier -- the perception, one of which the Player was fully aware, was that
he had, once more, taken aim at his quarterback. In this highly charged
atmosphere, the perceptions are of substantial importance, and they weigh
heavily in evaluating the conduct of the Player immediately thereafter, to
be discussed below.

Following the interview, the Coach again confronted Owens and told him "he
couldn't do those things" and that he was going to have to suspend him.
But, Reid proposed a way out. First, the Coach said Owens would need to
apologize to the organization publicly.[30] Second, he told Owens to "get
with the quarterback and work this thing out. Work it out."[31] Later,
testifies the Coach, he learned of more players being upset. He reviewed
the transcript, found supportive comments that Owens had made and spoke to
him again. He told Owens:

Hey, man, there were some good things in there. But these things right here
are wrong. And this team right now, that locker room isn't right. It's
just not right. It's just not right. There's too much questioning going
on. And a lot of it right now is they are questioning you. And let's just
get it straight, or I have to suspend you.[32]

It was at that point, testifies the Coach that he added a third requirement:

I said you need to stand in front of that team and let them know what you
meant, and get this thing settled. I even gave him examples because that's
not an easy thing for him to do. But I thought it was important. I just
thought at that time the team needed to hear - - again, this is a veteran
Player they look up to as a football Player and just say, hey, listen - -
one of the examples I gave him - - this thing didn't come out right. It
didn't come out the way I wanted it to. I even told him it does not need to
be a tear-jerker team. I don't need that. I just need it set straight. It
didn't come out the way I wanted it to, and it won't happen again. I'm
staying away from the TV's and all the radio and so on. I'm staying away
from it all. It's not going to happen again.[33]

But the Player rejected the offer, telling the Coach he couldn't go to
McNabb and didn't feel comfortable appearing in front of the team. The
Coach solicited Rosenhaus' assistance, and the agent prepared a statement,
including an apology to Donovan, which, the Coach assured Owens, need not be
read in public. Owens apologized to the Eagles organization in public.[34]
But he continued his refusal to speak directly to the team or to Donovan
McNabb. At that point, Reid notified him he would be suspended.[35]

The Club then sent the following letter:

Dear Terrell:

We are suspending you for conduct detrimental to the team, for this week's
game against the Washington Redskins. I will contact you next week
regarding your status going forward. In the meantime you are not to report
to the NovaCare facility until I give you notice. If you need to continue
treatment or rehab please contact Rick Burkholder so we can set you up at an
off-site facility.

Sincerely,


Andy Reid
Executive VP Football Operations/Head Coach

cc: NFLPA
NFL Management Council
Drew Rosenhaus


Three days later, on November 8, the Club sent the Player an additional
letter advising him that the suspension for Conduct Detrimental to the Club
would be for a total of four weeks:

Dear Terrell:

I am writing to follow-up on my November 5, 2005 letter and to confirm our
telephone conversation yesterday, in which I informed you that your
suspension for conduct detrimental to the team will be for a total of four
weeks in accordance with Article VIII of NFL Collective Bargaining
Agreement.

On three previous occasions, I put you on notice in writing that your
behavior was inappropriate and that if you continue to act in a disruptive
manner your actions would be deemed conduct detrimental. In a letter dated
August 12th, I specifically stated that "I have been very clear in what we
deem to be appropriate and inappropriate behavior on three occasions now,
and I advise you to take my words to heart". In addition, there were
numerous verbal warnings about the consequences of your actions. Despite
these very clear warnings, you have continued to disrupt the team by, among
other things, being late to a mandatory offensive meeting, failing to comply
with the team rules regarding travel attire on every road trip despite
numerous reminders from me in the team meetings, parking in reserved
handicap and coaches spots that you were not permitted to park in and being
involved in a fight with an employee in the training room.

Then, last week (November 3), in an interview with ESPN you chose to
criticize a teammate again and make false, disparaging statements about the
organization. We had warned you previously in writing that this was
inappropriate behavior and there would be consequences if your behavior
continued. The following day, I called you into my office on two occasions
to discuss the statements you made during the interview with ESPN. During
one of those meetings, I informed you it was necessary to make a public
apology to the organization, to get with Donovan and work things out with
him and to apologize in front of the team. I was clear that based on your
previous behavior and the current situation, failure to comply with my
orders would result in a suspension. I also made clear these expectations
to your agent. I met with you again on November 5th and further discussed
my requested apology to the team and to the Player in question. You said
you had not done that and would not. I reminded you that if you did not do
the things I asked of you, you would be suspended. You continued to refuse
my request. The fact that you blatantly disregarded my directive is
unacceptable.

As you know, in accordance with Article VIII of the NFL Collective
Bargaining Agreement continued violations of club rules constitutes Conduct
Detrimental to the Club, which will subject you to a fine of an amount equal
to one week's salary and/or suspension for a period not to exceed four
weeks. In accordance with our rights outlined under the CBA, your previous
suspension and based on your behavior that we have specifically addressed in
writing and culminating with your actions over this past week, we are
suspending you for conduct detrimental to the team, resulting in a
suspension of four weeks. This suspension without pay began on Saturday
November 5th and will run through the Green Bay game on November 27th.
During this time period you are not to report to the NovaCare facility. If
you need treatment or rehab please contact Rick Burkholder so we can set you
up at an off-site facility.

Sincerely,


Andy Reid
Executive VP Football Operations/Head Coach

cc: NFLPA
NFL Management Council
Drew Rosenhaus


The Coach also told Owens of his determination that he would not play during
the remainder of the season.

The Players Association challenges these actions on several grounds. In the
overall, it says, the discipline which, in its view, included not only the
four- week suspension but the season-long removal thereafter, is excessive.
It claims there has been no comparable penalty for Conduct Detrimental in
the history of the National Football League. Additionally, says the
Association, any discipline is procedurally flawed because, among other
things, the Club failed to properly investigate the matters before taking
action. It requests that the four game penalty be vacated, that the Eagles
be prohibited from de-activating the Player for the 2005 season, that Owens
be immediately reinstated to the position he was in before the suspension
and that he be made whole for wages lost.


The Four-Game Suspension

Article VIII of the Collective Bargaining Agreement establishes a Maximum
Discipline schedule that provides, in relevant part:

Conduct Detrimental to Club - - Maximum fine of an amount equal to one week's
salary and/or suspension without pay for a period not to exceed four (4)
weeks.

While the Association concedes there is room for some Club response under
these circumstances, it claims the four-week suspension is overkill and
contends, as well, that removal from the Club for the rest of the season may
only be viewed as disciplinary in nature. As such, it contravenes the
limitations of Article VIII and, in any event, is lacking just cause.

At the outset, the Association protests the Club's actions in escalating a
one-game suspension -- the Washington game -- into a disciplinary layoff of
four weeks. Nothing in the record, however, suggests that the Club should
be found to have somehow changed its tune or imposed some type of double
jeopardy. To be sure, the suspension letter refers to the Washington game
but in the same sentence makes it clear enough that Owens' "future status"
will be discussed after the weekend. The next sentence, too, advises the
Player not to report until further notice.


Extent of Penalty

Beyond the technical ("double jeopardy") question of whether Management
could ultimately impose a four-week suspension, there exists the
accompanying question of whether a suspension of that length meets the
dictates of just cause. It is, as the Association notes, an unusually long
penalty. But these are remarkable circumstances and unparalleled
detrimental misconduct. At the time of the suspension, the Eagles were
faced with the specter of a player who, together with his agent, had
announced, prior to the season that, failing a successful contract
renegotiation, it would be his intent to disrupt the Club. The Coach wouldn't
like, said Owens, what he would be bringing to training camp. And, Mr.
Owens' actions from the start, and continuing thereafter, proved him true to
his word. While some of the Player's outright insubordination was tempered
in some, but not all, respects after the season began, the media circus and
general distraction he had inspired and supported continued unabated as, by
his own admission, did his own dissatisfaction with the Club, his coach and
his quarterback. It may hardly be argued that Terrell Owens was unaware
either that he was treading on increasingly thin ice or that his actions,
considered individually or taken together, did not constitute conduct that
was in fact detrimental to the Club. Without question, fundamental
principles of labor law require that, save for cases of so-called "cardinal"
offenses, discipline should be progressive in nature. The Association
directs the arbitrator's attention to Zellars v. New Orleans Saints, wherein
Arbitrator Zumas reduced the player's one game suspension (the Club claimed
he had lied to his coaches and refused to participate in practice) to a
$2000.00 fine. In so holding, the arbitrator observed that, while the team
claimed a series of past problems, there was no evidence of any previous
disciplinary actions. The same may not be said here. To conclude that
Owens had not been previously disciplined would be to trivialize to the
point of absurdity the explicit and repeated written warnings and verbal
counseling from the Coach, as well as the one-week banishment from training
camp.

In July, the Coach had written a letter, inspired by "numerous recent
conversations" and angry threats, that the team intended to use "all
available fines and contractual remedies to deal with this behavior." His
threats to act in a manner that would be destructive to the team were, he
was told, both inappropriate and in conflict with his personal and
contractual obligations. The Club at that time demanded repayment of his
1.725 million dollar signing bonus; this was, as the Club testified, meant
as a wake-up call.[36] In August, at the time Owens was sent home from
camp, the Coach detailed, in writing, a series of insubordinate offenses and
additional disruptive behavior. He was told unequivocally that, upon his
return a week later, he would be expected to demonstrate "a renewed attitude
and focus" that included "abiding by all terms of your contract, being
respectful to your teammates and coaches and playing within a structure that
will lead us all to have success."[37] Two days later, in clarifying the
Clubs' stance in response to Owens' inquiries, the Coach noted the apparent
futility of the situation:

When I sent you home on August 10, it was my hope that you could cool off
and return with a renewed attitude and focus. I attempted, in a
non-provocative way, to give you a chance to start from scratch. Since that
time, you have made a spectacle of this situation, continued to criticize
teammates and coaches and made false statements to the media. I am trying
hard to work with you and give you the benefit of the doubt; you are making
that almost impossible."[38]

The Coach noted Owens' comments in front of a national television audience
that included the Player's conclusion that he didn't think he could succeed
with the Eagles quarterback and Owens' prediction that he would not change
his behavior upon reporting back to camp. Observing that the Player had, in
fact, followed through with his phone threats, Reid expressly put him on
notice that his actions were violations of Club rules and that "continuing
violations of Club rules will constitute Conduct Detrimental to the Club,
which will subject you to a fine of an amount equal to one week's salary
and/or suspension for a period not to exceed four weeks." The letter
continued with the Coach's warning that "you can not expect me to continue
to warn you and not take significant action if this continues." The warning
was reiterated later in that same letter:

Although collectively these are violations of the team rules, we are not
going to fine you for these violations at this time, but you are on notice
that further violations of squad rules may result in doubling and tripling
of fine amounts for repeat violations, and continued violations thereafter
may result in fines and/or suspension for Conduct Detrimental to the Club.

And, lest there be any possible misconception as to the Club's intent, the
Coach concluded by loudly beating the same drum:

If you continue to act this way we will deem this to be conduct detrimental
to the club which will subject you to a fine of an amount equal to one week's
salary and/or suspension for a period not to exceed four weeks.[39]

The point of progressive discipline is to properly advise an employee of
unacceptable behavior, to warn that their tenure is becoming increasingly
challenged and to attempt to provide for the possibility of better behavior
in the future. The repeated, unambiguous warnings accomplished all of this.

On the basis of numerous subsequent conversations and continuing acts of
provocation from the Player, detailed above, the Coach could readily
conclude, in early November, that the Player was simply not getting the
message. Faced, as it was, with growing, palpable evidence of a disturbed
and distracted team, a media storm that continued to be aided and abetted by
the Player, and an apparent inability or unwillingness on the part of Mr.
Owens to appreciate the destructive impact of his attitude and the jeopardy
that surrounded him, the Club could reasonably take the actions it did.

The Association claims the Eagles rushed to judgment by imposing the penalty
without properly investigating the circumstances. Specifically, it says Mr.
Owens' comments during the offending ESPN.com interview of Nov. 3 should
have been considered in the context of the fact that he had, earlier that
day, been involved in an altercation provoked by Hugh Douglas. If the
suggestion is that Owens was rattled by the encounter, the overall nature,
content and length of the interview suggests otherwise. It represents
nothing more than a continuation of precisely the same behavior that the
Club had loudly protested, pleaded and warned against from the first moment
of the pre-season.

Among the most compelling facts in considering the just cause aspects of
this discipline is the fact that Terrell Owens could have avoided any and
all time off by simply acceding to the Coach's request to step up to his
teammates collectively and, in the case of McNabb, privately, to make things
right. Mr. Owens believed then, and continues now to assert that because he
said nothing negative about Donovan McNabb in the ESPN interview, there was
no reason to speak to him.[40]

But the critical issue that continues to elude the Player is that, without
regard to who was right on the true meaning of the statements, the team and
McNabb were upset by them. Owens knew this.[41] And, he knew that any
suspension could be immediately avoided by addressing his teammates, and
McNabb, in an effort to make things right. Yet, with full knowledge that
discipline was hanging in the balance, he refused to take these steps. The
Association suggests that, had Owens been fully aware that the suspension
would extend to four games instead of one, he might have complied with the
Coach's conditions. Even this possibility, however, speaks loudly to
questions of the Player's sincerity, attitude and commitment to a fresh
course of conduct.[42]

The Association also says the discipline imposed by the Eagles is
unwarranted because it penalizes the Player for speech.[43] The Association
suggests Owens' statements are properly viewed in light of the purported
mitigating circumstances of the Douglas altercation. Any perceived negative
comments, it contends, were "spurred by Mr. Douglas' --- and hence the
Eagles' -- outrageous conduct."[44] There is no evidence in the record that
would somehow tie the Eagles, as an organization, to the altercation and, as
indicated earlier, precious little reason to conclude the Player was so
overwrought at the time of giving the lengthy interview that he didn't know
what he was saying.[45]

The John Rocker case, cited here by the Association, is instructive. In
that case, Rocker, a pitcher for the Atlanta Braves, issued racist and
offensive remarks in the course of a Sports Illustrated interview. In so
doing, he incurred a substantial suspension[46] that was subsequently
reduced by baseball arbitrator Shyam Das.[47] The arbitrator observed that
"any attempt to draw a precise line beyond which off-field speech may
justify discipline poses real difficulties. . Clearly, the mark must be set
high both with respect to the offensive content of the speech and the harm
caused by the speech.. Inevitably, these kinds of issues must be decided on
a case-by-case basis. In this case, the Panel finds that the mark
definitely was past." [48] The arbitrator noted that just cause encompasses
not only the question of whether discipline properly can be imposed for a
particular offense, but also whether the nature and extent of the penalty
are warranted. In so concluding, he found that, in terms of
proportionality, the penalty outweighed the offense:

In accessing the appropriateness of the penalty imposed in this case,
consideration must be given to the absence of a specific rule or policy
addressing speech and to the fact that no other Player previously has been
disciplined for speech since the advent of the just cause standard in
Baseball.[49]

Arbitrator Das went on to weigh the harm and controversy caused by the
Player's remarks against the disadvantage the Player would suffer by missing
spring training. There are meaningful distinctions between that case and
this one. First, Rocker's remarks, however offensive, and with due regard
to the obligation of the Club and the League to renounce such views,
reflected primarily on Rocker himself. This was not a case where, as here,
the speech was aimed directly at his team and teammates, nor were the
comments the latest in a string of actions designed to demonstrate
continuing dissatisfaction and willingness to disrupt his organization.
Secondly, the arbitrator in Rocker noted, as observed above, "the absence of
a specific rule or policy addressing speech".[50] The NFL collective
bargaining agreement, on the other hand, explicitly references Conduct
Detrimental to the Club as a basis for discipline and there can be no
serious contention in this case that Mr. Owens' conduct in general and
specific comments in particular did not fall reasonably within that
definition.

Terrell Owens' stature as a compelling athlete and outspoken public figure
contributed meaningfully to the destructive power of his actions. Despite
all attempts by the Club to persuade him to modulate his posture and his
posturing, he persisted in broadcasting his dissatisfaction and in stirring
and stoking the growing attention and dissent around him. In so doing, he
engaged in conduct that was manifestly detrimental to the Club.


The Removal

The Association also claims the decision of the Club to remove Owens from
the playing and practice fields for the remainder of the season (albeit with
pay) should be considered discipline that is inappropriate on at least two
scores:

(1) It exceeds the maximum discipline set forth in Article VIII for Conduct
Detrimental and (2) it is disproportionate in relation to the offense. The
Club, for its part, observes that the CBA provides no basis for directing a
club to play or practice particular Players in games. Indeed, it is argued,
the CBA expressly reserves to the clubs the right to manage and direct their
operations, except as limited by the terms of the Agreement. "No term in
the CBA," argues the Club, "limits a club's right to determine which Players
will appear on the field or be permitted in the team facility while a team
is preparing for its games. The absence of such a limitation is not
accidental. No decision is more quintessentially a prerogative of club
management than the decision as to which Players will take the field."[51]

The events of this highly unique case reveal a potential tension between the
bargained disciplinary constraints of Article VIII, on the one hand, and the
important managerial prerogatives reserved to the coach and to the club, on
the other. In considering the Coach's decision to keep Terrell Owens away
from the team, the attempt must be to assess the limits of the respective
boundaries. If the maximum penalty provisions of Article VIII are to have
meaning, it follows that a club cannot expand or extend them merely by
crying "coach's discretion."[52] Thus, for example, one who fails to
promptly report an injury to the team physician or trainer ($200.00 maximum
fine under VIII(I)(a)) should not be suspended for the same misconduct under
the claimed shelter of coaching prerogative. At the same time, one may not
claim that mere professional disadvantage to a player withheld from play or
practice is necessarily disciplinary action as contemplated under Article
VIII. Recognizing there may be situations that touch both the disciplinary
and the discretionary arenas, what counts are the precise circumstances at
issue.

The Association concedes the coach has the final say as to who actually
plays the game, at least on a week-to-week basis.[53] It claims, however,
that this same discretion cannot extend to questions of who practices and
otherwise participates off-field. The coach may bench the player, says the
Association, but he can't send him home. The "practice/play" distinction,
if there be one, is particularly important in this case where, uniquely, the
Player's on-field performance has been superb, and is not at issue. The
Club's concern is focused, instead, on his articulated intent to engender
disruption and dissent off the field. May a coach consider these factors in
deciding how to form and field a team? The answer must be "yes". It cannot
be that a coach's discretion is limited to Sundays. Surely, the coaching
elements of team management take place not only in the games, but in the
weeks preparing for them. None of the parties to this relationship, it is
fair to say, envisioned the prospect of an arbitrator reviewing a coach's
decisions as to, for example, how many reps a player should take in
practice, the particular squad to which he should be assigned or, indeed,
whether he should practice at all. Nothing in the CBA or in the Player's
individual contract requires a contrary conclusion. Concededly, a coach's
decision to preclude both practice and play will disadvantage a player,
arguably more so than merely riding the bench. This, and the potential
overlap between the discretionary and the disciplinary elements of this CBA,
is why careful scrutiny is required of all relevant facts of a given
case.[54]

This case, then, is about the challenge faced by this team, dealing with
this player in these particular circumstances. Mr. Owens and his agent
threatened a campaign of disruption and implemented it through repeated
acts, large and small, of disrespect, dissent and insubordination,
culminating with a well-publicized verbal assault on the team and on the
quarterback. The Coach could properly conclude that, however excellent Owens'
performance was on the field, his off-field conduct and demeanor were
seriously devitalizing the organization. Moreover, and this is important,
there was ample reason for the Coach to conclude, in November, that the
problem was by no means resolved. At the moment of his being warned of the
impending discipline, Mr. Owens was, after all, willing to "sit" rather than
attempt to work things out with the team. Indeed, even at the arbitration
hearing, the Player made it abundantly clear that his contract issue - - the
one that inspired his marked change in attitude during the current season- -
was still alive. And, he made it clear, as well, that his view of his
obligations to co-exist as a teammate had not changed: In his view, for
example, speaking to his quarterback was still not necessary.[55]

Significantly, this is not a case of a coach or a team responding to a
discrete event by extending otherwise contractually-limited disciplinary
sanctions. Involved here was not simply past bad behavior but a current and
ongoing threat of continued disruption. This was not merely a question of
dealing with the Player's misconduct, a matter to which traditional concepts
of discipline are applicable, as discussed earlier in this opinion. The
Coach and the Club were faced with far broader issues, given the clear
disruption that had occurred: Team unity, cohesiveness and morale are all
elements that rest squarely within the wide range of concerns to which a
coach is expected to respond.

The Association argues that, to the extent the Coach wished to keep the
Player from the fields or the locker room, he should have released him. It
is a mark of the highly unusual nature of this case that this should be
regarded not only as not disciplinary, but as the desired goal of the Player
and his representatives. More to the point, while releasing the Player is
an available option, it is not a mandatory one.

In summary, there is ample room to find that the Club could respond to this
Player's actions, suspending him without pay to the limits permitted by the
collective bargaining agreement for his behavior in this matter.
Thereafter, the Coach properly exercised his inherent discretion to conclude
that, on balance, the team would be better protected and better off by
practicing and fielding a team that did not include Mr. Owens. The
problem - a continuing one -- was almost entirely off-field, and the
response properly dealt with that reality.

Both responses, the disciplinary and the discretionary, were specifically
understood by these parties and fully countenanced as part of this
collective bargaining relationship. The disciplinary side of the equation
is expressly established in Article VIII. The non-disciplinary response is
part of the core and character of a coach's discretion; significantly, but
predictably, it is nowhere constrained by the CBA.

The finding, therefore, is that the Club has shouldered its burden of
providing clear and convincing evidence of the Player's misconduct and,
moreover, that the four-week suspension was for just cause. Additionally,
there was no violation of the labor agreement inherent in the Club's
decision to pay Mr. Owens, but not to permit him to play or practice, due to
the nature of his conduct and its destructive and continuing threat to the
team.


AWARD
The grievance is denied.

_____________________________

Richard I. Bloch, Esq.

November 23, 2005

[BSmack]

Do we really need to read that? I'm pretty sure it says "TO was acting like a jackoff. Appeal denied."

[Cueball]

What? Michael Irvin wasn't available to speak on TO's behalf? No wonder he lost