A sympathetic figure, Tank Johnson is not. Upon leaving Cook County Jail early Sunday morning after 60 days behind bars, Johnson portrayed a picture of defiance wearing a baseball cap backward and a gaudy diamond pendant that suggested the guy walking out looked a lot like the rebellious guy who walked in.
But even if Johnson has changed, as friends and family say, perception can be reality. Expect that point to be driven home Wednesday in New York when Johnson meets with NFL Commissioner Roger Goodell.
It matters so much to the NFL that Goodell reacted in April to the recent spate of player arrests by imposing a harsher personal-conduct policy that, as Johnson could find out the hard way, allows the commissioner to reshape the league’s image with his own heavy hand.
Estimates of Johnson’s punishment, expected to be announced next week, have ranged from a suspension of six games to the entire 2007 season. Any punishment beyond a four-game suspension Johnson would have received under the NFL’s previous policy, still in place at the time of his last arrest in December, will illustrate just how much power the NFL players union has ceded to Goodell.
In theory, Johnson might have a legitimate legal challenge to present against the league and seek to recoup a portion of the stack of $30,000 paychecks he will forfeit for each game he misses in 2007. He could argue that Goodell’s new, no-tolerance policy punishes him retroactively when he should have been subject to the old rules.
As noted sports agent and criminal lawyer Steve Zucker pointed out, in the real world if Johnson had been arrested for a crime in December and Illinois laws stiffened Jan. 1, his penalties would have been bound by the previous state statute. In other words, Goodell is tougher on crime than your local judge.
“It’s not fair,” Zucker said. “Laws do not apply retroactively and they should not be allowed to be applied that way in the NFL. But at least [Johnson] has a good lawyer [Lorna Propes] and is in good hands.”
It may not matter. Even the shrewdest of lawyers would run into the reality that Goodell is only exercising the authority the NFL Players Association granted him under the latest collective-bargaining agreement. The union and a six-player NFL Advisory Committee signed off on it in part to stem the tide of bad publicity.
The empowering language in the CBA exposes the commissioner’s actions to scrutiny more than sound legal challenges. The NFL made itself uniquely immune to such lawsuits because all appeals on disciplinary decisions go back to the commissioner unlike other sports leagues that use an outside arbitrator, according to Rick Karcher, Director of the Center for Law and Sports at Florida Coastal School of Law.
“How can anyone say the commissioner exceeded his authority when the head of the union and the committee of six players supposedly signed off on a new policy that contains no limits whatsoever on his authority?” Karcher asked.
Goodell possesses the right to define what constitutes misconduct, determine the appropriate sanction, impose discipline retroactive to the implementation of the new policy and hear appeals. It makes him potentially the most powerful commissioner in sports.
“If Johnson or any other player challenged the new policy in court, most judges would dismiss the case because it’s a collective-bargaining issue and the union and league agreed that a player’s only recourse is to appeal to the commissioner,” Karcher said.
It’s a point lawyers for Titans cornerback Pacman Jones, suspended all season by Goodell, might find out if they proceed with a federal lawsuit they are said to be considering if Goodell denies their appeal.
If Jones or Johnson or any other disciplined player willing to become an NFL pioneer truly wanted to fight the system, their best recourse might be filing an unfair labor charge with the National Labor Relations Board rather than suing the NFL.
“Courts will not scrutinize a commissioner’s decision on the basis of whether it was right or wrong, courts will only intervene when the basic rudiments of due process are not being followed,” Karcher said. “It will be tough for NFL players to argue procedural unfairness when the players, through representation by their union, agreed that their sole and final recourse is to appeal to the commissioner.”
Johnson’s December arrest was one of 85 involving NFL players since the start of 2006, according to research by the San Diego Union-Tribune. The trend played a major role in the players union agreeing to empower Goodell to do what he deemed necessary to remove the smudges from a sport that, despite the crime spree, remains America’s most popular.
A former Bear well-versed in labor issues from his time as NFLPA vice president, Dan Jiggetts applauded Goodell’s intentions but cautioned that a clearer line should exist between improving the game and impinging on players’ rights.
“It’s one thing that he’s trying to clean up the league and everybody understands that, but he can’t be making unilateral decisions,” said Jiggetts, the host of “Chicago Tribune Live” for Comcast SportsNet.
Jiggetts predicted Johnson would receive a four-game suspension. The Bears hope Goodell considers Johnson’s case different from Jones’ and Chris Henry’s in that Johnson already served a team-imposed, one-game suspension without pay last season and spent 60 days in jail after weeks of being under house arrest.
Some members of the front office also feel confident Goodell will consider Johnson already has begun to pay for his mistakes and see progress in how he has met the goals in the 10-point plan he established for himself as a condition for remaining a Bear.
But the only feelings that matter belong to Goodell, whose subjectivity is as hard to predict as it is to question.
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dhaugh@tribune.com
