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Next NFL domestic violence penalty will be harsh

National Football League Commissioner Roger Goodell has faced his share of controversies this year. But the league roars on.
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National Football League Commissioner Roger Goodell has faced his share of controversies this year. But the league roars on.

A federal judge has ruled that an arbitrator was out of bounds when he upheld the suspension NFL Commissioner Roger Goodell imposed on Vikings running back Adrian Peterson when it was revealed that he disciplined his 4-year-old son with a switch.

The legal question at the heart of this dispute is a simple one: Could Commissioner Goodell impose a lengthy suspension on Peterson under the league's new personal conduct policy for a first-time incident of domestic violence that occurred when the old personal conduct policy, which historically resulted in much shorter suspensions, was in effect?

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Federal Judge David Doty ruled that he could not and that the NFL arbitrator went beyond the essence of the collective bargaining agreement between the players union and the league when he upheld the commissioner's power to do just that. Judge Doty further ruled that the arbitrator exceeded his authority in concluding that the suspension would have been justified even under the old policy, a hypothetical question the union did not ask the arbitrator to answer. Judge Doty sent the case back to the arbitrator for further proceedings consistent with Judge Doty's order and the CBA.

So what happens now? The NFL is asking the Court of Appeals to reverse Judge Doty's call and reinstate the arbitrator's original award in favor of the league. But if Judge Doty framed the issue correctly, it's hard to see the Court of Appeals ruling that the commissioner had the right to apply punishment guidelines that were not in effect when Peterson's conduct occurred. Imagine the outcry if, in the middle of a game, a ref imposed a 25-yard penalty for a personal foul under revised rules taking effect the following season instead of the 15-yard penalty that applied at the start of the game and that had been applied in every game and every play up to that point.

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Notice matters in law and in sports. The notice that matters is the notice the offender has of the likely punishment at the time of the offense. That means, in all likelihood, Peterson ultimately gets a two-game suspension instead of the six weeks-plus the commissioner originally imposed.

If Judge Doty's ruling is upheld, what does it mean for the next time there is a horrific incident of confirmed domestic violence in the NFL? Assuming the new personal conduct policy was validly adopted, it means that the offending player may expect substantially greater punishment from the commissioner than Peterson ultimately may receive.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.