Earlier this week, the NFL implemented a COVID protocol that, effectively, is “forcing” players to become vaccinated. The league sent a memo to the clubs: if a game is cancelled and cannot be rescheduled, due to a COVID outbreak from unvaccinated players, then that team forfeits the game and is credited with a loss. Further, players on both teams will not be paid for that game, and the team responsible for the cancellation is on the hook for the financial losses, and possibly, discipline by Commissioner Goodell. The memo specifically states:
“Every club is obligated under the Constitution and Bylaws to have its team ready to play at the scheduled time and place. A failure to do so is deemed conduct detrimental. There is no right to postpone a game. Postponements will only occur if required by government authorities, medical experts, or at the Commissioner's discretion.” (Emphasis added.)
As it currently stands, players are not required to be vaccinated, but Tier 1 NFL staff are, which has been causing issues such as those with Minnesota Vikings offensive line coach Rick Dennison and New England Patriots co-offensive line coach Cole Popovich. (Check out the article on this).
Players across the league have expressed their disagreement with this protocol and the policy poses a particularly complicated situation for players who are choosing not to get vaccinated. After this memo was released, DeAndre Hopkins, in a since-deleted tweet, stated, “Never thought I would say this, but being out in a position to hurt my team because I don’t want to partake in the vaccine is making me question my future in the @NFL.” Hopkins followed this deleted tweet up with “Btw I got about 9 more years in me, y’all have a good day.”
If Hopkins chooses not to be vaccinated, now that this policy that has been implemented, and causes an outbreak within the Cardinals, would he be in violation of the conduct detrimental clause? In this scenario Hopkins’ actions would: cause the Cardinals to forfeit and be given a loss for that game; put the Cardinals at risk of covering financial losses and penalties from the Commissioner; AND cause players on the Cardinals and their opponent’s team to not be paid for that game.
Conduct Detrimental is a broad clause that gives power to the clubs and the NFL to protect the reputation of the league and those in it. Everyone who is a part of the National Football League (“NFL”) must refrain from “conduct detrimental to the integrity of and public confidence in” the NFL. There have been a number of NFL players in the past that have been penalized for conduct detrimental. According to the NFL collective bargaining agreement, the maximum fine for any conduct detrimental to the club is “an amount equal to one week’s salary and/or suspension without pay for a period not to exceed four (4) weeks.”
Terrell Owens (“T.O.”) was suspended for the 2005 season by the Philadelphia Eagles for conduct detrimental to the team and was penalized $191,176 per game for the games he was suspended. The Eagles then “deactivated” T.O. for the rest of the season, ultimately releasing him at the end of the year. T.O. was in his second year of a seven year contract and was supposed to be the final piece for a Super Bowl contending team. In 2004, after three straight NFC Championship losses, the Eagles won the NFC Championship behind a great season for T.O. but lost in the Super Bowl to the New England Patriots. T.O. would never play for the Eagles again after an arbitrator upheld the suspension because T.O.’s conduct was a “destructive and continuing threat” to the team. The Eagles wouldn’t make a Super Bowl run until the 2017 season.
If Hopkins causes the Cardinals to forfeit a game, along with his teammates’ and opponents’ salaries, then he could be penalized for conduct detrimental to the club. Hopkins’ choice to not become vaccinated leaves open the possibility for a team COVID outbreak. Thus, his actions could also be deemed a “destructive and continuing threat” to the Cardinals organization. Based on Hopkins’ current contract, he could be penalized $3,055,556, approximately $763,889 per game, under the maximum four game suspension. Hopkins is in the first year of his two-year contract extension signed last year and is a key player for the Cardinals.
It is yet to be seen how this protocol and the decision of players not to get vaccinated will play out on the field, in locker rooms or on the sidelines, but in the case of Hopkins, a resulting COVID outbreak has steep monetary and career-impacting implications. Unfortunately, only time and experience will tell as to how this kind of scenario will play out and COVID-19 continues to spur unprecedented change in the NFL.
Mike Lawson is an Associate for O'Connell and Aronowitz in Albany, NY
He is the Producer of the Conduct Detrimental Podcast and can be reached on Twitter @Mike_sonof_Law