Dougherty: NFL overstepping in PED probe

The NFL should decide the performance-enhancing drug case involving Clay Matthews and Julius Peppers based on what it already knows.

That’s about the only thing I can say for sure about the case that represents a huge threat to the Green Bay Packers’ 2016 season. And a huge threat it is, because if these two key defensive players end up suspended for, say, four or six games at the same time, it could cost the Packers a spot in the playoffs.

I’ll start by saying that I have no idea whether Matthews and Peppers used PEDs. All we know from the public record is that a guy named Charlie Sly told an undercover reporter from Al Jazeera America that he provided both players with PEDs and, in Matthews’ case, painkillers. When the report came out, Sly quickly recanted. Both players denied the report.

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But this case has become about far more than that. It’s about the battle between the NFL’s police powers and its players' rights.

It’s easy to go down the rabbit hole in any case like this. My head spins thinking about the conspiracy theories surrounding Deflategate. This doesn’t rise to that level, but there are plenty of competing agendas and viewpoints.

Did Sly actually know Matthews and Peppers, or was he just name dropping to impress a potential client? Does the NFL have the goods on the two players, or is this just a fishing expedition? Do the players want to cooperate, or are they hiding behind their union to avoid interviewing in hopes the case will go away or end up in court?

I don’t know.

But one thing jumps out. Regardless of Peppers’ and Matthews’ guilt or innocence, the league and its commissioner, Roger Goodell, are in a never-ending quest to expand their police powers over the NFL’s players. And that’s why Goodell threatened Peppers and Matthews with non-cooperation suspensions if they don’t submit to interviews by Aug. 26. It had nothing to do with whether the players will be suspended.

The NFL has a PED policy, and that policy in no way compels players to cooperate with PED investigations. Peppers and Matthews didn’t fail a drug test, so according to the policy the league can suspend them only if they’ve broken the law or had “other documented evidence-based violations” regarding PEDs.

The league can conduct an investigation, decide it has evidence of PED use and then suspend the players. But nowhere in the policy does it say the players have to do anything other than the drug test.

So by insisting on the interviews, the NFL is signaling the bigger concern here: its power to discipline players. It’s saying that the Al-Jazeera report warrants an investigation, which is fine. The league is free to investigate. But now the league says that the recent federal appeals court ruling in the Tom Brady case — the court ruled the league could suspend Brady for non-cooperation, in his case that he destroyed his cell phone in the Deflategate investigation — forces Peppers and Matthews to grant interviews with league investigators as well.

The problem is, the Brady case wasn’t about a PED violation. It was about violating equipment regulations (i.e., allegedly deflating footballs).

I don’t want to get too mired in the details, but the league in its letter to Peppers and Matthews this week invoked Article 46 of its collective bargaining agreement to force the players to interview. Article 46 allows the commissioner to discipline players for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”

The league’s personal-conduct policy explicitly covers “conduct detrimental to the integrity of and public confidence in the National Football League.” I read it. It compels players to interview in an investigation. I also read the PED policy. It doesn’t compel anything other than drug tests.

The personal-conduct policy is mostly about brushes with the law, including explicitly covering arrests “relating to steroids and prohibited substances.” Neither Peppers nor Matthews was arrested, so this case doesn’t fall under the personal-conduct policy. It falls under the PED policy, which allows for suspension for reasons other than a positive drug test (i.e., “sufficient credible documented evidence.”)

The league’s interest in threatening to suspend Peppers and Matthews for non-cooperation is clear. It doesn’t want a precedent where players don’t have to cooperate with any investigation. It’s trying to protect the shield and maximize its powers to investigate.

The players union is protecting its members. It doesn’t want them subject to interviews with the league over any and every allegation, regardless of the source. Sly has recanted what he told Al Jazeera’s undercover reporter, so the union doesn’t consider the report credible.

Also, if the league can force the players to interview, it also can force them to turn over phone, bank and medical records. The union doesn’t trust the league with that information and wonders where the cooperation ends.

So here’s what should happen: The NFL should conduct its investigation, decide whether it has enough evidence to suspend Peppers and/or Matthews, and if it does, it should. The players can appeal if they so desire.

The NFL hasn’t revealed what its investigation has uncovered. For instance, whether Sly has cooperated, and if so, what he has said and, more importantly, what evidence he or others have provided.

The league already has cleared former Denver Broncos quarterback Peyton Manning, whom Sly also named to the undercover reporter. Manning has retired so he’s no longer a member of the union. He reportedly cooperated fully.

But only the league knows what it can prove, if anything, against Peppers and Matthews.

So this case could go in a couple directions from here.

One, Peppers and Matthews could consent to interviews by the Aug. 26 deadline.

Or two, they can challenge the NFL in court, either before or after suspension. And if that happens, there’s no telling how long it might take to run through the court system. The Starcaps PED court case took several years to resolve, which allowed former Minnesota Vikings defensive lineman Pat Williams to run out the clock on his career while an injunction stayed his suspension.

What’s unclear is whether Peppers, Matthews or both have wanted to cooperate but been persuaded not to by the union. Perhaps now, with the threat of suspension, they will submit to interviews. They might want to be done with it and avoid the cost in money, time and energy it would take to fight the league.

Or maybe one or both still won’t consent to an interview and will take the league to court. There’s no guarantee the league won’t find them guilty regardless of what they say. And maybe the union has agreed to take on the defense (and costs) of going to court.

That’s how one prominent agent I talked to this week thinks it will go.

“This (hissing) match between the union and the league is at such a ridiculous point that I think the union sees this as an opportunity to be a thorn in the side of the NFL,” the agent said.

So while Goodell’s Aug. 26 deadline looks firm, that doesn’t mean this will be resolved soon. But the league should have decided this case already.