Who Dat Dish
Saints News

Are the New Orleans Saints Players in the cradle of industrial due process?

5 of 5

Delay in notifying an employee of pending charges may impair the employee’s opportunity to mount a defense, as memories fade and witnesses become unavailable. Id. Delay in imposing discipline, except where excused, may also be considered a due process violation.

Discipline based on stale offenses is disfavored for a number of reasons. As time passes, memories fade, witnesses depart, and records are discarded. The reliability of the evidence diminishes as the interval from the alleged misconduct increases.

Likewise, it becomes more difficult for the accused employee to recall or reconstruct events and to marshal evidence in his own behalf as the underlying event becomes more remote in time.

Finally, the gap between the occurrence and the discipline not only represents an additional investment of the employee’s finite years of work life into the enterprise, but also counters any inference that the individual is an unacceptable employee, at least where (as here) no other discipline has been issued in the interim.

For these reasons, the strength of the case for discharging an employee decreases as the length of time since the misconduct involved increases.

Only time will tell how successful the appeals will be, but it is important to note that the players did not give away industrial due process when they signed the CBA.  No, in fact, they placed themselves in its protective grasp.