The Sports Esquires Putting Sports on Trial
On September 12, 2014, Roger Goodell suspended Ray Rice indefinitely after video of Rice punching his then fiancé in an Atlantic City hotel elevator was published by TMZ. On September 16, the NFLPA, on behalf of Rice, filed an appeal of the suspension. According to the NFL-NFLPA Collective Bargaining Agreement (“CBA”) a hearing “will be scheduled to commence within ten days following receipt of notice of appeal.”[i]
As of publication, the NFL has not announced a date for an appeal hearing, nor the name(s) of the arbitrator(s) who will hear the appeal.
Rice’s appeal will focus on two arguments. First, that the CBA prevents the Commissioner from increasing discipline. Second, that Rice’s second suspension is without just cause because it amounts to double jeopardy.
Should Rice lose his appeal, he may elect to appeal the appeal.[ii] Arbitration decisions may be appealed to federal district courts and may be overturned in extremely limited circumstances. Therefore, if Rice wants to have the opportunity to play in the NFL again it is critical that he win his appeal (or at least reach a favorable settlement).
Arguments On Appeal – The CBA Prevents Increase in Discipline
The NFLPA’s primary argument on appeal will be that the NFL violated the CBA by disciplining Rice twice for the same conduct. The precise language of the CBA is the first and most important argument for either side. The NFLPA will argue that the CBA expressly prohibits Rice’s indefinite suspension. The NFL of course will argue the opposite.
So what does the CBA say? Not much. There is no provision which directly addresses this issue. Article 46 Section 4 titled “One Penalty” states: “The Commissioner and a Club will not both discipline a player for the same act or conduct.” The NFLPA will argue that if a player can’t be punished by his team and the Commissioner for the same act, he should similarly be incapable of being punished twice by the Commissioner.
For its part the NFL will say that nothing in this provision or any other in the CBA prevents the Commissioner from punishing a player twice. Moreover, the NFL will likely argue that Rice is not being punished for the “same act or conduct.” Rather, Rice is being punished for misleading the Commissioner.
Both sides are probably wrong. This is not an issue which is directly addressed in the CBA. Furthermore, no matter what the NFL may argue, Rice’s discipline is clearly for the “same act or conduct.” The only thing which has changed is the NFL’s perception of that act. As a result the NFLPA will move to its second argument – that the indefinite suspension lacks just cause.
Arguments on Appeal – The Indefinite Suspension Lacks Just Cause[iii]
The arbitrator is not limited to the express provisions of the contract, industrial due process and industrial common law are equally a part of the collective bargaining agreement although not expressed in it. Because the contract in this case is ambiguous on the issue of double discipline, the arbitrator will be required to look beyond the CBA to determine whether or not Rice may be suspended indefinitely.
In the realm of labor law and arbitration, the phrase “double jeopardy” has a different meaning than it does in the realm of criminal prosecutions. In the labor context, double jeopardy refers to one of a family of concepts that fall under the rubric of industrial due process.[iv] In the labor context, an employee cannot be disciplined twice for the same conduct, because to do so would be unjust and in violation of industrial due process and common law. In order for double jeopardy to apply however, the initial discipline must have been final. In other words, if Rice was told that he would be suspended two games pending further investigation then it was not a final punishment and a second punishment would be allowed. The press release issued by the NFL on July 24, 2014 gives no indication that the two-game suspension was intended to be anything other than a final disposition.
Therefore, based upon industrial due process law, which is incorporated into the CBA, Rice cannot be disciplined twice for punching his fiancé. Because the law is so clear on this issue the biggest battle the NFL will fight on appeal will be what Rice told the Commissioner during their June 16 meeting.
The NFL, and Commissioner Roger Goodell claim that the “video shows a starkly different sequence of events” from Rice’s June 16 explanation. The NFL further claims that the video is “important new information that warrants reconsideration of the discipline imposed” in July, and that the discipline “was insufficient under all the circumstances.”[v]
If Rice did indeed deceive the Commissioner then he would have unclean hands and be unable to argue that his indefinite suspension was without just cause. If however, as multiple sources have claimed,[vi] Rice was indeed forthcoming in his meeting with Roger Goodell, then Rice’s suspension could only be for the same “act or conduct.” The only thing which would have changed is the NFL’s perception of the conduct.
Expect much of the arbitration appeal to focus on what Rice told Goodell and what exactly the NFL knew and when they knew it. Assuming Rice is telling the truth he has a very strong chance to win his appeal.
Appealing the Appeal
In the (likely) event that either side is dissatisfied with the outcome of the appeal they have the option to appeal the appeal to federal court.
There are two methods by which either side could appeal to federal court: (1) the Federal Arbitration Act (“FAA”); and (2) the Labor Management Relations Act (“LMRA”). The FAA is federal law which authorizes courts to vacate arbitration awards under rare and limited circumstances. The LMRA is federal law which governs the relationship between unions and employers, and allows for courts to vacate arbitration awards made pursuant to a collective bargaining agreement.
It is not clear whether one of these laws trumps the other. The party seeking to vacate the award will argue that either law applies and the party seeking to confirm the award will likely argue that the FAA should trump the LMRA.
The FAA is somewhat more restrictive than the LMRA and lists four very specific circumstances under which an award may be vacated. Conversely, the LMRA’s authority to vacate awards has grown out of federal common law and is more flexible. Either way a party faces an incredibly low chance of success. Arbitration decisions are upheld in approximately 90% of cases.[vii]
Both sides are well aware of the daunting task they will face should they lose the arbitration on appeal. Therefore, do not be surprised for the parties to reach a settlement regarding when Ray Rice will be eligible for reinstatement. The certainty of a settlement is often more favorable than the uncertainty of an arbitrator’s decision or judicial decree.
Bringing it All Together
To recap:
- The CBA does not directly address the issue of disciplining a player twice for the same conduct;
- The crux of the appeal will focus on the facts of the NFL’s investigation and Rice’s June 16 meeting with Goodell;
- If Rice told Goodell the truth, he has a very strong chance to win his appeal because the indefinite suspension would constitute double jeopardy, a violation of industrial due process law;
- If Rice lied to Goodell, he will have unclean hands and the suspension will likely be upheld;
- Whichever side loses on appeal may appeal to a federal court to vacate the decision, but faces extremely long odds of being successful;
- Because the arbitrator’s decision is essentially iron-clad, and because neither side wants to be proven a liar, don’t be surprised to see a settlement allowing Rice to play again next season.
How this appeal plays out will have a big impact on the upcoming revamped NFL Personal Conduct Policy. In fact, the appeal has already impacted how the NFL handles disciplining players for off-field misconduct. Adrian Peterson and Greg Hardy were placed on the Commissioner’s Exemption List and likely told that such action does not constitute final discipline. Had the NFL done otherwise, it would be prevented from imposing further discipline in the form of fines or suspensions once the criminal cases are finalized.
No matter your feelings on Ray Rice, or Commissioner Goodell, the NFLPA needed to appeal the indefinite suspension.
[i] The NFLPA’s press release states that a hearing will merely be scheduled within ten days. The CBA also requires that suspensions issued during the season (such as Rice’s) will be heard no fewer than eight days and no more than thirteen days following the suspension, absent mutual agreement. Not a terrific job by the PA in its first chance to interpret the CBA.
[ii] In fact, Rice has reportedly hired attorney Peter Ginsburg who represented Jonathan Vilma in his dispute with the NFL regarding the Bounty Scandal. The move signals Rice’s willingness to take on the NFL in court.
[iii] Thank you to Bram Maravent for his assistance in explaining industrial due process and double jeopardy. Bram’s expertise in this area is invaluable.
[iv] Similarly the NFLPA may argue that the NFL did not comply with the due process required by the CBA because Rice was not afforded a hearing before his indefinite suspension. The NFL Player Contract allows the Commissioner to suspend a player for conduct detrimental “but only after giving Player the opportunity for a hearing.”
[v] http://espn.go.com/nfl/story/_/id/11512243/nflpa-receives-official-letter-nfl-suspension-ray-rice-baltimore-ravens
[vi] Ravens General Manager Ozzie Newsome said that Rice did not lie to him, and an ESPN report claims that Rice was truthful in his meeting with Goodell.
[vii] LeRoy, Michael H. “Are Arbitrators Above the Law? The’Manifest Disregard of the Law’Standard.” Boston College Law Review 52.1 (2011): 137
