The Sports Esquires Putting Sports on Trial
Much has been written about the indefinite suspension of Ray Rice, including calls for Roger Goodell to resign or be fired. But few if any articles have taken the time to explain what exactly happened and what could happen from a legal standpoint. The vast majority of the conversation about the suspension has focused on righteous finger-wagging at the NFL, Roger Goodell, and the Ravens. While each of those parties deserves their fair share of scorn, there is an opportunity to learn, grow and move forward that is being missed.[i]
What if instead of spending thousands hours publicly shaming these people, we as fans, journalists, congressmen, attorneys, politicians and fellow citizens devoted our effort and energy in a positive way? What if instead we took the time to educate ourselves about domestic violence or about the NFL’s efforts to combat domestic violence? What if instead we volunteered at battered women’s shelters or worked pro bono to represent victims of domestic abuse?[ii]
History of the Policy
In order to truly understand the current NFL Personal Conduct Policy and the punishments doled out in its name, it is necessary to understand how the Policy came into being. Concerns about the League’s image and associations with violence, criminal activity and drugs are nothing new. In 1997, under the leadership of former NFL Commissioner Paul Tagliabue, the NFL adopted its Violent Crime Policy. The Violent Crime Policy, renamed the Personal Conduct Policy in 2000, was formed primarily in response to increasingly visible crimes of domestic violence.[iii]
However, the League’s first attempt at reining in off-field player misconduct required the Commissioner to wait until the criminal justice system had concluded its process before imposing punishment. As a result of this ineffectiveness, and amid pressure to change, the NFL worked with the NFL Players Association to develop the current Personal Conduct Policy which does not require the criminal justice system to play out before imposing punishments.[iv]
Today, the Personal Conduct Policy allows Commissioner Goodell to fine, suspend, or banish players for engaging in conduct detrimental the integrity of and public confidence in the National Football League. What constitutes conduct detrimental is amorphous and broad but specifically includes: “the use or threat of violence; domestic violence and other forms of partner abuse.”
Throughout the history of the Policy the NFL has taken positive steps to rehabilitate players who have made mistakes. Today, the Policy requires players to undergo a formal clinical evaluation, and based on the results of that evaluation, may require participation in an education program, counseling or other treatment deemed appropriate by health professionals.
Interaction of the CBA, NFL Constitution and the Policy
Whether or not the Personal Conduct Policy and the punishments enforced in its name are legally consistent with federal antitrust and labor laws is not entirely clear. This is because the Policy is not incorporated into the League’s Collective Bargaining Agreement (CBA). Nor is it incorporated into the NFL Constitution and Bylaws, or the Standard Player Contract. As such, any suspension or fine given under the Policy is potentially open to attack as an illegal restraint of trade in violation of antitrust law.[v]
Because there are multiple sources dealing with player suspensions and Commissioner discipline, and because the Policy has never been challenged in court it is not entirely clear how these multiple sources interact and which trumps the others in cases where they conflict. Before applying the rules to Ray Rice, each potential source of discipline will be laid out and simplified as best as possible.
Article 46 of the CBA outlines the procedure for Commissioner Suspensions for conduct detrimental, but it does not explain what constitutes conduct detrimental or reference the Personal Conduct Policy. In short, Article 46 of the CBA requires that the Commissioner will provide prompt written notice of a fine or suspension, which may be appealed to the Commissioner within three days. Finally, Article 46 prevents double punishment from the Commissioner and the team for “the same act or conduct.”
Section 8.13 of The NFL Constitution provides that the Commissioner complete authority to suspend players, after notice and hearing, for conduct detrimental. Section 8.13 also provides that the Commissioner “shall have the authority to change, reduce, modify, remit, or suspend” any discipline imposed.
Paragraph 11 of the Standard Player Contract, which is incorporated into the CBA allows a team to terminate a player’s contract if, in the sole judgment of the team, the player has engaged in personal conduct reasonably judged by the team to adversely affect or reflect on the team.
Paragraph 15 of the Standard Player Contract states that the player “acknowledges his awareness” that he may be suspended by the Commissioner for conduct detrimental.
In determining which of these sources trumps the others, Article 2 of the CBA provides that the CBA “supersedes NFL Constitution or any other document affecting terms and conditions of employment,” and that “the NFLPA and the NFL waive all rights to bargain with one another concerning any subject covered or not covered in this Agreement for the duration of this Agreement, including the provisions of the NFL Constitution and By-laws.” Furthermore, “If any proposed change to NFL Constitution and Bylaws could significantly affect the terms and conditions of employment of NFL players, then the NFL will give the NFLPA notice of and negotiate the proposed change in good faith.”
In summary, the Personal Conduct Policy is not directly referenced by the CBA, but was developed in cooperation with the NFLPA. Meanwhile, the CBA which supersedes the NFL Constitution, also states that the NFL and NFLPA waive all rights to bargain over any provision of the Constitution, unless a change to the Constitution would significantly alter employment conditions of NFL players. Simple, right?
Application of the CBA and Personal Conduct Policy to Ray Rice
There are a few reasons to be concerned that Rice’s indefinite suspension does not comport with either NFL rules or the law. First, as mentioned above, the entire Personal Conduct Policy could be challenged under antitrust law. Second, it does not appear that the proper procedures were followed to allow for an indefinite suspension. And third, Rice may have been punished twice for the same conduct.
When Roger Goodell suspended Ray Rice indefinitely after the elevator videotape was released, he appeared to do so without any meeting or hearing with Ray Rice. Article 46 of the CBA does not require a hearing prior to issuing a suspension. A hearing is only guaranteed by the CBA for an appeal. However, the Standard Player Contract (incorporated into the CBA), and the NFL Constitution requires a hearing. Of course, Rice was given a hearing and an opportunity to appeal when he was originally suspended for two games.
So the question becomes, for what detrimental conduct was Rice suspended indefinitely? More specifically, was it for the same “act or conduct” which he was already suspended for two games?
There are a few reasons to believe that a player cannot be punished twice for the same act or conduct.[vi] The CBA prevents both the team and the commissioner for punishing a player for the same incident, but is silent as to whether the Commissioner can punish a player twice. But why shouldn’t the “One Penalty” provision[vii] be read to also prevent the Commissioner from punishing Rice twice? Furthermore, the CBA states that after an appeal the decision is a “full final and complete disposition of the dispute” and is binding upon the player, the NFL and the NFLPA. Even though Rice did not appeal, the 2 game suspension is arguably the full and complete disposition of the dispute.
Of course, the Commissioner could argue that the NFL Constitution grants him the power to change or modify any discipline imposed, and that he was simply increasing Rice’s original discipline. The counter to that of course, is that the language of 8.13(E) of the NFL Constitution should be read only to allow penalties to be lessened in severity, not increased.[viii]
If the punishment is for a new act or conduct (which is tough to see how it could be) then the Standard Player and the NFL Constitution require Rice to be given a hearing (which he was not) before a suspension is given.
In either case the NFL would do well to work with the NFLPA to clarify the situation. So far, the entire incident has been a debacle. But, there is an opportunity here. An opportunity for the NFL to educate the fans, the media, and importantly its employees about the League’s disciplinary process. More importantly, there is an opportunity to improve the disciplinary process. While there will always be room for disagreement among reasonable minds as to whether a punishment was too severe or not severe enough, there should always be an agreement on the rules and procedures to be followed when discipline is to be imposed.
[i] Let me be clear. In no way am I apologizing for Ray Rice, or in any way condoning his behavior. I am merely pointing out that there are questions which should be asked which have not, and lessons to be learned which have thus far been largely ignored.[ii] The author has contacted a local legal aid society and is pledging 40 hours of pro bono work to assist victims of domestic violence. If you would like to volunteer in your community, start here: http://www.probono.net/dv/
[iii] See, The Integrity of the Game: Professional Athletes and Domestic Violence, Harv. J. Sports & Ent. L. 1 (2010): 145. Available at: http://harvardjsel.com/wp-content/uploads/2010/04/JSEL-Withers.pdf
[iv] Except in the case of first-time offenders. The Personal Conduct Policy States: “Unless the available facts clearly indicate egregious circumstances, significant bodily harm or risk to third parties, or an immediate and substantial risk to the integrity and reputation of the NFL, a first offense generally will not result in discipline until there has been a disposition of the proceeding (or until the investigation is complete in the case of noncriminal misconduct).”
[v] For a thorough evaluation of whether commissioner suspensions are in violation of Antitrust law see Edelman, Marc. “Are Commissioner Suspensions Really Any Different From Illegal Group Boycotts-Analyzing Whether the NFL Personal Conduct Policy Illegally Restrains Trade.” Cath. UL Rev. 58 (2008): 631. Available at: http://scholarship.law.edu/cgi/viewcontent.cgi?article=3168&context=lawreview
[vi] According to Michael McCann, a player is not protected from Double Jeopardy. http://www.si.com/nfl/2014/09/08/ray-rice-video-legal-fallout-roger-goodell-baltimore-ravens. I respectfully disagree.
[vii] NFL CBA, Article 46, Section 4.
[viii] Suspensions for on-field conduct may only be reduced, not increased on appeal. NFL CBA, Article 46, Section 2(d).
