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Wednesday, April 18, 2007
 
Does the NFL's New Personal Conduct Policy Afford the Commissioner Too Much Discretion?

Last Friday, I participated on a panel at DePaul University College of Law on the topic of regulating off-field misconduct. We had a lively discussion and debate regarding the timely issue of NFL commissioner Roger Goodell's one year suspension of Adam "Pacman" Jones. I raised a number of questions that should be considered by the players regarding this particular suspension, but more importantly, any future disciplinary actions taken by the commissioner under the NFL's new personal conduct policy.

1. Is it connected to the NFL's business?

Internal league discipline of players is warranted in situations that directly influence competition or affect the business side of the game. Examples of such situations would include gambling on the sport, use of performance enhancing drugs, or when a player unloads a slew of racial and ethnic slurs directed at New Yorkers, Mets fans and one of his teammates. But how does a fight in a nightclub (or any other violent behavior off the field) arise to the level of affecting the "integrity of the game"? And if it affects the "business side" of the NFL, how so? Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product? The justification for a "get tough on crime" policy seems to be that the owners, coaches and a majority of the players all agree with the commissioner when asked about it -- Well, of course they do! Are they really going to publicly say, "No, I think players getting arrested is none of our business"?

2. Should discipline be imposed without a conviction?

Are player arrests on the rise in the NFL? The advent of 24 hour news from multiple sources in which we are told 100 times per day that Pacman was arrested definitely makes it appear on the surface to be a growing problem in the NFL. But where's the data to suggest that it is. Recall a sampling of some of the headlines back in 2000: Ray Lewis (murder charge), Rae Carruth (charged with murder in the shooting death of his pregnant girlfriend), Mark Chmura (sexual assault charge) and Peter Warrick (charged with grand theft). League officials that year also reported that the number of players arrested for violent crimes actually dropped from 38 players in 1997 to 26 in 1999.

Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.

Off-field misconduct is laden with factual issues, which distinguishes it from on-field misconduct in which there are no factual issues because there are multiple camera angles of the behavior captured on videotape. Thus, in situations involving off-field behavior, the commissioner performs his own investigation and formulates an opinion. But the commissioner has no subpoena power and can't force witnesses to testify, and all of the safeguards afforded the accused in criminal proceedings are lacking (e.g. cross-examination of witnesses). Finally, and most importantly, a player disciplined prior to a conviction can be prejudiced in the criminal proceeding because prosecutors may subpoena the results of internal league investigations and use them against the player at trial.

3. Does the appeal process ensure fair and consistent disciplinary action?

Pacman has publicly stated that he will be appealing the suspension. The NFL is unique from the other sports in one critical respect: NFL commissioner discipline for off-field misconduct is not subject to review by a neutral arbitrator. Instead, the player's sole right of appeal is to the commissioner -- in other words, no right of appeal.

In the other sports, the arbitrator reviews commissioner disciplinary action using a "just cause" standard. "Just cause" is evaluated according to the common law of the workplace. Generally, this means that the league should follow progressive discipline in response to player misconduct, imposing increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player. It's arbitrary to impose an overly aggressive disciplinary action upon an individual player with an ulterior motive of sending a message to all players that "this is not to be tolerated". Arbitrators reduce suspensions when the suspension is unduly harsh or not in line with established precedent involving similar situations. Unfortunately for Pacman, and any other player subject to league discipline, he will never have that opportunity.





17 Comments:

I think you are spot on in asking these questions. I will be interested to see how long Tank Johnson will be suspended for. One would think that after the pacman suspension that Tank would be looking at upwards of a two year suspension since at this moment he is in prison while Pacman has not been convicted of anything yet. Goodell might have backed himself into a dangerous precedent of such severe penalties.

Blogger Nick -- 4/18/2007 12:34 PM  


How will the new NFL player conduct policy apply to players who have already had multiple run-ins with the authorities? Will there be any retroactive measures taken for someone like Koren Robinson who is currently serving jail time for his various past indiscretions while playing for Seattle, Minnesota, and Green Bay?

More specifically, I know the policy will use a player's history as a tool in deciding on punishment for recent conduct issues, but can the league retroactively go back and punish players who were in trouble previously but have had a clean record within the past one or two seasons? What are the limits of Roger Goodell's power here, or are there any limits to his power to suspend players?

Anonymous David -- 4/18/2007 2:06 PM  


Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product?

If the NFL somehow found it way to staff team rosters entirely with Death Row inmates on work release, every game would still be a sellout. TV ratings and merchandising revenues would still be enormous.

As the world's wealthiest and most successful sports league, the NFL doesn't have to do anything to boost its image.

Anonymous Peter -- 4/18/2007 4:05 PM  


David,

Good questions. Because player disciplinary action constitutes a mandatory subject of collective bargaining, it must be negotiated and the authority of league commissioners is limited to the extent of the provisions in the CBA. In the NFL, the owners have fought hard to retain the commissioner's exclusive authority and for the commissioner to basically serve as the arbitrator over his own decisions. I think when you have a commissioner in place for so long (as was the case with Tagliabue), there evolves somewhat of a comfort level over time that the commissioner is going to act in a certain manner. But now that there is a new commissioner, it's a complete unknown. To answer your question, the commissioner's new conduct policy, which the union purportedly assented to and which is linked to my post, gives the commissioner the discretion to do whatever he wants (i.e. to define what constitutes misconduct and to impose "larger fines and longer suspensions").

Blogger Rick Karcher -- 4/18/2007 10:05 PM  


That discretion wielded by the Commissioner is one of the byproducts of the immense $$$ that the players enjoy. The owners and players collectively bargained for that provision and the Commish is rightly using his discretion to address this very issue. The players most probably got for $$ in return for this provision during the CBA negotiations and the owners perceived that this provision was crucial to keep the image of the NFL as clean as possible.

Let's not forget the fundamental point, the opportunity to play in the NFL is a privilege, not a right. As such, with that privilege comes conditions.

Blogger qtlaw24 -- 4/24/2007 1:06 PM  


I'm late in weighing in on this, but with the news that Michael Vick is in trouble again, this time for possibly running an illegal animal fighting ring (no, seriously - via Deadspin), I'm wondering how Roger Goodell will act on this.

Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct policy is not only bad for the players, but will be bad for the Commissioner as well.

By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.

For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?

Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).

I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.

Blogger Satchmo -- 4/26/2007 1:10 PM  


qtlaw24:

You are correct that the union and the league agreed in the CBA that the commissioner would be the arbitrator over his own decisions (i.e. not afford the players a right of appeal to a neutral arbitrator). But this new conduct policy was not "bargained for". What did the players get in return for it?

Your comment actually raises an interesting question as to whether the new conduct policy was properly bargained for between the league and the players. Disciplining players for misconduct is a mandatory subject, and therefore the new policy must be negotiated with the players. Does the commissioner's consultation with a panel of only 6 players satisfy the requirement?

Blogger Rick Karcher -- 4/26/2007 8:30 PM  


The retroactive portions of this new policy are what makes it so appalling to me.

Neither Adam Jones nor Chris Henry committed any offense AFTER the new policy was put in place. Their actions were simply the last straw, so to speak, that pushed Goddell into getting this policy finalized.

I wonder what type of legal recourse either Jones or Henry may seek, outside of appeal to the commissioner, who in this case is the judge, jury, and executioner.

Anonymous Anonymous -- 4/27/2007 1:35 PM  


It is not clear from this post -- though it is cited as a leading example -- how using racial and ethnic slurs directly implicate "the integrity of the game" or "the business side of the game" while "violent behavior" does not. Until that ambiguity is resolved, this post adds nothing to the debate.

Blogger Jim -- 4/28/2007 2:02 AM  


Jim,

If an employee makes racial comments directed at the employer's customers or towards a co-employee directly affect the employer's business. But if the employee goes home and smokes marijuana or gets into bar fights, it's much harder to argue that it affects the employer's business.

Blogger Rick Karcher -- 4/29/2007 10:06 PM  


Rick,

Just because something is easier to argue doesn't make it true.

Perhaps my problem is that this post might highlight the limits of drawing useful analogies between professional sports leagues and other professions.

John Rocker makes disparaging remarks toward teammates and fans. Half of (or whatever the actual number) the Bengals get arrested during various parts of the season. Ricky Williams is suspended for smoking too much pot. The Pacers and Pistons fight in the stands. Ozzie Guillen disparages homosexuals. How much of an impact did the preceding have on the bottom lines of the Mets and Braves, Bengals, Dolphins, Pacers and Pistons, and White Sox, respectively? It's an empirical question, to be sure, but my hypothesis would be that none of those events had any noticeable affect on the bottom line. And, except to the extent that players were suspended, I would hypothesize - again, it's an empirical question that can be tested - that none of those events effected the "integrity of the game" insofar as that phrase means "influencing competition."

Now, if it was me that was doing this damage -- if I went into the lobby and beat up clients, or I called clients disparaging names, my hypothesis would be that I would have affected my employer's business. But I think that's mostly a function of me working in a small office of a firm in a highly competitive industry, rather than in the NFL, NBA, MLB, et al.

But. Were those aforementioned events embarrassing? "Cringe worthy"? Dilutive of the image of the player and the team and the league? I would answer yes to the first two questions and perhaps to the latter.

I realize that defining the contours of actionable "embarrassment" or "dilution" might be as hard a task as your boxes of "business side" and "competitiveness," but I don't think it's at all hard to conclude that neither affect on "the business side" nor on "the integrity of the game" (insofar as it is a proxy for competition, which I think is how you mean it) alone should be dispositive of the threshold issue of triggering internal discipline, as you suggest.

Whether any of the above should be dealt with at a league-wide rather than individual team basis, and how such would comport with a CBA are certainly interesting questions, but I don't agree with your threshold triggering assumption.

Blogger Jim -- 4/30/2007 3:12 AM  


Jim

It's not my position that the league should be required to prove damages (as if the league is in court or something). I agree with you in that regard because it's all speculative. But I do think that at a minimum, a consideration should be whether the conduct is connected to their business.

Using your example, I don't understand your comment at all that you beating up clients in the lobby is a function of having a small office and being in a highly competitive industry. If your company/office is located in Atlanta and you beat up some customers in New York, it has the same exact impact as if you did it in the lobby. There is no question that such conduct would be connected to your employer's business and most people would expect to be fired for doing that. Most people would not expect to be fired if they were caught with dope and didn't miss any work time.

Blogger Rick Karcher -- 4/30/2007 6:45 AM  


Rick

I think you misunderstood my example. I hypothesize that my beating up of a client would have an affect on my employer's bottom line because there are so many other firms with whom the client could choose to work instead; e.g., there are other firms in the same building that do the same work. But if instead I was an NBA player and involved in the Pistons-Pacers fight, and I beat up either a teammate, competitor, or fan, I'm not sure how this inherently affects the teams bottom line.

I was trying to say i.e., that the affect on the bottom line is a function of industry (not a function of where the fight occurs). I'm still not convinced of the usefulness of drawing an analogy between professional sports leagues and most other lines of work on this particular point.

I'm sure we could go around and around on this point; reasonable minds will disagree on drawing these lines. But, like I said earlier, the connection that this blog has made on several occasions between the disciplinary regime a league adopts and how such co-exists with a CBA is a really interesting question that deserves lots of attention (and a question I never thought about until reading the blog).

In the scenario we've been hashing over, where do you see a lawyer adding more value -- in helping to define what triggers internal discipline, or in helping to define how the disciplinary regime must co-exist with a CBA? Or are they both equally necessary and valuable?

Blogger Jim -- 4/30/2007 10:49 PM  


Jim,

I agree that it is not worth us debating where the line should be drawn. Your last question pretty much hits the nail on the head, and the answer depends upon who the lawyer represents (the league or the players).

Basically, league constitutions and bylaws (entered into among the teams) provide commissioners with wide latitude to act in "the best interests of the game". However, the labor laws do not permit the leagues to unilaterally implement rules pertaining to discipline of players; the league is required to negotiate this subject with the players. Thus, the commissioner's authority is then limited by whatever the CBA says. Those limitations can take a variety of forms, including (1) defining the types of misconduct (and even distinguishing between on-field and off-field behavior) subject to disciplinary action by the commissioner, (2) defining the extent/level of disciplinary action that may be imposed by the commissioner under those circumstances, and (3) providing the right of appeal to a neutral arbitrator. Where these lines should be drawn is an issue for the players to decide. With the implementation of the NFL's new conduct policy, combined with the existing CBA, none of these limitations currently exist.

Blogger Rick Karcher -- 5/01/2007 7:14 AM  


Because he ruled with such a strong suspension for PacMan Jones, I think Goodell, while well intended, is headed for a slippery slope...Both in terms of how to judge massively popular stars like Michael Vick and in the legal system, should his ruling ever be challenged.

One common forgotten fact is Godell made the Pacman Jones ruling under the former policy, NOT the new one.

One other thought, NFL players that have yet to violate policy or recently have: ie Ahmad Carroll (cut by Jacksonville after an arrest) may never see the field again because the threat of the new policy to NFL teams.

Blogger TitanBlitz -- 5/09/2007 6:53 PM  


Rick,

I really enjoyed your article regarding the new personal conduct policy of the NFL. I came across it while doing research for my journal article, which has to do with the new conduct policy and arbitration. I was wondering if it was possible for you to somehow get in touch with me --- I actually just had some questions and thought you may be the best person to go to for your opinion.

Thanks.

Blogger Matthew -- 9/24/2007 10:38 PM  


This comment has been removed by the author.

Blogger Matthew -- 9/24/2007 10:39 PM  


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