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Tuesday, July 24, 2007
Can Roger Goodell Keep Michael Vick out of Training Camp?

NFL Commissioner Roger Goodell has told Michael Vick to not attend the Atlanta Falcons' training camp while the NFL reviews his indictment for allegedly participating in an interstate dog-fighting operation. Goodell cites the league's new personal conduct policy as supplying him with the authority to make such a demand.

Does it?

As Rick examined in April, the new policy offers little in the way of specificity and much in the way of tough-sounded rhetoric. Many corporate conduct policies do the same, furnishing companies with significant latitude to discipline employees through open-ended, highly-interpretative phraseology.

In terms of the specific language allegedly empowering Goodell, one key phrase is, "Conduct that undermines or puts at risk the integrity and reputation of the NFL will be subject to discipline, even if not criminal in nature." That certainly sounds good, but what does it really mean? As Rick wrote, there will always be inherent concerns with disciplining players in the absence of a conviction:
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.
Bloomberg's Erik Matuszewski and Aaron Kirloff examined this issue as it relates to Michael Vick in an article today. I was interviewed for their story, and I wondered whether the NFLPA--which acquiesced to the new personal conduct policy, although not apparently through formalized collective bargaining--may want to defend Vick's contractual right to attend camp, if for no other reason than to avoid a precedent of players being shut out of work on grounds of an indictment. As I mentioned in the story, "Now we have someone accused of maiming and killing dogs, but let's say there's some less-awful situation in the future?" Not all indictments are the same, of course, and we have examined some of the limitations of an indictment (also examining them is FIU Law Student Adam Wasch in a very good Beacon article), and Rick's reference of James Lofton's suspension and subsequent acquittal is a good one.

Assuming the NFLPA stays on the sideline, will Goodell be able to use this de facto restraining order of Vick to say, in essence, an indictment of a player automatically empowers the Commissioner to prevent a player, for an indefinite period of time, from reporting for work? And is that a good or bad thing when the player's sole right to appeal entails an appeal to the very guy who came up with the penalty--the Commissioner--in a process that could produce documents eligible for subponena in a criminal prosecution?


Interesting post - a question and then a comment:

Q: What are the general rules for discipline in a collective bargaining situation? Can an employer modify conduct policies without union approval? Also, who is the employer here?

1. It is undisputed that the dogfighting occurred on Vick's property.

2. Assume it is undisputed that he knew about it (I don't know) and that he claimed he didn't.

Aren't those two facts enough to trigger any reasonable conduct policy, with or without indictment or conviction?

Anonymous Michael Risch -- 7/25/2007 7:59 AM  

M. Risch,
I would suggest that the league could not modify any conduct policies without union approval because I believe a conduct policy is a "working condition." Since wages, hours and working conditions are mandatory subjects of collective bargaining the NFLPA would be within their rights to demand approval.

Anonymous Brad Jones -- 7/25/2007 8:44 AM  

I think the Vick situation really highlights the importance of due process in any system that ultimately imposes discipline for misconduct. One obvious importance is getting to the truth of the matter and making sure that the accused has his/her day in court, etc., etc. But the other less obvious important aspect of due process is that it prevents arbitrary enforcement. When the commissioner has complete discretion to define what player misconduct is detrimental to the game or the integrity of the sport, combined with no right of appeal to a neutral decision maker, it will naturally lead to arbitrary enforcement. David Stern, before he issues discipline in any given situation, needs to make sure that what he is doing is "fundamentally fair" because otherwise it's most likely going to be overturned by an arbitrator. Goodell doesn't have those concerns because there is no neutral arbitrator.

When there is no check on the commissioner's authority, the reality is that a player's conduct doesn't even need to affect the integrity of the sport because the NFL commissioner can make his decisions based upon whatever reasons and factors he wants, i.e. the player was allegedly engaged in an act of misconduct that just irritates him personally, or because the player is a star or not a star, or because there is bad blood between the player and the commissioner based upon something that happened in the past between them, or because he wants to send a message that player misconduct will not be tolerated -- none of which would obviously be acceptable reasons to any neutral arbitrator. And anybody could say, why would the commissioner do that? Well, why is it important to the commissioner that Vick has his day in court, but it's not as important for Pacman? Why is Vick only suspended from training camp and not a full season when the alleged conduct involves something that has many more people outraged (and rightfully so, which goes to the image of the product) than what Pacman allegedly did? If the players don't like arbitrary enforcement, then they need to change the system and they have the ability to do that.

The common response to all of this is that employers in society can fire their employees for any reason, so why should players be treated differently? I have two responses. First and foremost, the players are not at-will employees; they are unionized, which has obvious implications under the labor laws. Secondly, even at-will employees have some recourse, for example, the employer can't terminate employment based on age, sex, race, and there are usually arguments the terminated employee can assert based upon employee handbooks and policies in place that expressly or impliedly put certain limitations and conditions on the right to terminate. So while the players have the ability to ensure that there are due process protections in place, they have a process in place that actually affords them less protection than at-will employees because they have no recourse whatsoever against decisions made by the commissioner. Any judge is going to say, "you lose because you agreed that your exclusive remedy was to appeal to the commissioner."

And I don't see how Vick can allege breach of contract against the Falcons. The Falcons didn't suspend him; the commissioner did and he was well within the authority granted to him.

Blogger Rick Karcher -- 7/25/2007 10:20 AM  

Professor Karcher,

Two comments about the comparison between Pacman Jones and Vick.

1. "why is it important to the commissioner that Vick has his day in court, but it's not as important for Pacman?"
-This is Vick's first offense, whereas Pacman has been arrested five times. It seems that Commissioner Goodell has been dealing out the game suspensions to, as Charles Barkley so eloquently put it on Sportscenter, "habitual fools." Repeat offenders seem to be getting the game suspensions.

2. "Why is Vick only suspended from training camp and not a full season when the alleged conduct involves something that has many more people outraged (and rightfully so, which goes to the image of the product) than what Pacman allegedly did?"
- Pacmans allegedly told a person that he was going to kill him. Now, even though the American public is outraged by what Vick allegedly has done, it is not the same as if something happened to a human being. Also, one of the security guards involved in Pacman's scuffle in Las Vegas has been paralyzed from the waist down. This may be part of the reason. Just my humble opinion.

Anonymous Chris Smith -- 7/25/2007 12:23 PM  

Thanks, Professor McCann, for the mention in your post and also for the quote in the story itself.

I have attached the web address for those that might want to read the whole story without having to register with The Beacon. It seems that it requires you to register to read the third page. Enjoy.

Anonymous Adam W. -- 7/25/2007 12:55 PM  

Prof. Karcher: I am a big believer in due process, too. However, is there ever a situation where you would not believe in due process? I mean you, personally. For example, if you owned a small business and could "hire or fire" at will for good cause, just cause or no cause, do you believe in that principle as well? I'm not being critical, but I just want to know your feeling on that based upon the statement you made about any "system" which imposes discipline for misconduct. Thanks.

Anonymous Anonymous -- 7/25/2007 1:16 PM  

I have a question in regards to this quote from the original post:

The NFLPA "which acquiesced to the new personal conduct policy, although not apparently through formalized collective bargaining..."

I have been following this story over the past few months and have enjoyed the subsequent commentary. Why do you believe this was not done through collective bargaining?

Is the issue, as Prof. Karcher has questioned, whether the six player committee was sufficient under collective bargaining law?

I am not an expert in this area, although I did do some research and while there may be some questions on how to properly classify the NFL/NFLPA as a "multi-location" or "multi-employer" the overwhelming trend to determine an appropriate unit for collective bargaining seems to be the "community of interest test," which I believe would be satisfied by the six player committee.

Thanks for all the work.

Anonymous Anonymous -- 7/25/2007 2:13 PM  

Also, for the purpose of jury selection in any potential trial, wouldn't a league suspension (which in this case would be extremely well publicized) create a source of significant bias amongst potential jurors?

Although the personal conduct policy does not require a criminal conviction, if Goodell suspends Vick, there will be individuals who see it as more or less a guilty verdict, especially pending Vick's reaction.

So is it inaccurate to say that any league action could have significant ramifications on Vick's legal decision-making?

Blogger Satchmo -- 7/25/2007 4:14 PM  

Can someone speak to the fact that Goodell has said he'll be continuing an independent investigation into the matter to determine his final decision regarding Vick and football and that he expects cooperation and to talk to the Feds in an effort to determine the strength of the charges?

Does this seem like a huge problem for his defense to anyone but me?

It just wreaks of conflict, this non-legal entity assessing the case without standards of evidence and the like. And by the nature of the process, only assessing one side of this adversarial dynamic.

Anonymous SportsDiva -- 7/25/2007 5:32 PM  

Anon 1:16,

The answer to your question to me is yes, when I discipline my kids.

Anon 2:13,

The issue isn't about what the appropriate unit is for collective bargaining. The bargaining unit consists of all players.

Blogger Rick Karcher -- 7/25/2007 6:29 PM  

Great comments, thanks to all of you for taking the time to share them.


Those are very thoughtful observations. I agree that Commissioner Goodell was within his rights, as apparently accorded by the NFLPA, to take action against Vick, but I share Rick's concerns about the lack of underlying process in the new conduct policy, and I wonder whether a precedent is being established based on a particularly egregious set of alleged facts, whereas future cases may be murkier.


I agree, conduct policies need to be collectively-bargained in pro sports league settings.


I agree completely. The conduct policy offers no check on authority and little, if any, underlying process--it basically seems to be whatever the Commissioner deems is right and wrong. While the NFLPA can certainly agree to that arrangement, you and I obviously don't think it's a good system.


You raise some good distinctions between Vick and Pacman, the latter of whom, if we are to believe the allegations, seems to have engaged in far worse behavior.


Great story and I hope our blog's readers check it out.

Anonymous 2:13,

Thanks for your research. You raise a good argument for the six-player committee comprising a valid representation of the bargaining unit. I believe, however, that the NFLPA has specific rules on what counts as collective bargaining for their bargaining unit, and my understanding is that many NFLPA matters require involvement from a significant percentage of players. How any of that bears on this particular decision by the NFLPA is still, from what I can tell, unclear.

Will (Satchmo),

You raise a good point about league action biasing potential jurors. I imagine a similar problem arises whenever an employee is suspended or terminated by an employer for alleged criminal activity. As you note, however, that problem seems amplified here given the intense and wide-spread public attention paid to NFL matters, especially those involving star quarterbacks.


You raise a good point about the potential conflict of interest between Goodell and the government. I agree that there is a risk of Goodell discovering information that may be used against Vick in a criminal trial. In fact, it seems possible that some of the information Goodell obtains and shares with the government may not otherwise be discoverable to the government during the discovery phase.

Blogger Michael McCann -- 7/25/2007 9:02 PM  

Professor--couldn't Vick (or any of the other repeat fools) be punished under a conduct detrimental to the league clause in the CBA (assuming one exists), or be hauled up by the league under "bringing the league into disrepute" clause, or simething similar?

Anonymous Anonymous -- 7/25/2007 11:41 PM  

"Pacmans allegedly told a person that he was going to kill him. Now, even though the American public is outraged by what Vick allegedly has done, it is not the same as if something happened to a human being. Also, one of the security guards involved in Pacman's scuffle in Las Vegas has been paralyzed from the waist down. This may be part of the reason. Just my humble opinion."

I'm not convinced about the outrage factor. When Ray Lewis was on trial, I sure didn't feel as sickened by the allegations as I do by the Vick allegations. Same with the Pacman claims.

After all, NFL players get into scuffles all the time, and sometimes bad things happen when fights get out of control (and action should be taken). The dogfighting allegations, however, are long planned, showed deliberate cruelty and depravity, and are against helpless animals where no one can argue that the animals "started it". If you had to take a poll, I would guess that people would say Vick's sentence (if proven guilty) should be much longer than Pacman's. Of course, that's just my opinion as well - people can differ.

Anonymous Michael Risch -- 7/26/2007 8:45 AM  

Will the NFL disclose information as to why Odell Thurman was denied reinstatment? While the Vick and PacMan situations get more press, Thurman will now be entering his second full season of watching from the sidelines. Maybe he should appeal this...oh wait...Goodell has spoken.

Anonymous eric -- 7/27/2007 1:21 PM  

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