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Monday, July 16, 2007
NBPA's View of Commissioner Suspensions Opposite of NFLPA's

On Saturday, NBA players Ron Artest and Stephen Jackson were suspended by the league without pay for the first seven games of next season resulting from off-court legal issues. Artest pleaded no contest to a misdemeanor domestic violence charge involving a dispute with his wife, and Jackson pleaded guilty last month to a felony charge of criminal recklessness for firing a gun outside a strip club last fall. Jackson has publicly stated that he accepts his suspension. However, the union is comparing the penalties to other recent suspensions given to players for off-court misconduct and is considering appealing the suspensions. NBPA executive director Billy Hunter says, "Based on prior precedent, we think the suspensions are excessive. We plan to confer with the players and their representatives to consider all of our options for appeal." In 2001, Ruben Patterson received a five-game suspension after he accepted a modified guilty plea to third-degree attempted rape for allegedly forcing his children's nanny to perform a sex act on him, and Eddie Griffin was suspended three games in 2004 after pleading guilty to a misdemeanor assault charge in Texas.

Hunter's view of the union's role in defending the rights of players disciplined (or to be disciplined in the future) by the commissioner for off-field behavior is radically different from Gene Upshaw's view. A few months ago, I raised a number of questions that should be considered by all NFL players regarding disciplinary action taken by the commissioner under the NFL's new personal conduct policy, which was implemented by the new commissioner after consultation with a small committee of six players and affords the commissioner unfettered discretion in disciplining players without any review by an arbitrator. However, the NBA commissioner's disciplinary action is reviewable by an arbitrator mutually selected by the union and the league (as is the case with MLB and NHL commissioner disciplinary action). The effect of subjecting the commissioner's disciplinary action to outside review by an impartial arbitrator should not be underestimated because it impacts the commissioner's initial decision to take disciplinary action as well as the level of suspension he imposes. An arbitrator reviews the commissioner's action under a just cause standard, ensuring that the imposed discipline is not arbitrary, unduly harsh or contrary to established precedent.

The NBPA is obviously concerned about due process as well as the financial impact that league suspensions without pay will have on its players. The NFLPA, however, seems to take the view that stricter league disciplinary action is warranted in order to "clean up the league". The NBPA views the league in an adversarial position and feels that the commissioner's disciplinary action should be scrutinized, even when it involves suspension of a player for a small fraction of the season. Conversely, the NFLPA views the commissioner more as a partner in a "get tough on crime" policy and puts a great deal of trust in the hands of the commissioner to do whatever he thinks is necessary, even if it means suspending a player for half a season or a full season. So here's my legal question for the week: What is the proper role of a labor union certified under the National Labor Relations Act in representing the best interests of its members accused of off-field misconduct and disciplined by the commissioner?


As a general rule, unions are empowered to sacrifice the best interests of an individual member for the best interests of the membership as a whole. Therefore, if the NFLPA believes that harsh penalties for off-the-field conduct are in the best interests of all players, then I do no see a problem. Similarly, the NBPA is justified in taking the opposite view.

Anonymous Anonymous -- 7/16/2007 9:46 AM  

Great post, Rick.

My impression is that a lot of fans and media don't like it when players' associations challenge league-imposed player punishments. There are a number of reasons for that, including, I suspect, the motive for closure, which psychologists have identified (i.e., even though we believe otherwise, we often care more about obtaining closure in a matter than finding justice for it). More generally, the motive for closure relates to why people often dislike attorneys who aggressively, perhaps zealously, defend their clients' innocence, even though that is their job and the ability of a defendant to obtain justice in some cases is almost completely reliant upon the competence of his or her attorney.

Another reason: a lot of people probably better identify with those in sports management positions than those playing in NBA and NFL games. If that is true, then those same people will likely be prone to interpreting ambiguous or contestable facts in favor of the league when a dispute emerges with a player.

One other point: I think there is value for a players' association in the very act of challenging a league-imposed punishment. I believe doing so enables the players' association to send a message that it too will impose a cost--be it time, money, energy, emotion--on the league and its officials when those officials engage in unilateral decision-making that adversely affects players without the consent of the players' association.

Blogger Michael McCann -- 7/16/2007 11:08 AM  

Following up on Prof. McCann's post, another likely reason why fans don't like challenges to league punishments is that most fans have no recourse from their own employers' disciplinary policies. Most fans are at-will employees who must either submit to their employers' demands or quit. Thus, its annoys fans when athletes -- who most fans see as having dream jobs -- also have the ability to flout their employers' rules with near impunity.

Anonymous Anonymous -- 7/16/2007 11:23 AM  

At least part of the NFLPA initiative is due to the team representatives, who apparently approached Upshaw as a group and demanded that the union take some action to deal with the rising tide of player misconduct issues. So to some extent the NFLPA's stance is a reflection of the concerns of its members. Whether the union is too deferential is another issue--but the union continues to strongly challenge disciplinary forfeitures relating to reachback provisions in the player contracts, so the deference only goes so far.

Anonymous Anonymous -- 7/16/2007 12:46 PM  

This will be a PR nightmare for the league either way.

Thugs have rights, even when their behavior infringes on the sullying their employer. The union would be wrong not to look into this situation, as it was established to challenge and protect players from actions just like this.

Blogger Jarrett Carter -- 7/16/2007 2:31 PM  

I agree with Jarrett, the Players Association would be wrong not to look into to the suspensions. As a general principle, the union should always look into player discipline in order to serve their clients needs. However, the fact that they look into it does not mean that they nessecarily have to challenge the ruling.

Personally, I prefer the NFL / NFLPA approach to this problem. There is a need to clean the sport up, and they are taking drastic but justified steps to do so. I have always looked at the NBA disciplinary actions as somewhat of a joke, they are rarely for any significant period of time, and really does little to discourage disruptive and illegal behavior.

Blogger Jimmy H -- 7/16/2007 3:40 PM  

Anon 9:46,

It's obvious that each union has a different "belief" (as you put it). I just think it's interesting (and rare) for each union to take the extreme opposite view on a fundamental issue regarding what's in the best interest of the players. For example, all unions are in agreement that it's in the best interest of the players to get as large a share of the "revenue pie" they can get. How that gets accomplished may take a variety of forms and combinations that gets heavily negotiated (i.e. free agency, salary cap or no salary cap, revenue sharing, minimum salaries, luxury tax, etc.), but the basic understanding and objective of the unions on the fundamental issue is the same -- to maximize revenue for the players.

With league discipline, the unions disagree on whether it's in the best interest of the players to do so. How can it be in the best interest of the players under both situations --aggressively fighting the commissioner whenever he imposes discipline vs. affording the commissioner complete discretion to impose any discipline he wants -- when the two are diametrically opposed? Which one is in the best interest of the players, and why?

Michael and Anon 11:23,

You both comment on the fact that fans don't like it when the PA challenges league discipline. Another way of saying it is that player off-field misconduct impacts the league's product. My personal view is that player off-field misconduct does not impact the league's product, but let's assume for sake of argument that it does. Generally speaking, do you think it is the role of a certified union to be concerned about the employer's product in serving the best interest of its members? A union's basic role and reason for its existence is to negotiate with the employer to get the most favorable "wages, hours and working conditions" for its members. Let's face it, labor unions have never fared well in the public opinion polls, and that's because the positions taken by labor unions naturally tend to conflict with the interests of the consumer of the employer's product. But if the league's product and public sentiment are in fact valid concerns of the union, where do you draw the line on that? I mean, the fans also think that players are grossly overpaid spoiled brats, and so I suppose one could argue that it would be better for the league's product if players made less money.

Anon 12:46,

It's interesting how you say that the team representatives "apparently" approached Upshaw on this issue. All I think we can say for certain is 1.) that the commissioner unilaterally implemented the new personal conduct policy and 2.) Upshaw and a committee of only 6 players consulted with the commissioner about it. The player representatives of the teams did not vote on it. I don't think we even know how the committee of 6 players was formed -- if somebody has backup on that I would appreciate it.

Jimmy H,

You said there is a need to clean up the sport and the NFLPA/NFL are "taking drastic but justified steps to do so". I agree that they are taking drastic steps, but why is it justified? Is it justified because you think it will deter players from engaging in off-field misconduct and thus it benefits society as a whole? [Because I seriously question whether it acts as a deterrent.] Do you think that it sends an important message to young athletes of the world that it's wrong to shoot a firearm outside a strip club? The justification can't be a concern over safety in the workplace.

Blogger Rick Karcher -- 7/16/2007 4:43 PM  

I think it's being overlooked that the players have interests other than strictly financial ones. If, for instance, they find people treating them as drug crazed thugs, they'd have an interest in changing public perception of their profession. Lawyers might have some sympathy for such efforts.


Anonymous Anonymous -- 7/16/2007 6:51 PM  

Rick @ 4:43...Great Post!

I just don't think the NFLPA's partner-like dynamic with the League is in the best interests of the players. I think this dynamic leads to a pattern of eroding due process and strangley mirrors the rest of society in my opinion.

I have absolutely no legal background, just a sports loving layman here.
Checks & Balances from a common sense standpoint, not even a nuanced or informed legal one, seems like one of the most important, impressive & ingenious components to our system of governance and justice.

The NBAPA stance honors that, the NFLPA's doesnt.

Anonymous SportsDiva -- 7/17/2007 11:41 AM  


You ask: "How can it be in the best interest of the players under both situations --aggressively fighting the commissioner whenever he imposes discipline vs. affording the commissioner complete discretion to impose any discipline he wants -- when the two are diametrically opposed?"

Two responses:
1) The situations are different. Football players have more to lose (whether financially or otherwise) from the continued malfeasance of their colleagues, so harsher punishments are needed. Further, football players want to make clear that they collectively support the overall view of the Commissioner, and thus refuse to second guess him at every turn.

2) We cannot know what's best for players; therefore, we should defer to their representatives. Even if one union is "right," (to the extent there can be one "right" solution when every situation is necessarily different) we cannot know which one that is, so both unions should be allowed to do what they're doing.

Anonymous Anonymous -- 7/17/2007 1:40 PM  

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