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Saturday, November 08, 2008
 
Spies are Among Us

Ironically, on the same day that I'm at Seton Hall University School of Law (yesterday) speaking about the overly broad discretion afforded the commissioner under the NFL's personal conduct policy implemented by Roger Goodell last year, the Wall Street Journal's Hannah Karp published a really interesting piece on how NFL teams are now spying on the players off the field (Why the NFL Spies on its Players, 11/7/08). Karp reports: "To guard against these unpredictable suspensions (there have been 10 so far), NFL teams are hiring former police officers and FBI agents as security chiefs, ordering up extensive background checks, installing video-surveillance systems in locker rooms, chasing down rumors and sometimes forbidding players from talking to the press. During a recent road trip, the San Diego Chargers not only conducted bed checks, but placed guards in the hotel hallways to make sure players didn't sneak out. The Seattle Seahawks have declared an entire downtown entertainment district off-limits, and the Denver Broncos have begun sending a former cop to local nightclubs on weekends to make sure the players behave."

Karp notes that the players are getting fed up with it and are speaking out against the new conduct policy:
The increased scrutiny has taken a toll on some players, including Broncos defensive tackle Marcus Thomas. Last year, after the policy was announced, Mr. Thomas had called his agent in a panic: He said he was convinced he was being followed by "a white man in sunglasses" who had been sent by the NFL. A league spokesman says NFL security did not follow Mr. Thomas.
Offensive lineman Langston Walker of the Buffalo Bills, who has an economics degree from the University of California at Berkeley, is no fan of the new code, which he considers too aggressive. When someone intentionally spilled a drink on him at a Los Angeles bar recently, Mr. Walker says he was worried about how the NFL's discipline czars might have reacted if things had escalated. "When you start not to trust your own organization or governing body, who can you trust?" he says.
Cleveland Browns tight end Kellen Winslow, Jr. says, "I think the player-conduct policy can be very subjective at times and might need some restructuring to clearly define what is and is not considered conduct detrimental, so it is not improperly imposed."

Under the previous conduct 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. The new conduct policy provides: “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. Repeat violations of the personal conduct policy will be dealt with aggressively, including discipline for repeat offenders even when the conduct itself has not yet resulted in a conviction of a crime.” The NFLPA says the personal conduct suspensions and fines have been excessive, "particularly in cases where a player has been accused of but not found guilty of a violation of law." One of the problems as I see it, and I discussed it last year on the blog, is that there is no check on fairness because the commissioner's disciplinary action is not subject to a "just cause" review by a neutral arbitrator (as is the case in the other sports).

Player discipline is a mandatory subject of collective bargaining. The new conduct policy is not in the CBA. If the players are serious, they should consider challenging Goodell's policy on the grounds that it was not collectively bargained for even though (according to previous press reports) the new policy was assented to by a 6-player committee.





8 Comments:

Rick,

While I don't disagree that the new NFL regime is going to extreme measures here, I'm not entirely convinced that it is all that bad either. Granted, the non-criminal/non-conviction part of it is troubling, and aside from the point that this should be part of the CBA and not simply an NFL decision...

1.I have no problem with the actions of private, for-profit businesses (Seahawks, Chargers) taking steps to ensure that their product is not harmed by the conduct of its players off-field actions.
2.In a time where the big leagues (NFL, NCAA, NHL, NBA, NASCAR) are all competing for the top dollars, public opinion is crucial

The fact that teams are closing ranks on the players might not be a bad side-effect of the new NFL policy, be it right or wrong….

Blogger Jimmy H -- 11/08/2008 11:58 PM  


I recently completed a law review comment on NFL players' availablity of appeal that will be published in Spring 2009.

From what I found, the NFL conduct policy greatly reduced a player's ability to appeal a fine or suspension that was issued based on the "best interests" clause, and that there needed to be a refined appeals process that allowed at least a chance of success.

I think that the NFL conduct policy as a whole inhibits on player's rights when comparing their situation to a normal employer situation. Incidents such as a DUI, domestic disturbance (police called to a house), etc., while unfortunate, would not cause someone to be fired from their job. And while I understand that the leagues are in a public domain, I think that if any discipline is appropriate, it would make more sense for individual clubs to issue punishment.

Blogger Matthew -- 11/09/2008 12:52 AM  


Jimmy,

But aren't the two "Granted" things you mentioned pretty significant? And regarding your No. 2 point, I think there is a very tenuous connection between a "get tough on crime" policy and any economic impact on the league's product.

Matthew,

Great point. Discipline seems more appropriate at the individual club level because the team is in a better position than the commissioner to assess whether a player's misconduct is a distraction or has a detrimental impact on the team, and to assess the appropriate disciplinary action to be taken under the circumstances. The team has a greater incentive to impose discipline that is fair, but also to not be too lenient on the player so as to maintain team discipline and control. The team, unlike the commissioner, is not likely to make an example out of an individual player by imposing an excessively harsh sentence on that player with an ulterior motive of sending a message to all players that "this conduct is not to be tolerated in the NFL." Also, under the NFL CBA, a player can appeal the team's disciplinary action to a neutral arbitrator.

Blogger Rick Karcher -- 11/09/2008 8:31 AM  


Rick,

My intent was not dismiss the CBA and non-criminal/non-conviction points that you mentioned in the original post. They are both valid and significant. My point was more that the extreme measures taken by the NFL seems to have trickled down to the team level. And I agree with both you and Matthew that player discipline absent very compelling circumstances are more appropriate at the team level rather than league level.

However, I do think there is more than a tenuous connection between public perception of players run amok(not necessarily criminal in nature) and the economic impact on both teams and the league. Most teams have had a very nonchalant approach to player discipline, in many cases not addressing it until it has gotten out of hand, or simply making apologies for the players conduct rather than actualy taking any kind of action.

I think it is a good thing that teams are taking a proactive approach rather than a reactive one. And if we are to gleam anything positive out of the leagues new policy, perhaps that would be it.

Blogger Jimmy H -- 11/09/2008 7:53 PM  


Jimmy,

As far as economic impact, I have never met anybody who said to me that they are no longer an NFL fan because of what players do off the field. [Your experience may be different.] But I do know some who say they don't go to games anymore or as often as they used to because tickets cost too much or because the fans are drunk and out of control. Off-field misconduct has an impact on endorsement opportunities, but that's more of a concern to the players than the league.

And not all teams take a nonchalant approach -- it depends upon what the player did. The Panthers suspend Steve Smith earlier this year for punching out a teammate. A couple of years ago, the Supersonics suspended Rashard Lewis for a game without pay for reckless driving.

Blogger Rick Karcher -- 11/10/2008 7:13 AM  


Jimmy,

As far as economic impact, I have never met anybody who said to me that they are no longer an NFL fan because of what players do off the field. [Your experience may be different.] But I do know some who say they don't go to games anymore or as often as they used to because tickets cost too much or because the fans are drunk and out of control. Off-field misconduct has an impact on endorsement opportunities, but that's more of a concern to the players than the league.

And not all teams take a nonchalant approach -- it depends upon what the player did. The Panthers suspend Steve Smith earlier this year for punching out a teammate. A couple of years ago, the Supersonics suspended Rashard Lewis for a game without pay for reckless driving.

Blogger Rick Karcher -- 11/10/2008 9:53 AM  


Rick, interesting article. But I believe that this is something that is a long time coming. As an employer, the NFL is entitled to set the parameters (of course as long as it was collectively bargained) of employment. The players need to be reminded that their conduct is a reflection of the league and more importantly, their employment is a privilege, not a right. While the economics may not perfectly align, with respect to a fan continuing to patronize a team with bad actors, I think the NFL is entitled to send a clearer message, a message that society needs to demand, that those who do not adhere to the proper conduct will lose their privileges.

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