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Thursday, April 22, 2010
 
Will Ben Roethlisberger's 6-Game Suspension Stand?

Yesterday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player suspended by Commissioner Roger Goodell who has not been charged or convicted of a crime. Whether this suspension will stand, however, depends upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement.

First, whether the NFL Personal Conduct Policy is even part of the NFL Collective Bargaining Agreement ("CBA") is not entirely clear. NFL club-owners announced the league's current Personal Conduct Policy on April 10, 2007, which postdates the most recent CBA. While the NFL Personal Conduct Policy was informally approved by a group of NFL players, the NFL Personal Conduct Policy was never written and signed into the CBA (at least not according to publicly available information). This may present a problem for Commissioner Goodell's enforcement because Article LV, Section 19 of the NFL CBA states that "[n]one of the Articles of this Agreement may be changed, altered, or amended other than by a signed written agreement."

Second, presuming the NFL Personal Conduct Policy is not deemed part of the NFL Collective Bargaining Agreement, Commissioner Goodell may alternatively argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for "being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football." Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not altogether clear that Ben Roethlisberger has done anything "detrimental to the League or professional football," nor that he is in any way "guilty" as the term may be defined by that paragraph.

Finally, it is worth noting that Paragraph 11 of the NFL Player Contract grants individual club owners the power to terminate any player contract if that player "is engaged in personal conduct, reasonably judged by [the club] to adversely affect or reflect on [the club]." This clause seems to be far broader than Paragraph 15 of the NFL Player Contract and may present grounds for the Steelers to terminate Roethlisberger's contract. However, this clause extends only to a player's team, and not to the Commissioner, who is acting on behalf of the league overall.

(Cross-posted on SportsJudge Blog)





7 Comments:

Marc, I recall having this debate years ago on the blog when the new policy was implemented. You raise some interesting questions, but the crux of the matter is that the players don't have, and never have had, the ability to appeal the commissioner's decision to a neutral arbitrator. Unless and until that changes, we're wasting our breath.

Blogger Rick Karcher -- 4/23/2010 6:51 AM  


Rick,

You might be right. I think a suspended player would still have two rights of recourse--filing suit into the courts (dealing with the very difficult threshold of arguing the commissioner/arbitrator's decision was arbitrary/capricious/induced by fraud) or challenging the suspension under antitrust law as an illegal group boycott lying outside of the non-statutory labor exemption).

As the the second point, there is bad case law in the Second Circuit (Molinas case) and the Seventh Circuit (American Needle). However, I do not consider it beyond the realm of possibility.

Maybe, however, I am just repeating old arguments from past debate :)

Blogger Marc Edelman -- 4/23/2010 9:17 AM  


Rick,

You might be right. I think a suspended player would still have two rights of recourse--filing suit into the courts (dealing with the very difficult threshold of arguing the commissioner/arbitrator's decision was arbitrary/capricious/induced by fraud) or challenging the suspension under antitrust law as an illegal group boycott lying outside of the non-statutory labor exemption).

As the the second point, there is bad case law in the Second Circuit (Molinas case) and the Seventh Circuit (American Needle). However, I do not consider it beyond the realm of possibility.

Maybe, however, I am just repeating old arguments from past debate :)

Blogger Marc Edelman -- 4/23/2010 9:18 AM  


Just curious, but if Management (with "approval" of some union members) introduced the personal conduct policy, and it has not been challenged by the union to date, is there a waiver argument that the NFL would make insofar as barring a challenge to a change in terms and conditions of employment? If this is true, wouldn't the argument begin and end there?

Blogger Bram -- 4/23/2010 10:55 AM  


fan of ........Ben Roethlisberger ....no matter parts and parcel of game

Anonymous martial arts training -- 4/29/2010 8:03 AM  


Fellows,

I had a similar situation in Australia last year involving a young soccer player about to embark on the World Cup.Didn't work out well for the player. Court intervention was considered inappropriate and the matter dealt with by the governing body. We have posted a lay version on our website legalprofessionals.net.au

Robert Stephen

Anonymous Robert Stephen -- 5/01/2010 7:37 PM  


Marc, interesting post. Big picture view, I don't know if the Commissioner should have this type of authority. What I'm meaning is, should the Commish be judge and jury on incidents that fall into the realm of the police and legal system? Not meaning to simplify this, but I'm not a lawyer. Just a concerned sports fan. By doing this, it would seem he undermines the legal process and control of the Steelers football club.

Thanks, JP
Sports-Cola
http://sportscola.wordpress.com

Blogger JP -- 5/02/2010 8:38 PM  


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