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Wednesday, March 23, 2011
On Creeping Underwear, Drooping Pants, and the NFL Personal Conduct Policy during the Lockout

Dress codes often generate controversy. Consider the debate following the NBA adopting an off-court dress code 5 years ago. Dress codes attract critique because they normally limit attire choices to those considered mainstream, while disallowing dissenting styles, typically on grounds that unconventional attire can be "unprofessional" or "inappropriate." From time-to-time, dress codes have also been viewed as insensitive to various race, ethnic, gender, and religious concerns. Nonetheless, dress codes are usually legal, and that is true of those imposed by malls, which want to ensure a positive shopping experience for customers.

Would a rule that doesn't let a mall patron show his/her underwear be a rule that you support or find offensive? Count me in the support category.

Dallas Cowboys wide receiver Dez Bryant may not agree. He learned about such a rule this past weekend when he and three friends were kicked out of NorthPark Center, an upscale Dallas shopping mall.

Their mistake? Wearing "drooping pants", which apparently is another description of sagging pants, the effect of which is to expose one's underwear, a violation of the mall dress code. To compound Bryant's problem, he got into an argument with police officers who were working off-duty as security officers at the mall and was issued a criminal trespass warning:
According to the official police report, Bryant and three friends were stopped by the uniformed, off-duty officers working security shortly before 8 p.m. at the popular shopping center after they were observed "wearing their pants halfway down their hips exposing their underwear."

The police asked the men to pull their pants up.

"Mr. Bryant’s response to the request was profanity laced and [NorthPark] center representatives felt the outburst merited a request for Mr. Bryant to leave the premises," according to a Dallas police statement issued Tuesday evening.

"What the [expletive] are you stopping me, like I stole something," Bryant was quoted as saying by a News 8 source. "I'm not leaving until my attorney and my representative get here."

Police said Bryant continued cursing as the off-duty officers escorted him to his vehicle.

"Mr. Bryant entered his vehicle but parked in a fire lane still refusing to leave, necessitating a request for on-duty officers to respond to the location," the Dallas police statement said.

To read the Dallas Police Report, click here. Bryant, for his part, claims his pants were actually up and that he was respectful to the officers.

While the facts of the incident are in question, the incident is clearly embarrassing for Bryant and the Cowboys, and maybe the NFL, too. And under the NFL's Personal Conduct Policy, commissioner Roger Goodell can issue a sanction for any behavior that he deems detrimental to the league's image.

But is the league's personal conduct policy still in effect during the lockout? The league says yes and that it will assign penalties for misbehavior during the lockout after the lockout ends. The NFLPA has chosen not to opine on whether the policy is still in effect.

I'm not sure the league is right. During a lockout, a player is completely separated from his employment with the team and the league as a whole - and, unlike with a player strike, the only way for that separation to end is for the league to end the lockout. The player can sign with a team in another pro football league or take on some other employment; he's not getting paid any salary or receiving any benefits from his NFL team, so why should he be obligated to follow the NFL's personal conduct policy?


Assuming, for the sake of argument, that the parties are at impasse, and further assuming that the policy was in place at the time impasse arose, it seems to me the employer still has the right to retain and enforce the policy. I don't agree with that necessarily, but all in all it's pretty basic labor law.

Blogger Tribe -- 3/23/2011 10:28 AM  

But are they at an impasse or has the collective bargaining relationship ended? And if its the latter, why would the conduct policy remain in effect when it was borne from the bargaining relationship? I understand that if the parties continue to bargain in good faith, the terms of the prior CBA can remain in effect, but it would seem -- depending on what the NLRB and Judge Nelson decide in the coming weeks -- that a decertified players' association and locked out players have no collective relationship with the NFL.

Blogger Michael McCann -- 3/23/2011 10:45 AM  

The contractual angle is quite interesting. I'm trying to analogize NFL Player's with workers in other striking or locked-out industries but I can't think of one where the personal conduct policy is so invasive and pervasive.

Anonymous Jason Chung -- 3/23/2011 11:09 AM  

Do not think NFL can enforce policy since the union decertified; as such terms of CBA do not apply. What about individual contracts though? Do not see how NFL can impose a lockout, denying benefits on one hand then seeking to enforce terms in that contract.

Blogger qtlaw24 -- 3/23/2011 1:03 PM  

If the bargaining relationship has ended, than an employer has the right under current labor law to implement any term and condition it wants, subject to whatever applicable federal and state law there is. In the absence of any particularized law restricting an employer from regulating employee conduct off the job, I'd say the NFL has the right to do so. Again, I think it's unfair, but I don't think it violates any law I'm aware of.

Blogger Tribe -- 3/25/2011 12:29 PM  

In regard to antitrust law, I just know enough of it to use the statutory and non-statutory labor exemption to protect a client when the need arises. But I don't see how antitrust law would preclude an employer from regulating private employee conduct. For instance, myriad employers in the private sector have generalized policies of not employing felons, for example. I'd be surprised if that gave rise to an anitrust violation.

Blogger Tribe -- 3/25/2011 12:31 PM  

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