It has been a difficult year for the NFL and its Commissioner,
Roger Goodell. At the crux of the bad press directed at the NFL, and the Commissioner’s
adjustments to the League’s personal conduct and domestic violence polices,
stand NFL players Ray Rice and Adrian Peterson. Just this month, the NFL Commissioner
announced that Adrian Peterson, who in May of this year disciplined his son by
hitting him with a switch, is suspended for the remainder of the NFL season.
Earlier this month, Goodell held a hearing regarding Ray Rice’s appeal of his
indefinite suspension, which was handed down by Goodell on September 8, the
same day TMZ released video footage depicting Rice violently punching his
then-fiancé (now wife) in the face, knocking her to the ground of the elevator
where the altercation occurred.
Yes, the actions of Rice and Peterson are despicable
and deserving of punishment. Yes, Roger Goodell is in a position to issue
punishment as the player-employer relationship in the NFL is one based on
consent and defined by agreement as stipulated in the standard player’s
contract.[1] And
yes, the NFL through its policies and advertisements can be a powerful force in
attempting to eradication domestic violence through programs designed to educate,
train, and assist the many people who have felt the effects of domestic
violence. However, the disconnect between the NFL’s conduct polices and the
rights afforded to the criminally accused, and the seemingly arbitrary
standards and endless discretion afforded to the Commissioner throughout the
NFL’s investigative and disciplining processes, greatly disfavor NFL players
who (allegedly) commit acts that are “detrimental to the integrity of and
public confidence in the NFL.”[2]
A brief background of the events that led to the Rice
and Peterson suspensions will shed light on the many flaws that are prevalent
when the NFL investigates and disciplines its players. Ray Rice was arrested on
February 15 for assaulting his then-fiancé, Janay. Four days later, a partial video
was released that showed Rice dragging Janay’s body from an elevator. Rice was
indicted on March 27, and then suspended by Goodell for two games on July 24.
On August 28, the NFL and Goodell issued a new
domestic violence policy, in which first-time perpetrators
of domestic violence receive a six-game suspension, and a second offense
results in a lifetime ban from the NFL. On September 8, the previously unseen
first half of the video surfaced. This
clip showed Rice violently punching Janay in the face in the elevator prior to
Rice dragging her body out of the elevator. That same day, Goodell suspended
Rice indefinitely.
Adrian Peterson was indicted on September 12 for
allegedly hitting his son with a switch, or a flexible tree branch. On
September 19, Goodell publicized his plan to further
adjust the NFL's personal conduct policy. On November
4, Peterson accepted a plea bargain, reducing his felony child-abuse
charges to a single charge of reckless assault. Then, Goodell suspended
Peterson indefinitely on November 18.
The flaws in the NFL’s disciplinary procedures can be broken
into two categories: Goodell’s endless discretion under the NFL’s Personal
Conduct Policy, and the higher standard of conduct the NFL is placing upon its
players.
The NFL Conduct Policy authorizes
the Commissioner to “impose discipline as warranted.”[3]
NFL players are judged at
the Commissioner's discretion and cannot appeal punishments to an independent
body.[4] The
Commissioner is the only person authorized to review the reasonableness of his
decision under the Policy. This appeal process, or lack thereof, gives Goodell
unchecked authority to make disciplinary determinations, and it leaves the
players with no avenue to appeal a decision that may have constituted a gross
abuse of discretion.
The Commissioner’s discretion allows him to issue a decision
at anytime he sees fit. As seen in the Rice case, the Commissioner may issue a
ruling on a player before the player’s judicial proceedings are completed. The
Commissioner’s ability to act before the judicial process is complete can be
seen as a violation of the players’ due process rights. Simply put, due process
is the requirement that the government must respect the legal rights afforded
to all persons. Although an individual’s due process rights are intended to
protect him or her from federal (Fifth Amendment) or state (Fourteenth
Amendment) government intrusion, the concepts are applicable to the conduct
policies of the NFL.
Through fines, suspensions, and other means, the Commissioner
has the ability, arguably even more so than the government, to deprive NFL
players “of life, liberty, or property without due process of the law.”[5] The requirement of due process is the only
command the Constitution states twice. Why should we allow the Commissioner
such broad discretion to violate the principles of due process, when those who
drafted the Constitution deemed it to be the most important protection afforded
to all persons? Regardless of the fact that NFL players consented to the
Commissioner’s discretion to issue punishment, that discretion must be limited
in significant ways so as to increase the legitimacy of the office of the Commissioner
and decrease the likelihood that players are unjustly punished.
Coupled with the Commissioner’s endless discretion to impose discipline
is the high standard imposed on NFL players. The NFL Conduct
Policy states
that criminal activity is clearly not permitted, but it continues, stating, “…the
standard of conduct for persons employed in the NFL is considerably higher. It
is not enough simply to avoid being found guilty of a crime.”[6]
Is this “not guilty is not enough” standard fair? Obviously it directly
contradicts basic due process rights and the commonly held notion of “innocent
until proven guilty.” This standard also directly contradicts Goodell’s new
domestic violence policy, which states that the NFL will
address issues of domestic violence “fairly and thoughtfully, respecting the
rights of all involved and giving proper deference to law enforcement and the
courts.” How is Goodell “giving proper deference to…the courts” by issuing
fines and suspensions prior to the resolution of a given player’s legal
proceedings? The determinations from judicial proceedings must be given greater
weight when the Commissioner is a disciplining player, and this can only happen
if the Commissioner is required to wait until the judicial process is completed
before he is allowed to issue punishment.
Moving forward, the NFL and Roger Goodell have an
uphill battle in their efforts to restore the respect and support fans once had
for the NFL. One step taken thus far is the NFL’s No More Campaign,
in which players are saying “ no more” to domestic violence and sexual assault.
Goodell’s decision to
not hear Adrian Peterson's appeal is another step in the right
direction. However, comprehensive modification to the NFL’s conduct and
disciplinary proceedings must occur. Until that time comes, players will
continue to be subjected to the Commissioner’s endless discretion to determine
guilt and issue punishment, all of which occurs outsides the due process
safeguards afforded to all persons under the Constitution of the United States.
26 November 2014
[1] Walter T. Champion, Fundamentals of Sports Law (Part II
Constitutional Implications, § 14:4 Professional Sports), (2nd ed. 2013) available at https://a.next.westlaw.com/Document/If65c11555b6e11da914cdc8cb459040e/View/FullText.html?originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
[2] See Personal Conduct Policy, National Football League (2014), available at http://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf
[3] See supra note 2.
[4] Id. All appellate hearings are held “pursuant to Article XI of the
[NFL] Collective Bargaining
Agreement.” Id.
[5] U.S. Const. amend. V
and XIV
[6] See supra note 2.
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