Tuesday, February 3, 2015

The NFL Commissioner and his Ability to Punish Players: How far is too far?

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.

Max Montag, Staff Editor 

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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