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.

Superbowl XLIX. What are we really looking forward to? Is it who wins? Is it the over-the-top commercials? Is it Katy Perry's halftime performance?

If you chose who wins, or are most interested in watching the game regardless of who wins, you might be surprised to know that only 11 minutes of the 4 hour program is actual playtime of the Superbowl.

What consists of the other 3 hours and 49 minutes? 75 minutes consist of scrimmaging or players just standing around while referees are on the field deciding a call. Commercials consist of about 40 minutes, while replays consist of about 25% of the game.

Regardless, the Superbowl is always a perfect excuse to get together with friends and family, and eat exceedingly bad food.

The most popular food for Superbowl 2015: Guacamole

Due to my connection with the West coast- go Seahawks! 

Nadin Said~ EIC

The Pro Bono In-House Counsel of Tomorrow

Over the last decade, in-house pro bono has been a growing trend among corporations, including Fortune 100 companies, and for good reason.  Pro bono legal work has proven to be, not only an essential form of public service, but an investment in the future of innovation and professional development. By committing a fraction of their time and resources, corporate employees have inspired youth in technology-oriented fields, helped young women acquire the skills they need to become professionals, and aided veterans in transitioning to the civilian workforce.

This past year, The Walt Disney Company set the bar for the entertainment industry. The Association for Corporate Counsel recognized Disney with the 2014 Pro Bono award for assisting low-income clients, children in need of families, and the development of teen courts. Disney Senior Executive Vice President, General Counsel and Secretary Alan Braverman said, “We are determined to do our part to ensure people have the opportunity to pursue their rights, and that our system of justice is truly available to all.” The company utilized Public Counsel, the United States’ largest pro-bono law firm, to coach Disney lawyers on the adoption process. The collective group helped guide several adoptions through the L.A. county court system. Disney Legal’s mission is to help “more than 30,000 children, youth, families and community organizations every year.”

Disney, and other corporations, have proven that the terms “corporate profit” and “public service” can be interchangeable. Corporate counsels have the resources, but are they devoting them? Many companies are allocating resources, and corporate giving has increased 64% in the last few years. This is encouraging. Of course, the ultimate payout from pro bono legal work is much harder to pinpoint. Corporations that do not already do so should be encouraged to follow Disney’s lead.

Riley Coltrin (Staff Editor, Denver SELJ)

UFC Facing its Toughest Fight

It is a common occurrence for sports leagues to come under antitrust violations from other sports leagues (see USFL v. NFL, 842 F.2d 1335), sponsors (see American Needle Inc. v. NFL, 560 U.S. 183), and even its own athletes (see Brady v. NFL).  Whatever the case, plaintiffs charge that the sports league in question is somehow engaged in unfair or noncompetitive practices.  The basic test for antitrust violations is to first identify a specific market, and it is here that the leagues find themselves exempt.  For example, the National Basketball Association is made up of 30 teams, but it is considered a single entity in the overall market for professional basketball.  This allows the league to escape antitrust from other leagues.  With the players and athletes, the leagues set up a collective bargaining agreement with the respected players union which prevents antitrust charges from the players.  All this has worked for years with major professional sports leagues such as the National Football League and Major League Baseball.  However, a recent lawsuit filed against the Ultimate Fighting Championship (UFC) brings interesting questions about its labor practices and the rights of the fighters.

The class action lawsuit, filed by current and former fighters, allege that the UFC illegally restricts the fighter’s earnings by preventing them from competing in other mixed martial arts promotions and commanding a share of the fighter’s likeness fees for video games.  When such issues are presented to a league such as the NFL, the answers can usually be found in the collective bargaining agreement with the player’s union.  The problem here is that the UFC has no such agreement with any fighter’s union and instead contracts with the individual fighters.  Thus, the question is if the UFC is unfairly restricting these fighters from competing in other MMA promotions?

This case presents a shaky area for the UFC due to the absence of a collective bargaining agreement, something the NFL uses to escape antitrust from its players.  The suit was filed on Tuesday, December 16 of this year so it will be a long while before any answers appear.  Further, though only three fighters are named in the suit, there is no telling how many more are currently or will become a part of the action.

Leonard Large, Managing Editor

Law Enforcement & the Media- First Amendment Protection

After the death of Michael Brown and Eric Garner, much of the public has questioned what exactly does the First Amendment protect? Are we, as a civilized and democratic society, allowed to record officers in uniform as they make an arrest? As they arrest us? Is it illegal to do so? If an officer asks us to stop recording, should we stop? Should we forfeit our phone and be required to delete the recording?

To put it simply, no. The United States is unique in that it protects free speech in order to prevent suspicious arrests and arbitrary stops. So, what happens if an officer is making an arrest and I want to record it, whether the officer knows it or not? I can. The First Amendment allows us to record officers while they are on duty. Since officers have no expectation of privacy while on duty, wiretap laws are normally inapplicable. Unless a person is interfering with legitimate law enforcement operations, recording an officer is legal. The media has embraced this protection, particularly protestors angered by the lack of indictments of the two police officers who killed unarmed civilians.

Some states like Illinois are attempting to restrict a citizen's ability to record officers while making an arrest, however this bill has yet to pass and is unlikely to be constitutional if it does pass.

Until then, it is YOUR RIGHT to record an officer.


Nadin Said, Editor-in-Chief.

Is the NFL Going Up In Smoke?

According to a recent New York Times article, more than 500 former NFL players are suingthe National Football League for football-related brain damage. Attorney Jason Luckasevic became enraged with the NFL when his brother’s boss, forensic pathologist Bennet Omalu, confirmed the connection between football and brain damage. Talking with and examining former pro players, Omalu determined patterns of brain injury from autopsy specimens of deceased players. In addition, there are numerous examples of cognitive and behavioral changes in former players such as headaches, sleeplessness, chronic traumatic encephalopathy, early onset Alzheimer’s disease, Parkinsonism, among others. Omalu received violent backlash when he published his findings in 2005 and Luckasevic was determined to find a way to support Omalu’s findings—hence, the lawsuit. The complaint is based on the contention that players knew their bodies would be put in jeopardy when they signed up to play the game of football, but they were not aware that their emotional and intellectual well-being would be jeopardized as well. Unfortunately, the players may not receive the damages they are entitled to should the suit be barred by the sport’s collective bargaining agreement. First filed in 2011, the suit is now moving to final settlement, raising many issues and implications to consider while we wait to see how this all turns out.

Football’s class action suit is being compared to what happened to the tobacco industry. Far-fetched at first glance, I think there is real merit to this idea. The tobacco industry thrived for a while and then once everyone realized, based on sound medical data, what it meant for one’s health and well-being, the industry virtually died. Similarly, football is thriving and is easily the most watched sport in America, bringing in $9 billion just last year. Yet, Omalu’s findings have surfaced its short and long term dangers. Perhaps football, like the tobacco industry, will fall to the wayside in favor of safer, less contact heavy sports.

As a result of the medical findings supporting this lawsuit, we can imagine terrible implications for the future of football. Professional contracts may include head injury waivers, leading to fewer athletes to opt into the field. More athletes at all levels may be wary to play at all—it is not difficult to imagine that parents will be apprehensive to let their little ones play in the first place, let alone at the collegiate or professional level. Schools may discontinue their football programs altogether, especially if they cannot sustain medical experts at their fields for practices and games. Should football fall from grace, their annual revenue will be nowhere near the $25 billion Roger Goodell predicts it will be in 2027. Yet, perhaps the athletes who would have played football will now populate into other, “less risky” sports like baseball or basketball. We could see a huge increase in those sports’ popularity and revenue as football’s declines.

There is no way to say if this grim future of football is or is not likely to become reality. But it is important to see that one attorney’s will can put a multi-billion dollar franchise in jeopardy.

- Samantha Albanese (Staff Editor, Denver SELJ)

Painkillers Lawsuit Not Easing the NFL's Pain

On May 20, 2014, former NFL player Richard Dent, along with several other former players, filed a class action complaint in Northern California District Court against the National Football League.[1] The complaint alleged that the NFL “intentionally, recklessly, and negligently created and maintained a culture of drug misuse, putting profit in place of players' health.”

The former players argued that the NFL had substituted pain medication for proper health care. Specifically, the plaintiffs claim that the NFL administered painkillers without prescriptions or regard to the players’ medical history, risk of potential allergic reactions, or long-term consequences. Also, the players assert that they were supplied various painkillers without giving informed consent, and that they were encouraged to take the painkillers to play through injury. The damages sought include pecuniary and compensatory damages, as well as costs and attorney fees. The class is said to include all former NFL players who played between 1969 and 2008.

There are two key issues in the case. First, the court must determine whether the NFL intentionally, recklessly or negligently created and maintained a culture of drug misuse that prioritized profit over players’ health. Initially, the players will have to show that there was, in fact, a culture of drug misuse in the NFL between 1969 and 2008. Next, a court must decide whether such a culture was caused by the action (or inaction) of the NFL, or if it was caused by a general American culture of drug misuse. Also, if the players voluntarily accepted the drugs and treatment, this raises issues as to how much fault can be attributed to the NFL.

The second major issue is whether the case can actually be brought before the court. Under the NFL’s collective bargaining agreement (“CBA”), disputes between the NFL and players (including former players) must be resolved in binding arbitration. If the court concludes that the CBA applies, then the case will be dismissed. But, if the players can argue that this type of case falls outside the CBA, they might be able to avoid dismissal.

The NFL is currently trying to get the case dismissed with two main arguments. First, the NFL says that the players union is responsible for looking out for the players. Accordingly, the union should address the issue. Second, the NFL claims that the individual clubs, and not the league, are responsible for the medical care of players.

Only in recent years has society grown conscious of the long-term health concerns surrounding NFL players. In the last few years, the NFL has been dealing with a lawsuit against it concerning a lack of concussion safety protocols that lead to many players suffering long-term mental health problems. That concussion lawsuit has only recently settled and now the NFL is facing yet another major and potentially damaging lawsuit. This painkillers lawsuit seems to have taken a back seat to the recent media coverage of players’ off the field incidents. However, if this lawsuit moves forward, it could lead to even more bad publicity for the NFL and several more years of costly litigation. If indeed the allegations in this case are true, then the NFL has a lot to answer for and it could lead to major changes in how game of football is played.

-Justin Davis, Staff Editor

---

[1] Amended Complaint and Demand for Jury Trial Class Action, Dent v. Nat’l Football League, No. 4:14-cv-02324-KAW, 2014 WL 2925313 (N.D.Cal.).