The NFL in Need of New Uniform Disciplinary Measures

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The National Football League has been pummeled with bad press this season.  Although a small percentage of the League’s 1,696 players have been charged with various criminal acts, the negative light shed on professional football has been significant.  In response, the NFL has benched multiple players, and some players are fighting back.

Since August, NFL Commissioner Roger Goodell has faced heavy criticism for the way he handled the Ray Rice incident.  Rice, a running back for the Baltimore Ravens, was indicted for aggravated assault on March 27, 2014, for allegedly striking his then-fiancée (who he has since married).  The charge resulted from a fight between Rice and Janay Palmer (now Janay Rice) that occurred in casino in February 2014.  Due to the allegations, Rice was suspended by Goodell in July 2014 for the first two games of the season.  In September, gossip website TMZ published footage of Rice hitting Palmer in the casino elevator.  Rice was then released from the Ravens indefinitely.

Goodell initially denied having seen the tape in an attempt to explain the lean sentence Rice first received.  However, reports quickly surfaced claiming that Goodell had access to the tape as early as April 2014.  To further Goodell’s woes, the NFL Players Association (NFLPA) filed an appeal on Rice’s behalf fighting the suspension.  The NFLPA claims that Rice was not given proper due process, and has requested that a neutral arbitrator hears the appeal, as opposed to an arbitrator that Goodell would appoint.

The NFL cannot fire Rice without a valid reason.

Rice, like many other NFL players, has a collective bargaining agreement with the League.  A collective bargaining agreement (CBA) is a contract between an employer and its employees.  A CBA usually states the terms of employment, including wages, benefits, the termination process, overtime, and more.  The contract is negotiated between the employees or employee representatives and employers.  Additionally, it is legally binding.  Some CBAs contain arbitration clauses, mandating that any disputes be settled out of court by an arbitrator rather than a judge.

Here, the NFL CBA contains an arbitration clause.  When the appeal is ultimately heard, the arbitrator may have to make a finding of fact of whether Goodell was actually aware of the tape in April—evidence that the second punishment was unwarranted and only given because of pressure from the general public.  Former United States District Attorney Barbara S. Jones was appointed to arbitrate the Rice dispute.

The CBA between the NFL and the football players lays out conditions such as payment terms, meal allowances, and free agent rights.  As recently as 2011, disagreements over the CBA terms caused a temporary lockout—essentially a strike—resulting in the cancellation of the 2011 Hall of Fame game.  Before the most recent CBA was agreed on, the NFL unsuccessfully sought an injunction in an effort to end the lockout, in Brady v. NFL.  The current CBA, which was finally agreed to on July 21, 2011, is in effect until 2020.

The NFLPA claims that under the current CBA, Rice should not have been punished twice – the first time was the two-game suspension set in July; the second was the indefinite suspension when the video was released to the public—for conduct Goodell already should have known about.  The NFLPA claims that the second punishment essentially amounts to double jeopardy.  Goodell continues to claim that he never saw the second video, and therefore the second punishment was appropriate in light of the new information.

Because of the CBA, Rice is not an at-will employee, meaning the NFL cannot fire him without a valid reason.  However, the CBA twice contains a personal conduct clause that states that if the “player has engaged in personal conduct reasonably judged by the Club to adversely affect or reflect on Club, then Club may terminate this contract.”  In this case, Rice’s alleged conduct has been a significant burden to the NFL.  Although a majority of the valid reasons for termination listed in the CBA relate to on-field performance, the personal conduct clause gives the NFL the authority to release Rice.

Rice, however, was only the beginning of Goodell’s headache.

The current complaint against Goodell may never make it to a courtroom if both parties are able to come to an agreement during arbitration.  Also, Rice’s double jeopardy claim, which normally would apply to criminal cases, may not be upheld.  When Rice is given a chance to have an arbitrator hear his case, he likely will not raise any other valid legal claims, contractual or otherwise, against Goodell, the Ravens, or the NFL.  Rice’s appeal is set to be heard in November.

Rice, however, was only the beginning of Goodell’s headache.  Cleveland Browns player Josh Gordon was suspended for a season after testing positive for marijuana.  Goodell was criticized for not treating players equally.  Many claimed that the discrepancies in punishment were not fair.  Goodell quickly reacted, ensuring that any player who violated the personal conduct clause was punished, resulting in a string of players being benched within a short time period.

Recently, Minnesota Vikings star running back Adrian Peterson was placed on the exempt list, meaning he is not permitted to play but is still being paid, after being indicted on a felony count of reckless or negligent injury to a child.  Peterson has publicly expressed his wishes to go to trial quickly so that he may return to playing football as soon as possible (his trial has been tentatively set for December 1, 2014). Yet, Peterson may find himself in jail until his trial.  He admitted to smoking marijuana while on bond for the child abuse charges, which is a violation of his bond conditions.  Goodell has yet to take any action regarding Peterson’s drug admission.

Carolina Panthers defensive end Greg Hardy joined Peterson on the exempt list.  Hardy was found guilty in July 2014 of assaulting his ex-girlfriend.  Like Peterson, he is still receiving his salary.  Similarly, San Francisco 49ers defensive lineman Ray McDonald may face assault charges for a domestic incident involving his girlfriend.  McDonald is still playing and receiving his salary.  In 2009, Ben Roethlisberger, the Pittsburgh Steelers quarterback that has led the team to two Super Bowl wins, was suspended for only six games after facing two separate accusations of sexual assault.  Roethlisberger’s charges were eventually dropped.

Goodell faces criticism over the lack of consistent punishment in the NFL.

As a result of the disciplinary measures taken in response to multiple violations of the personal conduct clause, Goodell faces criticism over the lack of consistent punishment in the NFL.  However, Goodell continues to rely on the personal conduct clause in the CBA to weed out misbehaving players.

Although NFL players maintain a lower arrest rate than the national average for the twenty-five to twenty-nine age group of males, any player arrested or accused will automatically be in the public spotlight  and can cause mountains of trouble for the League.  Naturally, the NFL is attempting to mitigate problems and improve its public image while hoping to maintain sponsors.  Recently, a female executive was appointed to address domestic violence issues.  In addition, all players will be required to participate in domestic violence seminars in an attempt to lessen the frequency of domestic violence incidents.  Yet, these measures may have come too late for NFL fans to absolve Goodell from his inconsistent actions.  As some call for his resignation, Goodell continues to attempt to save face—and his job—while keeping his players out of legal trouble.