October 1 2014, By: Prof. Robert Boland and Hon. Elizabeth Bonina J.S.C. (Rtd.)
In the wake of criticism of the National Football League (NFL) and its commissioner, Roger Goodell, over the handling of domestic violence issues, there is an opportunity for the league to establish clearer, more uniform standards of player discipline. Emerging from the recent owners’ meetings in New York, Commissioner Goodell, to his credit, said “everything is on the table.” It has become clear that the NFL is considering taking steps to provide neutral arbitration of personal conduct violations; however, much is at stake in doing this correctly.
In this article, we offer an approach that can provide the league and its players with a consistent, fair and proportional process for instituting neutral arbitration of personal conduct violations. There are a number of competing variables involved in this task including the presumption of innocence, the powers of the commissioner, and the need to avoid federal court challenges, but all are enhanced under this plan.
Rather than creating an in-house disciplinary tribunal from scratch, the league stands to benefit most by referring disciplinary matters to an existing outside tribunal. Alternative dispute resolution (ADR) services firms exist and are capable of achieving the important outcomes of clarity and transparency, as well as providing speed, efficiency, consistency and fairness.
Why the NFL is different – the Evolution of the Personal Conduct Policy
The NFL is unique among American sports leagues in that the power of charging, adjudicating and appeal for off-field behavior is vested exclusively in the commissioner, and bound by few guidelines. The other major sports leagues’ collective bargaining agreements (CBAs) provide for several protections to players that are not in the NFL’s CBA: final appeal of any commissioner discipline to an independent third party arbitrator; stay of discipline pending appeal; and stay of discipline pending judicial resolution of criminal charges.
Responding to an outbreak of player misbehavior, in 2008, the NFL implemented an expanded policy to toughen its treatment of off-field conduct. The commissioner was vested with exclusive power in this area. The league’s Personal Conduct Policy was codified in the 2011 CBA despite demands from the player’s union head DeMaurice Smith for neutral review of appeals. Nevertheless, for the first years of its existence, this Policy served the league well and was a signature success of Goodell’s first years as commissioner.
However, as the number and extent of personal conduct violations increased over recent years, having the commissioner serve as both the league’s chief operating officer and de facto chief judicial officer is proving problematic.
A Blue Print for a Procedural Program
What follows is a blue-print for a procedural program that would help protect the league from much of the criticism it has faced in the recent spate of domestic violence cases by establishing a skilled neutral review at three critical stages, while safeguarding against disparate treatment and preserving the commissioner’s power to act decisively.
Leagues have a long history of using neutral arbitrators, but it is a mixed history, usually involving “one-off” arbitrators. A national ADR service, hired jointly by the league and players union on rolling multi-year contracts, makes the most sense in this role, and provides the greatest assurance of independence, skill and consistency.
A Three Step Process
We advocate a defined three step process that is triggered when a player is arrested or formally charged with a crime. This would allow the NFL to demand accountability from its players, as well as provide assurance to its sponsors and the public that it takes off-field behavior seriously, while still providing significant procedural due process.
Step One: Suspension Hearing on Arrest
When a charge is filed or an arrest made, a standard protocol should be that the league/team immediately de-activate that player, with pay, until a suspension hearing can be held.
The first step in the process would result in an expedited hearing convened within 5 days of a player’s arrest. In the context of the NFL, timing is crucial, because the NFL has a comparatively condensed pay cycle with players earning their salaries primarily during the regular season based on games played.
The player, his counsel, a representative of the league and any records or evidence may be considered at this hearing, determining only if the player may return to his team’s active roster, or should remain suspended pending the judicial outcome of any case.
The possible standards for consideration in a suspension hearing might reasonably include:
1) The nature and severity of the conduct or act of which the player is accused;
2) The security and safety of other team members, employees, fans and the public at large if the player is returned to his team;
3) The potential harm to the league, team and their standing and integrity if the player is returned to his team;
4) Any mitigating factors that place the alleged conduct or act in question.
Suspension hearings should be confidential and produce an expedited decision on whether the factors above merit continued suspension or reinstatement. We recommend that these hearings, along with all steps in this adjudicatory process, be conducted by a three-person panel. If a suspension is continued, the presumption of innocence, as the players union will undoubtedly argue, mandates that the player continue to be paid until the conclusion of the judicial process.
Appeals of suspension hearing determinations could be made directly to the commissioner and be based solely on extraordinary grounds.
Step Two: Hearing and Recommendation to the Commissioner on Resolution
Once a player’s criminal case is concluded, the outcome of that case may then be considered by a new panel of arbitrators, who did not sit on the suspension hearing, in a new proceeding. This panel would then make written recommendation of final discipline for the player to the commissioner, based on the nature of the final disposition, the conduct involved and proportionality to prior similar acts and penalties. The commissioner would have authority to accept the penalty or depart from the recommended penalty with reasonable cause.
This step preserves the commissioner’s power in the disciplinary process, something the NFL owners have said they want. But it also relieves the commissioner from bearing the responsibility of being the sole guardian of proportionality and makes it more difficult for a potential litigant to argue that a penalty was arbitrary, capricious or disparate. It also allows the commissioner to offer rehabilitative penalties that might reduce discipline if certain positive conditions are met, essentially endorsing responsible behavior even in the face of negative acts.
Cases involving non-judicial personal conduct violations could begin at Step Two, with the league referring some potential offenses for consideration here as well. This stage and process could also be used when an underlying criminal case results in something less than a conviction but more than a complete dismissal of charges, such as a diversionary plea or conditional discharge.
Step Three: Final Appeals
Appeals of final penalties could be handled by a special standing appellate panel at the same arbitration service. The appeals standard could be relatively narrow, again preserving the supremacy of the commissioner and his purview. Grounds for appeal might focus solely on the proportionality of penalty or issues involving error in process or the application of the appropriate standards in the hearings.
With the implementation of a new disciplinary process administered by an outside service, the NFL and Commissioner Goodell can achieve its stated goals of speed, efficiency, consistency and fairness, and restore the credibility of the league, while helping it avoid public criticism and court challenges. With more consistent neutral standards, the disciplinary process is clarified and significantly cleaner, and restores the luster to our nation’s most watched sport.
Hon. Elizabeth Bonina, is a retired Justice of the Supreme Court, Kings County, and an Adjunct Professor of Business Law and Sports Law at St. Joseph’s College in Brooklyn, New York. She is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to hear arbitrations and mediations throughout the New York Metro area. She has been voted the #1 Arbitrator in New York State for three consecutive years (2015, 2014, 2013) by the New York Law Journal Reader Rankings Survey, and has been voted one of the Top Ten Mediators in New York State for six consecutive years by that Survey.
Click here to view Judge Bonina’s resume.
Professor Robert Boland, J.D. is professor of sports business at New York University’s Tisch Institute. He is the founding faculty member of NYU’s Sports Business graduate program and served as Academic Chair of NYU’s Tisch Center Hospitality, Tourism, and Sports Management program from 2011-2014. He is a principal of the Boland Sports Practice Group, LLC, a global sports sector consultancy. He was an NFLPA certified player agent for more than a decade. As a practicing attorney in New York, he has served as a supervising administrative law judge, court attorney to a trial judge, and handled hundreds of domestic violence cases.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.