Unnecessary Toughness: Throwing the Flag on the NFL’s New Personal Conduct Policy

By: Jack Meyer

In the wake of the Ray Rice incident and subsequent domestic violence arrests involving several other NFL players during the 2014 season, the NFL encountered a public relations firestorm. The NFL faced widespread public criticism that domestic violence among NFL players had become an “epidemic” and that the male dominated league was indifferent to the issue.[1] Commissioner Roger Goodell nearly lost his job after his perceived mishandling of the Rice incident, and public pressure forced the NFL take significant action to address domestic violence offenses among its players.[2]

This pressure led the NFL to hastily implement a player conduct policy specifically aimed at addressing crimes against women, such as domestic violence and sexual assault. The NFL admittedly used this new policy as a public relations maneuver, knowing full well that the policy did little to actually prevent domestic violence and was only aimed at publicly punishing players for domestic violence. [3]

The current NFL Collective Bargaining Agreement (CBA) does not specify any exact punishments for off-field incidents. On-field player conduct violations and corresponding suspension and fine amounts were collectively bargained and are outlined in painstaking detail in the NFL’s CBA. For example, exact dollar figures are outlined for highly technical on-field offenses such as a player wearing the wrong color cleats or showing up to training camp one pound overweight, yet no penalties are expressly specified for off-field player conduct.[4] While the NFL’s new Personal Conduct Policy finally gives NFL employees notice of potential punishments for off-field behavior, the policy possesses a number of significant flaws.

  1. Collective Bargaining Issue

Perhaps the most obvious flaw is that the new Personal Conduct Policy was issued by the NFL, approved by the league’s franchise owners, but then implemented without the consent of the NFL Players Association (NFLPA).[5] The NFLPA is a party to the league’s Collective Bargaining Agreement (CBA), meaning that the new policy is a blatant labor law violation.[6] The NFL cannot materially alter the terms of an ongoing collective bargaining agreement without the consent of the opposing side.[7]

The NFL claimed that the policy was issued under the commissioner’s authority to issue discipline for conduct detrimental to the league and that therefore the policy need not be collectively bargained. The NFL stated: “The Personal Conduct Policy is issued pursuant to the commissioner’s authority under the NFL Constitution and Bylaws to define and sanction conduct detrimental to the NFL.”[8] While the commissioner does possess broad authority to punish players for conduct detrimental to the league, the new policy likely violates the CBA because it imposes a new form of discipline that was not collectively bargained. The introduction of the “Commissioner’s Exempt List” which authorizes employees to be suspended with pay while the NFL conducts an investigation into alleged personal conduct violations is not included in the league’s CBA. Although the CBA affords Goodell the power to “define and sanction conduct detrimental,” the commissioner cannot alter the forms of discipline from those previously outlined in the CBA. Thus, the new Personal Conduct Policy is likely illegal because the NFL materially altered the terms of an ongoing collective bargaining agreement without the consent of the NFLPA.

  1. Details of the NFL’s New Personal Conduct Policy

In addition to being a labor law violation, the NFL’s new policy overwhelming favors the league and is unfairly detrimental to those who are accused of violating the policy. A six game suspension (37.5% of the NFL season) is authorized for first time “violations involving assault, battery, domestic violence or sexual assault.”[9] These suspensions can be increased (amount not specified) if “aggravating factors” are present such the use of a weapon or a crime against a child.[10] If an individual is found to have violated the policy a second time, he is banished from the NFL for life. [11]

A suspension is authorized regardless of whether an NFL employee is ever formally charged or convicted of a crime if an NFL investigation finds that an employee has engaged in prohibited conduct.[12] The policy states “In cases where you are not charged with a crime, or are charged but not convicted, you may still be found to have violated the Policy if the credible evidence establishes that you engaged in conduct prohibited by this Personal Conduct Policy.”[13] “Credible evidence establishes” is not a legal standard and is not defined anywhere in the Policy. NFL employees thus possess a lack of knowledge of what facts and circumstances will give rise to whether a violation of the Policy has occurred.

The language of the Policy also expressly states that NFL employees are required to cooperate with NFL investigations even if such cooperation results in self-incrimination. The policy states:

“League and team employees are required to cooperate in any such investigation and are obligated to be fully responsive and truthful in responding to requests from investigators for information (testimony, documents, physical evidence, or other information) that may bear on whether the Policy has been violated. A failure to cooperate with an investigation or to be truthful in responding to inquiries will be separate grounds for disciplinary action.”[14]

While the Fifth Amendment does not apply to private entities such as the NFL[15], a policy which forces an NFL employee to testify against himself in a league investigation could have an adverse effect on the accused’s criminal case due to the public nature of NFL suspensions. If the testimony provided by the accused were to be leaked to the public, it could very well be used against him at trial. In sum, NFL employees appear to have little chance of avoiding a conviction if a personal conduct violation is alleged. The Policy forces individuals to incriminate themselves and then an ambiguous standard of proof is applied to determine whether a violation has occurred.

  1. Appeals Process

The NFL’s appeals process is virtually non-existent. If an NFL employee is found to have violated the policy, he would be suspended by a “disciplinary officer” appointed by Commissioner Goodell.[16] Should the individual decide to appeal the suspension, Goodell would have the right to hear the appeal.[17] The unfairness of the policy is especially worrisome due to the severity of potential punishments. (an individual can be banished for life if found to have violated the policy a second time.) It should be noted however that Goodell’s power to hear player appeals was agreed to by the NFLPA in the most recent CBA.[18] This power is not a new component of the personal conduct policy.

  1. Application of the New Personal Conduct Policy

Employers can rightfully hold their employees to standards higher than that of the general public because employees consent to a particular code of conduct when they agree to work for an employer. The primary issue with the NFL’s new Personal Conduct Policy is that NFL employees never consented to the Policy. Additionally, the manner in which the Policy has been applied has led to several NFL imposed suspensions of players being overturned by Federal Courts.

Ray Rice’s indefinite suspension was overturned by a Federal judge in November 2014 who determined that Goodell’s actions were “arbitrary and capricious” when he suspended Rice two separate times for the same incident.[19] This was a relatively simple suspension to overturn because the NFL’s CBA expressly states that players cannot be suspended more than once for the same offense.[20]

Another high profile domestic violence case involved Vikings running back Adrian Peterson. He pled guilty to a reduced charge of misdemeanor child abuse after graphic photographs surfaced which depicted Peterson’s son with severe bruising resulting from a beating inflicted by Peterson.[21] He was suspended indefinitely by the NFL who applied the stricter domestic violence policy to justify his punishment.[22] The suspension was eventually reversed by a Federal court who determined that Peterson’s due process rights were violated because he was suspended under the stricter personal conduct policy for offenses that took place before the new policy went into effect.[23]

That both Rice and Peterson had their suspensions reversed by the courts should come as no surprise; they are clear abuses of arbitrator discretion. A more interesting case would be if a player challenged his suspension based on lack of consent to the Policy or lack of proper notice of potential punishments.

  1. NFL Player Reaction to New Personal Conduct Policy

Current NFL players have questioned whether the new personal conduct policy is effective in preventing domestic violence.[24] Under the policy, players are now required to attend a domestic violence training seminar prior to each season.[25] These seminars have been widely criticized by players for both treating them as perpetrators and for doing little to actually prevent domestic violence. According to Cincinnati Bengals offensive tackle and NFLPA President Eric Winston,

“I don’t think the league has done the players a service. They haven’t approached them in an educational way that, if there is some symptoms or there is some precursors, perhaps, like, ‘Hey, if you’re experiencing these things or thinking these things, why don’t we talk about it.’ Instead of taking a tone that’s ‘We can educate you, we can help you,’ it’s, ‘You’re a bad person.'”[26]

Winston continued, “until we get to a point where we’re really educating guys and helping guys and preventing things, these issues are going to continue.”[27]

Conclusion

As a whole the NFL’s new Personal Conduct Policy was a public relations maneuver designed to compensate for Goodell’s mishandling of the Ray Rice case. In an attempt to garner public support that the league was taking domestic violence seriously, the NFL created a Personal Conduct Policy that: 1) violates the league’s CBA, 2) violates Federal Labor Law, 3) is egregiously unfair to its employees, and 4) raises legitimate questions as to whether it is even effective in preventing domestic violence. The fact that this policy still exists is nothing short of remarkable.

 

[1] James Woods, Domestic Violence Epidemic in the NFL, Suite 36, (Sept, 18, 2014), http://www.suite36nyc.com/blogs/52#.VgnQWfTwiYM

[2] Louis Bein, A Complete Timeline of the Ray Rice Assault Case, SB Nation, (Nov. 28, 2014) http://www.sbnation.com/nfl/2014/5/23/5744964/ray-rice-arrest-assault-statement-apology-ravens

[3] Travis Waldron, NFL Owner Admits League’s New Domestic Violence Policy is a Public Relations Ploy, Thinkprogress.org, (Dec. 10, 2014), http://thinkprogress.org/sports/2014/12/10/3602006/nfl-owner-admits-leagues-new-personal-conduct-policy-is-a-public-relations-ploy

[4] NFL Communications, Collective Bargaining Agreement, (Aug. 4, 2011) https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf

[5] Jane McManus, Domestic Violence and the NFL: What Impact has the League Made? ESPN (Jan.28,2015). http://espn.go.com/espnw/news-commentary/article/12235694/impact-league-made

[6] Marc Edelman, Why The New NFL Personal Conduct Policy Violates Federal Labor Law, Forbes (Dec. 11, 2014). http://www.forbes.com/sites/marcedelman/2014/12/11/why-the-new-nfl-conduct-policy-violates-federal-labor-law/

[7] Id.

[8] National Football League, NFL Owners Endorse New Personal Conduct Policy, NFL.com, (Dec. 10, 2014), http://www.nfl.com/news/story/0ap3000000441758/article/nfl-owners-endorse-new-personal-conduct-policy

[9] The New NFL Personal Conduct Policy, http://www.cbsnews.com/htdocs/pdf/NFL_domestic_violence_policy.pdf

[10] Id.

[11] Id.

[12] NFL Personal Conduct Policy. Accessed at http://workplacebullying.org/multi/pdf/NFL-Conduct.pdf

[13] Id.

[14] Id.

[15], Frequently Asked Questions, Garrity Rights (Nov. 29, 2015) http://www.garrityrights.org/faq.html

[16] Id.

[17] Id.

[18] Id.

[19] Marc Edelman, Ray Rice’s NFL Reinstatement Should Surprise Nobpdy, Forbes, (Nov. 28, 2014), http://www.forbes.com/sites/marcedelman/2014/11/28/ray-rices-nfl-reinstatement-should-surprise-nobody/

[20] See NFL CBA Art. 46 sec. 4

[21] ESPN News Services, Judge Rules in Peterson’s Favor, ESPN, (Mar. 1, 2015) http://espn.go.com/nfl/story/_/id/12387081/judge-david-doty-rules-favor-adrian-peterson-minnesota-vikings

[22] Id.

[23] Id.

[24] Sarah Kogod, Players don’t think the NFL’s Domestic Violence Training is Working, SB Nation, (May 6, 2015).http://www.sbnation.com/nfl/2015/5/6/8209087/nfl-domestic-violence-training-presentation-nflpa

[25] Id.

[26] Id.

[27] Id.

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