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SUBSTANTIVE DUE PROCESS AS APPLIED TO THE NFL PERSONAL CONDUCT POLICYArthur SurrattINTRODUCTIONIn the diverse sports sector today, one aspect of a commissioner’s power is to determine the best interests of the league. Generally, these commissioners have been empowered to implement certain policies and make operational decisions that are instrumental to the long-term productivity of their respective leagues. Thus, sports commissioners have free will to act in accordance of what they view as being in the best interest of the sports over which they preside.In relation to this, a reflection of commissioners using their powers to “act in the best interests of their sports” can be seen in the recent Commissioner-imposed discipline decisions for National Football League (NFL or the league) players for allegations of misconduct. NFL Commissioner Roger Goodell has faced public criticism that his disciplinary measures were applied unevenly and demonstrated bias towards these players. The fact that the Commissioner wields such sweeping power seems unconscionable, as he issues punishment and hears appeals of the same. Thus, the major purpose of this paper is to provide an analysis of the uneven application of Commissioner-imposed discipline of players in the NFL.The backlash the league has faced regarding player discipline has caused them to mount an aggressive defense of their policy in a bid to cool the criticism levied by fans. The NFL wanted to ensure the public that it took their concerns seriously and they would be reviewing the role of the Commissioner in player discipline matters. This meant that the Commissioner could potentially have his role in any proceedings concerned with rulings on player misconduct limited. Primarily, by the NFL taking such measures, the Commissioner used the disciplinary policy as cover to act in an unjust manner and unevenly issue punishments for player misconduct. Thus, the NFL Personal Conduct Policy focuses on public perception which diminishes the substantive due process rights of players.BACKGROUNDCBA Negotiation History between the NFL and the NFLPAThe NFL Collective Bargaining Agreement (CBA) is a labor agreement that governs the working relationship between team owners in the NFL and the National Football League Players association (NFLPA), the labor union that represents players. In general, the parties negotiate a variety of issues like revenue sharing and player salaries. The resulting agreement is intended to create a mutually beneficial environment for both the team owners and players and see to it that there was a fair distribution of benefits between both of these parties. Under the bargaining agreement, the key points of negotiation included: the safety and health standards which the players were to receive, the establishment of new pension and healthcare plans, and how the revenues from the league were to be distributed.The CBA negotiations and subsequent strike in 1968 were major turning points on issues concerning the relationship between the NFLPA, team owners and the NFL executives, as elements from this agreement were incorporated in subsequent agreements. Following the first set of negotiations in 1968, there have been a total of seven collective bargaining agreements between the NFLPA and team owners. These negotiations are sometimes contentious, as players and team owners continue to try to reach equitable agreements that protect their own interests. The current CBA, which was signed in 2011, is most relevant to this analysis since it currently guides how the NFL conducts its business and governs the relationship between players and owners. The 2011 Collective Bargaining AgreementNegotiations for what would eventually become the 2011 agreement began in May 2008 when team owners voted unanimously to opt out of the 2006 CBA. This vote eliminated the final two years of the 2006 agreement, which meant that it now expired in 2011 instead of 2013. Owners were dissatisfied with the revenue split of the 2006 agreement and wanted a greater share of the revenue in the next agreement.As anticipated, the proposals by the owners were rejected by the players association. In declining these proposals, the players association demanded that they be provided with the league’s financial records so as to determine if the owners faced the claimed hardship that caused them to demand a sharp decrease in benefits and salaries. If the records showed that the league’s financial situation was not as dire as owners insinuated, then players would push back aggressively on the league’s demands. Both sides went back and forth over the money, and there was no resolution in sight. Adding unto this, the owners filed an unfair labor practice charge against the players union with the National Labor Relations Board (NLRB) claiming that they were not negotiating in good faith by planning to decertify as a labor union. Eventually, the players would vote to decertify the NFLPA as a labor union. League owners responded by instituting a lockout, which barred players from team facilities. Since the NFLPA was no longer registered as their labor union, players were able to file a lawsuit against the NFL for antitrust violations. Eventually, after months of negotiations, mediation, and litigation, a deal was reached, and the 2011 NFL season proceeded as scheduled.Origins of the NFL Personal Conduct PolicyThe arrests of nine players from the Cincinnati Bengals in 2006 highlighted an embarrassing period for the NFL. The subtext of the story was how the league, under the leadership of newly appointed Commissioner, Roger Goodell, would respond. When Goodell assumed this role, the expectation was for him to help the league continue to grow following the successful term of his predecessor, Paul Tagliabue. In response to the player misconduct off the field, the Commissioner revised the existing league conduct policy so that each team would now be liable for the off-the-field conduct of their players, with league punishments ranging from fines to loss of draft picks. Goodell consulted with the NFLPA about the new policy to ensure that the union supported the new measures.This new policy was meant to compel NFL teams to consider a player’s off-the-field performance the same way they already considered his play on the field when making roster decisions. Furthermore, the league signaled a desire to pressure teams to get tough on the players already on their rosters who failed to uphold the NFL’s idea of how a player should behave. Thus, teams would slowly be disincentivized from employing players who were at a higher risk of disciplinary issues.Nine months after Goodell took over the NFL, he wanted to assert the new policy changes with swift action. The players that he would punish would be those whose arrests were a sore spot for the league: Adam Jones, Chris Henry, and Tank Johnson. Goodell consulted with a team of individuals to review the league’s disciplinary procedures and determine appropriate punishment for the arrested players. This first wave of punishments for misconduct served as a warning to the league about the seriousness of the new policy, and subsequent violators of the player conduct policy would face stiff penalties that included fines and suspensions.Public Perception of NFL DisciplineIn 2016, the NFL faced a massive public relations problem because fans were growing tired of the NFL’s off the field issues. This prompted Commissioner Goodell to come out in public and push back against the narrative that the NFL system was unfair to players. While the controversy was partially related to the demonstrations during the national anthem, there was also a feeling that the NFL was not doing enough to punish players who were involved in domestic violence incidents.The NFL faced a similar backlash from fans in 2014, as the perception seemed to be that NFL players did not respect the league’s conduct policy. Nevertheless, when coming out to defend the NFL’s disciplinary procedures and the rising cases of player misconduct, the Commissioner implied that player discipline issues were too complicated for the public to grasp.In response, the NFL sought to amend the Personal Conduct Policy to give the Commissioner more latitude to rein in player behavior. These sweeping changes effectively strengthened the Personal Conduct Policy more than any previous amendments. The Commissioner gained more power to discipline players, much to the chagrin of the NFLPA. A key advantage of the 2014 amendments was that the NFL decided to consult with a wide variety of stakeholders before implementing the changes. The league brought in advocates for victims of both sexual assault and domestic violence, former NFL players, members of the clergy, and leading domestic violence researchers.The 2014 domestic violence amendments attempted to provide a more rigid framework for the league, so that players had a better understanding of the punishments they could face. Some important measures of the new policy were that violations by the players would be reviewed by a team of external officials, the investigative procedures would seek out more evidence like police reports or security camera footage, the NFL would fund the counseling services for both victims and alleged perpetrators, players facing formal charges would be placed on paid leave during the court proceedings, and players would face a minimum 6-game suspension if convicted of assault or aggravated battery. Current and former players appeared alongside celebrities in a series of commercials for the “No More” campaign, which sought to end domestic violence and sexual assault. These commercials aired during NFL broadcasts, and targeted the perception that the NFL did not care about violence against women.DUE PROCESS FRAMEWORKFundamentally, due process necessitates that one be accorded with a fair hearing, accompanied by fair and proper notice that they are at risk of being denied some right. When analyzing due process issues, it is important to distinguish between procedural and substantive due process rights as best as possible. Here, the content of the rules concerns the substantive due process rights, while the application of the rules to specific facts concerns the procedural due process rights. For purposes of this paper, the procedure is of less concern than the substantive outcomes, since it is the actual disparities in punishments that have served as the basis of the criticism.Personal Conduct Policy and Substantive Due ProcessIn the case of the NFL players, the NFLPA feels that the league has “ignored “due diligence and due process” in its handling of cases under the Personal Conduct Policy.” The CBA prescribes a framework for how the Commissioner hands out punishments, but the actual punishment outcomes make it difficult to determine whether the players substantive due process rights are protected. Under Article 46 of the CBA, discipline is required to be “fair and consistent.” It is therefore important that a framework to guarantee that the due process of the law is put in place, as to prevent the league from appearing biased when punishing players.The punishments of the NFL players under the auspices of the player conduct policy show that the NFL does not always employ consistent reasoning for penalties. In other words, it is unclear if there was a meaningful understanding by the players as to the power they were ceding to the Commissioner. It is therefore not easy to conclude that the Personal Conduct Policy effectively satisfies substantive due process. The punishment given to the NFL players who violate the conduct policy sometimes seems rushed and results in confusion from players and fans alike. This confusion at seemingly uneven punishments has resulted in valid criticism of how the NFL implements the policy. The policy falls short in protecting the substantive due process rights of the players. As currently constructed, the Commissioner single-handedly determines the kind of punishment to be given to players violating the policy, as well as hearing any appeals of the same. There is no requirement for the Commissioner to provide a detailed statement of reasons, which deprives players of an understanding of the basis for their punishment. This also limits the ability for there to be adequate review of these decisions, since an unclear statement of reasons makes it difficult for a player to state concrete grounds for appeal. Currently, when a news outlet reports on a player punishment, the story typically ends with “Player X plans to appeal the decision” without any further elaboration as to why. When these punishments are changed upon appeal, the league again provides no statement of reasons, making the entire process feel arbitrary. Without clear statements of reasons, these punishments can appear to be decided based on reasons other than the evidence presented. Instead, disciplinary decisions seem to turn on the whims of public perception. If the league can consistently legislate penalties on the field, they should be able to do the same off of it. Thus, players are denied due process rights since in many occasions, the decision of the Commissioner will be determined without key due process protections in place. APPLICATION OF PUNISHMENT UNDER THE PERSONAL CONDUCT POLICYLeague Punishments in Absence of a ConvictionThe Commissioner has broad authority in disciplining players that goes beyond that of the courts. Under the Personal Conduct Policy, the league can impose punishments for players merely accused of misconduct. When it comes to domestic violence accusations, the difficulty comes from the fact that victims often decline to press charges against their abusers. Any evidence that would have been used at trial may no longer be available for the NFL to review. Without adequate evidence at the accusations stage, most of the suspected offenders are not convicted. Players can then apply to be reinstated back into the league. Once a player has been arrested, there are several punishments available to the league under the conduct policy. Still, the perception is that the NFL does not do much to issue punishments that would effectively reduce the likelihood of an arrest. Sometimes a team will wait for the outcome before reaching a decision on whether or not to punish a player, since there is no requirement for a team to act decisively. Other times, teams will change how they treat a player based on how unfavorably the media covers the story. As most of the actions under this policy appear to turn on public perception, teams will sometimes jettison players in order to save face. In 2014, the Ray Rice saga exposed how punishments under the Personal Conduct Policy could be swayed by public opinion. That February, Rice was arrested after a physical altercation at a New Jersey hotel after punching his then fiancée, Janay Palmer. Shortly thereafter, celebrity news site TMZ released video of Rice dragging an unconscious Palmer from the elevator. The league suspended Rice for two games, based on the interviews the league conducted with Rice and Palmer, and presumably because of physical evidence like the TMZ footage. Later, in September, TMZ released additional video from the elevator, showing the moment when Rice punched Palmer in the face, knocking her unconscious. Following the release of the second video, the league suspended Rice indefinitely and his team, the Baltimore Ravens, released him. Rice successfully appealed the indefinite suspension on the grounds that he was punished twice for the same infraction. In issuing the ruling, the arbitrator noted that there was no new evidence from the second TMZ video that contradicted any information that the NFL learned from Rice during their investigation. The arbitrator also concluded that the Commissioner did not have the power to punish Rice retroactively based on the new Domestic Violence Policy. Following a repudiation of his handling of the matter, Commissioner Goodell had to face the media and tell them that he “didn’t get it right” in deciding Rice’s punishment. Recently, the NFL seemingly replayed all of the missteps from the Ray Rice case. The Kansas City Chiefs released star running back Kareem Hunt after surveillance video of him kicking a young woman was leaked to the press. Prior to the public learning about the video, Hunt faced no punishment from either the NFL or the Chiefs. Once the tape leaked, the story was that neither the NFL or the Chiefs made diligent efforts to investigate Hunt and declined to punish him after a shallow investigation. After the video, the NFL had to face more bad press about how they continue to err when it comes to punishing players who commit violence against women. League Punishments after Plea Agreement or ConvictionCommissioner Goodell has faced criticism from fans that inconsistent punishments can give the impression that the league is not invested in holding players accountable for their actions. The punishments after conviction could range anywhere from fines to even an indefinite suspension, depending on the history of the player. The problem is that this level of discretion can result in illogical outcomes. For example, while Mychal Kendricks awaited sentencing for felony insider trading, he initially received no league-imposed discipline. While he was released by the Cleveland Browns during the preseason, he signed with the Seattle Seahawks even with him due to be sentenced in January 2019 to an estimated three years in prison. Then, as Kendricks not facing any punishment became a larger news story, the league then suspended him indefinitely. Adding another confusing layer to the story, Kendricks is now eligible to resume play with the Seahawks, after the league reduced his indefinite suspension to eight games. Contrast this with what happened with Ray Rice, and it appears as if the league is reacting more to the public relations story than creating an orderly system to deal with player punishments. Here, the public perception of insider trading was not enough to compel the league to act as sternly as is would in an assault case.Actions by Coaches, Owners, or other Front Office PersonnelThe league also has the power to punish anyone who works for a team, not just the actual players. For coaches and front office personnel, these punishments may incorporate bans or suspensions from taking part in any businesses associated with either the team or the league as a whole. For instance, in 2010, the Sean Payton, the head coach for the New Orleans Saints, received a one-year suspension due to his role in paying out bonuses for those who would inflict injuries to the opposition players, and Gregg Williams, the defensive coordinator, received an indefinite ban. Misconduct by officials in a team’s front office can also result in punishments that harm those on the field. Saints General Manager Mickey Loomis was suspended for eight games in relation to the bounty scandal. In 2007, the New England patriots were punished with lost draft picks and team fines after the league found that Patriots employees were taping opposing teams in violation of league rules. Owners, on the other hand, may be prohibited from associating with their team, which does not have much of a punitive effect on the team. In March 2014, Jim Irsay, owner of the Indianapolis Colts, was arrested after being stopped with bottles of prescription drugs and over $29,000 cash. The NFL did not punish Irsay until September, after the conclusion of his court case. DeMaurice Smith, the then NFLPA Executive Director, said that Goodell and the league had a “credibility gap” and noted how there would not have been the same delay in punishment had it been a player facing the same situation. POSSIBLE SOLUTIONS FOR THE NFL Allow for more Transparent Procedure for Consistent ResultsIncreased transparency within a tribunal can result in both accountability and consistency, and the NFL disciplinary process lacks the sort of transparency that leads to consistent outcomes. This lack of transparency has made it difficult for the NFL to justify the punishments when questioned by the public. Thus, the NFL appears to be reactive rather than proactive with disciplinary actions, which makes the story less about the action on the field and more about the whims of Roger Goodell. While it is not necessary to broadcast NFL disciplinary hearings on ESPN, creating some decision-making model that goes beyond the Commissioner’s thoughts and a tersely worded press release could do wonders to make the process appear fairer to those facing punishment. Include a NFLPA Representative as part of the TribunalIncluding a NFLPA representative as part of the tribunal could add some degree of openness to the disciplinary process. A common complaint against the current process is that the Commissioner cannot seem to justify the punishments issued or make consistent rulings. Since the Commissioner is empowered to act alone when issuing punishments, he should be blamed for problems with the system. The Commissioner justifies his actions by claiming that he is acting to protect the league’s image and adding a NFLPA representative would not prevent him from carrying out that mission. The NFLPA also has an interest in protecting the league’s image, and they can do that while also protecting the rights of the players. Commissioner Goodell could also use the involvement of the NFLPA to soften any criticism he may face, as he can point to how the union representative on the tribunal assented to his decision. This change could ensure that the interests and rights of the player are not violated, and the punishment decisions can appear more legitimate than they do currently.Create a Standard Set of Punishments Ranges to Capture Similar InfractionsWithout a standard set of punishments ranges, the league can appear to be picking favorites, especially when players of differing star power receive disparate treatment. Once this happens, the story becomes less about what the player did to receive the punishment, and more about why the league keeps applying uneven discipline. Just as it would be a disaster if the league penalized star players less than others for on the field infractions, punishing players who commit similar violations of the Personal Conduct Policy differently is also absurd. Creating a standard set of punishments for similar infractions would be an important step to reassure the public that the league is serious about holding all players accountable for their behavior, regardless of popularity. In fact, Commissioner Goodell himself stated back in 2014 that he wanted more specific punishments for specific offenses, yet it seems that he has ignored his own desires in the matter. The NFL could consult with various stakeholders, such as the NFLPA and domestic violence advocates, in order to come up with guidelines that are fair and will promote meaningful changes in behavior.Utilize Methods of Alternative Dispute ResolutionThe NFL could also change the circumstances in which they use arbitration. The league already uses arbitration in limited circumstances, like when players appeal league sanctions. The league can enter into arbitration agreements so that a non-interested party can issue rulings based on inputs from both the league and the NFLPA. Currently, Commissioner Goodell has the option to consult with others when making disciplinary decisions, but these are individuals of his own choosing. The arbitrators would likely be more immune to the pressures of public opinion than the league Commissioner, which could create a fairer process for players. Instead of the outcome being punishment of players absent the inputs of the victim, the NFL could adopt more of a restorative justice framework. Here, the goal would be for the perpetrator and victim to come together to understand how the situation impacted the victim. While the NFL could still issue suspensions or fines, the goal would be for the player to understand how their actions affect others, possibly lowering the chances that these players reoffend. The league could also mandate counseling for these players, as there could be underlying issues that cause them to behave the way they do. While the Personal Conduct Policy talks about making these types of resources available, they are not mandatory. If the league is as serious about reducing violence against women by their players as they claim, then a radical change like this could be a win for their public image. CONCLUSIONWith the NFL CBA set to expire following the 2020 season, the league would be wise to prepare for the NFLPA wanting to revisit the Personal Conduct Policy. The league would not have to make any radical changes to the existing policy, just look for ways to ensure more consistent outcomes. An improved policy could help players by ensuring that they have access to counseling and help them deal with the interpersonal issues that led to the violations. Each time the league appears to be reactive rather than proactive, the news cycle is filled with stories about how Commissioner Goodell and the NFL are out of touch with society. Commissioner Goodell has stated that his job is to protect the integrity of the NFL, so he needs to show leadership on this matter. By making meaningful changes to the Personal Conduct Policy, Goodell could demonstrate to the public that the NFL is serious about player discipline. That would protect the NFL’s image and give the fans a better product. ................
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