Ray Rice, domestic violence and the NFL’s Personal Conduct PolicyTom Cripps
It has been an ignominious start to the 2014 NFL (“the League”) season. The League, and in particular its Commissioner, Roger Goodell, find themselves in more trouble than many can remember, following a spate of incidents involving acts of domestic violence and child abuse. Public outrage has boiled over in reaction to these incidents and to the league’s handling of them.
One incident in particular has provoked a profound and decisive reaction from the League. The incident involved former Baltimore Ravens running back Ray Rice. The 7th year veteran’s despicable actions and the NFL’s handling of his ensuing suspensions brought a number of issues surrounding player conduct rules into light and have prompted the NFL to make wholesale changes. This article will take stock of that incident and the events that followed, before considering what lies ahead for the NFL.
On 15 February this year, former Baltimore Ravens running back Ray Rice and his now wife Janay Palmer, were arrested for assault at an Atlantic City casino. The Atlantic City Police Department stated at the time that “after reviewing surveillance footage it appeared both parties were involved in a physical altercation”.1 NFL.com reported that a summons for Rice stated he had hit Janay Palmer and “caused her to lose consciousness.”2
Rice was charged with third-degree aggravated assault.3 He avoided trial by agreeing to a pre-trial intervention program, which involves a guilty plea in exchange for the opportunity and no conviction upon successful completion of the program. Soon after, CCTV footage was released showing Rice dragging his semi-conscious wife from an elevator in the Revel Hotel and Casino.
The two game ban
Following this, on Thursday 24 July the NFL banned Rice for two games.4 To put this decision into context, Cleveland Browns wide receiver Josh Gordon had just been suspended for the entire season for using marijuana5 (although the league is now considering a reduction6). This led many to the same conclusion: in the NFL’s moral universe, recreational drug use is more punishable than domestic violence.
The indefinite suspension and Rice’s release
On Monday 8 September, full footage from inside the Revel Hotel elevator was released by TMZ showing Rice punching Palmer and knocking her out cold.7 Hours after this second video emerged, Rice was released by the Ravens. Shortly after that an NFL spokesperson announced he had been indefinitely suspended from the League.
In an interview aired on CBS on Tuesday 10 September 2014,8 the NFL Commissioner Roger Goodell categorically stated that he and nobody in the League had seen the second video until Monday. However on Wednesday 11 September 2014, the Associated Press reported that an NFL executive had been sent a copy of that video, and produced a voicemail dated 9 April 2014 from an NFL phone number, confirming receipt of the video and commenting “you’re right, it’s terrible.”9
These revelations have rocked the NFL. It would appear at first blush that either Goodell lied, or he was unaware of vital information held by his own league. Whatever proves to be the case, Goodell’s decision to increase the original two game ban not only undermined himself and the league’s conduct policy, but also has legal implications.
The NFL’s Personal Conduct Policy
Rice’s initial ban and following indefinite suspension were issued under the terms of the NFL’s former Personal Conduct Policy (PCP).10 This policy is being reviewed and is expected to be amended as a consequence of the above events and a look at its provisions will illustrate its shortcomings and what needs to change.
The PCP governs the conduct of all NFL staff and affiliate members, including athletes, and states:
“While criminal activity is clearly outside the scope of permissible conduct, and persons who engage in criminal activity will be subject to discipline, 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. Instead, as an employee of the NFL or a member club, you are held to a higher standard and expected to conduct yourself in a way that is responsible, promotes the values upon which the League is based, and is lawful."11
This is laudable language that sets admirably high standards. It is also incredibly vague, and sets the league up for embarrassment when claims of a “higher standard” appear toothless and misguided in instances such as this.
The policy lists a number of prohibited acts. It explicitly mentions domestic violence, stating that discipline may be imposed in circumstances involving “domestic violence and other forms of partner abuse”. It also includes “conduct that imposes inherent danger to the safety and well-being of another person” and “conduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs or NFL players."12 These clauses leave no doubt as to the league’s stance on Rice’s acts, which fall under all three heads.
Why then was the initial ban so inadequate, and the following indefinite suspension so disparate from the initial decision?
Vague disciplinary provision
One of the major problems with the policy is its disciplinary provision. The key paragraphs read as follows:
“Upon learning of conduct that may give rise to discipline, the League may initiate an investigation to include interviews and information gathering from medical, law enforcement, and other relevant professionals…Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted.
Discipline may take the form of fines, suspension, or banishment from the League…"13
It is a vague provision granting the Commissioner wide discretion and “full authority” in handing out disciplinary action. Moreover, there are no guidelines for applying disciplinary sanctions for personal misconduct. This explains the inconsistency in penalties that have been imposed over the years, as pointed out by Ryan Van Bibber in a sbnation.com article:
- Plaxico Burress got a four-game suspension for shooting himself in the leg with a concealed handgun he brought to a New York City nightclub;
- Detroit Lions defensive tackle Ndamukong Suh got a two-game suspension for stomping on the Packers' center;
- Cedric Benson received a three-game suspension for a misdemeanor assault charge in 2011, his second assault incident in two years;
- Terrelle Pryor served one of the most notorious NFL suspensions of all, five games for his role in exchanging memorabilia for cash...while he was in college.14
With so little guidance in the policy and such an assortment of disjointed precedents to follow, it is perhaps unsurprising that such a situation as this might arise.
Independence, accountability and transparency
The problems with the PCP could arguably be said to have arisen during the process by which it was first established. Kelly Vaughan in the Cornell Law Review, June 2014, describes how Goodell imposed the PCP upon teams “unilaterally without amending the CBA through a formal negotiation process and agreement between the parties”;15 though she does acknowledge that Goodell consulted with a small panel of NFL players. It was the Commissioner’s policy and remains his policy in its execution.
Notwithstanding how it was drafted, the PCP’s disciplinary process involves an investigation to be conducted by the League, though for all intents and purposes this can be read as the Commissioner. That process can include interviews and information gathering with relevant professionals, though none of this is an obligation (the League “may” initiate this investigation).
Furthermore, there are no provisions whatsoever for making the investigatory process transparent; none for example demanding disclosure of the evidence considered, the weight given to each piece and the decision-making process followed. This goes a long way to explaining why the matter of video evidence and what the NFL knew about Rice’s actions is shrouded in mystery. It also explains why Goodell’s initial decision was so baffling and will remain so.
What is left is ultimately a disciplinary process devoid of structure and transparency and one that makes the Commissioner solely responsible and accountable for decisions made under it. While that makes it easy to apportion blame when bad decisions are made, a more transparent and independent policy would be a more constructive way to manage personal conduct.
Amendment of the policy
The PCP was ultimately a paltry policy that ran to just under two and a half pages, and will now be amended. Goodell was quick to recognise its inadequacies, and after wide condemnation of Rice’s initial two game suspension, wasted no time in circulating a letter announcing radical changes.16 Goodell’s letter admits “I didn’t get it right…we have to do better. And we will."17 The move was confirmed by Goodell in a press conference held on Friday 19 September 2014.18
To assist the league in its development, three female domestic violence experts have been hired to serve as consultants to “help lead and shape the NFL’s policies and programs relating to domestic violence and sexual assault”.19 The experts will be: Lisa Friel, former head of the Sex Crimes Prosecution Unit in the New York County District Attorney’s Office; Jane Randel, co-founder of No More, a campaign against domestic violence and sexual assault; and Rita Smith, former executive director of the National Coalition Against Domestic Violence.
Other strategies include moving Anna Isaacson, the NFL's former vice president of community affairs and philanthropy to vice president of social responsibility, Isaacson having led the league’s work relating to domestic violence and related social issues so far. Isaacson will now oversee the development of education, training and support programs relating to domestic violence, sexual assault and matters of respect.
In his press conference on Friday 19 September 2014, Goodell also announced that the League would be setting up a personal conduct committee, to help establish procedures on how to handle conduct problems. The committee will also assist the Commissioner in developing and evolving the PCP on an ongoing basis, and Goodell has vowed to make changes to the PCP by the Super Bowl.
Goodell already made changes to the PCP in August. They included imposing a mandatory six-game suspension for first domestic violence offences and banishment from the league for a second offense, with the reinstatement policy after a year remaining intact20. Those changes give may give an indication as to the league’s direction, but come February next year the changes could be even more wholesale.
The League’s Policy and Program for Substances of Abuse21 is a far more comprehensive 32-page document that contains substantial disciplinary provisions. It also contains guidance for the Commissioner on the right sanctions to impose for different levels of misconduct. Not only does this help ensure the right decisions are made, but it improves transparency and ensures that big decisions like this one are not made by one man alone. Perhaps the league should consider adopting a similar structure in the new PCP.
The trouble with the PCP was that it left Goodell on an island. The responsibility for the Rice decision lay ultimately with him, there was little guidance on proportionality (although this is in no way a justification of his initial decision) and the implications for him and the league could be severe.
As a final point, it will also be interesting to see whether, and if so how, other major sports leagues will revise their respective policies on domestic violence.
CAN RICE CHALLENGE THE BAN?
While the League may be responding proactively to criticism, the Ray Rice issue will not just go away. Rice can appeal his ban, and he has a number of ways to do so. Firstly, he could have appealed the ban to the Commissioner under the PCP itself, which states, “Following the imposition of discipline, the affected person will have the right to appeal the decision. (For players, the disciplinary decision must be appealed within three (3) business days.)” The right to appeal includes entitlement to a prompt hearing, with the NFL Player’s Association entitled to attend.22
The 3 day time limit will now have barred Rice from this option, and in any case Commissioner Goodell would not have reduced or repealed his own original decision.
Seeking reinstatement under the PCP
Rice can also seek reinstatement under the PCP, which states “Any person suspended indefinitely or for at least one year may seek reinstatement beginning one month prior to the one-year anniversary of the suspension. As part of his consideration of the application for reinstatement from a player, the Commissioner will seek the views of the NFLPA and may consult medical, law enforcement, and other relevant professionals."23
The Commissioner’s remarks in interview appeared to suggest this would be a possibility, as he refused to rule out a return to the league for Rice, stating “he would have to make sure that we are fully confident that he is addressing this issue clearly, that he has paid a price for the action that he has already taken."24 Whether Rice has this opportunity remains to be determined by his decisions and actions over the next 12 months.
Legal action against the NFL
Alternatively, Rice could pursue legal action against the NFL. Any action would begin with an analysis of the PCP and the Commissioner’s interpretation of it. As discussed above, the PCP’s broad language and the wide discretion given to the Commissioner would leave a decision-maker with little chance of invalidating Goodell’s interpretation.
The NFL’s collective bargaining agreement
However, Rice could also cite Article 46 of the NFL’s Collective Bargaining Agreement (CBA).25 Article 46 contains a “one penalty” clause that solicitor Michael McCann believes holds the potential key to a successful appeal. The one penalty clause bars the league and teams from disciplining a player for the same conduct or act, stating:
“Section 4. One penalty: The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner’s disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct."26
McCann, in an si.com article, believes the clause “suggests that the NFL cannot punish a player twice for the same conduct or act".27 This appears to stretch the words beyond their natural meaning. A more literal interpretation is that Commissioner Goodell and the Ravens cannot both discipline Rice for his act. As the second sentence clearly states that Goodell’s discipline supersedes the Ravens’, Article 46 might give Rice grounds to challenge his dismissal by the Baltimore franchise.
As to whether Goodell can take disciplinary action twice for the same act or conduct, it does not appear that Article 46 precludes him from doing so. US lawyer Darren Heitner, in an article on forbes.com, states that such an interpretation is based on “ambiguous phrasing” and would lead to a “sad state of affairs” where such meaning has simply been read into the clause, “because why not?"28 This author is inclined to agree and it appears that any chance Rice would have of challenging Goodell’s increased ban would rest on a claim of double jeopardy.
Double jeopardy forbids a defendant from being tried on the same, or similar charges following conviction or acquittal. As Heitner points out, in labour disputes it is generally ruled than an employer cannot increase an already imposed punishment for an act. It remains to be seen whether the definition of “employer” would extend to Goodell, who is appointed by the employer’s themselves, the NFL franchise owners. On Tuesday 16 September, the NFL Player’s Association announced that they would be representing Rice in an appeal of his suspension29, as they are entitled to do under the CBA. Their appeal will indeed be premised upon this concept.
It is hard to digest the fact Rice might have plausible grounds to appeal his ban, given the despicable nature of his actions and the public condemnation of his act by the league, the media and fans. It is also likely to be a highly unpopular decision by the NFLPA, but one they feel they have to make to protect players from future abuse of the PCP and its disciplinary provisions.
Should Rice be successful, one wonders how attractive a commodity he would be to an NFL franchise. However, the NFL is a performance industry like no other and it is not a stretch to think that someone, at some point in the future might attempt to pick him up.
CAN RICE CHALLENGE HIS DISMISSAL BY THE RAVENS?
As mentioned above, Article 46 may also give Rice grounds for challenging his dismissal by the Ravens. The one penalty clause, which gives precedence to the decision of the Commissioner, precludes the Ravens from taking disciplinary action for the same offence. However, such action would rest on a determination of whether that dismissal constituted “discipline” for the same misconduct. Given the wide discretion allowed to sports teams to release players under contract, the Ravens were well within their rights to change their mind about Rice despite previously standing by him. McCann concludes that Rice “likely has no viable legal argument against the Ravens"30.
WHAT NEXT FOR THE NFL AND GOODELL?
Independent investigation into the handling of the affair
Goodell announced on 10 September that the league and its handling of the affair would be independently investigated by former FBI director Robert S. Mueller III.31 Mueller is tasked with investigating the NFL’s pursuit and handling of evidence in the Ray Rice domestic violence incident. The investigation will be overseen by NFL owners John Mara of the New York Giants, and Art Rooney of the Pittsburgh Steelers, arguably calling into question its independence.
The league and Goodell have stated that the findings of the investigation will be made fully public. They will be of great consequence for the NFL as a brand and a product. They will also be of great consequence for Goodell, who has many calling for his resignation. As it was put to the Commissioner in interview, there are many people who simply don’t buy that the NFL did not have access to the full footage from the outset. It certainly begs the question how a celebrity gossip website had access, and others within his organisation, but not the one man who ultimately calls the shots.
Regardless, serious questions have been raised about the transparency and integrity of the NFL’s handling of the affair. Rice’s initial ban was grossly inappropriate and while it is not known which footage the league had access to when the original two game ban was imposed, the fact remains that they saw fit to impose a ban, implying that they reached the same conclusion as everybody else.
The paucity of that initial decision rankled many who have questioned their support of the league, including sponsors Anheuser-Busch32 and Radisson,33 and the pressure has ramped up after further incidents involving the Vikings’ Adrian Peterson,34 the Arizona Cardinals’ Jonathan Dwyer,35 and the San Francisco 49ers’ Ray McDonald.36 Clearly the shockwaves from the past fortnight could last long into the NFL’s future, and that of Roger Goodell.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: American Football | Criminal Law | Domestic Violence | Governance | NFL | NFL Personal Conduct Policy | Regulation | United States of America (USA)
- Another hurdle in the Washington Redskins’ fight for trademark protection
- NCAA using O’Bannon decision to seek dismissal of other suits
- Ex-NFL linebacker’s Workers’ Compensation Claim proceeds on basis of two games played in California
- University of California sued for wrongful death of American football player
About the Author
Tom is a paralegal who most recently worked in property litigation at Wedlake Bell, assisting on a broad range of matters across the department. He previously spent six months in commercial property and prior to that worked in international litigation.
He is a University College London LLM graduate.
Tom has a passion for sport (particularly tennis and American football) and the legal issues within sport.