Does the NFL's New Personal Conduct Policy Afford the Commissioner Too Much Discretion?

Last Friday, I participated on a panel at DePaul University College of Law on the topic of regulating off-field misconduct. We had a lively discussion and debate regarding the timely issue of NFL commissioner Roger Goodell's one year suspension of Adam "Pacman" Jones. I raised a number of questions that should be considered by the players regarding this particular suspension, but more importantly, any future disciplinary actions taken by the commissioner under the NFL's new personal conduct policy.

1. Is it connected to the NFL's business?

Internal league discipline of players is warranted in situations that directly influence competition or affect the business side of the game. Examples of such situations would include gambling on the sport, use of performance enhancing drugs, or when a player unloads a slew of racial and ethnic slurs directed at New Yorkers, Mets fans and one of his teammates. But how does a fight in a nightclub (or any other violent behavior off the field) arise to the level of affecting the "integrity of the game"? And if it affects the "business side" of the NFL, how so? Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product? The justification for a "get tough on crime" policy seems to be that the owners, coaches and a majority of the players all agree with the commissioner when asked about it -- Well, of course they do! Are they really going to publicly say, "No, I think players getting arrested is none of our business"?

2. Should discipline be imposed without a conviction?

Are player arrests on the rise in the NFL? The advent of 24 hour news from multiple sources in which we are told 100 times per day that Pacman was arrested definitely makes it appear on the surface to be a growing problem in the NFL. But where's the data to suggest that it is. Recall a sampling of some of the headlines back in 2000: Ray Lewis (murder charge), Rae Carruth (charged with murder in the shooting death of his pregnant girlfriend), Mark Chmura (sexual assault charge) and Peter Warrick (charged with grand theft). League officials that year also reported that the number of players arrested for violent crimes actually dropped from 38 players in 1997 to 26 in 1999.

Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.

Off-field misconduct is laden with factual issues, which distinguishes it from on-field misconduct in which there are no factual issues because there are multiple camera angles of the behavior captured on videotape. Thus, in situations involving off-field behavior, the commissioner performs his own investigation and formulates an opinion. But the commissioner has no subpoena power and can't force witnesses to testify, and all of the safeguards afforded the accused in criminal proceedings are lacking (e.g. cross-examination of witnesses). Finally, and most importantly, a player disciplined prior to a conviction can be prejudiced in the criminal proceeding because prosecutors may subpoena the results of internal league investigations and use them against the player at trial.

3. Does the appeal process ensure fair and consistent disciplinary action?

Pacman has publicly stated that he will be appealing the suspension. The NFL is unique from the other sports in one critical respect: NFL commissioner discipline for off-field misconduct is not subject to review by a neutral arbitrator. Instead, the player's sole right of appeal is to the commissioner -- in other words, no right of appeal.

In the other sports, the arbitrator reviews commissioner disciplinary action using a "just cause" standard. "Just cause" is evaluated according to the common law of the workplace. Generally, this means that the league should follow progressive discipline in response to player misconduct, imposing increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player. It's arbitrary to impose an overly aggressive disciplinary action upon an individual player with an ulterior motive of sending a message to all players that "this is not to be tolerated". Arbitrators reduce suspensions when the suspension is unduly harsh or not in line with established precedent involving similar situations. Unfortunately for Pacman, and any other player subject to league discipline, he will never have that opportunity.

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