NBPA's View of Commissioner Suspensions Opposite of NFLPA's

On Saturday, NBA players Ron Artest and Stephen Jackson were suspended by the league without pay for the first seven games of next season resulting from off-court legal issues. Artest pleaded no contest to a misdemeanor domestic violence charge involving a dispute with his wife, and Jackson pleaded guilty last month to a felony charge of criminal recklessness for firing a gun outside a strip club last fall. Jackson has publicly stated that he accepts his suspension. However, the union is comparing the penalties to other recent suspensions given to players for off-court misconduct and is considering appealing the suspensions. NBPA executive director Billy Hunter says, "Based on prior precedent, we think the suspensions are excessive. We plan to confer with the players and their representatives to consider all of our options for appeal." In 2001, Ruben Patterson received a five-game suspension after he accepted a modified guilty plea to third-degree attempted rape for allegedly forcing his children's nanny to perform a sex act on him, and Eddie Griffin was suspended three games in 2004 after pleading guilty to a misdemeanor assault charge in Texas.

Hunter's view of the union's role in defending the rights of players disciplined (or to be disciplined in the future) by the commissioner for off-field behavior is radically different from Gene Upshaw's view. A few months ago, I raised a number of questions that should be considered by all NFL players regarding disciplinary action taken by the commissioner under the NFL's new personal conduct policy, which was implemented by the new commissioner after consultation with a small committee of six players and affords the commissioner unfettered discretion in disciplining players without any review by an arbitrator. However, the NBA commissioner's disciplinary action is reviewable by an arbitrator mutually selected by the union and the league (as is the case with MLB and NHL commissioner disciplinary action). The effect of subjecting the commissioner's disciplinary action to outside review by an impartial arbitrator should not be underestimated because it impacts the commissioner's initial decision to take disciplinary action as well as the level of suspension he imposes. An arbitrator reviews the commissioner's action under a just cause standard, ensuring that the imposed discipline is not arbitrary, unduly harsh or contrary to established precedent.

The NBPA is obviously concerned about due process as well as the financial impact that league suspensions without pay will have on its players. The NFLPA, however, seems to take the view that stricter league disciplinary action is warranted in order to "clean up the league". The NBPA views the league in an adversarial position and feels that the commissioner's disciplinary action should be scrutinized, even when it involves suspension of a player for a small fraction of the season. Conversely, the NFLPA views the commissioner more as a partner in a "get tough on crime" policy and puts a great deal of trust in the hands of the commissioner to do whatever he thinks is necessary, even if it means suspending a player for half a season or a full season. So here's my legal question for the week: What is the proper role of a labor union certified under the National Labor Relations Act in representing the best interests of its members accused of off-field misconduct and disciplined by the commissioner?

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