Spies are Among Us

Ironically, on the same day that I'm at Seton Hall University School of Law (yesterday) speaking about the overly broad discretion afforded the commissioner under the NFL's personal conduct policy implemented by Roger Goodell last year, the Wall Street Journal's Hannah Karp published a really interesting piece on how NFL teams are now spying on the players off the field (Why the NFL Spies on its Players, 11/7/08). Karp reports: "To guard against these unpredictable suspensions (there have been 10 so far), NFL teams are hiring former police officers and FBI agents as security chiefs, ordering up extensive background checks, installing video-surveillance systems in locker rooms, chasing down rumors and sometimes forbidding players from talking to the press. During a recent road trip, the San Diego Chargers not only conducted bed checks, but placed guards in the hotel hallways to make sure players didn't sneak out. The Seattle Seahawks have declared an entire downtown entertainment district off-limits, and the Denver Broncos have begun sending a former cop to local nightclubs on weekends to make sure the players behave."

Karp notes that the players are getting fed up with it and are speaking out against the new conduct policy:

The increased scrutiny has taken a toll on some players, including Broncos defensive tackle Marcus Thomas. Last year, after the policy was announced, Mr. Thomas had called his agent in a panic: He said he was convinced he was being followed by "a white man in sunglasses" who had been sent by the NFL. A league spokesman says NFL security did not follow Mr. Thomas.

Offensive lineman Langston Walker of the Buffalo Bills, who has an economics degree from the University of California at Berkeley, is no fan of the new code, which he considers too aggressive. When someone intentionally spilled a drink on him at a Los Angeles bar recently, Mr. Walker says he was worried about how the NFL's discipline czars might have reacted if things had escalated. "When you start not to trust your own organization or governing body, who can you trust?" he says.

Cleveland Browns tight end Kellen Winslow, Jr. says, "I think the player-conduct policy can be very subjective at times and might need some restructuring to clearly define what is and is not considered conduct detrimental, so it is not improperly imposed."

Under the previous conduct 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. The new conduct policy provides: “Conduct that undermines or puts at risk the integrity and reputation of the NFL will be subject to discipline, even if not criminal in nature. Repeat violations of the personal conduct policy will be dealt with aggressively, including discipline for repeat offenders even when the conduct itself has not yet resulted in a conviction of a crime.” The NFLPA says the personal conduct suspensions and fines have been excessive, "particularly in cases where a player has been accused of but not found guilty of a violation of law." One of the problems as I see it, and I discussed it last year on the blog, is that there is no check on fairness because the commissioner's disciplinary action is not subject to a "just cause" review by a neutral arbitrator (as is the case in the other sports).

Player discipline is a mandatory subject of collective bargaining. The new conduct policy is not in the CBA. If the players are serious, they should consider challenging Goodell's policy on the grounds that it was not collectively bargained for even though (according to previous press reports) the new policy was assented to by a 6-player committee.

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