Thursday, April 22, 2010
Yesterday, NFL Commissioner Roger Goodell announced that he had suspended Pittsburgh Steelers’ quarterback Ben Roethlisberger for 6 games for violations of the NFL Personal Conduct Policy. The suspension can be reduced to 4 games (at Mr. Goodell’s discretion) if Roethisberger successfully completes behavioral counseling. It’s an almost certainty that Roethlisberger will complete his counseling, and thus, in my opinion, this is really a 4 game suspension. However, even at 4 games, the length of the suspension is unjust, and an abuse of Mr. Goodell’s discretion.
Goodell has suspended a number of NFL players for violation of the Personal Conduct Policy, however, the vast majority of these players were either found guilty or pled guilty to a criminal offense. My research indicates that no players were suspended for 4 games or more without an underlying criminal conviction. There are also a significant number of players that have been convicted of crimes (even felonies – see Michael Vick - 2 games) who received less than 4 game suspensions. So why does Roethlisberger get 4 games?
The analysis begins with Goodell’s unbridled discretion under the Personal Conduct Policy. All punishment meted out by Goodell is at Goodell’s sole discretion. Any appeals are heard by, yes, you guessed it, Roger Goodell. There is no meaningful standard by which to determine the severity of discipline under the Policy. Paula Duffy of the Huffington Post captured the essence of Goodell’s discretion quite succinctly in quoting former Supreme Court Justice Potter Stewart. Justice Stewart, in struggling to define “hard core pornography” wrote:
“I shall not today attempt further to define the kinds of material I understand to be embraced with that shorthand description [“hard core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture in this case is not that.”
Contrast the “I know it when I see it” standard with Major League Baseball’s policy, which requires “just cause” to impose discipline. Even worse, there are no meaningful appellate rights under the NFL Policy. In MLB, a player can appeal any discipline to an independent arbitrator. In the NFL, you appeal to the person who made the decision in the first place. So much for checks and balances! This is a bargaining failure by the NFLPA that must be corrected in the next round of CBA negotiations.
Let’s be clear: Ben Roethlisberger engaged in abhorrent behavior on March 5, 2010. Whatever the real story is, Roethlisberger placed himself in a situation that endangered himself, his career, and most importantly, the young women. Additionally, the situation in Georgia is eerily similar to the allegations made against him in a civil suit filed in Nevada. At the minimum, Roethlisberger has exhibited extremely poor judgment. At the most, he has engaged in aberrant sexual behavior. Regardless of where the truth lies, Roethlisberger has not been charged with a crime in either situation. Both women reported their respective matters to the authorities. The authorities, who actually have something more than an “I know it when I see it” standard, determined that no criminal conduct occurred.
While every professional sports league should have some discretion to impose discipline when a player engages in serious misconduct, there must be some meaningful standard by which to determine such discipline. Under any meaningful standard, and using prior suspensions imposed by Goodell (also rendered under the “I know it when I see it” standard), Roethlisberger should not have been suspended for 4 games. Not to be repetitive, but emphasis is necessary: there have been no criminal charges filed against him, much less any convictions. There hasn’t even been sworn testimony produced regarding these incidents. Roethlisberger’s penalty is the result of a statement to police given by an admittedly highly intoxicated individual, and a civil complaint (by a woman seeking significant monetary damages). This is not evidence that leads a reasonable person to a certain conclusion of wrongdoing that would rise to the level of a 4 game suspension.
Roethlisberger’s suspension is clearly the result of Goodell’s public relations antennae twitching uncontrollably. Goodell is concerned that any suspension of less than 4 games would result in serious public backlash (his PR concern is highlighted by the fact that it was announced as a 6 game suspension, when in reality, it is a 4 game suspension). However, while the NFL certainly has the right to be concerned with respect to public relations issues, a player’s rights, and the integrity of the disciplinary system (as flawed as it is) cannot be thrown to the wind for public relations reasons. Players have rights, even when they engage in misconduct. Roger Goodell has an obligation to respect those rights. In this case, he didn’t.
Given his position in the Roethlisberger matter, I wonder what type of suspension Mr. Goodell would have imposed upon Tiger Woods were he an NFL player?
Thursday, April 15, 2010
I want to thank the students and faculty of Suffolk Law School and Harvard Law School for hosting the Major League Baseball Salary Arbitration panel discussion on April 2, 2010. I was joined on the panel by MLB Arbitrator (and Professor) Roger Abrams and New York Mets' Deputy General Counsel Neal Kaplan. Outstanding participation and questions from the students, and spirited discussion amongst the panel. Thanks again for having me!