On September 8, 2014, TMZ Sports released the video of Ray Rice striking his fiance in the elevator of an Atlantic City Casino. Until this point, the NFL claimed it had not seen the video, despite requesting it from the police. Thus, the video played no part in determining Rice's initial two game suspension (which I initially discussed here).
Although the NFL now faces questions about the sufficiency of its investigation process, the League should also be faced with a lawsuit. After TMZ released the video, Rice was released by the Baltimore Ravens. More importantly, the NFL indefinitely suspended RIce from the League, despite having initially suspended Rice for two games. In other words, the NFL punished Rice for the same offense twice.
Conceptually, punishing a player twice for the same offense is a problem. This would allow the League's Commissioner to reserve seemingly unending power to exact punishment and then change his mind as he sees fit. Importantly, although the Commissioner is granted the authority to punish players under Article 46 of the Collective Bargaining Agreement ("CBA") entered into by the NFL and the NFL Players Association ("NFLPA"), which is further specified in the NFL Personal Conduct Policy, the CBA is silent as to multiple punishments by the Commissioner for the same offense.
The Commissioner's second punishment should be challenged in court. In order for Rice to succeed in challenging that the Commissioner exceeded his authority by disciplining Rice a second time for the same offense, he would have to prove that the indefinite suspension was arbitrary and capricious. This burden of proof, although deferential to organizations as decision makers, may be achievable for Rice.
In support of his claim, Rice would rely heavily on the NFL's investigation process which led to his first suspension. During the investigation, the NFL gathered evidence it deemed necessary to discipline Rice. The NFL recently stated that it requested "any and all information about the incident, including the video from inside the elevator" and that "[The elevator] video was not made available to us and no one in our office ha[d] seen it until [TMZ released it]."
Despite being aware of the existence of the elevator video and knowing the League had not seen it, the Commissioner decided to discipline Rice by suspending him for two games. Therefore, the Commissioner's second disciplining of Rice can be seen as arbitrary and capricious because there is no rational connection from the indefinite suspension to now seeing the contents of the video they implicitly rejected to pursue. In essence, the NFL cannot claim that the contents of the video are new evidence, as they were aware of the video's existence and chose not to ensure they saw the video before exacting discipline.
Another point that Rice could raise, albeit a weaker one, is that he was disciplined a second time absent any investigation, which is arbitrary and capricious as the League violated its own rules. Within less than a day of the tape's release, the NFL suspended Rice indefinitely. The NFL Personal Conduct Policy states that "Upon learning of conduct that may give rise to discipline, the League may initiate an investigation" and "Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted." The Personal Conduct Policy only discusses an expedited disciplinary process with respect to repeat offenders. However, Rice's single incident of known domestic violence is the only time his conduct had given rise to an investigation or discipline. Therefore, under its own terms, the NFL would be treating the viewing of the elevator video as a separate disciplinary incident due to the lack of an investigation. However, as the video portrayed the known actions in the same event as the first disciplinary matter, any additional discipline would be arbitrary and capricious.
Further evidence that the NFL is treating the elevator video as a separate discipline-worthy incident comes from the recent changes to the Personal Conduct Policy. In the fallout from the perceived leniency of Rice's initial two game suspension, the Commissioner mandated that enhanced penalties for domestic violence be placed within the Personal Conduct Policy. Under these enhanced penalties, a second domestic violence offense mandated that the player would be indefinitely suspended from the NFL, and would only be allowed to apply for reinstatement after a year. Such discipline is identical to that received by Rice following the release of the elevator video. However, as noted above, the release of the elevator video cannot be effectively said to be a separate disciplinary event.
Should Rice be able to meet the arbitrary and capricious burden, the Court would then overturn his indefinite suspension and instead, his previous two game suspension would hold. However, Rice may not wish to bring suit out of public relations concerns. Certainly, his image has been rightfully tarnished by his actions, and bringing suit to be reinstated in the NFL may create additional negative perceptions. However, the NFLPA has the ability to bring suit on his behalf. The NFLPA is particularly interested in this matter because of the precedent that it could set on player discipline. Simply put, the NFLPA does not want the Commissioner to be able to discipline a player twice for the same offense. Should it bring the suit on behalf of Rice, he would still have the benefit of having his indefinite suspension overturned if the NFLPA succeeds.
Although Rice's actions were truly despicable, League officials must be forced to correctly discipline players on their first attempt. Otherwise, no discipline is ever final.
In late February, 2014, Ray Rice was charged with assault after striking his fiancee, rendering her unconscious. Subsequently, a video of Rice dragging his fiancee through their hotel on the night in question went viral on the internet. Although the charges against Rice were ultimately dismissed, punishment by the NFL was nearly guaranteed.
Late last week, the NFL announced that Rice would be suspended for the first two games of the 2014-2015 season and fined an additional game's salary, $58,823. The totality of Rice's suspension has widely been perceived as too lenient and offensive to women. This notion is especially realized when Rice's punishment is compared with recent penalties for drug abuse.
In early May, 2014, Josh Gordon was suspended for at least the entire 2014 season after testing positive for marijuana use. Although this was at least Gordon's third offense, the severity of his punishment vastly outweighs Rice's. Similarly, Justin Blackmon is also suspended for at least the 2014 season for his repeated use of marijuana. However, a player who fails a drug test for the first time is suspended for four games, as explained below, which is twice the suspension that Rice received.
The specific punishments for substance abuse are mandated by the collectively bargained NFL Policy and Program for Substance Abuse (hereinafter, "NFL drug policy".) In contrast, punishment for conduct detrimental to the league (which includes illegal conduct) is determined by the Commissioner of the NFL. The differences in how player misconduct is governed is one of the main reasons that punishment for substance abuse offenses varies from conduct detrimental to the league, such as Rice's alleged assault.
The NFL Policy and Program for Substance Abuse
In 2010, the current NFL drug policy was agreed upon by the league and the NFL Players Association. Its primary purpose is to "assist players who misuse substances of abuse, but players who do not comply with the requirements of the Policy will be subject to discipline." The policy establishes a comprehensive substance abuse program where players are put on treatment plans and monitored based upon what stage of the program the player is classified in.
Players enter the program by failing a drug test, behavior (such as an arrest related to substances of abuse), or self-referral. Once in the program, players are evaluated and placed in Stage One.
In stage one, upon evaluation, the medical director will determine whether the player should be referred for clinical treatment and subsequently develop a treatment plan. Entering this stage does not necessarily mean that the player has a substance abuse problem, but that treatment may help prevent such a problem in the future. Under the purview of a treating clinician, the player will be treated according to the treatment plan, and given as many substance abuse tests as necessary to evaluate the player, at the discretion of the medical director. Players may remain in stage one for up to 90 days, which can be extended to six months under certain circumstances.
A player being released from stage one or advanced to stage two can occur as follows:
In stage two, players must comply with the treatment plan as developed, be evaluated further, and be subjected to unannounced substance abuse testing. The tests may not be given more than 10 times a month. Should a player fail to adhere to the treatment plan, testing, or fail a substance abuse test, the player is subject to discipline. If the player successfully completed stage one, then the player is fined four weeks pay. In contrast, if the player did not complete stage one, then the player is suspended four consecutive games without pay, including the post-season and Pro Bowl, if selected. Should a player violate stage two a second time, the player will be suspended four consecutive games if his first violation resulted in a fine, a suspension of six consecutive games if the player was suspended for his first violation, as well as forfeit a percentage of his signing bonus to his team proportional to the length of the suspension.
Players remain in stage two for 24 months or two full seasons, whichever is shorter. A player is advanced to stage three if while in stage two he has two failed substance abuse tests, two instances where the player fails to comply with testing or treatment as defined by the treatment plan, or one failed test and one instance of noncompliance with the treatment plan. A player who completes stage two and is not advanced to stage three is released from the program.
Stage three is much more serious than the two which precede it. Once a player is in stage three, they remain there the rest of their NFL career. The player is subject to unannounced drug testing up to 10 times per month and after three years may request the number of tests to be reduced at the discretion of the medical director. Most importantly, a player who fails to comply with the treatment plan, testing, or fails a substance abuse test is to be banished from the NFL for at least one year. During the player's banishment, he still must adhere to the treatment plan and his contract with the team is tolled. This is the stage that Josh Gordon and Justin Blackmon are in, as they are facing being banished for a year as a result of at least their third failed drug tests.
The punishments defined in the NFL drug policy are a binding agreement upon the Commissioner to impose the specified penalties in the circumstances defined in the policy. There is no altering of the penalties unless there are additional circumstances which amount to conduct detrimental to the league. Effectively, this means that penalties can be enhanced in rare instances, but not reduced.
Conduct detrimental to the NFL
In clause 15 of the uniform NFL Player Contract (Appendix A in the link,) the integrity of the game clause, the Commissioner expressly reserves the right to discipline players for conduct "detrimental to the [NFL] or professional football." This is a very broad power reserved to the Commissioner, which is only checked by an appeals process. Unlike the NFL drug policy, there is no agreement by which specific infractions which are detrimental to the NFL, which means that the Commissioner must attempt to use the totality of the circumstances in determining a punishment for each offense.
In Rice's case, the Commissioner surely took note of Rice's criminal charges which were ultimately dismissed after he entered a pretrial intervention program. Additionally, the Commissioner met with Rice and Janay Palmer, Rice's then-fiance and now wife, at the League office to discuss the incident. Additionally, NFL VP of Labor and Government Affairs, Adolpho Birch, offered some insight as to the Commissioner's process in disciplining Rice. Appearing on ESPN's "Mike and Mike" radio show, Birch stated:
"I think the way we [determined Rice's punishment] is the way that we determined discipline in all of these types of cases, and that is, the Commissioner elicits a number of perspectives. He doesn't sit in a vacuum when he's making these types of decisions, but instead consults with people, listens to the perspectives of the Players Association, and others at the League office, and ultimately makes a decision that he thinks is appropriate based on both the conduct and the importance of making the right message for the League and others moving forward."
It is important to note that Birch's statement highlights the way the NFL "determined discipline in all of these types of cases," which is somewhat arbitrary. And unfortunately, that's all that is known of the Commissioner's process in determining this suspension as of right now. The Commissioner has yet to speak about the suspension, but may do so when he meets with the media this weekend.
Importantly, the NFL has not said anything about how it justified the degree of Rice's punishment, which is what most people are taking issue with. Birch correctly noted that Rice's suspension and fine costs him hundreds of thousands of dollars (due to his large contract), but a player who fails a drug test for the first time has a mandatory suspension that is double what Rice received. Birch also noted that by disciplining Rice, the NFL has shown that it does not tolerate domestic violence. While this statement is correct on its face, as Rice was punished to some degree, the severity of Rice's punishment when compared with any of the marijuana use punishments creates the perception that marijuana use is more serious than domestic violence. Simply put, Rice's two game suspension shows fans that taking an illicit substance, or harming oneself, is more serious to the NFL than domestic abuse, because the suspension is longer.
The Rice disciplinary matter has highlighted the fact that the NFL's arbitrary disciplinary system is broken. Although a collectively bargained system exists for substance abuse offenses, which specifies mandatory disciplinary action under certain circumstances, the Commissioner's power to discipline players for conduct detrimental to the NFL is too broad as it currently stands. The Commissioner is free to discipline offending players as he sees fit, with little regard to severity as compared to other offenses.
Although it would be impossible to create a comprehensive list of offenses and their mandatory suspensions, it may be worthwhile for the Players Association to push for the creation of disciplinary guidelines. These guidelines would classify offenses, and each class would have a range of disciplinary actions based on aggravating factors. Although it may be difficult to come to an agreement on appropriate discipline and aggravating factors, it behooves the NFL to avoid seemingly arbitrary disciplinary decisions, such as Ray Rice's suspension, due to the public relations nightmare it has the potential to create.
Now that Lebron James has announced his return to the Cleveland Cavaliers, the basketball world is awaiting Carmelo Anthony's decision on what team he will sign with. Phil Jackson, President of the New York Knicks, is optimistic Carmelo will re-sign, as the team is willing to use the Veteran Free Agent Exception to the salary cap in order to retain him.
Ordinarily, the aggregate salaries of an NBA team must remain under the salary cap provided for in the NBA's Collective Bargaining Agreement ("CBA".) However, the CBA provides for several exceptions, which are defined in Article VII, Section 6, where player salaries may total more than the salary cap.
One of the exceptions to the salary cap are the so-called "Larry Bird rights." In the CBA, this is officially known as the Veteran Free Agent Exception.
The Veteran Free Agent Exception allows players to re-sign with their team at an amount that cannot exceed a defined percentage of the salary cap or a defined percentage of the player's earnings in their last season, whichever is greater. The particular percentages are determined by the years of service time the player has been in the NBA.
For purposes of this exception, the CBA groups players by service time of less than seven seasons, between seven and ten seasons, and more than ten seasons. In determining the maximum contract amount under this exception, the percentage of the player's earnings in the last season is constant at 105% regardless of service time. However, the percentage that the contract may be of the salary cap increases with each service group from 25%, to 30%, and 35%. Carmelo is in the last service group, having played for eleven seasons.
However, the Veteran Free Agent Exception does not apply to all players entering free agency. In order to qualify, a player must have played the last three seasons with one team, have changed teams only by means of trade, or have signed with a prior team during the first of the three preceding seasons. Carmelo has played more than three seasons with the Knicks, and is therefore eligible for this exception.
Effectively, the Veteran Free Agent Exception operates as an incentive for players to resign with a team by offering them a salary that cannot be matched by other teams due to salary cap constraints. In turn, this allows the fan base to develop a greater bond with the player, which can then be leveraged by the team and player in marketing endeavors.
By utilizing the Veteran Free Agent Exception, it has been reported that the Knicks offered Carmelo a contract for $129 million for five years, or the maximum contract allowed. In contrast, other teams have only been able to offer him $96 million for four years. The difference between the two contracts is the Knicks are able to offer an additional year and an additional $33 million.
Hopefully, Carmelo, re-signs with the Knicks. As a result of the Veteran Free Agent Exception, he certainly has an additional thirty three million reasons to do so.
Quiles Law is an esports and sports law firm based in New York City.
60 Bay Street, Suite 700
Staten Island, New York 10301
(P) (917) 477-7942
(F) (917) 791-9782
Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys, collectively, are licensed to practice law in the States of New York, New Jersey, and Pennsylvania. Copyright Roger R. Quiles, Esq., 2018. All rights reserved.