This past Sunday I appeared on Law and Batting Order for a Live Q&A on the state of the NCAA. The discussion included:
If you have never seen a Law and Batting Order podcast, its worth checking out. The Sports Law topics are timely and the content is always informative. I truly enjoyed taking part in the Q&A. Here it is:
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.
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