WHY THE NFL CAN SUSPEND RAY RICE FOR TWO GAMES: EXAMINING THE NFL'S DISCIPLINARY SYSTEM

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:

• Behavior Referral: If the player was referred to the program based upon behavior and upon evaluation is deemed not to require clinical treatment, then he is released from the program. However, if the player was referred based upon behavior and does require clinical treatment, then he is automatically advanced to stage two. 
• Failed substance abuse test referral: If a player is referred to the program based upon a failed substance abuse test, or fails a substance abuse test while in stage one regardless of the referral, then he is automatically advanced to stage two. 
  
• Self-referral: Under the NFL's drug policy, these players are to remain in stage one unless the player fails a substance abuse test, the self referral becomes public knowledge, or if the medical director is informed by someone other than the player that the player has engaged in behavior which the medical director deems to be illustrative of a substance abuse problem. Such an example includes, but is not limited to, being arrested for illicit substances or substance abuse crimes.

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.

Conclusion
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.