Overdependence on Public Opinion: The NFL’s Personal Conduct Policy

by Josh Horowitz-Benoit

The video footage of Ray Rice, the 212-pound running back of the Baltimore Ravens, assaulting his fiancé in a hotel elevator, went viral for several reasons. Obviously, there was the shock factor associated with such a brutal attack. Secondly, there were the implications for the Baltimore Ravens. Lastly, the video was posted by many who wanted to call attention to the fact that commissioner Roger Goodell had only assigned a two-game suspension for the incident. When the video went viral, there was a public outcry, and the league decided to lengthen the suspension. This public relations nightmare that the NFL and Goodell avoided shows many of the current problems with the disciplinary system, such as inconsistency and over dependence on public opinion.

The power of the commissioner to discipline players in the NFL is a relatively new development. It originated in 2000, when owners of NFL club teams came together in response to negative publicity generated by Ray Lewis, who at the time was undergoing a murder investigation. Paul Tagliabue, former NFL commissioner, was given the power to “suspend players for a wide range of off-the-field misconduct” (Edelman 636). It was not until the 2007 NFL season, when Roger Goodell announced the suspensions of Adam Jones and Chris Henry in a media conference that the policy came into the public spotlight (Edelman). Since then it has been used numerous times by Goodell to discipline players, from offenses as trivial as marijuana use to more serious cases of domestic violence. Goodell reserves the right to suspend players, regardless of whether or not they are found guilty in court. Some argue that the NFL is a business and punishing players for non-football related offenses unnecessarily hurts the league and the players. Others, such as current cornerback and former Stanford player Richard Sherman, argue that Goodell has too much power in the decision-making process. While there is an obvious moral necessity for maintaining proper off-the-field conduct among NFL players, the current system implemented by Roger Goodell is inconsistent, biased, and stands to be improved.

Before getting into specifics of the personal conduct policy, it is necessary to recognize why the NFL has a moral obligation to enforce such a policy. While the policy was first implemented as a means of media damage control, the strict enforcement of the policy does hold players to a high moral standard, something not seen in all the other major sports leagues (Ambrose 14). The NFL is the most profitable professional sports league in America, and it wields tremendous influence over American culture. In a survey of 1,500 American children, when asked about people they admired, 73% mentioned a professional athlete. Athletes, aside from parents (92% of children in the study listed their parents as someone they admired) are the single largest source of role models for American children (Ziemer 1). As the NFL is the most popular sports league in America, a large portion of athlete role models likely play in the NFL. We cannot passively allow our children’s heroes to assault their spouses, drive while intoxicated, take part in dog fighting rings, or any other similar activities. They must be held to a higher standard. While the criminal justice system does remove such negative role models, the power of the NFL to remove problem players under criminal investigation before the conclusion of legal proceedings is essential. Furthermore, there are times, as in the case of Josh Brown, a former player for the New York Giants, when criminal charges are not filed. Had the NFL not acted, Brown, whose wife accused him of being violent with her on 20 occasions, would have continued his role as a public figure. Only because of the separate actions of the NFL and personal conduct policy was Brown disciplined (Red 1).   

The players are the revenue generators in the NFL, and suspensions and other penalties hurt the players, and in turn the revenue of the NFL. By suspending players and imposing other penalties, the NFL is sending the message that a high level of morality is more important than financial gain. Robert Ambrose, a graduate of Indiana University with a degree in criminal justice, is an avid supporter of the current system in the NFL. He claims “We do not want to send the wrong message to America’s youth. A lasting impression left on kids should not include winning at all costs” (Ambrose 14). In our capitalistic society, the winning at all costs mentality is far too common. By opposing this mentality and taking conduct issues into their own hands, the NFL is sending out an incredibly important yet rare message.

Although there are many positives to the existence of the personal conduct policy, the decisions that need to be made are difficult and complicated. There are many who believe the policy and its usage could be improved. Richard Sherman is one of the most outspoken players in the NFL on this issue. As a Stanford graduate and one of today’s elite cornerbacks, his opinions hold significant weight. In an essay titled “Common Sense,” Sherman attacks the current policy for its inconsistency and the overreach of power held by commissioner Goodell. In his essay, he states “see, what some people didn’t notice about the new personal conduct policy was that within the policy’s language was the stipulation that the NFL reserved the right to impose a longer or shorter suspension depending on the circumstances of the incident. So basically, there is no real policy. The NFL can do whatever it wants” (Sherman 1). This essay was written in a response to the commissioner’s harsh sentences for touchdown celebrations, not domestic violence and driving under the influence. However, when the policy is examined in detail, it becomes obvious that the commissioner has far too much power.

Even from its conception, the personal conduct policy has overreached. The National Football League, composed of club owners and other businessmen, bargain with the players via the National Football League Players’ Association (NFLPA). The legal labor agreement between players and club owners is laid out in the collective bargaining agreement (CBA). The personal conduct policy, however, was unilaterally imposed by the commissioner and owners and has never been part of the CBA. It was never officially signed or agreed upon by the NFLPA. Gene Upshaw, former NFLPA executive director, voiced informal approval of the policy, but this does not change the fact that the policy is “not necessarily legally binding upon the NFL clubs” (Vaughan 615). The entire policy is seen as an extension of a line in the CBA that states the commissioner can punish conduct “detrimental to the integrity of, or public confidence in, the game of professional football” (Mahone 192).

This raises a serious problem, as defining this sort of conduct is incredibly subjective. Logan O’Shaughnessy, a graduate from the University of Oregon School of Law, acknowledges the incredible subjectivity of the personal conduct policy. He finds that one of the flaws in the policy is that it is implemented as a form of damage control to maintain the league’s reputation. Because of this, the league’s rulings can be “partial and unfair” (O’Shaughnessy 536). He uses two similar cases of implementation of the policy to illustrate this point. Rey Maualuga, a Cincinnati Bengals linebacker, was arrested after crashing his car into a parking meter and two parked cars. His BAC at the time of arrest was 0.157%, and he had two female passengers in the car who were incredibly lucky to not have been injured. The league investigated the incident and chose not to punish Maualuga with use of the personal conduct policy, instead fining him $46,000 in accordance with NFL’s substance abuse policy. One year prior, Vincent Jackson, a receiver for Tampa Bay, was arrested on suspicion of drunk driving. He also pled guilty. Unlike Rey Maualuga, he had no passengers in his car, and he did not crash. The NFL investigated, and Jackson was suspended for three games in accordance with the personal conduct policy (O’Shaughnessy). While it is assumed this harsher punishment was decided because Jackson had a prior incident of intoxicated driving, the example still illustrates that the NFL and commissioner Goodell wield the power of the personal conduct policy inconsistently and unfairly.

This was the sentiment of New England fans everywhere at the start of the 2016-17 season, when quarterback Tom Brady was serving a four-game suspension for allegedly deflating footballs. Josh Brown, the domestic violence offender mentioned earlier, was suspended one game, and Ray Rice was only suspended two initially, before the release of the video footage (Red 1). More important than the biased nature of disciplines handed down by Goodell, this case illustrates the lack of checks and balances in the personal conduct policy. District judge Richard Berman overturned the decision, claiming that Goodell overstepped his boundaries as an arbitrator as outlined by the CBA. This decision, in turn, was quickly reversed by the United States Second Court of Appeals, and Brady ended up serving the four game suspension. The problem here is that the second court made this statement afterwards: “These standards do not require perfection in arbitration awards, rather, they dictate that even if an arbitrator makes mistakes of facts or law, we may not disturb an award so long as he acted within the bounds of his bargained for authority” (Zagger). In other words, the review court has no power to scrutinize the decision made by Roger Goodell, whether the offense actually hurt the reputation and/or finances of the NFL, or whether disciplines are assigned with any sort of legitimate objectivity. The verdict was merely regarding the legal jargon that vests disciplinary power in Roger Goodell. This shouldn’t be a problem, as the NFL has an internal system for the appeals of conduct discipline, outlined in the CBA. The problem is that the CBA states that any disciplinary action “may only be affirmed, reduced, or vacated by the commissioner” (Mahone 192). This means punishments handed down by commissioner Goodell, when appealed, are handed right back to commissioner Goodell. The absurdity of this system of appeals is self-evident.

Not all power can be taken away from Goodell and future commissioners. Club owners appoint qualified, intelligent, and tested people to be the commissioner. As the single most powerful man in the NFL community, the commissioner has a responsibility to ensure the success of the NFL, and promote a positive relationship among club owners and players. Part of this responsibility involves disciplining players who hurt the image of the NFL and removing negative role models from the most watched sports league in America. However, the commissioner cannot be allowed to be the judge, the jury, and the appeals court. This system simply cannot function justly. Michael Mahone, a Vanderbilt School of Law graduate, put it quite eloquently; “the goal of this proceeding (an appeal) should be to provide meaningful review rather than to merely rubberstamp the commissioner’s decision” (Mahone 208). The simplest and likely most effective way to change this system would be to implement a third party, unaffiliated with the NFL, to review disciplines handed down by commissioner Goodell. The third party would be composed of individuals educated in law and would function in a manner similar to the Supreme Court. Disciplines given by Goodell would be compared to precedents set by past sanctions. Each discipline would also be viewed through the lens of the CBA and the personal conduct policy to ensure it was within the scope of the authority of commissioner. Finally, any changes to the disciplinary process, and the respective powers held by entities within the NFL, would have to be bargained for between the NFL and the NFLPA and would require the drafting of a new CBA. In this way the commissioner holds onto his responsibilities, but fairness can be applied to disciplines and sanctions can become more standardized and consistent.

The NFLPA has lost several legal battles over the power commissioner Goodell continues to afford himself (Zagger). Most recently, a court ruled in favor of Goodell’s “Exempt List,” vesting full power in Goodell to suspend any player charged with a violent crime indefinitely. Clearly, players actually guilty of domestic abuse and assaults should not be allowed to continue to play in the NFL. The problem lies in the extension of unchecked power held by Goodell and the lack of any standardization of disciplines. At this time, Goodell and the NFL have vastly more power on several important matters compared to the NFLPA. For the sake of the future image of the NFL, for the critically important relationship between club owners and players, and for the sake of common sense, Goodell and the NFL should seriously consider revising and correcting the glaring problems present in the personal conduct policy and the CBA.

Works Cited

34 Wm. Mitchell L. Rev. 1069, .Web.

Edelman, Marc. “Are Commissioner Suspensions really any Different from Illegal Group Boycotts? Analyzing Whether the NFL Personal Conduct Policy Illegally Restrains Trade.” Catholic University Law Review 58 (2009): 631-62. Web.

Mahone, Michael A., Jr. “Sentencing Guidelines for the Court of Public Opinion: An Analysis of the National Football League’s Revised Personal Conduct Policy.” Vanderbilt Journal of Entertainment and Technology Law 11.1 (2008): 181. Web.

O’Shaughnessy, Logan. “After Review: An Open Letter to NFL Commissioner Roger Goodell

Suggesting that Limiting the League’s Disciplinary Power Under the Personal Conduct Policy may be in the League’s Best Interests.” University of Detroit Mercy Law Review 88 (2011): 527-54. Web.

Red, Christian. “Roger Goodell defends NFL policies amid Josh Brown fiasco.” NY Daily News. October 27, 2016. Web. Feb 26, 2017

Sherman, Richard. “Common Sense.” The Players’ Tribune. Oct 27 2016. Web. Feb 26, 2017

Vaughan, Kelly M. “First and Goal: How the NFL’s Personal Conduct Policy Complies with Federal Antitrust Law.” Cornell Law Review 96.3 (2011): 609. Web.

Zagger, Zachary. “NFL Flips Playing Field With 2nd Circ. Deflategate Ruling – Law360.”

Law360.com. April 26, 2016. Web. Mar 19, 2017

Ziemer, Tracy. “Study Says Kids Emulate Athletes.” ABC News. -01-06 2006. Web. Feb 26, 2017.