DROPPING THE BALL: HOW THE COMMISSIONER'S EXERCISE

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17 Tex. Rev. Ent. & Sports L. 43

Texas Review of Entertainment & Sports Law

Fall 2015

Article

Jeremy Cole

DROPPING THE BALL: HOW THE COMMISSIONER'S

EXERCISE OF HIS “BEST INTERESTS” AUTHORITY IS

FAILING THE NFL AND WHAT CAN BE DONE ABOUT IT

The NFL Commissioner has had the authority to punish players for “conduct detrimental to the integrity of, or public

confidence in, the game of football” since 1960. Yet, he first exercised this “best interests” disciplinary authority to punish

a player for a non-gambling-related off-the-field offense in 2002. Since then, the NFL Commissioner has issued over fifty

separate disciplinary decisions for players' off-the-field conduct. In the process, the NFL Commissioner's implementation

of this broad power has come under fire, with critics claiming that the NFL Commissioner's decisions are inconsistent,

unpredictable, and unfair to the players. In response to these criticisms, the current NFL Commissioner, Roger Goodell,

passed a series of Personal Conduct Policies. This Article details the history of the NFL Commissioner's “best interests”

power, including the recent Personal Conduct Policies. It then describes the NFL's three high-profile scandals of the

2014-15 season--Ray Rice's domestic violence case, Adrian Peterson's excessive child discipline, and the New England

Patriots' DeflateGate controversy--in order to explore the problems with how the NFL Commissioner exercises his “best

interests” power. This Article then offers a solution: the “Independent Adjudicatory Committee” system. Under this

proposal, the NFL Commissioner would take on a prosecutorial role and leave disciplinary decision-making authority to

an independent committee of former judges. These judges would adjudicate charges brought by the NFL Commissioner

in the form of written opinions, determining the appropriate punishments for various violations and offering much-

needed clarity with respect to what constitutes conduct detrimental to the game. This proposal would fix many of the

issues with the current system by distancing the NFL Commissioner from the decision-makers and by creating a reliable

common law for NFL discipline.

INTRODUCTION

The Collective Bargaining Agreement (“CBA”) between the National Football League (“NFL”) and the NFL Players

Association (“NFLPA”)

grants the NFL Commissioner unusually broad authority to discipline players for “conduct

detrimental to the integrity of, or public confidence in, the game of professional football.”

This is colloquially called

the NFL *44 Commissioner's “best interests” authority, named after the first clause to grant a sports commissioner

that power.

The NFL Commissioner's “best interests” power is considerable--he is not only the prosecutor, but, if

he so chooses, the judge and jury too. In fact, the CBA includes a separate appeals process specifically designed for

“conduct detrimental to the game” disciplinary decisions that grants the Commissioner the sole authority to appoint

hearing officers.

The Commissioner frequently appoints himself or a party partial to the NFL.

The Commissioner has exercised this power at an increasing rate. The NFL has issued 263 separate suspensions since

its inception in 1947, with all but two coming after the NFL adopted its “best interests” clause in 1960.

Sixty of those

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instances are categorized as “personal conduct,” meaning off-the-field conduct.

Aside from gambling-related offenses,

the first of these occurred in 2002, during which only one suspension was issued.

By comparison, in 2013, six players

were suspended for personal conduct, with ten players similarly suspended the prior year.

As the NFL Commissioner

exercises this power with increasing frequency, his ability to do so fairly and swiftly has come into question. Recently,

three disciplinary decisions--Ray Rice's, Adrian Peterson's, and Tom Brady's for his involvement in the DeflateGate

scandal--have been partially or entirely overturned,

and the NFLPA, the media, and even the fans criticized the

NFL Commissioner for those decisions.

Some have called for his resignation,

and the Commissioner himself even

acknowledged that he mishandled the Ray Rice case.

In the wake of the Ray Rice and Adrian Peterson scandals, the NFL unveiled a new domestic violence policy and a

new personal conduct policy.

Although these policies may help to bring some uniformity to the NFL Commissioner's

exercise of his disciplinary authority, more is needed. In Part I of this Article, I discuss the history of the NFL

Commissioner's “best interests” disciplinary authority, which is codified in the NFL's Constitution and Bylaws, the CBA,

and the NFL's Personal Conduct Policies. In Part II, I *45 describe three scandals that rattled the NFL in 2014--Ray

Rice, Adrian Peterson, and DeflateGate--to frame the problems with the NFL Commissioner's recent exercise of his

“best interests” authority. In Part III, I offer a possible solution: the creation of an Independent Adjudicatory Committee

responsible for determining player discipline, and the subordination of the NFL Commissioner to prosecutor in that

process. In Part IV, I analyze how this solution will best solve the problems with the NFL Commissioner's current system.

I conclude with some parting words on how and why the parties should adopt this approach.

I. COMMISSIONER POWER: PAST AND PRESENT

A. THE ORIGINS OF THE NFL COMMISSIONER'S “BEST INTERESTS” AUTHORITY

The position of omnipotent sports commissioner that we see in the NFL today has its roots in Major League Baseball

(“MLB”). In 1919, the Chicago White Sox and Cincinnati Reds were set to face off in the World Series.

Despite the

Chicago White Sox being favored, the Cincinnati Reds won the series five games to three.

Soon after, it was discovered

that eight Chicago White Sox players took bribes from gamblers to throw the World Series.

Although many at that

time thought gambling infractions occurred in the MLB, no one believed they could reach the sport's biggest stage.

This scandal, which eventually became known as the Black Sox Scandal, rattled the MLB and prompted swift, decisive

action from the owners to save their sport.

The owners realized they needed a strong individual who had the confidence

and respect of the public to oversee their league.

They settled on Judge Kenesaw Mountain Landis,

who accepted

the commissioner position under the condition that he wield absolute power.

The owners agreed, and granted Landis

the authority to punish anyone for conduct that he determined was “detrimental to the ‘best interests' of baseball.”

The “best interests” clause was born. However, the NFL would not adopt a similar clause right away. In fact, the NFL's

first two commissioners operated without this expansive authority.

The NFL finally granted “best interests” power

to Commissioner Pete Rozelle in 1960, largely as a result of his financial successes with the league.

Specifically, the

NFL's owners granted Rozelle “full, complete, and final jurisdiction and authority over any dispute involving a member

or members in the League”

and the power to punish a player for conduct that he deemed was “detrimental to the

integrity of, or public confidence in, the game of *46 professional football.”

While the NFL's clause never explicitly

mentioned “best interests,” it granted the NFL Commissioner substantially the same power as the MLB's “best interests”

clause and, therefore, is referred to as such.

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B. CURRENT NFL COMMISSIONER POWER

The NFL's “best interests” clause adopted in 1960 survives substantially in the same form today. The NFL Commissioner

derives his “best interests” authority from the NFL's Constitution and Bylaws and the NFL's CBA with the NFLPA.

The NFL's Constitution and Bylaws grant the NFL Commissioner the complete authority to punish individuals

whenever the Commissioner, after notice and hearing, decides that an owner, shareholder, partner or holder

of an interest in a member club, or any player, coach, officer, director, or employee thereof, or an officer,

employee or official of the League has either violated the Constitution and Bylaws of the League or has

been or is guilty of conduct detrimental to the welfare of the League or professional football . . . .

Although the NFL and NFLPA's current CBA provides additional language for this authority, it offers little clarity. The

CBA allows the NFL Commissioner to punish a player “for conduct detrimental to the integrity of, or public confidence

in, the game of professional football.”

Further, the CBA includes a form player contract in Appendix A, which states:

Player recognizes the detriment to the League and professional football that would result from impairment

of public confidence in the honest and orderly conduct of NFL games or the integrity and good character

of NFL players. Player therefore acknowledges his awareness that if he . . . is guilty of any other form of

conduct reasonably judged by the League Commissioner to be detrimental to the League or professional

football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing

at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend

Player for a period certain or indefinitely; and/or to terminate this contract.

Thus, the NFL Commissioner is granted substantially the same authority-- to punish players for conduct detrimental

to the game of football--three distinct times.

C. THE NFL'S PERSONAL CONDUCT POLICIES

While most of the major professional sports teams have agreed to limit (or eliminate) their commissioners' “best interests

authority” in collective bargaining agreements or similar documents,

the NFL has not done so. Rather, the NFL

Commissioner, with ownership approval, has sought to clarify his authority by passing a series of his Personal Conduct

Policies. The NFL's first stab at such a policy was created entirely by the owners. In 1998, the owners instituted the

Violent Crime Policy, which expressly allowed the NFL Commissioner to *47 punish players who were charged with

any violent crime.

In 2000, the owners, in response to public outrage over the Ray Lewis murder trial,

replaced the

Violent Crime Policy with the NFL's first true Personal Conduct Policy.

This policy granted then-NFL Commissioner

Paul Tagliabue virtually unlimited power to suspend, fine, and even banish players who had been convicted of a crime or

admitted to engaging in any wrongdoing.

However, in Paul Tagliabue's eight-year reign following the Violent Crime

Policy, he suspended only nine players, with most of those suspensions being for only one game.

Current NFL Commissioner Roger Goodell succeeded Paul Tagliabue in 2006.

The following year, three NFL

players--Chris Henry, Tank Johnson, and Adam “Pacman” Jones--had serious, repeated run-ins with the law.

Commissioner Goodell acted quickly because he felt that it was his, and the NFL's, responsibility to crack down on

this sort of behavior.

Commissioner Goodell suspended Henry, Johnson, and Jones for eight, eight, and sixteen

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games, respectively, and announced a new Personal Conduct Policy,

which would be modified the following year

after Commissioner Goodell consulted with NFLPA Executive Director Gene Upshaw.

These Policies significantly

strengthened the NFL Commissioner's *48 “best interests” authority. First, they clarified what constituted conduct

detrimental to the league. The 2007 Policy included “engage[ment] in (or to aid, abet, or conspire to engage in or to

incite) violent and/or criminal activity” and offered a list of examples.

The 2008 Policy went even further. It listed the

following bullet points for which discipline may be imposed:

Criminal offenses including, but not limited to, those involving: the use or threat of violence; domestic

violence and other forms of partner abuse; theft and other property crimes; sex offenses; obstruction or

resisting arrest; disorderly conduct; fraud; racketeering; and money laundering;

Criminal offenses relating to steroids and prohibited substances, or substances of abuse;

Violent or threatening behavior among employees, whether in or outside the workplace;

Possession of a gun or other weapon in any workplace setting, including but not limited to stadiums, team

facilities, . . . etc., or unlawful possession of a weapon outside of the workplace;

Conduct that imposes inherent danger to the safety and well being of another person; and

Conduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL

players.

The Policy also established that players need not be actually convicted of a crime for discipline to be imposed: “the

standard of conduct for persons employed in the NFL is considerably higher.”

Additionally, it provided that

“[d]iscipline may take the form of fines, suspension, or banishment from the League” and granted the NFL Commissioner

“full authority to impose discipline as warranted.”

Further, both Policies reiterated the appeals procedure for “best

interests” discipline. The 2007 Policy stated that “[a]ny person disciplined under this policy shall have a right of appeal,

including a hearing, before the Commissioner or his designee.”

The 2008 Policy confirmed the players' right to appeal

their punishments at a hearing, but that the hearing would “be conducted by the [NFL] Commissioner or his designee.”

D. CURRENT NFL PERSONAL CONDUCT POLICIES

The 2008 Policy survived in its current form for six years.

In 2014, in the midst of attempting to resolve the Ray Rice

and Adrian Peterson

scandals, the NFL replaced the *49 2008 Policy with two new policies. First, facing considerable

public outcry for his admitted mishandling of Ray Rice's discipline after Rice struck his then-fiancé, Commissioner

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Goodell announced the NFL's new Domestic Violence Policy in a letter to team owners.

Commissioner Goodell

reiterated his Policy in a Memorandum to all NFL Personnel, in which he stated:

Violations of the Personal Conduct Policy regarding assault, battery, domestic violence and sexual assault

that involve physical force will be subject to enhanced discipline. A first offense will be subject to a

suspension of six weeks without pay. Mitigating circumstances will be considered, and more severe discipline

will be imposed if there are aggravating circumstances such as the presence or use of a weapon, choking,

repeated striking, or when the act is committed against a pregnant woman or in the presence of a child. A

second offense will result in banishment from the league; an offender may petition for reinstatement after

one year but there is no assurance that the petition will be granted.

This Policy merely created a punishment floor by mandating a six-game suspension for the listed offenses, which is

much longer than previous NFL punishments for domestic violence.

The consideration of “mitigating circumstances”

allows the NFL Commissioner to hand down more severe punishments if he wishes.

Furthermore, because the NFL

Commissioner unilaterally adopted this Policy, he likely can repeal it whenever he chooses.

On December 10, 2014, Commissioner Goodell, with the owners' approval,

unveiled his new eight-page Personal

Conduct Policy.

The NFL also released a one-page flowchart that highlights the most important new features

of the 2014 Policy.

Similar to the NFL's past Personal Conduct Policies, this Policy evokes “the Commissioner's

authority under the [[[NFL] *50 Constitution and Bylaws to address and sanction conduct detrimental to the league

and professional football.”

The Policy further explains:

If you are convicted of a crime or subject to a disposition of a criminal proceeding (as defined in this Policy),

you are subject to discipline. But even if your conduct does not result in a criminal conviction, if the league

finds that you have engaged in any of the following conduct, you will be subject to discipline.

The Policy then offers a bulleted list of potentially-disciplinary conduct, ranging from “[a]ctual or threatened physical

violence against another person” to possession of illegal substances or weapons.

The list culminates in a catchall

provision prohibiting “[c]onduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL

personnel.”

This list undoubtedly adds some additional clarity to what constitutes conduct detrimental to the game,

but this clarity is tempered by the inclusion of the final catchall provision.

The new Policy does change the 2008 Policy's procedure in important ways, at least facially. Probably the biggest change is

the NFL Commissioner ceding initial disciplinary decision-making authority to a disciplinary officer, who is described as

“a member of the league staff who will be a highly-qualified individual with a criminal justice background.”

Notably,

the NFL's flowchart depicting this Policy does not mention the creation of this new position.

It is important to note

that the initial decision maker is still an employee of the NFL Commissioner and that the NFL Commissioner retains

control over the appeals process.

The second noteworthy new feature of the 2014 Policy is that the NFL Commissioner

expressly codified his apparent right to place players on paid leave during investigation. The Policy allows the NFL

Commissioner to do this when a player is “formally charged with a crime of violence,” “if an investigation leads the

Commissioner [but not the disciplinary officer] to believe that [the player] may have violated this Policy . . . .” or “[i]n

cases in which a violation relating to a crime of violence is suspected but further investigation is required . . . .”

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player placed on paid leave will generally remain as such until the final disposition of his case, including his appeal.

The NFL's flowchart summarizes the paid leave aspects of the Policy as follows:

An individual may be put on paid leave if formally charged with a violent crime or sexual assault, or if the

NFL investigation finds sufficient credible evidence that it appears a violation of the policy has occurred.

Paid leave will *51 last until the completion of the NFL investigation or disposition of a criminal charge.

Last, if the player decides to exercise his right to appeal the disciplinary officer's decision, the appeal is first heard by the

NFL's newly-created Expert Panel. As the flowchart explains, “[t]he appeal process will include a review panel of three

outside experts to make recommendations to the Commissioner or his designee on an appeal ruling that will be decided

by the Commissioner or his designee.”

However, the NFL Commissioner or his designee retains final decision-making

authority on appeal.

Thus, the NFL Commissioner remains integral to the disciplinary process and may have even

expanded his power by expressly codifying his paid-leave authority. Needless to say, the NFLPA denounced this new

Policy, decrying that Commissioner Goodell did not let them review the Policy before it was unveiled and did not grant

their demand for neutral arbitration of appeals.

The NFLPA went so far as to claim that the Policy is invalid because

it is inconsistent with the parties' 2011 CBA and was not bargained-for and mutually agreed to.

In summary, the 2014 Personal Conduct Policy offered some clarity to what constitutes conduct detrimental to the

league. More importantly, the Policy made substantial changes to the disciplinary process. The Policy delegates initial

disciplinary authority to a disciplinary officer, rather than the NFL Commissioner. The Policy further institutes an

appellate review by an Expert Panel, which makes recommendations to the NFL Commissioner or his designee. However,

the NFL Commissioner retains ultimate control over the resolution of the appeal.

II. THE NFL'S 2014-15 SCANDALS

This past year, the NFL has been the subject to two scandals involving off-the-field conduct--those of Ray Rice

and Adrian Peterson--and one involving on-the-field conduct: DeflateGate. Commissioner Goodell invoked his “best

interests” disciplinary authority to investigate each of these matters and dole out punishments. The processes by

which these scandals have, or have not, been adjudicated exemplify the issues the NFL currently faces as a result of

Commissioner Goodell's exercise of his exceptionally broad disciplinary authority. In this Part, I will first describe these

three scandals, and then use them to explain the problems with the NFL current disciplinary system.

A. RAY RICE

On February 15, 2014, Baltimore Ravens' star running back Ray Rice was arrested and charged with assault after an

incident in which he allegedly struck his then-fiancé (now-wife), Janay Palmer (now-Janay Rice).

Rice resolved this

arrest in a courtroom on May 20, 2014.

*52 On June 16, 2014, Commissioner Goodell suspended Rice for the first

two weeks of the 2014-15 NFL season.

On September 8, just after the first week of the 2014-15 NFL season, TMZ

released a second video of the assault, which graphically showed Ray Rice punching his wife in the face.

As a result,

the Ravens terminated Rice's contract, and the NFL suspended him indefinitely.

Ray Rice appealed his indefinite suspension.

In the face of significant pressure from the public, NFLPA, and womens'

rights organizations, Commissioner Goodell agreed to work with the NFLPA to appoint a neutral arbitrator to hear

Ray Rice's appeal.

The parties settled on Judge Barbara Jones, who, on November 28, overturned Rice's indefinite

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suspension and ordered the NFL to reinstate him.

Judge Jones concluded that Rice had not lied to Commissioner

Goodell at their June 16 meeting, and as a result, ruled that his second punishment was arbitrary, and thus, must be

vacated.

However, by this point, the NFL had already begun week thirteen of its seventeen-week regular season.

Given Judge Jones's ruling that Rice's second punishment was improper, Rice should have been eligible to return after

week two. But, because Rice was improperly ineligible for the first nine weeks of the NFL season, he ultimately never

played a snap during the 2014-15 season.

B. ADRIAN PETERSON

Meanwhile, on September 12, 2014, Minnesota Vikings' star running back Adrian Peterson was indicted for reckless

or negligent injury of a child.

Specifically, Peterson allegedly whipped his child with a switch, which resulted in

cuts and bruises on the child's back, legs, arms, and buttocks.

Initially, the Minnesota Vikings deactivated Peterson

for one game.

On September 15, 2014, another allegation of child abuse against Peterson came to light, and the

Vikings placed him on the exempt/commissioner's permission list,

which operated as an indefinite suspension with

pay.

Peterson's sponsors also suspended their contracts with him.

*53 On November 4, 2014, Peterson resolved

his criminal charges by entering a no contest plea to a misdemeanor child injury charge.

However, on November 18,

2014, Commissioner Goodell suspended Peterson for the remainder of the 2014-15 NFL season.

Despite the fact that

the underlying incident occurred before the NFL's Domestic Violence Policy became effective, Commissioner Goodell

punished Peterson pursuant to it.

Similarly to Rice, Peterson appealed his suspension, and the NFLPA requested

Commissioner Goodell appoint an independent arbitrator to hear Peterson's appeal.

This time, Commissioner

Goodell ignored the NFLPA's request and appointed Harold Henderson, a former NFL executive who regularly handles

appeals for the NFL, to handle Peterson's appeal. The NFLPA believed that Henderson, given his strong ties to the NFL

and Commissioner Goodell, could not be neutral.

On December 12, 2014, Henderson denied Peterson's appeal of his

suspension,

concluding that Commissioner Goodell's broad authority allowed him to retroactively apply the NFL's

new Domestic Violence Policy against Peterson, and that Commissioner Goodell's disciplinary decision was consistent

with the previous Policy.

The NFLPA, on Peterson's behalf, challenged Henderson's arbitration award in the United States District Court of

Minnesota.

On February 26, 2015, Judge David Doty, in a sixteen-page opinion, vacated Henderson's arbitration

decision.

Judy Doty concluded that Henderson's decision to uphold Commissioner Goodell's retroactive application

of the NFL's new Domestic Violence Policy violated the “established law of the shop,” that is, the “industrial common

law,”

and that Henderson exceeded his authority by considering the issue of whether Commissioner Goodell's

disciplinary decision was consistent with the NFL's previous Personal Conduct Policy despite the NFLPA not asking

Henderson to do so.

*54 Notably, Judge Doty explicitly refused to determine “whether Henderson was evidently

partial or whether the award violates fundamental fairness.”

100

The NFL appealed to United States Court of Appeals

for the Eighth Circuit,

101

but, Peterson's suspension ended and he was reinstated before they could hear the appeal,

effectively rendering it moot.

102

C. DEFLATEGATE

On January 18, 2015, the New England Patriots defeated the Indianapolis Colts 45-7 in the AFC Championship Game,

thereby advancing to Super Bowl XLIX.

103

Shortly after the game, reports surfaced accusing the Patriots of deflating

some of the footballs that they used in the game against the Colts.

104

Although most agree that the Patriots would have

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won the game regardless of how much air was in their footballs,

105

the NFL responded by hiring Ted Wells of the New

York law firm Paul Weiss

106

to lead a full investigation alongside NFL Executive Vice President Jeff Pash.

107

Notably,

both the NFL, in its press release announcing the investigation, and Commissioner Goodell, in statements regarding the

investigation, repeatedly invoked the CBA Art. 46, §1(a) language that endows the NFL Commissioner with the power

to protect the “integrity of the game” to justify the investigation.

108

Ted Wells announced his findings on May 6, 2015, almost four months after the scandal broke, in a 243-page report.

109

Wells concluded that “it [was] more probable than not” that the *55 New England Patriots personnel released air from

game balls prior to the AFC Championship game in violation of NFL playing rules and “that Tom Brady was at least

generally aware of the inappropriate activities of [the Patriots personnel] involving the release of air from Patriots game

balls.”

110

Based on Wells's findings, Commissioner Goodell fined the New England Patriots one million dollars, took

away their 2016 first round draft pick and 2017 fourth round draft pick, and suspended Tom Brady for four games.

111

The Patriots decided to accept their punishment and not appeal.

112

Tom Brady, on the other hand, had the NFLPA

appeal his punishment.

113

Once again, the NFLPA requested Commissioner Goodell appoint a neutral arbitrator.

114

Similarly to Peterson's case, Commissioner Goodell rejected this request and appointed himself as arbitrator.

115

Acting

as arbitrator, Commissioner Goodell upheld Brady's four-game suspension, relying in part on Brady having instructed

his assistant to destroy the cell phone Brady had used during the AFC Championship game and shortly thereafter.

116

Interestingly, shortly after Commissioner Goodell announced his decision to uphold Brady's suspension, the NFL

preemptively filed a lawsuit demanding a declaratory judgment upholding Commissioner Goodell's decision in New

York federal court.

117

This allowed the NFL to ensure this case would be heard by a New York judge, rather than a

judge in Minnesota or Massachusetts who may be more favorable to Brady.

118

This ultimately backfired. Judge Richard

Berman, who presided over this case, initially urged the parties to settle, which the parties failed to do.

119

On September

3, 2015, just one week before the New England Patriots' season opener, Judge Berman issued his 40-page opinion vacating

not only Brady's arbitration award, but Brady's punishment as well.

120

Notably, Judge Berman's decision did not turn

on *56 whether Brady was actually involved in the scandal, or whether Roger Goodell was a fair arbiter.

121

Rather,

Judge Berman based his decision on:

(A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged

misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL

Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative

files, including witness notes.

122

The NFL appealed on that very day,

123

with the Second Circuit set to hear the case in February, 2016.

124

III. PROBLEMS WITH THE NFL COMMISSIONER'S CURRENT EXERCISE OF HIS “BEST INTERESTS”

AUTHORITY

These three scandals, which Commissioner Goodell publicly acknowledged made for a “tough year” and humbled

him,

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exemplify the myriad of problems with the NFL's current disciplinary system for conduct detrimental to the

game. These issues are explained in detail below.

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A. THE NFL COMMISSIONER'S PUBLIC PERCEPTION AND HIS CONTROL OVER THE DISCIPLINARY

PROCESS ARE SUFFERING

Public confidence in the NFL Commissioner is at an all-time low.

126

The public perceives the process by which the

NFL Commissioner punishes NFL players as political or social pandering and unjust. Commissioner Goodell has been

harshly criticized for his recent punishment decisions and for his arbitrator decisions.

127

The NFL Commissioner's primary problem is his “arbitrator dilemma.” When a player appeals a “best interests”

disciplinary suspension, the NFL Commissioner must decide whether to appoint a neutral or partial arbitrator. In

making that decision, the NFL Commissioner ostensibly weighs two main goals: (1) maintaining the integrity of the

NFL Commissioner and NFL, and (2) preserving his power over disciplinary decisions. Unfortunately, either choice

has proven to be harmful. When the NFL Commissioner chooses a neutral arbitrator, he presumably values fairness

and integrity over his control over the process. As the Ray Rice *57 scandal demonstrated, the neutral arbitrator is the

politically popular choice, the choice that the public views as fairer and better.

128

However, because a neutral arbitrator

is more likely to overturn the NFL Commissioner's initial decision, the NFL Commissioner's public perception still

suffers as a result.

Consequently, the NFL Commissioner has generally chosen a partial arbitrator. Although such a decision harms the

NFL Commissioner's public perception, it protected his control over the disciplinary process because, as evidenced by

the Adrian Peterson scandal, a partial arbitrator is more likely to rule in the NFL Commissioner's favor. However, the

NFLPA's recent successes in federal court, coupled with the likelihood that, if challenged, the NFL Commissioner's

appointment of a partial arbitrator would be overturned by a judge because of the arbiter's partiality, complicates the

NFL Commissioner's calculus.

Courts have never directly ruled on whether an NFL Commissioner's choice of a partial arbitrator for a “best interests”

disciplinary appeal proceeding violates the Federal Arbitration Act (“FAA”). In Morris v. New York Football Giants,

Inc.,

129

the court removed the NFL Commissioner as arbitrator in an individual contract dispute between two players

and their team after finding that the NFL Commissioner could not be neutral.

130

The court reasoned that the NFL

Commissioner could not be a neutral arbitrator because he was a named defendant to the ensuing litigation and had

advocated against the players' position in the past.

131

However, this was in the context of a contract issue, not a

disciplinary proceeding. Further, although Judge Doty did vacate Adrian Peterson's arbitration award, he declined to

rule on whether the choice of arbitrator justified vacatur.

132

The NFLPA has challenged Commissioner Goodell on this practice in the past. Specifically, the NFLPA challenged

Commissioner Goodell's practice of appointing partial arbitrators to overhear disciplinary appeals when it filed suit

against Commissioner Goodell for appointing himself as arbitrator in the Bounty Scandal

133

punishment appeal

hearing.

134

Although Commissioner Goodell ceded to the NFLPA's demands before the case was adjudicated,

135

the

NFLPA's complaint is instructive. In its complaint, the NFLPA claimed that Commissioner Goodell's appointment of

himself as arbitrator violated the FAA's “evident partiality” requirement.

136

Such a violation allows the judge to vacate

an arbitrator's award.

137

As the NFLPA noted, the Fifth Circuit, the jurisdiction that presided over the NFLPA's claim

in the Bounty Scandal proceedings, would find an arbitrator evidently partial “if ‘a reasonable person would have to

conclude that the arbitrator was partial to one party . . . .”’

138

The *58 NFLPA argued that Commissioner Goodell's

repeated attacks on the players and presumption of their guilt in the media defeated his neutrality,

139

even though it

explicitly stopped short of arguing that the NFL Commissioner is a per se partial arbitrator in violation of the FAA.

140

Nevertheless, the NFL Commissioner frequently holds press conferences about disciplinary decisions, especially for high-

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profile cases.

141

His unique position of making disciplinary decisions and arbitrator appointments casts doubt on his

partiality as the arbitrator. This is equally true when the NFL Commissioner appoints one of his employees (e.g., Harold

Henderson in Adrian Peterson's case) as the arbitrator. Thus, the NFL Commissioner is at significant risk of having his

hand-picked arbitrator's award vacated.

Prior to the Bounty Scandal, the NFL Commissioner generally appointed himself or an associate to hear appeals.

142

the last few years, specifically in response to the filing of litigation during the Bounty Scandal appeal

143

and to public

pressure in the Ray Rice case,

144

the NFL Commissioner tried appointing neutral arbitrators. When he did not, as in

the Adrian Peterson and DeflateGate cases, he ultimately lost in federal court, albeit on other grounds.

145

As a result,

the NFL Commissioner, who had already suffered a loss of public confidence by choosing a partial arbitrator, also saw

his power over the disciplinary process diminish. Worse, this perhaps confirmed the public's opinion that his choice of

partial arbitrators is unfair and harmful to the players. Worst of all, it indicated to future players that they may be able to

find success in disciplinary proceedings in court. This likely contributed to the NFL pre-emptively filing for a declaratory

judgment in regards to Brady's DeflateGate punishment.

This places the NFL Commissioner between the proverbial rock and a hard place. Either decision will likely lead to a

loss in both public confidence and power over the disciplinary process. The NFL Commissioner seemingly experimented

with both options last year in the Ray Rice and Adrian Peterson scandals; he came out on the losing end of both. Critics

may argue that the NFL Commissioner can salvage both interests by getting the initial disciplinary decision correct in

the eyes of the public, and the arbitrator. However, the NFL Commissioner has consistently been unable to do so, and

likely cannot do so, given the general public's wide range of viewpoints on most topics. A better process, by which the

NFL Commissioner relinquishes some of his or her power, is warranted.

B. THE NFL COMMISSIONER'S DISCIPLINARY PROCESS HURTS THE NFL AS A BUSINESS

The NFL Commissioner's disciplinary process hurts the NFL by undermining its product. The NFL's two main products

are its games and its players. The fact that the NFL sells football games is self-evident,

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but the NFL is also involved

in the business of marketing and promoting the stars of the games, namely, the players. The NFL intentionally cultivates

*59 within its fans loyalty to, and admiration and respect for, its players. It accomplishes this by requiring widespread

media availability of its star players,

147

popularizing the Pro Bowl,

148

the NFL Combine,

149

the NFL Draft,

150

and

the Super Bowl,

151

as well as selling player-specific merchandise,

152

bargaining for protections for teams to retain

specific players (e.g., the franchise tag),

153

and airing NFL Films specials about specific players.

154

As a result, the

NFL bolsters its fans' loyalty and game-day experience, and profits considerably.

155

By removing its players from the field for any reason, the NFL suffers a loss. When the NFL suspends a player for

a disciplinary reason, the NFL effectively loses part of its product. As a result, the NFL loses a calculable amount

of revenue because both the quality of the game that player's team plays and the popularity of the player into which

the NFL has already invested suffer.

156

As a rational business actor, the NFL knows this and has concluded that the

benefits from disciplining a player for certain conduct-- which likely include avoidance of bad press and ill will from its

fans-- outweigh the lost revenue.

157

As a result, the NFL has decided *60 to punish its players for their off-the-field

misconduct.

158

When the NFL handles its discipline properly, the NFL likely minimizes its losses as it anticipated.

159

The problem for the NFL, though, is that this backfires when it mismanages its discipline process. Thus, from a business/

financial perspective, the NFL has a stake in maintaining accuracy and fairness in its disciplinary process. As evidenced

by the significant backlash Commissioner Goodell faced as a result of his handling of the Ray Rice, Adrian Peterson,

and DeflateGate scandals,

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the current process is not achieving those intended goals.

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Further, when the NFL Commissioner mismanages his discipline, the NFL's integrity--which is exactly what the NFL

Commissioner tries to protect when he doles out punishments for off-the-field misconduct--suffers. The NFL has

determined that the integrity of its game and brand are valuable and that it has an interest in protecting them. It has

entrusted the NFL Commissioner with the responsibility to do so.

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When the NFL Commissioner imposes discipline

that the public views as incorrect, as Commissioner Goodell did in the Ray Rice scandal, the NFL Commissioner loses

the trust and faith of the fans. As a result, the NFL's integrity is undermined.

Commissioner Goodell attempted to solve some of these issues by passing the 2014 Domestic Violence and Personal

Conduct Policies. While some have heralded these Policies as a step in the right direction, most have argued that

they only serve to embolden the NFL Commissioner's already extraordinary power.

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These Policies will likely do

little to alleviate the NFL's current problems. Most crucially, the appointment of a disciplinary officer to make the

initial disciplinary decision changes little when the NFL Commissioner has unbridled power to place players on paid

leave, and the NFL Commissioner still retains final authority over choice of arbitrator and, therefore, final disposition

of disciplinary decisions.

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The Expert Panel, with the mere purpose of making recommendations to the NFL

Commissioner,

164

adds little fairness to the process. Worse, both the disciplinary officer and the Expert Panel are chosen

and paid by the NFL.

165

Thus, similarly to how in baseball disciplinary arbitrations each party's chosen arbitrator is

partial to its side,

166

the disciplinary officer and Expert Panel members are likely to be biased to the wishes of their

boss, the NFL Commissioner.

*61 C. THE NFL COMMISSIONER'S DISCIPLINARY PROCESS IS UNFAIR TO THE NFL'S PLAYERS

The NFL Commissioner's disciplinary process takes significant time, is inconsistent and unpredictable, and often results

in litigation; all of these attributes are detrimental to the players. First, the process is a lengthy one, as exemplified by Ray

Rice's and Adrian Peterson's cases as well as DeflateGate. Rice's punishable misconduct occurred in February, 2014.

167

Rice was not initially punished until June of 2014, received his second punishment three months later, and had to wait

another two-and-a-half months for his arbitration hearing.

168

Admittedly, Rice's case was unique due to his double-

punishment. Nevertheless, Rice still had to wait two-and-a-half months for his arbitration hearing.

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Similarly, Adrian

Peterson experienced a one-month delay between his appeal of his suspension and his hearing.

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DeflateGate lasted

even longer, with Tom Brady's conduct occurring four months before his initial punishment and final resolution not

expected until over a year after his alleged wrongdoing.

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The NFL's 2014 Personal Conduct Policy will only drag

out disciplinary proceedings. The 2014 Policy requires a player appealing his suspension to first have a hearing in front

of the NFL's new Expert Panel, which then makes recommendations to the NFL Commissioner or his designee.

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Presumably, the player then must endure a second hearing in front of the NFL Commissioner or his designee and then

also wait for deliberation and a decision.

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Thus, under the 2014 Policy's process, the player is required to prepare for,

have, and wait for the outcome of two hearings before a decision is finally made. This will undoubtedly extend the time

it takes for the player's appeal to finally be resolved. These delays, for which the players have no recourse beyond mere

back pay,

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unduly harm the players.

Being an NFL player is a unique occupation. The average NFL player's career is only 3.3 years,

175

and the season only

lasts seventeen weeks, with sixteen games played per team.

176

There are always younger or amateur football players

seeking to replace current NFL players.

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Forcing a player to miss four to ten games while he waits for his appeal

to be resolved harms that player's ability to practice his inevitably short career. Ray Rice never stepped foot on the

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game-day gridiron during the 2014 season, and Adrian Peterson only played in the season opener.

178

Both players lost

considerable time practicing their trade as football players.

*62 This delay also affects the players financially. Despite back pay for weeks unfairly missed,

179

NFL players have

little recourse for missing out on other pay-based incentives. Many NFL player contracts include performance-based

escalator clauses, most of which are reached near the end of the season, if at all.

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Missing four to ten games or more

due to an unfair suspension essentially precludes them from attaining the on-field performance necessary to earn those

incentives. NFL players are also paid for playoff, Super Bowl, and Pro Bowl games.

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A player being forced to miss

regular-season games hinders his ability to make the Pro Bowl and his team's ability to compete for the playoffs and Super

Bowl. However, if that player's suspension is proven to be unfair, there is no way for that player to prove that he would

have been elected for the Pro Bowl, or that his team would have made the playoffs or Super Bowl with him active. Thus,

that player misses out on that potential income. Furthermore, NFL players frequently supplement their incomes with

endorsement deals.

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The players who get the most lucrative endorsement deals are the most successful and popular

players.

183

However, players cannot be successful and popular if they are prohibited from the gridiron on game-day.

Players who are wrongly punished lose endorsement opportunities, but the value of those opportunities is likely too

uncertain to calculate for back pay awards. These problems are exacerbated when the NFL Commissioner exercises his

newly-codified authority to place players on paid leave while the disciplinary officer conducts his investigation because

the players miss out on more playing time, potentially unfairly if they turn out to not deserve any punishment.

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This

is worsened by the fact that this leave lasts until final disposition of the player's case.

185

Overall, NFL players stand to

lose significant income as the result of the NFL Commissioner erroneously punishing them.

The NFL Commissioner's current disciplinary process is also inconsistent and unpredictable, further harming the players.

The three scandals explained above are demonstrative of Commissioner Goodell's inconsistencies in applying his “best

interests” authority. In Rice's case, Commissioner Goodell initially punished Rice well before the NFL season, and

appointed a neutral arbitrator for his appeal.

186

In Peterson's case, Commissioner Goodell also punished him swiftly,

but refused to appoint a neutral arbitrator for his appeal.

187

In the DeflateGate scandal, Commissioner Goodell

waited a long time to punish Tom Brady and appointed himself, a clearly partial arbitrator, to hear Brady's appeal.

188

Notably, former Commissioner Paul Tagliabue weighed heavily in his opinion overturning Commissioner Goodell's

player punishments for the Bounty Scandal the fact that Commissioner Goodell's *63 suspensions of the players

involved were inconsistent with how the league has generally treated such misconduct, and this was a dispositive issue

in the DeflateGate scandal.

189

The inconsistent nature of these decisions is inherently unfair to the NFL's players. The NFL has assumed the role

of punishing its players for any conduct that the NFL Commissioner deems is detrimental to the league's image.

190

Players do not know if, when, or how severely they will be punished for their conduct. This lack of predictability

hinders the deterrent effect of the punishments

191

because the players cannot make a reasoned decision weighing

the punishable conduct against resultant punishment. Although the NFL recently took a step towards predictable

punishments with the implementation of its 2014 Personal Conduct Policy, Commissioner Goodell still retains final

discretion.

192

The inconsistencies of Commissioner Goodell's recent rulings have also alienated the players. Multiple

high-profile players have spoken out against Commissioner Goodell or have engaged in known misconduct apparently

as civil disobedience.

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Alienating the players can only serve to cause further strife between the NFL's management

and its players. The players will likely continue to distrust and challenge Commissioner Goodell even when he takes fair

disciplinary action, and future collective bargaining will likely be more contentious than it would otherwise be.

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The NFL Commissioner's current disciplinary process also leads to repeated and unnecessary litigation. Adrian Peterson

and Tom Brady successfully sued the NFL,

194

and the players in the Bounty Scandal were able to use the filing of a

lawsuit to persuade Commissioner Goodell to recuse himself and appoint former commissioner Paul Tagliabue as third-

party arbitrator.

195

The NFL is apparently fearful enough of players taking unfavorable “best interests” arbitration

awards to court that it preemptively filed against Tom Brady, and lost.

196

In each of these cases, Commissioner Goodell

initially appointed a non-neutral arbitrator--for Peterson, a former NFL executive,

197

and for the Bounty Scandal

players and Tom Brady in DeflateGate, Commissioner Goodell himself

198

--and ultimately saw his decisions overturned

*64 after litigation was filed. Given the success of these lawsuits, NFL players who receive what they view to be an unfair

punishment and arbitration award are incentivized to sue. This litigation is expensive, usually takes several months, and,

at best, should result in more arbitration proceedings,

199

thus further delaying the resolution that the suing players seek.

IV. PROPOSED SOLUTION: THE INDEPENDENT ADJUDICATORY COMMITTEE SYSTEM

A. OTHER PROPOSALS AND CRITIQUES

Given the institutional problems with the NFL Commissioner's current disciplinary process, the process must be updated.

This is not a novel idea, as several scholars have addressed revamping the NFL Commissioner's discipline process. The

current debate in this field has centered around how much power the NFL Commissioner should retain. At one end of

the spectrum are those who argue that the NFL Commissioner's disciplinary decision should be final and binding and

not subject to appeal.

200

Proponents of this theory contend that the NFL Commissioner is best situated to determine

what is best for the sport as compared to arbitrators or judges.

201

However, this proposal would likely do more harm

than good. Players who feel they have been unfairly treated would have only one avenue to challenge the disciplinary

decision: litigation. The likely uptick in litigation, even if it provides a “fairly objective answer,”

202

is still less efficient

than arbitration.

203

Moreover, NFL players would still be subject to unfair treatment and lengthy delays, and the NFL

Commissioner would still receive the brunt of public outrage over disciplinary decisions that the public feels are unfair.

On the other end of the spectrum, some have called for the NFL Commissioner to relinquish all authority to punish

players for off-the-field conduct. Some argue that such discipline should be left to players' teams, as their employers.

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Others argue that the NFL and the country as a whole functioned well for decades without the NFL policing its

players' off-the-field conduct and that, as an entertainment company rather than a policing agency, it should return

to that policy.

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Even accepting that the NFL is no more than an entertainment company, the NFL has a vested

financial interest in policing its players' off-the-field activities. When Commissioner Goodell first punished Ray Rice,

he encountered significant hostility from fans and members of the public for punishing Rice too lightly.

206

This

undoubtedly cost the NFL revenue. More importantly, Ray Rice and Adrian Peterson lost sponsorship deals as a *65

result of their off-the-field misconduct.

207

If the NFL had not taken action against these players, the NFL presumably

would have risked losing its sponsorship deals as well.

208

In fact, in the aftermath of the Ray Rice and Adrian

Peterson scandals, multiple NFL sponsors requested their ads not be shown at games involving the Baltimore Ravens

or Minnesota Vikings.

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Further, leaving punishment to the players' teams is insufficient. Teams are incentivized more

so than the NFL to discipline players lightly or not at all because the teams have the most to lose (that player's services)

and the least to gain (sponsorships and such are generally league business).

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The public understands this and expects

the NFL to take on the role of disciplinarian. This is evidenced by fan outrage in response to Commissioner Goodell's

initial punishment of Ray Rice not meeting their standards.

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The NFL has much to lose by not conforming to this

expectation. Finally, given the recent uptick in off-the-field misconduct discipline and the adoption of the new Personal

Conduct Policy, the NFL has made it very clear that it plans to continue punishing players for off-the-field misconduct.

Thus, it should strive to do so in the fairest, most efficient way possible.

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The most promising proposal commentators have offered thus far is the hybrid system, explained by Adriano Pacifici.

The hybrid approach allows the NFL Commissioner to retain initial disciplinary authority but places appeals decisions

in the hands of a tripartite panel of independent arbitrators to determine the “reasonableness” of the discipline.

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This

is close to what the NFLPA has demanded.

213

Pacifici specifies that the arbitrators should come from the American

Arbitration Association and be bound by its procedural rules.

214

For each appeal, nine arbitrators would be presented

to the parties, who would then choose three, similar to voir dire in jury trials.

215

Pacifici believes that this arbitrator

selection process would avoid problems of arbitrator bias.

216

Pacifici's hybrid system deserves considerable praise as it creates a much fairer process for NFL players to appeal their

suspensions, eliminates potential abuses by the NFL Commissioner, and greatly reduces the likelihood that players

would challenge the arbitration decisions in court (thereby protecting the NFL Commissioner's credibility and saving

both parties money). However, this system is not without its flaws, the worst of which being how long these arbitrations

would take. Because the NFL Commissioner retains initial disciplinary authority, his punishment decision remains in

effect until the arbitrators rule to overturn it, if they choose to do so. By having what amounts to a full-blown jury

trial, presumably requiring *66 considerable preparation and trial time and likely additional time for motions and

oral argument,

217

the length of time between the NFL Commissioner punishing the player and the player's arbitral

resolution will be long--likely much longer than the one-and-a-half to two months that it already takes.

218

Given that

the NFL regular season is only seventeen weeks long and the unique harms to NFL players who miss games,

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any

new system for the NFL must have as a goal concluding disciplinary disputes as quickly as possible. Pacifici's hybrid

system fails to further that goal.

B. PROPOSED INDEPENDENT ADJUDICATORY COMMITTEE SYSTEM TO IMPROVE THE NFL'S OFF-

THE-FIELD DISCIPLINEEE

The NFL and NFLPA should mutually agree to implement a system that roughly mirrors the United States criminal

court system, minus juries. Under this “Independent Adjudicatory Committee” approach, the NFL Commissioner (or

his designee, such as the disciplinary officer) would relinquish disciplinary authority and act as a prosecutor. He would

retain complete authority to investigate, including meeting with players, with their lawyers present if they wish (although

there would be no criminal procedure protections such as Miranda warnings or Fifth Amendment self-incrimination

protections unless the parties mutually decided to adopt them), and compiling evidence against the players. If the NFL

Commissioner believes that a player engaged in punishable misconduct, he would file a charge with the Independent

Adjudicatory Committee, stating, with specificity, the misconduct in which the player allegedly engaged, the evidence

against the player, and the recommended punishment. The Committee would then conduct a hearing, bound by the

evidentiary, procedural, and substantive rules the NFL and NFLPA include in their amended CBA,

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and it would

release a written opinion explaining its ruling and reasoning. As more and more cases are adjudicated, the resulting

opinions will form an NFL disciplinary common law. The Committee would have the authority to stray from its past

rulings, but will be encouraged in the CBA to follow stare decisis principles.

221

Of course, the NFL and NFLPA could

always mutually agree to overturn Committee precedent by amending their CBA, similarly to how Congress occasionally

overturns Supreme Court interpretations of its legislation.

222

*67 The Committee would consist of three independent former judges, each of which the parties mutually agree to in

order to ensure independence.

223

To further this goal, the Committee members would receive a fixed annual salary,

determined by the NFL and NFLPA together, so that the Committee members would not feel obligated to one party

because of their pay structure. The NFL and NFLPA would determine the specifics of the members' terms during

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collective bargaining. For instance, the parties could agree that committee members serve staggered six-year terms (one

replaced every two years), and each member would be eligible to serve up to two terms.

The Committee would also be bound by the evidentiary, procedural, and substantive rules to which the NFL and NFLPA

agree. To this point, the parties would want to determine the broad evidentiary and procedural rules--for instance,

the admissibility of hearsay, statute of limitations and other time constraints, the standard of proof, and the types of

pre-hearing motions available and how they could be resolved--but leave specific details to the Committee members.

The benefit of choosing former judges as members of the Committee is that they are experienced in and comfortable

with filling gaps in evidentiary and procedural rules.

224

Thus, the NFL and NFLPA would simply include a provision

allowing the Committee members to create such rules so long as they are not inconsistent with the CBA. The NFL and

NFLPA could also always overturn a Committee rule through mutual agreement and CBA amendment.

The thorniest question regarding this proposal is how to define the substantive rules to which the Committee is bound. As

it stands, NFL players are disciplined for off-the-field conduct that is “detrimental to the integrity of, or public confidence

in, the game of professional football.”

225

This vague standard is supplemented by the NFL's Personal Conduct Policy,

which the owners imposed without any input from the NFLPA, and which offers little additional guidance as to what

constitutes misconduct.

226

The NFL and NFLPA have three possible avenues to resolve this issue: (1) they could

leave it entirely up to the Committee to define “conduct detrimental to the game;” (2) they could allow either party to

unilaterally define the term;

227

or (3) they could do so together through collective bargaining. Ideally, the NFL and

NFLPA would successfully pursue the third option. However, this is unrealistic as drafting a comprehensive NFL player

disciplinary policy would be an onerous undertaking. Drafting such a policy to which the NFL and NFLPA would then

agree is near impossible. The parties have met at the bargaining table on numerous occasions

228

and have presumably

discussed player discipline without reaching an agreement. Otherwise, they would have *68 implemented one. Thus,

the parties would be best served by choosing the first option: allowing the Committee, after hearing NFL Commissioner

recommendations and player responses at individual hearings, to craft the policy through its written opinions. The parties

could then collectively bargain over specific decisions that the Committee makes and mutually agree to change them

as they see fit.

Last, it is important to keep in mind that the Committee would essentially be a highly specialized arbitration framework.

Thus, the Committee would remain subject to the Federal Arbitration Act and other similar laws.

229

This affords

both parties additional protection. If the Committee truly fails in its duties to fairly and impartially adjudicate disputes,

the wronged party could still challenge the result in federal court, similarly to how Adrian Peterson and Tom Brady

successfully litigated their discipline.

230

However, given the structure of the Committee, litigation similar to Peterson's

and Brady's will be reduced.

Admittedly, by calling on the NFL to relinquish significantly more power, this proposal is more radical than Pacifici's

hybrid system. However, the NFL would ultimately benefit from doing so. The NFL's face, its Commissioner, would be

much better protected and insulated from unpopular disciplinary decisions. The NFL would also repair its relationship

with arguably its most valuable product, its players. Last, it may ultimately help to deter future misconduct. Currently,

players do not know for what or how severely they may be punished for specific conduct. The creation of a predictable

common law will remedy that issue. As a result, players may begin to consider the punishment before doing the crime.

V. THE INDEPENDENT ADJUDICATORY COMMITTEE SYSTEM SOLVES THE ISSUES FROM WHICH

THE NFL'S CURRENT DISCIPLINARY SYSTEM SUFFERS

A. IMPROVING THE COMMISSIONER'S PUBLIC IMAGE AND SOLVING HIS “ARBITRATOR'S

DILEMMA”

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As a result of the NFL's response to the scandals that recently rattled it, the NFL Commissioner's public perception and

control over his disciplinary process has suffered. The public perceives the NFL Commissioner's application of his “best

interests” disciplinary authority as unfair, and the NFL Commissioner is trapped in the “arbitrator's dilemma.”

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Relinquishing some of his authority is the best way for the NFL Commissioner to solve his arbitrator's decision. Right

now, the NFL Commissioner risks losing control over the disciplinary process and public confidence every time he

chooses an arbitrator to hear player appeals of disciplinary decisions, whether or not that arbitrator is impartial.

232

The Independent Adjudicatory Committee proposal solves this problem. As prosecutor, the NFL Commissioner would

retain considerable control over the process, and that control would remain constant regardless of the final outcome of

the disciplinary proceedings. Further, the NFL Commissioner would not have to worry about having his disciplinary

decision overturned (and losing the public's confidence) as he would not make a binding decision nor would he be

concerned that his arbitrator choice fails the “evident partiality” test because he would not choose the arbitrator. In

fact, as described in more detail infra,

233

eventually the Committee *69 would create a reliable common law. Thus, the

NFL Commissioner could predict with more certainty what charges and punishments would be successful and choose

to either bring those or suggest that the Committee revisit its precedent. The player would also have the opportunity

to challenge precedent in front of the Committee. In essence, this proposal allows the NFL Commissioner to retain the

most authority possible without subjecting him to repeated reversals, thereby protecting the integrity and respect of his

office, without harming the NFL's brand.

B. PROTECTING THE NFL AS A BUSINESS

The NFL Commissioner's recent exercise of his “best interests” disciplinary authority has harmed the NFL's bottom line

by undermining its product. The NFL is financially incentivized to keep its players on the field, unless they have done

something so egregious that the NFL believes it will be better off by removing them. The current disciplinary system

sometimes fails to do this by suspending players who do not deserve it or not suspending players who do. This costs the

NFL money and alienates its fans.

The Independent Adjudicatory Committee system will ameliorate these problems. By adjudicating cases quickly,

efficiently, and accurately, and creating reliable common law as a result, this system protects the NFL in two important

ways. First, it reaches what more people will view as the objectively correct result. Because neutral former judges will

be making the decisions, and the NFL and NFLPA can choose to change principles established by the Committee's

opinions, it is more likely that only players that deserve to be suspended will be suspended. The NFL will no longer

lose revenue from erroneously prohibiting players from playing. Equally importantly, the NFL will no longer alienate

its fans by disciplining players in ways the fans feel are unjust. Second, even if the Committee reaches a conclusion that

fans feel is unfair, the NFL will be distanced from that decision. The Committee would take the brunt of the public's

backlash, not the NFL. Although the NFL would undoubtedly still face some fan outrage as the result of a bad decision

by the Committee, that harm will be assuaged by the independent decision-making and predictability the Committee

will inject into the disciplinary proceedings.

C. CREATING A FAIRER PROCESS FOR THE NFL'S PLAYERS

The NFL Commissioner's current disciplinary process takes significant time, which often unfairly costs the players

playing time and money, is inconsistent and unpredictable, and often results in litigation, all to the players' detriment.

234

The Independent Adjudicatory Committee system will alleviate these problems. The main reason why the current process

takes so long is because of the many steps it requires. After investigation, the NFL's disciplinary officer imposes discipline.

The player then has to formally appeal, wait and prepare for two hearings (one with the Expert Panel, one with the

NFL Commissioner or his designee), take the case through the hearings, and then wait for the NFL Commissioner or

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his designee's decision.

235

Throughout this process, the NFL Commissioner's punishment remains in effect. Worse, in

the 2014 Personal Conduct Policy, the NFL Commissioner assumed the power to place players on paid leave during the

initial investigation.

236

Thus, even if the arbitrator ultimately rules in favor of the player, the player will have already

been unfairly punished while awaiting the *70 arbitrator's decision. This problem similarly exists with Pacifici's hybrid

system.

237

Under the Independent Adjudicatory Committee system, the player will not serve a sentence until his case

is heard by the Committee. Therefore, the player is not at risk of serving a sentence that is ultimately revoked and

suffering the unrecoverable losses that come with unfair punishment.

238

Further, if the NFL Commissioner wishes to

expedite a player's punishment, he can hurry his investigation and bring charges quickly. In fact, the Committee, or the

NFL and NFLPA through collective bargaining, could establish a process similar to temporary restraining orders or

preliminary injunctions for the most egregious cases. Because the Committee is a stable body of individuals tasked solely

with adjudicating NFL “best interests” discipline, hearings should operate swiftly and efficiently. In all, the Independent

Adjudicatory Committee system is designed to operate as efficiently as possible, while still maintaining accuracy.

The NFL Commissioner's current disciplinary track record is inconsistent at best.

239

As a result, players do not

know for what conduct they will be punished, nor the severity of those punishments.

240

Former NFL Commissioner

Paul Tagliabue stressed these concerns in his arbitration award overturning Commissioner Goodell's Bounty Scandal

discipline decision,

241

Judge Doty touched on the importance of this concept when he discussed the NFL's “law of

the shop,”

242

and Judge Berman found this to be a dispositive issue in overturning Tom Brady's arbitration award

when he concluded that Brady did not have adequate notice that he would be punished as severely as he was because

the NFL had never previously punished players so harshly for similar offenses.

243

My proposed system would help to

ensure consistency and predictability in punishment. By creating a common law, protected by the basic principles of

stare decisis, NFL players will have a much better understanding of what to expect when it comes to discipline for their

off-the-field conduct.

Infusing the NFL “best interests” disciplinary system with common law principles will ultimately limit how often the

players will file suit against the NFL. The NFL is visibly fearful of player litigation, as evidenced by its pre-emptive filing

against Tom Brady.

244

Labor law disfavors litigation regarding collective bargaining agreements, and courts' ability

to overturn arbitration awards is limited.

245

Yet, the NFLPA frequently challenges arbitration awards in court.

246

This generally occurs either because the NFL Commissioner chooses an arbitrator who the NFLPA believes fails the

evident partiality test, or because the NFLPA feels the outcome is facially unfair.

247

Surprisingly, the NFLPA often

wins,

248

and the limited remedies generally available could extend an already lengthy process. By creating a system that

*71 implements truly independent adjudicators who create a consistent and known body of law, both of these litigious

issues are mitigated.

The obvious consequence of a fair, consistent common law is that many cases will never even make it to the hearing stage,

let alone a courtroom. Similar to a prosecutor and a defendant entering into a plea bargain, the NFL Commissioner and

NFL player may reach a disciplinary agreement if they so choose. Right now, given the uncertainty in what constitutes

“conduct detrimental to the game,” what a fair punishment for misconduct is, and how vast the NFL Commissioner's

extraordinary disciplinary authority actually is, NFL players and the NFL Commissioner alike have little incentive to

settle. This is exceptionally relevant today, given the NFL and the NFLPA/Brady's failure to reach a settlement regarding

Brady's DeflateGate punishment despite Judge Berman's insistence that they do.

249

Once common law principles are

established, the likelihood of settlement will naturally increase. For the players, this further promotes efficient, fair

outcomes that will not need to be litigated. For the NFL Commissioner, this bolsters his public image, rids him of the

shame and embarrassment of having his decisions overturned, and allows him to focus his time on improving the NFL.

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VI. CONCLUSION

The NFL Commissioner's current exercise of his “best interests” disciplinary authority is plagued with problems.

Commissioner Goodell's recent exercise of this authority has damaged his credibility in the eyes of the public and has

ultimately hurt the NFL's bottom line. Worse, the execution of his authority has been unnecessarily detrimental to the

players and has, on increasing occasion, necessitated court action. However, the Independent Adjudicatory Committee

system, under which the NFL Commissioner takes a prosecutorial role and leaves disciplinary decision-making authority

in the hands of a neutral panel of three former judges, would solve many of these problems.

Still, neither party can unilaterally adopt the system, because doing so runs contrary to the parties' CBA. Thus, the

parties would have to amend their CBA.

250

Because the parties currently have a CBA in place that discusses this subject,

neither party is required to collectively bargain about this topic during the life of the agreement.

251

Moreover, the parties

executed a “zipper” clause in their current CBA, meaning they waived all rights to bargain about any subjects covered

or not covered in the CBA.

252

Nevertheless, if both parties agree to bargain, they can overcome their “zipper” clause.

However, the parties will only agree to implement this system if it is truly in their best interests. Because this approach

best solves the many issues with the current system, it is in both parties' best interests to do so. The ball is now in the

NFL and NFLPA's field; it is their turn to act.

Footnotes

Staff Attorney, Grant & Eisenhofer, P.A.; William & Mary Law School (J.D.); University of Pennsylvania (B.A.). The views

expressed herein are those of the author and do not necessarily reflect the views of Grant & Eisenhofer, P.A. I would like

to thank my family, friends, and fiancé for their support and encouragement throughout this process. I would also like to

thank Gregory Giordano, who served as my mentor while writing this Article, and Andrew Larsen for his valuable review and

assistance with this Article. Last, I would like to thank the staff members of the Texas Review of Entertainment and Sports

Law for their help in bringing this Article to publication.

The NFLPA is the union elected by the NFL players to represent them in collective negotiations with the NFL. See About the

NFLPA, NFLPA.COM, https://www.nflpa.com/about (last visited Jan. 3, 2016).

NFL CONST. & BYLAWS, Art. VIII, § 8.13(A) (Feb. 1, 1970) (revised 2006), available at http://www.nfl.com/static/

content/public/static/html/careers/pdf/co_.pdf; NFL COLLECTIVE BARGAINING AGREEMENT, Art. 46, § 1(a) (Aug.

4, 2011), available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf [hereinafter

NFL CBA].

See infra Part I.A.

NFL CBA, supra note 2, Art. 46, §1(b).

Michel O'Keeffe, Ray Rice's Appeal of Indefinite Ban from NFL To Be Heard by ex-Manhattan Federal Judge Barbara S. Jones,

N.Y. DAILY NEWS (Oct. 2, 2014, 10:40 PM), http://www.nydailynews.com/sports/football/ray-rice-appeal-nfl-ban-heard-

ex-manhattan-federal-judge-barbara-s-jones-article-1.1961075.

Allison McCann, The NFL's Uneven History of Punishing Domestic Violence, FIVETHIRTYEIGHT.COM (Aug. 28,

2014 8:13 PM), http://fivethirtyeight.com/features/nfl-domestic-violence-policy-suspensions/ (the report is current through

September 22, 2014, and excludes, for instance, Adrian Peterson's suspension).

Id.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

See infra Part II.

Thom Loverro, Ray Rice Appeal Victory Magnifies Roger Goodell's Fumbling of Case, THE WASH. TIMES (Nov.

30, 2014), http://www.washingtontimes.com/news/2014/nov/30/ray-rice-appeal-victory-magnifies-roger-goodells-f/?page=all;

Michael Rosenberg, Roger Goodell's Press Conference Proves the Public Has Lost Faith in Him, SPORTS ILLUSTRATED

(Jan. 30, 2015), http://www.si.com/nfl/2015/01/30/roger-goodell-press-conference-super-bowl-xlix.

CNN Wire, Ray Rice Video: Critics Call for NFL Commissioner Roger Goodell's Firing Over Handling of Attack, KTLA

(Sept. 10, 2014, 4:57 AM), http://ktla.com/2014/09/10/ray-rice-video-critics-call-for-nfl-commissioner-roger-goodells-firing-

over-handling-of-attack/.

Ken Belson, N.F.L. Domestic Violence Policy Toughened in Wake of Ray Rice Case, N.Y. TIMES (Aug.

28, 2014), http://www.nytimes.com/2014/08/29/sports/football/roger-goodell-admits-he-was-wrong-and-alters-nfl-policy-on-

domestic-violence.html.

Steve Almasy & Rachel Nichols, NFL Toughens Domestic Violence Policy with Six-Game Bans, CNN (updated Aug. 28, 2014,

4:52 PM), http://www.cnn.com/2014/08/28/us/nfl-domestic-violence/; Rita Smith, NFL's Personal Conduct Policy: A Step in the

Right Direction, HUFFINGTON POST (Dec. 15, 2014, 5:59 AM), http://www.huffingtonpost.com/rita-smith/nfls-personal-

conduct-pol_1_b_6326480.html.

Matthew J. Parlow, Professional Sports League Commissioners' Authority and Collective Bargaining, 11 TEX. REV. ENT. &

SPORTS L. 179, 183 (2010).

Id. (citing Jonathan M. Reinsdorf, The Powers of the Commissioner in Baseball, 7 MARQ. SPORTS L.J. 211, 219 (1996)).

Id. (citing Robert I. Lockwood, Note, The Best Interests of the League: Referee betting Scandal Brings Commissioner Authority

and Collective Bargaining Back to the Forefront in the NBA, 15 SPORTS L.J. 137, 141-44 (2008)).

Id. at 183-84 (citing Reinsdorf, supra note 16, at 219-20).

Id. at 184 (citing Reinsdorf, supra note 16, at 220).

Id. (citing Peter G. Neiman, “Root, Root, Root for the Home Team”: Peter Rose, Nominal Parties, and Diversity Jurisdiction,

66 N. Y.U. L. REV. 148, 148 n.7 (1991)).

Id. (citing Craig F. Arcella, Major League Baseball's Disempowered Commissioner: Judicial Ramifications of the 1994

Restructuring, 97 COLUM. L. REV. 2420, 2430 (1997)).

Id. (citing Shayna M. Sigman, The Jurisprudence of Judge Kenesaw Mountain Landis, 15 MARQ. SPORTS L. REV. 277, 304

(2005)).

Id. at 184-85 (citing Reinsdorf, supra note16, at 221).

Id. at 187 (citing Lockwood, supra note 17, at 146).

See id.; see also Lockwood, supra note 17, at 146.

Parlow, supra note 15, at 187 (citing Lockwood, supra note 17, at 146 (citing NFL CONST. & BYLAWS, Art. VIII, § 8.3(a)

(Feb. 1, 1970) (revised 1988)).

Id. (citing Lockwood, supra note 17, at 146 (citing NFL COLLECTIVE BARGAINING AGREEMENT, Art. XI, § 1(a)

(1993))).

NFL CONST. & BYLAWS, supra note 2, Art. VIII, § 8.13(A) (emphasis added).

NFL CBA, supra note 2, Art. 46, § 1(a).

Id. at Appendix A, P 15.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

Adriano Pacifici, Scope and Authority of Sports League Commissioner Disciplinary Power: Bounty and Beyond, 3 BERKELEY

J. ENT. & SPORTS L. 93, 105 (2014).

Sean Bukowski, Flag on the Play: 25 to Life for the Offense of Murder, 3 VAND. J. ENT. L. & PRAC. 106, 110 (2001) (citing

the NFL VIOLENT CRIME POLICY, 1998 Rookie Symposium Tab 7: League Policies for Players (1998)).

For more information about Ray Lewis's murder trial, see Lenny DeFranco, Did Ray Lewis Kill Someone? The Definitive

Account of the Case That's Confused Football Fans for Over a Decade, MIC.COM (Jan. 20, 2013), http://mic.com/articles/23665/

did-ray-lewis-kill-someone-the-definitive-account-of-the-case-that-s-confused-football-fans-for-over-a-decade.

Marc Edelman, Are Commissioner Suspensions Really Any Different From Illegal Group Boycotts? Analyzing Whether the

NFL Personal Conduct Policy Illegally Restraints Trade, 58 CATH. U.L. REV. 631, 636 (2009) (citing David Elfin, NFL

Owners Expand Rules on Player Crime, WASH. TIMES, May 24, 2000, at B1; Memorandum from Legal Department

to Pro Star Sports Agency on NFL's “Personal Conduct Policy” (June 22, 2000), available at http://prostaronline.com/

nfl_conduct_policy.html (stating that the 2000 Personal Conduct Policy supercedes the NFL's earlier Violent Crime Policy)).

Id. at 637.

Id. All of Paul Tagliabue's suspensions were for one game, except for one two-game suspension, and one three-game

suspension. See McCann, supra note 6.

Jim Corbett, Tagliabue Hands Off to Goodell as NFL Commissioner, USA TODAY (Aug. 9, 2006, 6:00 PM), http://

usatoday30.usatoday.com/sports/football/nfl/2006-08-08-goodell-commissioner_x.htm.

Goodell Strengthens NFL Personal Conduct Policy, USA TODAY (updated Apr. 11, 2007, 8:28 AM), http://

usatoday30.usatoday.com/sports/football/nfl/2007-04-10-new-conduct-policy_N.htm. Chris Henry had been arrested four

times in a fourteen-month span for various offenses and had already been suspended for two games as a result. Goodell

Suspends Pacman, Henry for Multiple Arrests, ESPN (May 17, 2007), http://sports.espn.go.com/nfl/news/story?id =2832015.

Jones faced ten separate incidents in which he was interviewed by police. Id. Johnson, already on probation, had six

unregistered firearms in his home that were found during a police raid. Johnson Suspended for Eight Games; Can Be Reduced

to Six, ESPN (June 5, 2007), http://sports.espn.go.com/nfl/news/story?id=2892889.

Goodell Strengthens NFL Personal Conduct Policy, supra note 38. As Commissioner Goodell explained when announcing the

suspensions and subsequent new Personal Conduct Policy:

It is important that the NFL be represented consistently by outstanding people as well as great football players, coaches,

and staff. We hold ourselves to higher standards of responsible conduct because of what it means to be part of the National

Football League. We have long had policies and programs designed to encourage responsible behavior, and this policy is a

further step in ensuring that everyone who is part of the NFL meets that standard.

Id.

2008 NFL PERSONAL CONDUCT POLICY (2008), available at http://www.prostaronline.com/draftee/

personal_conduct_policy.pdf. Executive Director Upshaw took considerable flack for allowing the NFL to implement a

Personal Conduct Policy that gave the NFL Commissioner virtually unlimited power, with one commentator even exclaiming

that President Upshaw “failed” the NFLPA's members. See Adam Marks, Note, Personnel Foul on the National Football

League Player's Association: How Union Executive Director Gene Upshaw Failed the Union's Members By Not Fighting the

Enactment of the Personal Conduct Policy, 40 CONN. L. REV. 1581 (2008).

2007 NFL PERSONAL CONDUCT POLICY (Mar. 13, 2007), available at http://sports.espn.go.com/nfl/news/story?

id=2798214.

2008 NFL PERSONAL CONDUCT POLICY, supra note 41, at 1-2.

Id. at 1.

Id. at 2.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

2007 NFL PERSONAL CONDUCT POLICY, supra note 42 (emphasis added).

2008 NFL PERSONAL CONDUCT POLICY, supra note 41, at 3.

Interestingly, the 2008 Personal Conduct Policy continued after the NFL and NFLPA negotiated a new CBA. The CBA

was silent on the matter. Some question whether the 2008 Personal Conduct Policy, and its predecessors and successors for

that matter, are valid. See Edelman, supra note 34; Doug Farrar, NFLPA Executive: New Player Conduct Policy Could be A

Violation of CBA, SPORTS ILLUSTRATED (Dec. 11, 2014), http://www.si.com/nfl/2014/12/11/nfl-personal-conduct-policy-

nflpa-george-atallah-cba-violation. Cf. Kelly M. Vaughan, Note, First and Goal: How The NFL's Personal Conduct Policy

Complies with Federal Antritrust Law, 96 CORNELL L. REV. 609 (2011). Because the NFL treats them as valid and follows

them as such, this Article assumes their validity for purposes of its argument.

For a detailed explanation of the Ray Rice scandal, see infra Part II.A.

For a detailed account of the Adrian Peterson scandal, see infra Part II.B.

Almasy & Nichols, supra note 14.

Tom Pelissero, NFL Toughens Its Stance on Domestic Violence, USA TODAY (Aug. 28, 2014,

4:06 PM), http://www.usatoday.com/story/sports/nfl/2014/08/28/nfl-toughens-its-stance-on-domestic-violence/14746187/.

Notably, Commissioner Goodell again consulted with the NFLPA while drafting this new Policy. Id.

Before the Domestic Violence Policy, the NFL's punishment for player off-the-field conduct violations was, on average, a

three game suspension, while, for domestic violence specifically, was only 1.5 games. McCann, supra note 6.

Although the “mitigating circumstances” language may allow the NFL Commissioner to grant less severe punishments, this

does not appear to be consistent with the Policy's spirit to establish a floor for domestic violence suspensions. See Pelissero,

supra note 52. Yet, Commissioner Goodell showed his willingness to suspend players accused or convicted of domestic violence

for more than six games when he suspended Greg Hardy for ten games. See Jane McManus, How NFL's Roger Goodell Got It

Right with Greg Hardy, ESPN (Apr. 23, 2015), http://espn.go.com/espnw/news-commentary/article/12745022/how-nfl-roger-

goodell-got-right-greg-hardy-suspension. However, Commissioner Goodell personally heard Hardy's appeal and reduced his

suspension to four games. Josh Apler, Greg Hardy Suspension Reduced to Four Games, NBC SPORTS PRO FOOTBALL

TALK (JULY 10, 2015, 2:31 PM), http://profootballtalk.nbcsports.com/2015/07/10/greg-hardy-suspension-reduced-to-four-

games/.

Mark Maske, NFL Owners Ratify New Personal Conduct Policy, THE WASH. POST (Dec. 10, 2014), http://

www.washingtonpost.com/news/sports/wp/2014/12/10/nfl-owners-ratify-new-personal-conduct-policy/.

Smith, supra note 14; 2014 NFL PERSONAL CONDUCT POLICY (Dec. 2014), available at http://static.nfl.com/static/

content/public/photo/2014/12/10/0ap3000000441637.pdf.

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART (Dec. 10, 2014), available at http://static.nfl.com/static/

content/public/photo/2014/12/10/0ap3000000441677.pdf.

2014 NFL PERSONAL CONDUCT POLICY, supra note 56, at 1.

Id. at 2.

Id.

Id. at 5. The NFL appointed Todd Jones, the former director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives,

to “apply and administer the personal conduct policy that applies to NFL employees,” and Lisa Friel, a former New York

District Attorney's office sex crimes prosecutor, who “will professionalize the investigations process.” Adam Schefter, NFL

to Hire ex-ATF Boss Todd Jones, ESPN (updated Mar. 23, 2015, 1:47 PM), http://espn.go.com/nfl/story/_/id/12544015/todd-

jones-former-atf-director-join-nfl-conduct-czar.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART, supra note 57.

2014 NFL PERSONAL CONDUCT POLICY, supra note 56, at 7 (“Appeals of any disciplinary decision will be processed

pursuant to Article 46 of the Collective Bargaining Agreement for players or pursuant to the applicable league procedures

for nonplayers.”).

Id. at 4-5.

Id. at 5.

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART, supra note 57.

Id.

2014 NFL PERSONAL CONDUCT POLICY, supra note 56, at 7; 2014 NFL PERSONAL CONDUCT POLICY

FLOWCHART, supra note 57.

Jarrett Bell, New Conduct Policy Only Fortifies Goodell's Position, USA TODAY (Dec. 20, 20140, 8:54

PM), http://www.usatoday.com/story/sports/nfl/columnist/bell/2014/12/10/roger-goodell-personal-conduct-policy-fortifies-

commissioner-power/20222569/,.

See id.; Farrar, supra note 48.

CNN Staff, Key Events in the Ray Rice Story, CNN (updated Sept. 16, 2014, 10:34 AM), http://www.cnn.com/2014/09/09/

us/ray-rice-timeline/.

Louis Bien, A Complete Timeline of the Ray Rice Assault Case, SB NATION (Nov. 28, 2014, 2:08 PM), http://

www.sbnation.com/nfl/2014/5/23/5744964/ray-rice-arrest-assault-statement-apology-ravens. Rice was accepted into a pretrial

intervention program, in which his charge will be expunged if he completes a twelve-month program.

Id.

Id.; TMZ Staff, Ray Rice Elevator Knockout: Fiancée Takes Crushing Punch, TMZ (Sept. 8, 2014, 1:00 AM) http://

www.tmz.com/2014/09/08/ray-rice-elevator-knockout-fiancee-takes-crushing-punch-video/.

Id.

O'Keeffe, supra note 5.

Bein, supra note 73.

In the Matter of Ray Rice, Arbitration Decision (Nov. 28, 2014) (Hon. Jones, Arb.), available at http://espn.go.com/

pdf/2014/1128/141128_rice-summary.pdf. Rice also demanded $3.529 million from the Baltimore Ravens, which reflected

the amount he would have earned for the fourteen games he should have been allowed to play. Report: Ray Rice Gets

$1.588 Million, ESPN (updated Mar. 3, 2015, 10:56 AM), http://espn.go.com/nfl/story/_/id/12412931/ray-rice-baltimore-

ravens-reach-settlement-1588-million. Rice finally settled with the Ravens for $1.588 million. Id.

Schedules: NFL Week 13, NFL.COM, http://www.nfl.com/schedules/2014/REG13.

See Ray Rice, PRO-FOOTBALLREFERENCE.COM, http://www.pro-football-reference.com/players/R/RiceRa00.htm

(last visited Jan. 3, 2016) (The 2014 season is conspicuously absent from Rice's statistics.); Larry Hartstein, Unsigned Ray

Rice Seeks ‘Second Chance’ from NFL Team, CBSSPORTS.COM, (Dec. 2, 2014, 5:57 AM) http://fantasynews.cbssports.com/

fantasyfootball/update/24858957/unsigned-ray-rice-seeks-second-chance-from-nfl-team.

Steve DiMatteo, A Timeline of The Adrian Peterson Child Abuse Case, SBNATION.COM (Sept. 17, 2014, 12:22 PM), http://

www.sbnation.com/2014/9/17/6334793/adrian-peterson-child-abuse-statement-vikings-timeline.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

Id.

Jason La Canfora, How the Exempt/Commissioner's Permission List Works, CBSSPORTS.COM (Sept. 21, 2014, 9:05 AM)

http://www.cbssports.com/nfl/writer/jason-la-canfora/24718626/breaking-down-the-exemptcommissioners-permission-list.

DiMatteo, supra note 83. Radisson, Nike and Castrol all suspended their sponsorships. Id.

Chart: Adrian Peterson's Legal Timeline, STAR TRIBUNE (updated Nov. 19, 2014, 12:16 AM), http://www.startribune.com/

sports/vikings/283140961.html.

Id.; Will Brinson, Roger Goodell Explains Details of Adrian Peterson Suspension in Letter, CBSSPORTS.COM (Nov. 18,

2014, 9:02 AM), http://www.cbssports.com/nfl/eye-on-football/24818642/roger-goodell-explains-details-of-adrian-peterson-

suspension-in-letter.

Order Vacating Arbitration Award, Nat'l Football League Players Ass'n v. NFL, Civ. No. 14-4990 (DSD/JSM), at 13 (D.

Minn. Feb. 26, 2015), available at http://a.espncdn.com/pdf/2015/0226/DotyPetersonruling.pdf.

Mike Florio, Goodell Delegates Peterson Appeal to Harold Henderson, NBC SPORTS PRO FOOTBALL TALK (Nov. 21,

2014, 2:40 PM), http://profootballtalk.nbcsports.com/2014/11/21/goodell-delegates-peterson-appeal-to-harold-henderson/.

Mike Florio, Union Questions Harold Henderson's Neutrality, NBC SPORTS PRO FOOTBALL TALK (Nov. 21, 2014, 4:03

PM), http://profootballtalk.nbcsports.com/2014/11/21/union-questions-harold-hendersons-neutrality/. Some suggested that

Commissioner Goodell's decision to choose Henderson was influenced by Judge Jones forcing Commissioner Goodell to

testify at Ray Rice's hearing earlier that year.

Adrian Peterson's Appeal Denied, ESPN (Dec. 14, 2014), http://espn.go.com/nfl/story/_/id/12020801/adrian-peterson-appeal-

suspension-denied.

Re: Adrian Peterson Appeal, Arbitration Decision (Dec. 12, 2014) (Henderson, Arb.), available at http://espn.go.com/

pdf/2014/1212/1490963_1_AP.pdf.

Order Vacating Arbitration Award, Nat'l Football League Players Ass'n v. NFL, Civ. No. 14-4990 (DSD/JSM) (D. Minn.

Feb. 26, 2015), available at http://a.espncdn.com/pdf/2015/0226/DotyPetersonruling.pdf [hereinafter Adrian Peterson's Order

Vacating Arbitration Award].

Id. at 16.

Id. at 11-14 (citing Bureau of Engraving, Inc. v. Graphic Commc'ns Int'l Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999);

United Steelworkers of Am. V. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960)).

Id. at 14-16. (citing Local 238 Int'l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988, 990-91 (8th Cir. 1995); John Morrell & Co.

v. Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 561 (8th Cir. 1990)).

100

Id. at 16.

101

Judge Rules in Peterson's Favor, ESPN (Mar. 1, 2015, 12:45 PM), http://espn.go.com/nfl/story/_/id/12387081/judge-david-

doty-rules-favor-adrian-peterson-minnesota-vikings.

102

Ken Belson, N.F.L. to Reinstate Vikings Adrian Peterson, THE NEW YORK TIMES (Apr. 16, 2015), http://

www.nytimes.com/2015/04/17/sports/football/nfl-reinstates-vikings-adrian-peterson.html?_r=0 (explaining that the NFL

lifted Peterson's suspension and reinstated him on April 17, 2015).

103

Patriots Advance to Super Bowl in AFC Championship Rout, NFL.COM (2014), http://www.nfl.com/

gamecenter/2015011801/2014/POST20/colts@patriots#menu=gameinfo%7CcontentId%3A0ap3000000460458&tab=recap.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

104

See, e.g., Report: Pick Let to NFL's Probe, ESPN (updated Jan. 20, 2015, 3:14 PM), http://espn.go.com/boston/nfl/story/_/

id/12198323/indianapolis-colts-interception-led-question-whether-new-england-patriots-deflated-balls; Mike Wells, Deflated

Balls Didn't beat Colts, Lack of Toughness Did, ESPN (Jan. 21, 2015, 10:35 AM), http://espn.go.com/blog/indianapolis-colts/

post/_/id/10574/deflated-balls-didnt-beat-colts-lack-of-toughness-did.

105

See, e.g., Aileen Graef, Dwayne Allen: Patriots Could Have Played with ‘Soup for Balls and Beat Us', UPI.COM (Jan. 22, 2015,

5:02 PM), http://www.upi.com/Sports_News/2015/01/22/Dwayne-Allen-Patriots-could-have-played-with-soap-for-balls-and-

beat-us/9381421963239/; Schuyler Valesco, Obama on Deflategate: Patriots Would Have Won ‘Regardless', THE CHRISTIAN

SCI. MONITOR (Feb. 1, 2015), http://www.csmonitor.com/USA/Sports/2015/0201/Obama-on-Deflategate-Patriots-would-

have-won-regardless-video.

106

Ted Wells investigated the NFL's bullying scandal from the prior season. See Gregg Rosenthal, Summary of Ted Wells Report

on Miami Dolphins, NFL.COM (updated Feb. 14, 2015, 6:41 PM), http://www.nfl.com/news/story/0ap2000000325899/article/

summary-of-ted-wells-report-on-miami-dolphins.

107

NFL Investigation of Balls in AFC Title Game Led by Pash, Wells, NFL.COM (updated Jan. 24, 2015, 9:02 PM), http://

www.nfl.com/news/story/0ap3000000462476/article/nfl-investigation-of-balls-in-afc-title-game-led-by-pash-wells.

108

Id.; Tim Britton, Commissioner Roger Goodell Addresses Deflategate, Emphasizes Integrity of Game, PROVIDENCE

JOURNAL (Jan. 20, 2015, 1:57 PM), http://www.providencejournal.com/article/20150130/Sports/301309938.

109

Samer Kalaf, Wells Report: Patriots Likely Deflated Balls on Purpose, DEADSPIN.COM (May 6, 2015, 1:23 PM),

http://deadspin.com/wells-report-patriots-likely-deflated-balls-on-purpose-1702593820; THEODORE V. WELLS, JR. ET

AL., PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, INVESTIGATIVE REPORT CONCERNING

FOOTBALLS USED DURING THE AFC CHAMPIONSHIP GAME ON JANUARY 18, 2015 (May 6,

2015), available at https://nfllabor.files.wordpress.com/2015/05/investigative-and-expert-reports-re-footballs-used-during-

afc-championsh.pdf [hereinafter TED WELLS REPORT].

110

TED WELLS REPORT, supra note 110, at 121-22.

111

ESPN.com News Services, NFL Suspends Tom Brady for 4 Games, ESPN (May 12, 2015), http://espn.go.com/nfl/story/_/

id/12867594/punishments-handed-tom-brady-new-england-patriots-deflategate.

112

Lindsay H. Jones , Owner Robert Kraft Won't Appeal Patriots' Deflategate Penalties, USA TODAY (May 19, 2015,

3:44 PM), http://www.usatoday.com/story/sports/nfl/patriots/2015/05/19/robert-kraft-deflategate-no-appeal-roger-goodell-

fine-draft-picks-new-england/27583829/.

113

Around The NFL Staff, Tom Brady Suspension Timeline, NFL.COM (updated July 28, 2015, 7:31 PM), http://www.nfl.com/

news/story/0ap3000000492189/article/tom-brady-suspension-timeline.

114

Jason Lisk, Roger Goodell Rejects Request for Arbitrator in Tom Brady Appeal, THEBIGLEAD.COM (May 14, 2015, 10:48

PM), http://thebiglead.com/2015/05/14/roger-goodell-rejects-request-for-neutral-arbitrator-in-tom-brady-appeal/.

115

Around The NFL Staff, supra note 113; Lisk, supra note 114.

116

Around The NFL Staff, supra note 113.

117

Lester Munson, Brady, NFLPA Likely to Come Up Short in Federal Court Challenge, ESPN (Jul.

29, 2015), http://espn.go.com/espn/otl/story/_/id/13332578/new-england-patriots-quarterback-tom-brady-nflpa-likely-come-

short-court-challenge-roger-goodell-decision/.

118

Id. See also Mike Florio, NFL Goes Forum-Shopping with Pre-Emptive Lawsuit, NBC SPORTS PRO FOOTBALL TALK

(July 28, 2015, 4:19 PM), http://profootballtalk.nbcsports.com/2015/07/28/nfl-goes-forum-shopping-with-pre-emptive-

lawsuit/.

119

See Dave Hogg, DeflateGate Judge Warns Brady, NFL Time is Running Out to Reach a Settlement, SBNATION (Aug. 19,

2015, 3:16 PM), http://www.sbnation.com/nfl/2015/8/19/9178329/deflategate-judge-tom-brady-goodell-nfl-settlement.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

120

Jarde Dubin, Judge Nullifies Tom Brady's 4-Game Suspension in Deflategate Case, CBS SPORTS (Sept. 3,

2015, 10:17 AM), http://www.cbssports.com/nfl/eye-on-football/25288935/report-judge-richard-m-berman-rules-for-brady-

overturns-suspension.

121

Order Vacating Arbitration Award, Nat'l Football League Players Ass'n v. Nat'l Football League Players Ass'n, 15 Civ. 5916

(RMB) (JCF) (S.D.N.Y. Sep. 23, 2015), available at http://www.scribd.com/doc/278110826/Decision-Order-NFL-vs-NFLPA.

122

Id.

123

Lorenzo Reyes and Rachel Axon, NFL Files an Appeal of Deflategate Decision that Erased Tom Brady Suspension, USA

TODAY (Sept. 3, 2015, 4:03 PM), http://www.usatoday.com/story/sports/nfl/patriots/2015/09/03/deflategate-tom-brady-

roger-goodell-judge-richard-overturned-berman-new-england/71504142/.

124

Joseph Ax, NFL's ‘Deflategate’ Appeal to Be Heard in February: Court Order, REUTERS (Sept. 29, 2015, 5:22 PM), http://

www.reuters.com/article/2015/09/29/us-nfl-brady-idUSKCN0RT2LZ20150929.

125

Id.; Kevin Seifert, Roger Goodell: No Judgments Yet, ESPN (updated Jan. 30, 2015,

10:01 PM), http://espn.go.com/nfl/playoffs/2014/story/_/id/12254585/nfl-commissioner-roger-goodell-said-league-looking-

why-new-england-patriots-used-footballs-compliance-was-deliberate.

126

See Rosenberg, supra note 11; Mike Lupica, Judge's Takedown of Roger Goodell in Ray Rice Case Is What Commissioner

Deserves, N.Y. DAILY NEWS (Nov. 29, 2014, 12:24 AM), http://www.nydailynews.com/sports/football/lupica-judge-

takedown-roger-goodell-deserved-article-1.2027389.

127

Michael McCann, Examining Legal Fallout from Adrian Peterson Decision, Subsequent Appeal, SPORTS ILLUSTRATED

(Feb. 26, 2015), http://www.si.com/nfl/2015/02/26/adrian-peterson-appeal-roger-goodell-minnesota-vikings.

128

See supra Part II.A.

129

Morris v. New York Football Giants, Inc., 575 N.Y.S.2d 1013 (Sup. Ct. N.Y. 1991).

130

Id. at 1016-17.

131

Id.

132

Order Vacating Arbitration Award, Nat'l Football League Players Ass'n v. NFL, Civ. No. 14-4990 (DSD/JSM), at 16 (D.

Minn. Feb. 26, 2015), available at http://a.espncdn.com/pdf/2015/0226/DotyPetersonruling.pdf.

133

The Bounty Scandal involved the NFL finding that defensive coaches and players of the New Orleans Saints engaged in a

program by which they pooled money and awarded payments to defensive players who injured opposing offensive players.

For a discussion of the scandal, see Pacifici, supra note 31, at 105-12.

134

Complaint, National Football League Player Association v. National Football League Management Council, 2:12-cv-01744-

SSV-SS, at 39-47 (E.D. La. July 7, 2012) [hereinafter NFLPA Complaint].

135

Pacifici, supra note 31, at 110.

136

See 9 U.S.C. § 10(a)(2) (2002); NFLPA Complaint, supra note 134, at 39-47.

137

9 U.S.C. § 10(a)(2).

138

NFL Complaint, supra note 134, at 40 (quoting Weber v. Merrill Lynch Pierce Fenner & Smith, Inc., 455 F. Supp. 2d 545,

549 (N.D. Tex. 2006)).

139

Id. at 40-47.

140

Id. at 47.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

141

See, e.g., Tony Manfred, Roger Goodell Apologizes for Ray Rice Fiasco, Promises New Policies in Press Conference, BUSINESS

INSIDER (Sept. 19, 2014), http://www.businessinsider.com/live-roger-goodell-press-conference-2014-9.

142

See O'Keeffe, supra note 5.

143

Pacifici, supra note 31, at 110.

144

See supra Part II.A.

145

See supra Part II.B-C.

146

This is also codified in the NFL's Constitution, which explains, “the purpose and objects for which the League is organized

are... [t]o promote and foster the primary business of League members, each member being an owner of a professional football

club located in the United States.” NFL CONST. & BYLAWS, supra note 2, Art. II, § 2.1(A). Given that each NFL team, as

a football team, must have the purpose of having football games, the NFL's purpose is to “promote and foster” those games.

147

See NFL CBA, supra note 2, Art. 51, §4, Appendix A, P4. One way the NFL has advertised its players is through its “Hard

Knocks” series produced in collaboration with HBO. See Jason Gallagher, Guts, Glory and Goddamn Snacks: A History

of ‘Hard Knocks', THE ROLLING STONE (Aug. 5, 2014), http://www.rollingstone.com/culture/news/hbo-hard-knocks-

history-guts-glory-and-goddamn-snacks-20140805.

148

The NFL recently updated the Pro Bowl in an attempt to make it more exciting and marketable. See Martin Pengelly,

NFL Announces New Format and Player Draft for 2014 Pro Bowl, THE GUARDIAN (July 31, 2013, 3:56 PM), http://

www.theguardian.com/sport/2013/jul/31/nfl-pro-bowl-draft-new-format.

149

The NFL has dedicated an entire section of its website to the NFL Combine. See NFL COMBINE, http://www.nfl.com/

combine (last visited Jan. 3, 2016).

150

The NFL has changed its draft from a simple, one-day event held in a hotel, to a three-day, nationally-televised affair

held in a major concert venue, such as Radio City Music Hall in New York City. See NFL Draft Locations, FOOTBALL

GEOGRAPHY, http://www.footballgeography.com/nfl-draft-sites/, (last visited Jan. 3, 2016).

151

The NFL Super Bowl seemingly sets new ratings records every year. See, e.g., Dominic Patten, Touchdown! NBC's Super Bowl

Scores Record-Smashing Viewership, DEADLINE (Feb. 2, 2015, 1:30 PM), http://deadline.com/2015/02/super-bowl-ratings-

patriots-seahawks-2015-superbowl-xlix-1201364688/.

152

See, e.g., NFL SHOP: JERSEYS, http://www.nflshop.com/Jerseys?ab=bm-nflcms-TopNav-Jerseys-2.6.14 (last visited Jan. 3,

2016).

153

See Albert Breer, Prison Tag? Franchise Tag Has Changed Over The Years, NFL.COM (updated Aug. 3, 2012, 1:37 AM),

http://www.nfl.com/news/story/09000d5d82aa478e/article/prison-tag-franchise-designation-has-changed-over-the-years.

154

See ABOUT NFL FILMS, http://www.nflfilms.com/about.html (last visited Jan. 3, 2016).

155

Despite its disciplinary struggles, the NFL earned record profits last year. See Chris Isidore, NFL Earns Record Profits Despite

Ugly Image, CNNMONEY (Jan. 20, 2015, 6:24 AM) , http://money.cnn.com/2015/01/20/news/companies/nfl-profits/.

156

Although the economic value of NFL players has not been studied rigorously, player value in terms of wins has. In

one study, the value of each position to a team's ability to win was calculated by determining “positional wins above

replacement,” which “measures the value of players in the NFL, by position, in terms of generating wins.” See Andrew

Hughes, Cory Koedel & Joshua A. Price, Positional WAR in the National Football League, Department of Economics,

University of Missouri-Columbia Working Paper Series 14, 10 (June 2014), available at http://economics.missouri.edu/

working-papers/2014/WP1410_koedel.pdf. Websites, such as ProFootballFocus.com, purport to calculate the value of each

player in comparison to others in his position. See PRO FOOTBALL FOCUS ABOUT, https://www.profootballfocus.com/

about/ (last visited Jan. 3, 2016). The value a player adds in terms of wins sheds some light on the economic value that player

adds to the NFL. The NFL's own marketing analytics would likely shed more light. Given that the data exists to calculate the

value of each player to the NFL, and that the NFL likely has it, the NFL must have an estimate of what it gains to make or

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

lose from each suspension. Commissioner Goodell may have taken this under consideration when he waited to punish anyone

as a result of DeflateGate. Some have argued that Commissioner Goodell did not want DeflateGate punishments to tarnish

one of the NFL's most profitable games, the Super Bowl. See Rosenberg, supra note 11.

157

This is further evidenced by the fact that, historically, the NFL strengthened its disciplinary process only after the public

condemned the NFL for its disciplinary response to a player's conduct. See supra Part I.C-D.

158

This economics argument has also been presented by Matthew Parlow, supra note 15, at 182 (citing Bukowski, supra note

32, at 106-08).

159

For instance, there appears to be some consensus that Commissioner Goodell suspending Donte Stallworth for one year after

he pled guilty to DUI manslaughter was warranted. As a result, Commissioner Goodell and the NFL were actually praised

for Commissioner Goodell's handling of that tragedy. See, e.g., Erin McLaughlin, Donte Stallworth's Sentence Was No Slap

on The Wrist, BLEACHER REPORT (Jun. 16, 2009), http://bleacherreport.com/articles/200684-donte-stallworths-sentence-

was-no-slap-on-the-wrist.

160

See supra Part II.

161

See NFL CBA, supra note 2, Art. 46, §1(a).

162

Compare CNN Staff, supra note 72, and Mel Robbins, NFL's Personal Conduct Policy Fail, CNN (updated Dec. 13, 2014,

4:08 PM), http://www.cnn.com/2014/12/11/opinion/robbins-nfl-domestic-violence-rules/, with Smith, supra note 14.

163

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART, supra note 57.

164

Id.

165

See Id.; Schefter, supra note 62.

166

See Pacifici, supra note 31, at 114 (citing Jason M. Pollack, Take My Arbitrator, Please: Commissioner “Best Interests”

Disciplinary Authority in Professional Sports, 47 FORDHAM L. REV. 1645, 1706 (1999)).

167

See supra Part II.A.

168

Id.

169

Id.

170

See supra Part II.B.

171

See supra Part II.C.

172

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART, supra note 57.

173

This is required under the CBA. See NFL CBA, supra note 2, Art. 46.

174

The Back Pay Act allows for the recovery of back pay if an employee is found to “have been affected by an unjustified or

unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or

differentials of the employee.” 5 U.S.C.A. § 5596(b)(1) (West 2014).

175

Average Playing Career Length in the National Football League (in Years), STATISTA, http://www.statista.com/

statistics/240102/average-player-career-length-in-the-national-football-league/ (last visited Jan. 3, 2016).

176

See NFL CBA, supra note 2, Art. 31.

177

Every season this turnover occurs on NFL rosters. See, e.g., Albert Breer, Colin Kaepernick Over Alex Smith: The Truth About

a Bold Move, NFL.COM (Jan. 30, 2013, 11:56 AM), http://www.nfl.com/superbowl/story/0ap1000000132169/article/colin-

kaepernick-over-alex-smith-the-truth-about-a-bold-move.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

178

See supra Part II.A-B.

179

See accompanying text, supra note 174.

180

See, e.g., Joel Corry, Agent's Take: Notable Players who Cashed in on Performance Bonuses, CBSSPORTS.COM (Dec.

30, 2014, 2:55 PM), http://www.cbssports.com/nfl/eye-on-football/24923980/agents-take-notable-players-who-cashed-in-on-

performance-bonuses.

181

Joel Corry, What Are Players Paid During The Playoffs?, NATIONALFOOTBALLPOST.COM (Jan. 2, 2015), http://

www.nationalfootballpost.com/what-are-players-paid-during-the-playoffs/; Teresa Ambord, Super Bowl Money and Tax

Facts You May Not Know, ACCOUNTINGWEB.COM (Jan. 31, 2014), http://www.accountingweb.com/article/super-bowl-

money-and-tax-facts-you-may-not-know/223009.

182

See, e.g., Jordan Teicher, How NFL Players Are Winning The Game for Micro Endorsements: On-Demand Merchandise,

ADWEEK.COM (Sept. 15, 2014, 11:38 PM), http://www.adweek.com/brandshare/how-nfl-players-are-winning-game-micro-

endorsements-160065; Kurt Badenhausen, The NFL's Highest-Paid Players 2014, FORBES (Aug. 20, 2014, 9:56 AM), http://

www.forbes.com/sites/kurtbadenhausen/2014/08/20/the-nfls-highest-paid-players-2014/.

183

Badenhausen, supra note 182.

184

2014 NFL PERSONAL CONDUCT POLICY FLOWCHART, supra note 57.

185

Id.

186

See supra Part II.A.

187

See supra Part II.B.

188

See supra Part II.C.

189

In the Matter of New Orleans Saint Pay-for-Performance/“Bounty”, Arbitration Decision, at 18 (Dec. 11, 2012) (Tagliabue,

Arb.), available at http://espn.go.com/photo/preview/121211/espn_bountyruling.pdf; supra Part II.C.

190

NFL CBA, supra note 2, at Art. 46. For a discussion regarding whether the NFL should not discipline its players at

all, see Josh Levin, You're Fired, Roger Goodell, SLATE (Sept. 23, 2014, 7:27 PM), http://www.slate.com/articles/sports/

sports_nut/2014/09/nfl_personal_conduct_policy_the_commissioner_has_no_business_punishing_anyone.html.

191

One of the suggested reasons for a sports commissioner's exercise of his “best interests” disciplinary authority is to deter other

players from engaging in similar conduct. See Parlow, supra note 15, at 182 (citing Bukowski, supra note 32, at 106-08).

192

See supra I.C.

193

See, e.g., Nancy Armour, Richard Sherman Sees Real Issue in DeflateGate, USA TODAY (Jan.

25, 2015, 11:52 PM), http://www.usatoday.com/story/sports/nfl/2015/01/25/richard-sherman-super-bowl-xlix-seattle-

seahawks/22326271/; Pat McManamon, Joe Thomas Rips Deflategate Probe, Roger Goodell's ‘Ridiculous Witch Hunts',

ESPN (Aug. 23, 2015), http://espn.go.com/nfl/story/_/id/13494837/joe-thomas-cleveland-browns-backs-tom-brady-rips-nfl-

witch-hunts; David Zirin, Marshawn Lynch and Roger Goodell: Compare and Contrast, THE NATION (Jan. 27,

2015, 9:43 PM), http://www.thenation.com/blog/196257/marshawn-lynch-and-roger-goodell-compare-and-contrast#; Kevin

Patra, Brees Backs Fujita's Criticism of NFL Commissioner Roger Goodell, NFL.COM (Oct. 11, 2012), http://

blogs.nfl.com/2012/10/11/brees-backs-fujitas-criticism-of-commissioner-goodell/; Ryan Parker, Current, ex-NFL Players

Criticize Roger Goodell Over Video Bombshell, LA TIMES (Sept. 10, 2014, 5:34 PM), http://www.latimes.com/sports/

sportsnow/la-sp-sn-nfl-players-criticize-goodell-20140910-htmlstory.html.

194

See supra Part II.B-C.

195

Pacifici, supra note 31, at 110.

196

See supra Part II.C.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

197

See supra Part II.B.

198

Pacifici, supra note 31, at 105-12; supra Part II.C.

199

For example, in Adrian Peterson's case, approximately two-and-a-half months passed between his initial arbitration ruling

and Judge Doty's vacatur of his arbitration award. See supra Part II.B. Judge Doty's ruling merely vacated the award and

remanded for further proceedings consistent with the CBA and the law, and the NFL plans to appeal. Id. Thus, Peterson will

necessarily experience additional delays before his case is decided. Considering that his suspension was initially to be lifted on

April 15, 2015, these delays may ultimately prove Peterson's long court battle to be of little value.

200

See Pollack, supra note 166.

201

Id. at 1649.

202

Id. at 1707.

203

This criticism is also made by Pacifici. See Pacifici, supra note 31, at 113. Arbitration is generally considered more efficient

than litigation, especially in the labor context. See, e.g., United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960);

United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enter.

Wheel & Car Corp., 363 U.S. 593 (1960).

204

See, e.g., Levin, supra note 190.

205

Tim Marchman, The NFL's Useful Idiots Want Roger Goodell to Get Tough; They're Wrong, DEADSPIN.COM (Sept. 17,

2014, 5:06 PM), http://deadspin.com/the-nfls-useful-idiots-want-roger-goodell-to-get-tough-1635948177.

206

See supra Part II.A.

207

See Daniel Roberts & Benjamin Snyder, Ray Rice and 11 Other Athletes Who Lost Their Endorsements, FORTUNE (Sept.

20, 2014, 9:00 AM), http://fortune.com/2014/09/20/ray-rice-adrian-peterson-tiger-woods-athletes-dropped-endorsements/.

208

See Ike Ejoichi, How the NFL Makes the Most Money of Any Pro Sport, CNBC (Sept. 4, 2014, 9:32 AM), http://

www.cnbc.com/id/101884818 (“[T]he National Football League and its 32 teams raked in a record-setting $1.07 billion in

sponsorship revenue for the 2013 season, an increase of 5.7 percent over the 2012 season.”).

209

Jason B. Hirschhorn, NFL Sponsors Avoid Ravens, Vikings Due to Off-The-Field Incidents, per Report, SBNATION.COM

(Sept. 24, 2014, 9:45 PM), http://ww.sbnation.com/nfl/2014/9/24/6841787/nfl-sponsors-ravens-vikings-ray-rice-adrian-

peterson.

210

Cf. David Berri, America's Socialist Sports League: The NFL, THE ATLANTIC (Mar. 26, 2015), http://www.theatlantic.com/

business/archive/2015/03/americas-socialist-sports-league-the-nfl/388330/ (reporting on a paper that found that NFL owners

share revenues than the National Basketball Association or Major League Baseball). Even so, NFL owners remain committed

to fielding the most competitive team possible. Id.

211

See supra Part II.A.

212

Pacifici, supra note 31, at 113-14.

213

See Bell, supra note 70.

214

Id. at 114.

215

Id. at 114-15.

216

Id. at 115.

217

For instance, the American Arbitration Association's Consumer Arbitration Rules, which Pacifici explicitly states

the NFL should use, allow for the filing and resolution of written motions only after the parties and arbitrator

have held a conference call, which could considerable lengthen an arbitration. Consumer Arbitration Rules, AM.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

ARBITRATION ASS'N, at R-24 (Sept. 1, 2014), available at, https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?

_afrWindowId=12ua96wc7a_1&_afrLoop=2022891065107770&doc=ADRSTAGE2021424&_afrWindowMode=0&_adf.ctrl-

state=hf27f5iaa_4#%40%3F_afrWindowId% 3D12ua96wc7a_1%26_afrLoop% 3D2022891065107770%26doc%

3DADRSTAGE2021424%26_afrWindowMode% 3D0%26_adf.ctrl-state% 3D12ua96wc7a_79.

218

See Part III.C.

219

See id.

220

The only way to implement this approach would be for the NFL and NFLPA to mutually agree to amend their CBA to

include it. See infra Conclusion.

221

Stare decisis is the principle that courts will generally abide to their precedents. See LEGAL INFORMATION INSTITUTE

STARE DECISIS, https://www.law.cornell.edu/wex/stare_decisis (last visited Jan. 3, 2016). The United States Supreme Court

follows this principle unless the prior precedent has been found unworkable due to serious inequity, instability, or societal

change that renders the precedent irrelevant. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855 (1992).

222

See, e.g., The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (overturning a Supreme Court decision,

Wards Cove Packing Co. v Atonio, 490 U.S. 642 (1989)); The ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.

3553 (2009) (overturning two Supreme Court decisions, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)).

223

The NFL and NFLPA proved capable of doing this in the past when they mutually elected Judge Barbara Jones to hear Ray

Rice's appeal. See supra Part II.A.

224

Generally, judges are permitted to promulgate local rules for their courtrooms so long as those rules are not inconsistent with

any governing law. See, e.g., LOCAL RULES FOR THE 17TH CIRCUIT OF FLORIDA, http://www.17th.flcourts.org/

index.php/rules-and-policies/local-rules (last visited Jan. 3, 2016); LOCAL RULES FOR THE SIXTH JUDICIAL

CIRCUIT, http://www.jud6.org/LegalCommunity/LocalRules.html (last visited Jan. 3, 2016).

225

NFL CBA, supra note 2, Art. 46, §1(a).

226

See supra Part I.C. (explaining that the new NFL Personal Conduct Policy merely addresses the procedure by which the NFL

Commissioner disciplines players; it does not clarify what constitutes a violation of the “detrimental to the game” standard).

227

This party would likely be the NFL because the NFL already believes it has the power to do so. See Bell, supra note 70

(explaining that one of the NFLPA's primary challenges to the NFL's new Personal Conduct Policy is that the NFL could

only adopt it through collective bargaining and amending the CBA, with which the NFL disagrees).

228

See Associated Press, NFL Labor History Since 1968, ESPN (Mar. 3, 2011), http://sports.espn.go.com/nfl/news/story?

page=nfl_labor_history; Terrence Caldwell, An Overview and Comparative Analysis of the Collective Bargaining

Agreements in the NBA, NFL, and MLB (Fall 2010) (unpublished B.A. thesis, Claremont University), available at http://

scholarship.claremont.edu/cgi/viewcontent.cgi?article=1063&context=cmc_theses.

229

See 9 U.S.C.A.§2 (West 2014).

230

See supra Part II.B-C.

231

See supra Part III.A.

232

See id.

233

See id.

234

For a more in-depth discussion of these issues, see supra Part III.C.

235

See supra Part I; NFL CBA, supra note 2, Art. 46.

DROPPING THE BALL: HOW THE COMMISSIONER'S..., 17 Tex. Rev. Ent. &...

236

2014 NFL CONDUCT POLICY FLOWCHART, supra note 57.

237

See supra Part IV.A.

238

Critics may argue that the Committee could get the player's sentence wrong. Accuracy in punishment is a concern in any

system. Further, it is almost impossible to objectively determine if punishment is “accurate.” However, by appointing a panel

of former judges, and allowing the parties to overturn their decisions, the Independent Adjudicatory Committee System will

better uphold the goal of accuracy than the other possibilities. See infra Part IV.B.

239

See supra Part II-III.

240

Id.

241

Id.

242

See Adrian Peterson's Order Vacating Arbitration Award, supra note 96, at 11-14.

243

See supra Part II.C.

244

See id.

245

See David Pluchinsky, The Basics of Confirming, Vacating, Modifying and Correcting an Arbitration Award Under the

Federal Arbitration Act and the Texas Arbitration Act, BEIRNE, MAYNARD & PARSONS, L.L.P. (Dec. 31, 2002), http://

www.bmpllp.com/publications/34-the-basics-confirming-vacating-modifying-correcting-arbitration-award.

246

See supra Part III.C.

247

Id.

248

The NFLPA won its lawsuit on behalf of Adrian Peterson, and coaxed Commissioner Goodell into the result it wanted in the

Bounty Scandal. See supra Part II.A; Pacifici, supra note 31, at 105-12.

249

See supra Part II.C.

250

Alternatively, the parties could wait until the current CBA expires and then collectively bargain for the system in the new

CBA. However, the new CBA does not expire until 2020. See NFL CBA, supra note 2, Art. 69, § 1. Thus, the parties would

be much better off amending their CBA.

251

National Labor Relations Act, 29 U.S.C.A. § 158(d) (West 2014); Jacobs Mfg. Co., 94 N.L.R.B. 1214 (1951).

252

NFL CBA, supra note 2, Art. 2, § 4(a). Parties may waive their rights to discuss future matters in their collective bargaining

agreement so long as the waiver is clear and unmistakable. Johnson-Bateman Co., 295 N.L.R.B. 180 (1989). For a discussion

about zipper clauses generally, see Note, Mid-Term Modification of Terms and Conditions of Employment, 1972 DUKE L.J.

813, 819-22 (1972).

17 TXRESL 43

End of Document

Works.