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The NFL owners unanimously ratified a new personal conduct policy regarding domestic violence.
The policy change comes quickly on the heels of a decision by an independent arbitrator. Former federal judge Barbara S. Jones heard the appeal of the Ray Rice indefinite suspension imposed by Commissioner Roger Goodell. She held that Goodell’s decision was “arbitrary” and an “abuse of discretion.”
So the most fundamental issue facing the League’s 32 owners was whether to change the process used to make decisions. More precisely, the process question was this:
At what point is the decision to be made by independent impartial experts who are not already paid by or beholding to the owners or the players?”
Stated another way, “Should the NFL change the process to make it more fair and impartial, and thereby avoid the same “arbitrary – abuse of discretion” fate of the Rice appeal”?
The owners resolved that issue. But before I get to that, it is worth the reminder that the NFL Commissioner is paid $41 million a year by the owners. How impartial can he be?
As for the NFL owners’ decision, the NFL’s infographic answers the question most succinctly. The graphic first has boxes for investigations and an NFL Expert Panel Hearing. But the most important part of a decision making process is the final decision maker. The box for the “Final Decision” is abundantly clear on that point:
“The Commissioner or his designee reviews the panel’s recommendations and makes a final decision on disciplinary measures.”
So it could be viewed as more fair to players in the process to have a Commissioner “designee” make the final decision. But an outsider or player might look at this and wonder: Is the Commissioner going to appoint someone who will damage his $41 million relationship with the owners? Probably not. It is also probably not hard to find others who are not now or never have been paid by the NFL to make those decisions.
Even the preliminary fact finding is essentially internal. An investigation will be by someone appointed by the Commissioner (chief disciplinary officer). A review of the policy will be by an owners’ review committee. But nothing fundamentally has changed in the most important aspect – the final decision maker.
As the long time NFL chief counsel Jeff Pash unwittingly admitted that about 70 percent of initial disciplinary rulings were already made by someone other than the Commissioner. In his words:
“All that we’re doing is having a different member of the Commissioner’s staff make a decision”.
The “commissioner’s staff” is the important part. If there is going to be independence in finding the facts, this is not the process to do so. The owners also made clear in instituting this policy that they are not going to wait on law enforcement fact finding before making decisions. Another trained independent source can therefore be avoided at the initial stages.
This is no surprise. Any business wants to control the discipline of its own employees. It minimizes the risk of losing against those employees, even if its decision was arbitrary. If there was a choice to avoid the courts altogether on employee disciplinary matters, I suspect the private vote of the owners would be a unanimous yes, in this or any other industry.
But we have established laws to protect employees too. And employees usually have to go to court to have a fair hearing by independent fact finders and decision makers. That will continue to be the case for NFL players as well. Nothing in this new personal conduct policy changes that dynamic.
A skeleton-in-the- closet issue also is unchanged. The policy still states that it applies to “all NFL personnel”. Yet the only specific penalties (automatic 6 game suspension for a first offense and lifetime ban) obviously only punishes those who are paid by the game. No punishment is specified for those who are paid by the hour, or by contract, or at-will, i.e. all other -player personnel. Again, nothing fundamental has changed.
