C’mon Roger!

Earlier this semester, I wrote a paper for my Sports in the Law Expository Writing class. Seeing that the NFL never seems to do anything right (ahem, c’mon refs, can you please define what a “catch” is?!), this essay seems to be relevant, as Commissioner Goodell continues to show us that he doesn’t understand his job description. Here is my essay on Deflategate.

Goodell is wrong again. After overstepping his powers as commissioner, it’s time for him to take a step back and reevaluate his understanding of his powers and purpose. In order to preserve respect for the league, the game of football, and the rules in place under the current Collective Bargaining Agreement, the NFL should accept the mistakes it has made and not pursue the appealing of the NFL v. NFLPA Tom Brady case. Ending the NFL’s fumbling of the Tom Brady matter will allow the league the time and space to redefine the role of the commissioner, clarify old rules, and construct new procedures for how best to handle player conduct.

With the ever increasing influence of media, Commissioner Roger Goodell frequently gives in to pressure derived from public opinions and reacts emotionally to acts against the integrity of the game, its players, and the league. In the NFL v. NFLPA case ruling, Judge Berman defends his stance by citing several large mistakes that the league made when proceeding with the suspension of Tom Brady. These mistakes include a failure to notify Tom Brady of his suspension and misconduct, a refusal for Brady to investigate Jeff Pash, and a denial for Brady to view all the investigation files.[1] All of Roger Goodell’s missteps in this case point towards his lack of understanding his powers and the distinction between structure, rules, and process. The first step in the right direction not only involves Goodell admitting that he has failed, but having the owners define and clarify his powers as the commissioner.

In some of the league’s most recent cases, Commissioner Goodell abused his powers that were underscored in the current Collective Bargaining Agreement, which he helped to create. Goodell has liberally used vague phrases such as “in the best interest of the game” and upholding “the integrity of the game” to justify his emotional reactions to public perception.[2] In Ray Rice v. NFL, which was another public relations debacle, Goodell initially handed Rice a two-game suspension on July 24, 2014 for a domestic violence incident in which Rice was in an altercation with his then-fiancée. With multiple controversies about whether the NFL had received the video before or not, as well as public pressure in reaction to the horrid physical actions in the video, Goodell suspended Rice indefinitely. However, Goodell had no grounds to suspend Rice indefinitely when there was no such punishment outlined in the CBA. Rice subsequently won an appeal to Goodell’s suspension by proving that there was no legal reason to suspend Rice indefinitely. When Goodell tried to appease public pressure by increasing the suspension to a length not defined or listed in the CBA, he failed to uphold his own integrity in sticking to a document he helped write.

There have been other instances in which Goodell failed to understand the magnitude of his power, eventually leading to reduced player suspensions. In the New Orleans Saints Bounty Scandal (AKA “Bountygate”), several coaches, front office personnel, and players were suspended for having a bounty program in which players were paid bonuses for injuring opposing teams’ players. Former NFL Commissioner Paul Tagliabue, who served as a neutral arbiter, found that, although the players had acted with intentions detrimental to the game, Goodell had overstepped his powers as commissioner by giving suspensions that were longer than those defined in the CBA. Tagliabue reduced the players’ suspensions.[3] Furthermore, in cases with Adrian Peterson’s child abuse and Greg Hardy’s domestic violence, Goodell’s misinterpretation of his powers led to reduced suspensions on the grounds that the suspensions were too harsh and not in accordance with the CBA.

Goodell should have understood that his powers were not plenary; prior case law had clearly circumscribed them. For example, Chicago National League Ball Club v. Francis Vincent, Jr., Judge Conlon determined, and set precedent to, the idea that the commissioner should not be allowed to “‘unilaterally amend the National League Constitution simply because he finds that a constitutional provision or procedure is ‘not in the best interests of baseball.’” With this case, Judge Conlon strictly criticized MLB Commissioner Francis Vincent’s for the interpretation of being “in the best interests of the sport.”[4] Similarly, Goodell unfairly interpreted the best interest clause to be a free pass for any actions he wanted to take.

Of course, Roger Goodell’s interpretation of the best interest clause was not the only mistake that the league took responsibility for. Ironically, in a press conference, Goodell had commented that “the rules have to be enforced on a uniform basis. And they apply to everybody. They apply to every club, every individual coach, and every individual player.” Goodell constantly talks about teams, coaches, and players upholding their integrity of the game; however, he never discusses that the league needs to give truth and respect to its own process.[5]

One of the significant effects of Goodell’s view on the integrity of the league is the consistency of integrity (or lack thereof) at all levels in the NFL. The owners have the important responsibility to keep Goodell accountable for his actions. If Goodell incorrectly interprets his best interest clause, the owners should make it known to him, which is something that the owners have failed at. NFL team owners have supported Goodell in practically every venture “in the best interest of football,” whether they be related to public relations or international business. The owners’ infinite support further complicates the poor public perception of the league’s decisions.

Another example of inconsistent integrity at all levels in the NFL is of Ted Wells, the criminal attorney who wrote the report regarding Deflategate. When investigating Tom Brady and the New England Patriots, there was an issue of whether Ted Wells had completed his report in full independence from the league. There are several controversies surrounding this issue. Before the Wells Report was published and released to the public, Jeff Pash (of the NFL general counsel), reviewed the report. Pash also made several remarks to Wells after the report (although Wells reportedly did not make any changes that Pash “suggested”). Pash’s review of the Wells report puts the entire report into question because Ted Wells had not written the report independently and impartially. Additionally, when the league announced that the investigation was taking place, the NFL said that Wells’ responsibility was to “bring in additional expertise and a valuable independent perspective.”[6] The Wells report could not have provided an independent perspective if a member of the NFL reviewed the report before its release. Additionally, Ted Wells wrote a report for the NFL for the Miami Dolphins bullying scandal involving Richard Incognito and Jonathan Martin. Wells is currently being sued by former Miami Dolphins offensive line coach James Turner for not reporting the incident in full honesty. In his suit against Wells, Turner accused Wells for transforming Turner into the “fall guy” for the misconduct and ignoring testimony from Dolphins players that might have supported Turner.[7] These multiple issues regarding the league’s integrity and interpretations when carrying out the investigations resulted in ambiguity and confusion in the current rules.

There are several ways to tweak the current documents in place and to define, or redefine, ambiguous rules. The NFL’s Personal Conduct Policy includes several puzzling procedural rules that should be changed. Under the “Discipline” section, there is a clause that says “Upon learning of conduct that may give rise to discipline, the League may initiate an investigation to include interviews and information gathering from medical, law enforcement, and other relevant professionals.”[8] The fact that the league “may” investigate is alarming, since the NFL is upheld to the standard that when there is conduct that may give rise to discipline, it is expected that the NFL will review it. Additionally, when the current CBA expires, there will be several clauses that the NFL will look to fix. In Article I, the NFL and NFLPA should include a definition of “investigation”. The investigation must be independent and fully impartial from both sides in order for it to have merit in arguments and courts.

In order to comply with the current Collective Bargaining Agreement, the NFL should not appeal Judge Berman’s decision on the case. The NFL’s responsibility to the integrity of the game lies in the personnel’s integrity in carrying out the rules and regulations that are listed in the current CBA. Roger Goodell and the owners have a personal responsibility to uphold their integrity and respect for the players, teams, and the league.

[1] NFL v. NFLPA, 117 SDNY (2015)

[2] NFL. “NFL Commissioner Roger Goodell’s 2015 Fall League Meeting Press Conference (Full) | NFL”. Published [October 2015]. Youtube video. Posted [October 2015]. https://www.youtube.com/watch?v=fbJawKZiT0c

[3] “What is Bountygate? A Definitive Guide.” Your Team Cheats. http://yourteamcheats.com/what-is-bountygate (accessed October 20, 2015).

[4] Textbook

[5] “Roger Goodell on Patriots’ Decision to Not Appeal and Tom Brady’s Appeal.” NFL. May 20, 2015. Accessed October 6, 2015.

[6] “NFL Investigation of Balls in AFC Title Game Led by Pash, Wells.” NFL.com. January 23, 2015. Accessed October 5, 2015.

[7] Julie Kay. “Ted Wells on the Other Side of the Microscope. Fired Miami Dolphins Coach Says NFL’s Lawyer Defamed Him.” http://www.dailybusinessreview.com/id=1202737763789/Ted-Wells-on-the-Other-Side-of-the-Microscope-Fired-Miami-Dolphins-Coach-Says-NFLs-Lawyer-Defamed-Him?slreturn=20150908010503. Accessed October 20, 2015

[8] NFL Personal Conduct Policy

*I may have done some of my sources wrong because I don’t understand Turabian. I also forgot the textbook’s name.*

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