Let's be clear about something up front: At this point, it would be approaching futility to try and find anyone who wants to defend Ray Rice.
However, as of Tuesday, the National Football League Players' Association (NFLPA) became tasked with one of the more difficult assignments in its 58 year history: it has to defend him. Not his actions (those are indefensible), but rather his rights.
The NFLPA's formal filing of an appeal of Ray Rice's indefinite suspension to the National Football League's (NFL's)offices in New York City comes as no surprise to those familiar with the law. Yes, Rice's actions have sparked intense reaction and debate across "NFL Nation" about exactly to what sort of standard of personal conduct that professional sports leagues should hold their player-employees, but that is not the issue at hand for the NFLPA. As the legal representative of the NFL players as a whole, it is the job of the NFLPA to ensure that each and every player is secure in his rights under the Collective Bargaining Agreement (CBA), federal labor law, and general principles of constitutional law as a whole. Based on NFL Commissioner Roger Goodell's responses to the Rice situation, coupled with the evidentiary timeline and the relevant provisions of the CBA, it seems almost certain that the NFLPA will be able to do just that.
The Evidentiary Timeline
The most critical piece of the Ray Rice appeal is the evidence that will be presented to the neutral arbitrator at the upcoming hearing of this case (the date will be set within 10 days from Tuesday's filing, pursuant to the CBA). Pending any sudden surprise reveals by either party, the following timeline lists the compelling components of the Rice-Goodell saga:
• February 15: An altercation in a casino elevator between Ray Rice and Janay Palmer occurs in Atlantic City, New Jersey. A police complaint says that Rice "attempted to cause bodily injury" to Palmer, and that Palmer "attempted to cause bodily injury" to Rice. Both are charged with simple assault-domestic violence, though Atlantic City prosecutors would later drop Palmer's charge.
• February 19: TMZ Sports releases security video showing Rice dragging Palmer out of an elevator.
• March 27: A New Jersey grand jury indicts Rice on the charge of third degree aggravated assault. At the time, the Baltimore Ravens release a statement supporting Rice.
• April 9: A law enforcement officer allegedly sends NFL executives a video of Rice striking Palmer. In an interview with The Associated Press on September 10th, the officer reveals this information, and also plays a 12-second voicemail from an NFL office number confirming that the video arrived, in which the caller allegedly says "You're right, it's terrible."
• May 1: Rice pleads not guilty and applies for the state's pretrial intervention program. Prosecutors offer Rice a plea bargain, sparing him jail time in exchange for anger management counseling. Prosecutor Diane Ruberton claims that the State has video beyond the February 19th TMZ video that, along with other evidence, would "confident[ly]...secure a conviction at trial."
• May 20: Rice is approved into the state intervention program.
• July 24: The NFL suspends Rice for two games for domestic violence.
• August 28: After significant backlash from public criticism of the NFL's handling of Rice's incident, the NFL's Personal Conduct Policy is changed. First-time domestic violence offenders are to be given an automatic six-game suspension.
• September 8: TMZ Sports releases the full video from inside the Atlantic City casino elevator, which showed Rice punching Palmer in the face, rendering her unconscious, and dragging her out of the elevator. That same day, the Ravens terminate Rice's contract, and the NFL increases Rice's suspension to indefinite. Both Ravens Head Coach John Harbaugh and NFL Vice President of Corporate Communications Brian McCarthy assert that their organizations had only that day seen the video from inside the elevator.
• September 10: CBS News airs interview with Commissioner Goodell in which he says he cannot rule out Rice never playing in the NFL again. That same day, Goodell sends a memo to all NFL team owners that the NFL asked law enforcement officials for the video from inside the elevator on multiple occasions, but that the office was told that releasing evidence from an ongoing criminal investigation was illegal in New Jersey. This is also the day that a law enforcement official told The Associated Press that someone in the NFL received the elevator interior video back in April.
• September 16: The NFLPA files an appeal to the NFL offices, seeking a hearing to overturn the indefinite suspension by the NFL.
The Legal Arguments: What Evidence Will Rule the Day?
The relevant provision of the 2012 NFL-NFLPA CBA in this case comes from Article 46, entitled "Commissioner Discipline." Section 4, entitled "One Penalty," states: "The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner's disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct (emphasis added)."
Looking directly at strict textual interpretation, the CBA's only express prohibition of multiple punishments for the same conduct is between the Commissioner and the Club, in this case Goodell and the Ravens, respectively. Some, including those within the NFLPA who are addressing Rice's options, might argue that the Commissioner's decision to increase the two-game suspension to an indefinite period would trump the Ravens' decision to terminate Rice's contract with the team. Though a plausible argument based on what the text offers, it is less likely to succeed based on what the Ravens did in this case.
The Club decided to back its player at the outset of this case in March, and maintained that position up until the September 8th release of the elevator interior, at which point it terminated his contract. Granted, it was a sudden decision by the team, one which came a few hours after the TMZ video was released and which was handed down before the NFL decided to increase the length of Rice's suspension. Nevertheless, to say that the termination of a player's contract for conduct detrimental to the team --- a fixed condition of employment found in every Standard Player Contract -- is equivalent to "discipline" or "disciplinary action" under Article 46, Section 4 would be a logical, yet easily deflected argument. Think of the difference this way: releasing a player from his contract would be the equivalent of the dropping of a bad habit altogether, whereas imposing discipline on a player would be the equivalent of punishing a player for that bad habit. The former is a contract law principle, one that the CBA's reach skims but does not control, while the latter is a provision born and cemented into the CBA's language, and therefore has compelling control. That likely explains why the NFLPA is planning to take Rice's appeal on a different, more fundamental route, and not the one offered in the CBA text.
The other route, which the NFLPA will likely argue at the upcoming hearing, is that of traditional federal constitutional law: the Double Jeopardy Clause of the Fifth Amendment. Article 70 of the CBA, entitled "Governing Law and Principles," makes it clear that the CBA is to be construed pursuant to governing federal law, and if not covered by such law, then the laws of the State of New York, where the NFL's offices are located (New York constitutional law does not differ from federal law when it comes to Double Jeopardy, so it will not be discussed as it is implied from this article's federal law treatment). Note, however, that the CBA in Article 46, Section 4 does not specifically condemn the practices of federal Double Jeopardy as stated in the U.S. Constitution, which prohibits a criminal defendant from being punished twice for the same offense.
The reconciliation between the CBA's version of "One Penalty" and the Federal Constitution's version of "Double Jeopardy" is where this appeal will achieve precedent status. As the CBA states in Article 70, the default governing law for CBA disputes is that of federal law. Due to the CBA's lack of a rule to apply when a final NFL punishment decision for a personal conduct violation is later increased, the CBA would therefore impliedly be interpreted to include the principle of federal Double Jeopardy in order to fill that gap. This would mean that once Commissioner Goodell and the NFL executives made the decision in July to suspend Ray Rice for two games under the Personal Conduct Policy, it became the final decision on the matter. Concurrently with the NFL's decision, Rice's New Jersey criminal case and resulting penalty were also finalized. Therefore, once that sequence of activity ended, that theoretically should have been the end of the discipline, regardless of how fans and media personnel may have reacted to the NFL's decision.
However, as the story goes, public outcry became too much for the NFL to handle. The policy change on August 28th was a clear example of Goodell and the NFL attempting to slap a Band-Aid on a punctured artery. Nevertheless, despite the fact that first-time offenders would now be subject to an automatic six-game suspension, such an increase in punishment could not have been, and was not in actuality, applied to Ray Rice's two-game suspension. Rice had already been tried criminally by the State of New Jersey and investigated privately by the NFL, so his punishment could not be overturned under federal Double Jeopardy principles.
In the same vein, the NFLPA will seek to argue that the increase of Rice's suspension from two games to indefinitely is a similar violation of federal Double Jeopardy. Although the NFL may argue that it never saw the elevator interior video of Rice punching Palmer unconscious until September 8th, the NFLPA will likely counter with evidence of the law enforcement officer's September 10th interview with The Associated Press, which alleged that the NFL knew of and viewed that same interior elevator video earlier on April 9th, three months before the two-game suspension was assessed. In other words, the window for discovery and investigation was wide open by the time Rice was investigated by the NFL for this incident. It would therefore be crippling for the NFL (and, conversely, clinching for the NFLPA) if a neutral arbitrator were to find that the NFL did in fact know about and/or view the graphic elevator interior video when they gave Rice his two-game suspension, as the increase in punishment on September 8th would be clearly violative of Double Jeopardy principles if that were the case.
Where Do We Go From Here?
The hearing to come will be one to pay close attention to, as it will become the starting point for future NFL Player Conduct Policy violations down the line. While both disregarding and recognizing how impressively vague the textual construction of that policy had been for years, there is still a sign for hope out of this appeal. Granted, there is an inherent systemic problem in the NFL culture that it took this long, vast and varying public outcry, and a slowly forming lynch mob forming around Roger Goodell's tenure as Commissioner to finally get an appropriate policy advancement for domestic violence abuse by NFL players. Still, progress is progress, and this appeal will hopefully provide some sort of benchmark with which a standard can be set as to what professional sports leagues expect of the personal conduct of their player-employees.
It also must not be forgotten that this ruling will have immediate effect on the Player Conduct Policy's implementation, as more and more personal conduct incidents have been coming out of the NFL woodwork as of late. Minnesota Vikings Running Back Adrian Peterson's two child abuse allegations, Carolina Panthers Defensive End Greg Hardy's assault and death threat conviction and appeal, San Francisco 49ers Defensive End Ray McDonald's domestic violence allegation, and others are currently awaiting the resolution of their criminal cases, but they all are in the Ray Rice boat as well: they are waiting to see what the NFL, their employer, does with them. This appeal, the starting point, will be the immediate catalyst to the NFL's personal conduct problems, and will be helpful in allowing a league historically relaxed on player off-field conduct to finally get on the proper track back towards a positive reputation.
Max Horowitz is a graduate of the Syracuse University College of Law, Class of 2014, where he obtained a Certificate of Completion for the Entertainment and Sports Law Certificate Program. He graduated from Florida State University in 2010 with a Bachelor of Arts in Creative Writing. Max blogs about any and all sports law topics, but his true specialty lies within the legal issues surrounding the National Hockey League.