By CHRIS HELSEL
On February 15th, Baltimore Ravens running back Ray Rice and his then-fiancée, Janay Palmer, were involved in a physical altercation in a casino elevator in Atlantic City, New Jersey. The fallout from this incident has dominated headlines in recent weeks, culminating with the announcement that the Ravens have terminated Rice's contract and National Football League (NFL, the league) Commissioner Roger Goodell has suspended the running back indefinitely. This saga presents a plethora of moral and legal questions -- many of which are addressed below -- but before we get to those, take a brief review of the events that led us to this point.
Following the altercation, which occurred at the since-closed Revel casino, Atlantic City police arrested both Rice and Palmer (http://www.baltimoresun.com/sports/ravens/ravens-insider/bal-ravens-running-back-ray-rice-arrested-after-incident-in-atlantic-city-20140216,0,132362.story) and charged them with Simple Assault-Domestic Violence. Shortly after the incident, leaked casino security footage hit the internet, showing Rice dragging his unconscious fiancée out of the elevator. Charges against Palmer were ultimately dropped, but a grand jury indicted Rice on third-degree aggravated assault in March (http://espn.go.com/nfl/story/_/id/10960822/ray-rice-baltimore-ravens-accepted-pretrial-diversion-program), and he pleaded not guilty in May. Rice was accepted into a pretrial intervention program, avoiding trial. Upon completion of the program (a minimum of one year), the charges against him will be dismissed.
On July 24th, the NFL announced that after meeting jointly with Rice and Palmer, who had by then married, Commissioner Goodell had informed Rice in a letter that he would be suspended without pay for two games, and fined one additional game check. (http://espn.go.com/nfl/story/_/id/11257692/ray-rice-baltimore-ravens-suspended-2-games) This decision was met with nearly universal criticism (http://espn.go.com/espnw/news-commentary/article/11245489/espnw-baltimore-ravens-ray-rice-nfl-domestic-violence-problem), as most observers considered the punishment far too lenient (http://baltimore.cbslocal.com/2014/08/01/u-s-senators-criticizing-nfls-2-game-punishment-for-ray-rice/), particularly in light of the heavy-handed suspensions the league hands down for lesser offenses (more on this below). (http://www.myfoxtwincities.com/story/26104180/comparing-ray-rices-2-game-suspension-for-punching-fiancee)
In the wake of the public outcry over Rice's two-game suspension, the NFL announced that it was enacting a new, stricter domestic violence suspension policy. (http://www.nytimes.com/2014/08/29/sports/football/roger-goodell-admits-he-was-wrong-and-alters-nfl-policy-on-domestic-violence.html?_r=2) The policy, which also covers assault, battery and sexual assault involving physical force, calls for first time offenders to receive a six game suspension. Second time offenders are to be banned indefinitely, but can apply for reinstatement after one year.
In a letter to all 32 NFL owners, Commissioner Goodell addressed the Rice suspension:
"I take responsibility both for the decision and for ensuring that our actions in the future properly reflect our values. I didn't get it right. Simply put, we have to do better. And we will." Then, on Monday, TMZ released a "new" security video recording of the assault. This recording, taken from a security camera inside the elevator, showed Palmer strike (and perhaps spit on) Rice, who immediately responded with a devastating punch to her face. Palmer flew backwards into the elevator wall and was left unconscious. Seconds later, the door opened and Rice dragged her out of the elevator.
Unsurprisingly, this video created an immediate media firestorm. Commentators renewed their harsh criticism of Commissioner Goodell's decision to suspend Rice for only two games. The reaction of the NFL, and of the Ravens, to the release of this video was swift. By midday, the news broke (http://espn.go.com/nfl/story/_/id/11489134/baltimore-ravens-cut-ray-rice-new-video-surfaces) that Rice had been released by the Ravens and suspended indefinitely by the NFL.
Shortly after announcing the increased suspension, the NFL released a statement declaring that:"We requested from law enforcement any and all information about the incident, including the video from inside the elevator. That video was not made available to us and no one in our office has seen it until today." (http://www.nfl.com/news/story/0ap3000000391538/article/ray-rice-released-by-ravens-indefinitely-suspended)
The commissioner, in an interview on CBS This Morning with co-host Norah O'Donnell, reiterated the NFL's denial that anyone within the league office had seen the video showing the punch prior to its public release, and that its gruesome nature, combined with Rice's allegedly misleading testimony, prompted him to dramatically increase the suspension. (http://www.cbssports.com/nfl/eye-on-football/24703865/roger-goodell-no-one-in-the-nfl-saw-second-ray-rice-video) He told O'Donnell that the league office "assumed that there was a video. We asked for video but we were never granted that opportunity." (http://www.cbssports.com/nfl/eye-on-football/24703147/goodell-on-rice-nfl-asked-for-didnt-receive-surveillance-video)
The Ravens, who had not taken any disciplinary action against Rice until this point (and were prohibited from doing so by the Collective Bargaining Agreement (CBA) - see below), promptly released its starting running back once the video became public. The video "changed things," said the team's head coach, Jim Harbaugh(http://www.cbssports.com/nfl/eye-on-football/24701716/john-harbaugh-seeing-the-ray-rice-video-changed-things)
In the wake of these events, numerous stories have emerged regarding what the NFL office knew, when its people knew it, and whether the commissioner or anyone else saw the video prior to its release. On Thursday, the NFL announced that it had ordered an independent investigation to be conducted by former FBI director Robert S. Mueller. (http://espn.go.com/nfl/story/_/id/11505460/former-fbi-director-probe-rice-case) The investigation is to be overseen by two prominent and well-respected NFL owners, Art Rooney of the Pittsburgh Steelers and John Mara of the New York Giants.
On Tuesday, the players' union, the NFL Players Association (NFLPA, the union), announced that it is appealing Rice's suspension. (https://abcnews.go.com/Sports/union-appeals-ray-rices-suspension-nfl/story?id=25552666) The appeal would normally be heard by Commissioner Goodell, though in this case because the commissioner will serve as a witness, it is expected that an outside arbitrator will be appointed.
This case raises a plethora of interesting legal questions, such as:
• Why was Rice initially suspended for only two games, when players who commit far less serious infractions are handed much stiffer penalties?
• Does the commissioner have the power to suspend a player twice for the same infraction, or to modify an existing suspension? Does that violate the protection against double jeopardy afforded by the Fifth Amendment?
• Under the terms of the CBA, can Rice be punished by both his club (release) and the league (suspension)?
• Finally, when it levied the initial two-game suspension, did the NFL already know exactly what had occurred in that elevator? Had league executives already seen the video? Does it matter?
Personal Conduct v. Drug Policies
As alluded to above, the NFL's initial two-game suspension of Rice was met with stinging criticism from fans and media members alike. Many were quick to point out that seemingly minor infractions, such as testing positive for marijuana or Adderall, can carry much harsher penalties than the one Rice received.
It is important to note, however, that not all suspensions are created equal. Violations of the NFL's recreational and performance-enhancing drug policies carry uniform suspensions that have been negotiated and defined through collective bargaining between the league and the NFLPA. The league's Personal Conduct Policy (http://www.cbssports.com/nfl/eye-on-football/24703147/goodell-on-rice-nfl-asked-for-didnt-receive-surveillance-video), on the other hand, does not carry uniform punishments for specific infractions. Rather, it grants the commissioner broad power to consider each case individually and determine the proper sanction given the facts at hand. This all-encompassing policy covers criminal acts as well as other conduct deemed below the standard expected by the league.
While criminal activity is clearly outside the scope of permissible conduct, and persons who engage in criminal activity will be subject to discipline, the standard of conduct for persons employed in the NFL is considerably higher. It is not enough simply to avoid being found guilty of a crime. Instead, as an employee of the NFL or a member club, one is held to a higher standard and expected to conduct oneself in a way that is responsible, promotes the values upon which the league is based, and is lawful.
Regarding punishment, the policy grants the commissioner enormous leeway in determining the proper discipline in each case. The specifics of the disciplinary response will be based on the nature of the incident, the actual or threatened risk to the participant and others, any prior or additional misconduct (whether or not criminal charges were filed), and other relevant factors.
The vagueness of this policy, and the fact that Commissioner Goodell himself (or his appointee) hears all appeals under it, has come under intense criticism from players and observers alike. This tension memorably came to a head in 2012, during the infamous New Orleans Saints bounty scandal. (http://www.si.com/more-sports/2012/09/07/saints-suspensions-overturned) Regardless, the terms of the policy in effect at the time of the original two-game suspension did give Commissioner Goodell free reign to determine for how long Rice would be suspended. Conversely, as mentioned above, drug policy violations carry well-defined punishments, negotiated between the league and union, which explains why Cleveland Browns wide receiver Josh Gordon received a one-year suspension for his third marijuana violation.( http://espn.go.com/nfl/story/_/id/11418388/josh-gordon-cleveland-browns-suspended-one-year)
The Commissioner's Power to Modify an Existing Suspension, and the Prohibition on Double Penalties
The NFL Personal Conduct Policy, to which the players contractually assented through collective bargaining, grants the commissioner the power to discipline a player for "conduct detrimental to the integrity of and public confidence in the National Football League." Article 46 of the 2011 NFL CBA (http://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf), which outlines the commissioner's disciplinary authority, limits the extent to which a player may be disciplined more than once for the same "act or conduct": "Section 4. One Penalty: 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."
Importantly, while this clause does prohibit the discipline of a player by both his club and the commissioner, it does not include a "double jeopardy" clause (prohibiting prosecution for the same offense twice following acquittal or conviction) like the one found in the Fifth Amendment of the U.S. Constitution. Therefore, the commissioner is not expressly barred from revisiting an existing suspension (or other discipline) in the event that new facts or evidence come to light. Further, because the suspension of a player is not a criminal matter tried in a court of law, but rather an employer-employee disciplinary matter governed by a CBA, the Fifth Amendment's protection against double jeopardy does not apply.
Therefore, in the event that the league discovers evidence that the player lied, his conduct was more reprehensible than originally thought, or of a separate infraction entirely, the commissioner can impose increased discipline. Here, the question of whether Rice was entirely truthful and forthcoming in his June disciplinary meeting with Commissioner Goodell remains unresolved, and NFL and club sources have given conflicting answers when asked just that.
Commissioner Goodell told CBS that details of Rice's story were "not consistent" with what appears on the video (http://www.cbssports.com/nfl/eye-on-football/24704435/roger-goodell-ray-rices-original-story-not-consistent-with-second-video), and that "it was ambiguous about what actually happened." (http://www.cbsnews.com/news/ray-rice-controversy-commissioner-roger-goodell-defends-nfl-says-league-didnt-see-second-video/) In even stronger terms, Commissioner Goodell's letter to the NFLPA outlining the justification for Rice's increased suspension stated that the new video "shows a starkly different sequence of events" than what Rice told him during his June disciplinary meeting. (http://nymag.com/daily/intelligencer/2014/09/report-ray-rice-will-appeal-his-suspension.html) Conversely, Ravens General Manager Ozzie Newsome -- who was in the room when Rice met with Goodell -- publicly declared that the story Rice told to Ravens officials matched the video. "What we saw on the video was what Ray said. Ray didn't lie to me," Newsome said. (http://www.cbssports.com/nfl/eye-on-football/24704595/ravens-gm-ray-rice-didnt-lie-to-me-goodell-says-rice-story-not-consistent)
As noted above, while the commissioner does have the authority to modify an existing suspension in light of new facts or previous false testimony, Article 46 of the CBA prohibits the discipline of player by both the league and his club for the same act or conduct. Here, Rice was ultimately suspended indefinitely by the commissioner and released from his contract by the Ravens. At first glance it appears that he was disciplined by both the league and his club for the same act or conduct. However, "discipline" imposed by a team refers to monetary fines or suspensions. A club is permitted to terminate a player's contract for any lawful reason, and conclusive video evidence of domestic violence is certainly a lawful justification for releasing a player. Therefore, Rice's release likely did not constitute "discipline," and did not violate Article 46 of the CBA. Nonetheless, NBC Sports' Mike Florio reported on Sunday night that Rice has not ruled out the possibility of filing a Non-Injury Grievance against the club under CBA Article 43, alleging that the Ravens improperly terminated his contract.
What the NFL Knew, When, and Why it Matters
Upon announcing Rice's increased suspension, and in the days that followed, Commissioner Goodell maintained that no one in the NFL had seen the elevator video, or knew exactly what transpired that night, at the time the initial two-game suspension. However, mounting evidence indicates that this is not entirely true.
In February, one day after the assault, Deadspin reported: "A witness who saw the altercation at Revel claimed that Rice hit Palmer 'like he punched a guy, knocked down and dragged her out of the elevator by his feet' before security arrived." (http://deadspin.com/ray-rice-arrested-in-atlantic-city-after-altercation-wi-1524046109) Further, the Atlantic City Police Department's report from the time of the incident noted: "After reviewing surveillance footage it appeared both parties were involved in a physical altercation. The complaint summons indicates that both Rich [sic] and Palmer struck each other with their hands."
The criminal complaint, filed in Atlantic City Municipal Court on February 15th, alleges Rice committed "assault by attempting to cause bodily injury to J. Palmer, specifically by striking [her] with [his] hand, rendering her unconscious, at the Revel casino." The complaint is a public record. (http://www.espn.go.com/pdf/2014/0818/otl_rayrice_complaint.pdf)
Additionally, contrary to what the commissioner told CBS, ESPN Outside the Lines reported last week that at his June 16th disciplinary hearing with Goodell, Rice confessed to hitting his fiancée in the face, knocking her unconsciousness. (http://espn.go.com/espn/otl/story/_/id/11509397/ray-rice-told-nfl-roger-goodell-june-had-hit-wife)
Finally, a law enforcement official speaking on condition of anonymity told the Associated Press last week that he had sent the video showing the punch to an NFL executive in April (http://www.cbssports.com/nfl/eye-on-football/24704465/ap-nfl-executive-was-sent-copy-of-ray-rice-video-in-april), and that the league had acknowledged its receipt and contents. It should be noted that in a letter to NFL owners last Wednesday, the commissioner emphasized that: "Once a criminal investigation begins, law enforcement authorities do not share investigatory material (such as the videos here) with private parties such as the NFL . . . As the New Jersey Attorney General's office said yesterday, 'It would have been illegal for law enforcement to provide [the] Rice video to [the] NFL.'"( http://static.nfl.com/static/content/public/photo/2014/09/10/0ap3000000392546.pdf)
Similarly, in a statement released the day after the announcement of the increased suspension, the league said:
We do not interfere with law enforcement investigations. We cooperate with law enforcement and seek any information that can be appropriately provided. (http://www.nfl.com/news/story/0ap3000000391538/article/ray-rice-released-by-ravens-indefinitely-suspended)
The commissioner stated in the letter to the owners that the NFL did not request the video directly from the casino because New Jersey law prohibited the casino from turning over material to a third party during a law enforcement proceeding. His emphasis that New Jersey law prohibited the league from obtaining the video from either the police or the casino perhaps implies that even if the NFL did receive the video from a rogue law enforcement source (as the Associated Press story alleges), he and his fellow high-ranking NFL executives intentionally did not view it.
Regardless, whether or not league officials saw the video prior to Rice's initial suspension, there was little doubt about what occurred in the elevator that night. In fact, Rice himself told Commissioner Goodell as much back in June, and the police report and criminal complaint are quite clear.
Clearly, questions abound as to who, if anyone, inside the NFL office knew what -- and when. Whether Rice chooses to challenge the suspension through a grievance under the CBA, a petition for a court injunction lifting the suspension, the NFLPA filing an unfair labor practices charge, or even suing the league for monetary damages, the critical questions will be whether the second video actually revealed any new information to the league office, and whether Rice lied or left out crucial details when he met with the commissioner in June.
If the NFL truly had no knowledge of what transpired inside the elevator -- or at least cannot be proven to have known -- Rice will have a very difficult time getting his suspension overturned. However, there is considerable evidence that the second video did not in fact shed any new light on the incident at all. Certainly, public outrage reached a boiling point in the hours following the video's release. However, whether or not anyone within the league office had seen the video prior to the decision to only suspend Rice for two games, it can hardly be argued that the new video revealed any additional material facts of the case, considering the content of the first video, witness statements, police report, criminal complaint, and Rice's June admission.
If it turns out that NFL executives were already aware of what happened in the elevator when levying the original suspension, Rice may well succeed on his anticipated challenge to the indefinite suspension. In that case, a judge could reasonably declare that the commissioner's actions were "arbitrary and capricious," and award Rice monetary damages and/or grant him an injunction lifting the indefinite suspension. Similarly, an arbitrator could overturn the suspension on appeal, holding that the video did not provide sufficient additional evidence to warrant the drastically increased suspension. That is, of course, unless the NFL can demonstrate that Rice lied to or misled the commissioner during their June disciplinary meeting.
Did the NFL Fail to Adhere to Its Own New Policy?
Another question regarding the NFL's handling of the Ray Rice case relates to the league's new domestic violence policy, enacted in the wake of the public outcry against Rice's initial two-game suspension. The new policy calls for a six-game suspension for a player's first offense. Left unanswered to this point is why, so soon after enacting the new policy, Commissioner Goodell declined to follow it when Rice had no recorded history of domestic violence. It has been suggested that the act of dragging Palmer from the elevator could be considered a separate violation -- different "act or conduct" -- than punching her just moments before. (http://www.si.com/nfl/2014/09/10/ray-rice-roger-goodell-nfl-suspension-elevator-video-legal-options) That argument is, I believe, unconvincing.
A more convincing argument could be made that the act of assaulting his fiancée constituted the first offense, and lying to the commissioner constituted the second offense. This seems to be the justification offered in Commissioner Goodell's letter to the NFLPA explaining the basis for the increased suspension. However, as described above, the extent to which Rice lied to or misled the commissioner is in question, as league and club officials have offered conflicting reports.
Courts' Deferential Standard of Review
Were Rice to seek an injunction lifting the indefinite suspension, it is important to remember that courts employ an extremely deferential standard when reviewing an organization's interpretation and enforcement of its own rules. The NFL would argue, as it has successfully in the past, that as a member of the NFLPA, Rice has contractually assented to resolve disputes through the league's collectively bargained rules and appeals process, rather than through challenges in court. (http://www.si.com/nfl/2014/09/10/ray-rice-roger-goodell-nfl-suspension-elevator-video-legal-options)
To secure an injunction, Rice would need to demonstrate that the NFL had abused its power, rendering its actions "arbitrary and capricious." This would likely require a showing that one or more high-ranking league executives exhibited flagrant dishonesty or deception, and that his increased suspension was not based on reasonable grounds. Mere ineptitude does not suffice.
Therefore, should Rice bring his case to the courts (as he has indicated he might http://www.baltimoresun.com/sports/ravens/ravens-insider/bal-sources-ray-rice-nflpa-contemplating-legal-grievance-options-20140914,0,905928.story), he will have to clear a very high threshold to convince a judge to intervene and issue an injunction. Without conclusively demonstrating that Goodell or other high-ranking league executives had viewed the elevator video and therefore flagrantly abused their power and acted arbitrarily in increasing his suspension, it seems unlikely that such a claim will succeed.
Clearly, this situation is not going away any time soon. A plethora of unanswered questions remain, and more information should surface in the coming days and weeks. It will be fascinating to learn what the NFL-ordered internal probe directed by former FBI director Mueller will uncover, and how the arbitrator appointed to hear Rice's appeal will rule. Seemingly, the ultimate resolution to the saga will come down to whether the NFL saw the video and lied about it, and/or whether Rice was dishonest in his meeting with Commissioner Goodell -- and whether either side can prove any of it.