The NFL's "New" Personal Conduct Policy: "Clear, Formal, Consistent, and Transparent"?
Earlier this month, NFL owners unanimously approved the proposed revisions to the personal conduct policy that commissioner Roger Goodell promised would be in effect before Super Bowl 50. Yes, the revised policy is twice the length of the old, but it seems to be the same hot mess of ambiguous language that masquerades in a slightly more sophisticated way as a "robust, thorough, and formal" evaluation process. It is obvious why this revision was unanimously approved: players can technically return to the field more quickly, revenues can be maximized, and the commissioner maintains some degree of power throughout the process.
Although the league reportedly consulted over 150 experts in domestic violence, sexual assault, and violent crime, the league could have used this opportunity to transform rather than relying on its marketing team to try to save itself from one of its sloppiest public relations fiascoes. In my opinion, this policy fails to give those who it applies to any guidance because they still may not know how their case will be handled due to the lack of substantive structure. Below, I highlight a few differences and similarities to illustrate my point, but you can read the old and new policies for yourselves and decide.
PDF: The New NFL Personal Conduct Policy. If you are a visual person who does not get excited looking at long paragraphs, you can take a look at this exquisite flow chart that maps out the interplay between the NFL investigation process and the legal process for the new policy.
What is "Different"?
- The NFL Conduct Committee is a new group tasked with the duty of keeping the policy up-to-date with changing legal and social standards. The commissioner has the power to appoint NFL ownership representatives to serve on the committee. Currently, Arizona Cardinals owner Michael Bidwill sits as committee chair and is accompanied by Atlanta Falcons owner Arthur Blank, Chicago Bears owner George McCaskey Houston Texans owner Robert McNair, Kansas City Chiefs owner Clark Hunt, Dallas Cowboys Executive Vice President and chair of the NFL Foundation Charlotte Jones Anderson, Cleveland Browns owner Jimmy Haslam's wife, and two former NFL players closely involved with ownership.
- The "disciplinary officer," a new position created specially for this policy, will oversee investigations and make the initial decisions about discipline instead of the commissioner. The disciplinary officer will be "a member of the league office staff who will be a highly-qualified individual with a criminal justice background." High five to the league for incorporating someone with this particular background. It takes away some direct influence from the commissioner, but I am assuming that the commissioner will be hiring, appointing, or at the very least nominating someone to be the disciplinary officer.
- The "Evaluation, Counseling and Treatment" section was relabeled "Evaluation, Counseling, and Services" and ironically has softer requirements than the old policy. Naturally, the NFL is shouting over and over that it is making available services and assistance to victims and families as well as the disciplined employee through "specialized Critical Response Teams affiliated with the league office and member clubs." What the NFL is keeping under wraps is that, in reality, the players can get back on the field more quickly than before. How? In the old policy, the person "generally [was] required to undergo a formal clinical evaluation ... based on the results of that evaluation, the person may be encouraged or required to participate in an education program, counseling or other treatment." In the new policy, the person "will be offered a formal clinical evaluation ... and appropriate follow-up education, counseling, or treatment programs." Before, evaluations, counseling, and treatment were "designed to provide assistance and are not considered discipline; however, the failure to comply with this portion of the Policy shall itself constitute a separate and independent basis for discipline." Now, when a person is under review for possible discipline, "the employee's decision to make beneficial use of these clinical services will be considered a positive factor in determining eventual discipline if a violation is found."
- For cases like Adrian Peterson and Ray Rice, a first offense will result in a six game suspension without pay... or maybe more? The six games is the "baseline ... with consideration given to any aggravating or mitigating factors." What factors? Any "possible aggravating factors"! This could be anything ranging from prior violations, use of weapons, and who the victim of the violence is. The list is not exclusive. Players still have no idea what their discipline could be, but at least they know it will be at least six games. I do like that "[a] second offense will result in permanent banishment from the NFL."
- The very first sentence emphasizes what a privilege it is to be part of the NFL. Yes. Yes, it is.
What is the Same?
- The policy continues to apply to pretty much everyone working with the NFL. ("This includes owners, coaches, players, other team members, game officials, and employees of the league office, NFL Films, NFL Network, or any other NFL business.") Here's looking at you, Commissioner Goodell. The new policy dedicates an entire new paragraph listing who it applies to, including all drafted and undrafted rookie players, all prospective employees once employment negotiations start, and independent contractors and consultants whose business relationship would end if violated.
- The language about how everyone must refrain from "'conduct detrimental to the integrity and public confidence in' the NFL" reappears. Article 46 of the collective bargaining agreement (CBA) allows the commissioner to discipline players for this, and the NFL bylaws are the original source of the commissioner's power and duty to protect the integrity of the league.
- The commissioner's office still has the final say and power of review over appeals because of the commissioner's duty to protect the league's integrity stated above. So, while it is fantastic that someone making the initial disciplinary decision has a criminal justice background, if the commissioner decides not to delegate his power to hear the appeal when the hearing is not in the employee's favor, are we progressing anywhere? Maybe the disciplinary officer will provide a bit more consistency when the NFL has a commissioner who does not make up rules as he goes along. At least as long as Goodell is in charge of the show, it seems like nothing can be "clear, formal, consistent, and transparent."
- Prohibited conduct is listed in an nonexclusive list, includes a "catch-all" phrase, and especially highlights that players can be disciplined even if they are not found guilty of a crime. This section's expansion is a direct reaction to the recent Ray Rice case and Adrian Peterson case. "It is not enough simply to avoid being found guilty of a crime... [b]ut 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." Furthermore, the fourteenth bullet point of prohibited conduct (in the previous policy, it was the sixth and final bullet point) is that which "undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel."
What Would I Do Differently? If i represented the nflpa, i would renegotiate who hears appeals in the arbitration process for this type of conduct.
The most recent negotiations to the CBA took place in 2011 and expires next year. You can read the full CBA here.
I would fight to revise the process so that appeals for discipline imposed on players would be heard by an arbitration panel consisting of three appointees in each case: (1) an arbitrator selected by the league (i.e., the commissioner, in all likelihood), (2) an arbitrator selected by the NFLPA, and (3) a mutually agreed upon neutral arbitrator (e.g., the Ray Rice appeal's mutually selected neutral arbitrator)). In the new policy just approved, as in the old policy, the commissioner or his designee will continue to hear appeals to the league's initial disciplinary decisions, unless the commissioner decides to "name a panel that consists of independent experts to recommend a decision on the appeal."
It is admittedly difficult to write down the law here since the legislative process is more reactive to changing social and ethical policies than actively evolving with them. So, having consistent case law precedent is that much more important.
This could be beneficial for both the league and the players association for a number of reasons. This panel format written into the policy is used in other leagues in other situations (e.g., the MLB's drug-suspension arbitration) and could work well here, too. The NFLPA would have its own representative as well as the neutral arbitrator that it has been trying to get, the commissioner would still have his say and could assert his duties to protect professional football's best interests, and an odd numbered panel ensures that there will not be a stalemate.