Don’t Race to Resolution: NASCAR as an Example of Respectful Restraint

Of late, the NFL has been as difficult to turn away from as a car crash. Between Ray Rice, Adrian Peterson, Greg Hardy, Roger Goodell, ESPN, and sponsor dissatisfaction– to list just a few hot-button issues – the American public has been unable to stop talking about the challenges the league finds itself facing. And the tide of constant attention shows no signs of stopping, as the outrage over Husain Abdullah’s unsportsmanlike conduct penalty for post-touchdown prayer demonstrates.

But amidst the focus levied on the NFL, one very real car crash has received a relative fraction of public scrutiny: the August 9, 2014 sprint car accident that resulted in the death of twenty-year-old driver Kevin Ward, Jr. at Canandaigua Motorsports Park in upstate New York. Ward was killed when he climbed out of his stalled vehicle and was struck by the right rear tire of a car driven by celebrated NASCAR driver Tony Stewart. On September 24, 2014, an Ontario County grand jury found no basis to indict Stewart on charges of both second-degree and criminally negligent homicide. Ontario County District Attorney Michael Tantillo also revealed that toxicology reports showed that Ward “was under the influence of marijuana” at the time of the race at levels sufficient “to impair judgment.” Stewart, who will likely face a civil suit from Ward’s family, was not subjected to a toxicology test after the race. Although he voluntarily sat out for three NASCAR Sprint Cup races after the incident, Stewart faced no formal punishment from NASCAR, in part because the Canandaigua race was not a NASCAR-sanctioned event. NASCAR allowed Stewart to make his own decision as to whether to compete, although it did promptly change its own race rules to curb drivers’ ability to walk on the track after a crash. Stewart finished in the top ten in four subsequent races, and indicated at a recent press conference that he has no plans to leave racing.

NASCAR’s restraint stands in sharp relief to the NFL’s reaction to criminal claims involving its own athletes. Although it faced questions of serious delay in the Ray Rice matter, the NFL was quick to impose severe game-day penalties upon other players after they were charged with criminal behavior. Most recently, Adrian Peterson was placed on the exempt/commissioner’s permission list following multiple allegations of child abuse, and may not be able to return to the Vikings at all this season. NASCAR certainly had similar latitude to punish Stewart under its broad contractual behavioral policy, which prohibits engaging in activities “detrimental to the sport.” However, rather than suspend Stewart even out of an abundance of caution, the organization instead chose to wait out the formal investigation into the Canandaigua accident

Of course, there are obvious differences between the Stewart matter and the Rice, Peterson and Hardy cases: all three NFL players faced criminal charges at the time of their suspension. But despite the accidental nature of Ward’s death and the absence of a criminal indictment, Stewart has not emerged as beyond reproach. Stewart is characterized as one of NASCAR’s most divisive drivers, known for his aggressive racing style. Indeed, the driver faced criticism after Ward’s death from industry professionals and fans alike after an amateur video documenting the accident was released; these individuals argued that Stewart drove too close to Ward to intimidate him, with unintended horrific results. “Tell me how a NASCAR star totally forgot what caution means,” proclaimed Ward’s aunt in an open letter after Tantillo released his statement. Clearly, enough concern existed about the incident to prompt a formal grand jury investigation. And yet, NASCAR took the ostensible risk of allowing Stewart to make his own participation decisions regarding future formal organization events.

Stewart’s culpability for Ward’s death is, without question, a far cry from the intent behind the injuries inflicted by Rice, Peterson and Hardy. And certainly, NASCAR’s hands are cleaner than the NFL’s when it comes to making information about a star’s behavior public. But this case, combined with current NFL controversies, begs a very important question: how and when should professional sports associations respond to allegations of criminal conduct by their athletes off the field? And, as technology improves, should governing bodies wait for the wheels of justice to begin turning before they take action themselves?

While it is easy to characterize NASCAR’s refusal to suspend Stewart as a lapse in judgment or hand-wringing inaction – particularly because Stewart’s ability to drive safely was under investigation – the Stewart matter may in fact represent an admirable expression of restraint and confidence. As much as they may like to do so, professional sports associations cannot control the behavior of athletes when they are “off the clock.” Further, they walk a fine line when reacting to activities that take place beyond league-sanctioned activities, even when that behavior affects the organization’s public image. Suspension – with or without a corresponding loss in income – represents a valuable tool in projecting what kind of behavior such associations will tolerate. But knee-jerk official punishment for behavior not undertaken during a sanctioned event, particularly where no criminal charges have been imposed, also represents a slippery slope of encroachment into the often-limited private lives of employees. NASCAR, like the NFL, was presented with indisputable video evidence of questionable behavior by one of its athletes outside of the scope of a sponsored activity. NASCAR’s inaction, though, unlike the NFL’s, turned out to be the right move; the Ontario County grand jury investigation returned both a lack of culpability for Stewart and shifted some of the responsibility for the tragedy onto Ward. Suspending Stewart right away, as NASCAR rightly recognized, could have alienated both a popular driver and fans from the league once the investigation concluded. NASCAR followed its gut and let independent forces handle independent behavior, with positive results and without unnecessary regulation of Stewart’s private matters. Regardless of the result, both Stewart’s case and the NFL’s personnel problems represent a valuable opportunity. Fans of any professional sport can and should hope that the media attention for NASCAR and the NFL will prompt the formulation of clear, fairly applied league standards regarding athlete participation during an independent investigation for off-field (or track) behavior.


Appalling or Appropriate? An Analysis of the Merits of Ray Rice’s Appeal

On September 15, 2014, it was announced that Ray Rice plans to appeal both his indefinite suspension and termination from the Ravens in the wake of domestic violence charges. While Rice is not currently with a club, he is still a member of the NFL Players Association (NFLPA); therefore, the NFLPA will be assisting Rice in his appeal. Previous grievances and suspensions provide a valuable illustration of the potential merits of Rice’s appeal.

The facts are still unclear in the entire situation. But, as we can gather, the timeline of events and evidence are as follows:

  • February 19, 2014: A video emerges of Ray Rice dragging his unconscious fiancé (and now current wife) Janay, out of an elevator in a hotel in February.
  • June 16, 2014: Rice and his fiancé both have a meeting with Roger Goodell to discuss the circumstance of the situation.
  • March 27, 2014: Rice is indicted on third-degree aggravated assault charges. He pleads not guilty May 1, 2014.
  • July 24, 2014: Rice is punished by Goodell and must serve a two game suspension. Rice is not punished by his team.
  • August 28, 2014: The NFL announces a new standardized penalties for domestic violence and sexual assault by any league personnel: a six-game suspension and indefinite suspension for first-time and repeat offenders, respectively. On the topic of the Rice suspension, Goodell announced “he didn’t get it right.”
  • September 8, 2014: A second video emerges, detailing exactly what happened in the elevator, including a full view of Ray striking his fiancé. Roger Goodell increases the suspension from two games to an indefinite suspension. The Baltimore Ravens terminate Rice’s contract.
  • September 10, 2014: The Associated Press reports that, while Goodell levied a new suspension in light of new evidence, and because the video was “starkly different” than Ray’s account of the situation, Goodell or his office had knowledge of the second video tape since April.

Ray Rice’s appeal will likely be centered primarily on two claims. First, he may assert that his suspension constitutes double jeopardy, or stated otherwise, that he being punished twice for the same transgression. Section 4, Article 46 of the NFL Collective Bargaining Agreement (CBA) states that “the Commissioner and Club will not both punish a player twice for the same act or conduct. The Commissioner’s action will preclude or supersede disciplinary action by any Club for the same act or conduct.” The language does not explicitly prohibit double jeopardy by the Commissioner or the Club separately, but there is reason to believe this clause precludes it.

One of the most prominent double jeopardy arbitration decisions was issued by arbitrator John Feerick, a Fordham University School of Law professor and former dean. The case concerned the suspension and contract termination of Golden State Warriors player Latrell Sprewell for choking coach P.J. Carlesimo. Feerick found that the suspension and the termination of the remainder of Sprewell’s three-year contract was “excessive” in combination. While Feerick reinstated Sprewell’s contract, he recognized that the Commissioner’s suspension was necessary, and reduced Sprewell’s suspensions from 82 to 68 games (the remainder of the current season). Beyond the question of double jeopardy, the Sprewell holding creates an interesting discussion about the potential reinstatement of Rice’s contract with the Ravens. NFL and NBA contracts differ in a crucial way: NBA contracts are guaranteed, whereas NFL contracts are not. Therefore, the Warriors did not have the flexibility to part ways with players that the Ravens have right now.

The double jeopardy facet of Rice’s appeal will ultimately turn on whether or not the second video tape is considered “new evidence.” Some lawyers feel this concept is erroneous in this case simply because even if the Commissioner’s office only saw the second video recently, it does not affect what anyone suspects of Rice. Rice was punished for striking his fiancé, which the second video only confirms.

The second argument that Rice will likely assert in his appeal is that the NFL failed to follow its own precedent for instances of domestic abuse. As sports law scholar Marc Edelman points out, Rice’s suspension is clearly in line with other instances of domestic disputes under former commissioner, Paul Tagliabue.

Rice could draw support for his precedent argument from the case of Steve Howe. The arbitrator in that case stated, “[d]eterrence, however laudable an objective, should not be achieved at the expense of fairness.”Howe challenged a lifetime suspension by Major League Baseball due to failed drug tests. Baseball promised to test Howe a certain way because he suffered from Attention Deficit Hyperactivity Disorder, but the MLB failed to adhere to the agreed-upon testing policy. Like the Sprewell case, arbitrator George Nicolau found the lifetime suspension to be an excessive punishment, holding that Howe’s 119 day already-served suspension was sufficient. Rice may argue that his increased suspension is, like Howe’s, excessive and merely a result of public criticism, as opposed to past precedent and the terms of the CBA.

In dealing with Ray Rice, the NFLPA has been very quiet. In any statements made publically, Demaurice Smith (NFLPA Executive Director) and the union have stayed neutral. However, like it or not, the NFLPA cannot remain neutral in this scenario. No matter how abhorrent the NFLPA considers Rice’s actions, they are a union and bargaining representative of the players, and are therefore charged with a duty of fair representation. This duty does not, however, mean that the NFLPA must file a grievance on Rice’s behalf if Rice requests it (generally, this duty is unenforceable for independent workers). Rather, it only means that the NFLPA cannot act arbitrarily, discriminatorily, or in bad faith. Courts have generally given deference to union decisions because the bargaining process necessarily involves compromises, including some that come at the expense of some workers over others. In this instance, the NFLPA cannot simply decide not to file a grievance on Rice’s behalf without any reason at all; but, the union must only assert a reasoned decision to omit filing.

Bad precedent is what truly renders the NFLPA’s reaction a moot point. The NFLPA exists precisely to prevent due process violations, something Rice risks experiencing during his appeal. There is, as the union contends, a distinction between supporting a player’s right to due process under the CBA and supporting the action underlying the league’s concern. The greater problem would arise if the union failed to respond to an actual due process violation committed by the NFL. The league may be free to intensify suspensions because of public outcry, or where different information comes to light during a player’s suspension. If Rice and the union fail to persuade the arbitrator that Rice should not be suspended or should receive a lesser punishment, they will likely appeal to federal court to challenge the decision.

Speculation regarding Rice’s suspension and appeal has already caught the eye of both teams and the Commissioner. After a second allegation of child abuse surfaced, Minnesota Vikings running back Adrian Peterson was very recently placed on the “Exempt List/Commissioner’s Permission List.” The Commissioner has the authority to place a player on this list under particular circumstances. Placement allows that the player not count against the 53-man active roster, and it also allows the player to get paid, which distinguishes it from a suspension. Peterson is not the first player to be added to this list; Michael Vick was placed on it 2009, and the Carolina Panthers will most likely add defensive lineman Greg Hardy to the list prior to his appeal of a domestic violence conviction.

Regardless of the result of Rice’s appeal, it is abundantly clear that public sentiment is driving the NFL to make policy changes. These changes will, at the very least, start with a panel on domestic violence and sexual assault established by Goodell. This panel is currently comprised of three experts (out of what is expected to be four experts in total). The experts, Lisa Friel, Jane Randel and Rita Smith, will “help lead and shape the NFL’s policies and programs relating to domestic violence and sexual assault.” Although it risks committing due process violations, the NFL may finally be responding to the problem of domestic disputes in a proactive and meaningful manner.

NFL Lawsuit Off To Mediation

The Honorable Anita B. Brody of the District Court for the Eastern District of Pennsylvania announced Monday that the National Football League and the approximate 4,000 individuals suing the League must go to mediation.  Former NFL players who suffered or fear permanent brain damage due to football-related concussions are suing the League for negligence and claim that the League concealed information.  According to one reporter, the Judge’s “decision to move the case to mediation likely signals a belief that a settlement is possible with continued negotiations.” also puts faith in the mediator, Layn Phillips, who used to be a federal judge in Oklahoma.

Back in August, the NFL filed a motion to dismiss with Judge Brody, claiming that the collective bargaining agreement covers safety and health rules and that it is up to each individual team to determine whether a player is fit to return to the field.

At the end of the day, since mediation is non-binding, Phillips may propose a settlement or conclude that a settlement is not feasible and therefore must return to Judge Brody.  If the latter is the case, then she will rule on the NFL’s motion.