It’s time for NFL owners to rethink the powers of the commissioner, for the sake of their own business reputations, which are being sullied. Roger Goodell uses his office as if he’s a blackjack-wielding tough from the 1920s with a crank-starting car. Every other league has seen fit to go to a mature, modern system of neutral arbitration in player discipline cases, for the simple reason that it works better for all. Meanwhile, the NFL lingers in a previous century thanks to one man’s ego.
At this point the question is not whether Ezekiel Elliott committed domestic abuse, which he may well have, but why the commissioner serially abuses his broad disciplinary power and so undermines basic rules of fairness during “investigations” that it becomes impossible to know the facts. Why is it that, in every major adjudication, this commissioner is more interested in subjugating a player, clubbing him with his personal authority, than running a decently transparent process?
Owners must be careful here. Chronic misconduct by the league office threatens to have a competitive impact, to make audiences question the integrity of the game on the field. This is conduct truly detrimental.
The pattern of events is always the same: It starts with a botched investigation that omits crucial facts. Why did the NFL fail to reveal that league investigator Kia Roberts, a former prosecutor, recommended no suspension because she found Elliott’s alleged victim not credible in interviews? Why was this left out of the one-sided final report that led to Elliott’s six-game suspension? Why was Roberts’s conclusion buried? Again, it’s possible that Elliott was guilty of harming his girlfriend. But Goodell’s duty to the Dallas Cowboys and to the public was to explain transparently how he reached such a decision despite Roberts’s finding. Instead there was a coverup and rubber-stamped appeal, as usual, with lots of regretful talk about Goodell’s absolute power under Article 46 of the labor agreement.
So now there is another hard-to-justify penalty from a commissioner who seems more fit to assign detentions in a Victorian boarding school than manage adult human resource problems in the 21st century. Inevitably, the league is tied up in an expensive, damaging, fan-alienating public lawsuit, with both sides fighting over the suspension in two federal courts and the Cowboys facing a season-long legal cloud. It would be one thing if the process was ever, even once, solid. But it’s not. Goodell’s decision was another runaway-domino effect from his failure in the Ray Rice affair. He seems incapable of reasonable evaluation of provable facts. The NFL “disciplinary” system has become crudity dressed up as legality, a show court, a laughingstock.
Ask any legal expert what they make of it, and what you get is rueful bemusement. I called four renowned legal minds, and this is what they had to say.
“What Goodell does under Article 46 is not arbitration,” said Roger Abrams, who has decided more than 2,300 cases for Major League Baseball, the IRS, the coal industry and Fortune 500 companies, and who teaches law at Northeastern University.
“It’s a terrible process, terrible,” said Mark Conrad, a Fordham University professor of sports law, business and ethics. “It really is antithetical to any reasonable idea of what an arbitration should be.”
“It’s the worst of the major leagues by a wide margin,” said Peter Carfagna, former general counsel at IMG and a distinguished lecturer in sports law at Case Western Reserve and Harvard University, and who owns the Cleveland Indians’ Class A affiliate.
“Personally, I think it has the appearance of procedural problems from the very beginning, when you have the power to both hand out discipline and handle any appeal,” said Ed Edmonds, University of Notre Dame emeritus professor of law and author of textbooks on antitrust and sports labor law.
A little history: The “best interest of the game” powers of a commissioner date from 1919, when Major League Baseball brought in Kenesaw Landis the following year in the wake of the Black Sox scandal to go on a morals-clause crusade. Landis set the template by banning players such as Giants center fielder Benny Kauff for “undesirable reputation and character.” The rest of the sports leagues moved past that kind of patrimony-sanctimony years ago in the name of labor peace and built healthier partnerships with their unions. In the 1970s, Marvin Miller persuaded Bowie Kuhn to accede to a three-man arbitration panel in player-financial disputes. In 2014, Bud Selig accepted an arbitrator’s decision to reduce his 211-game discipline of Alex Rodriguez, calling the process “a fair and effective mechanism” that protected everyone concerned. The NBA has a provision for an impartial arbitrator appeal, and so does the NHL.
Why? Not because those league owners are generous but because it’s good business. Every large multipronged company, from Disney to General Electric, recognizes that neutral arbitration is better than trying to enforce managerial will because it’s faster, cheaper, fairer and leads to labor settlement instead of expensive court fighting.
“It works well; it’s usually beyond reproach,” Conrad said.
The NFL’s system is an “aberration” said Conrad, a “faulty” and poorly constructed relic because it gives Goodell authority not just to render punishment for player conduct but to judge the appeal — when in fact he is far from neutral. Owners and players could have fixed this in the last labor talks, but they didn’t. The blame for that lies on both sides.
Still, it need not have become this kind of problem in the hands of a restrained, responsible commissioner. But Goodell does not desire fairness. He just wants to radiate what Alfred Lord Tennyson called “the divine stupidity of a hero.” Goodell delivers the hammer in highly public cases, plunging the league into endless legal wrangling over a compromised process, which makes even the worst perpetrators look like martyrs, until the public is disgusted with all concerned. It’s everything arbitration is meant to avoid.
“It becomes ‘a pox on both your houses,’ ” Carfegna said. “You and me and Joe Public are watching it play out in dribs and drabs, taking up precious federal court time for injunctive relief. The quintessential reasonable fans, we all say that there has to be a better way, fix it.”
The problem is that Goodell is not willing to fix it but clings to his power like hair spray to hair. The assumption has been that the owners aren’t willing to fix it either, that they prefer to let Goodell do their dirty work for them or use the issue as a wedge in the next labor negotiation. But I’m not so sure. Goodell has begun to taint the entire ownership.
Most owners are conscientious businessmen and good strategists with a care for their reputations and an interest in the welfare of their players. They cannot like being perceived as robber barons and coal mine owners. Or happy that Goodell’s mishandling of every issue doesn’t lead to settlements but to legal sieges and exacerbated labor hostility.
“Would it be stupid for the NFL to give the players fair process? No it wouldn’t,” arbitrator Abrams said. “Fairness is a good thing.”