On June 16, 2014, a meeting took place at NFL headquarters in New York City. Those present were as follows: NFL Commissioner Roger Goodell; NFL attorneys Jeff Pash and Kevin Manera; Adolpho Birch, NFL Vice President of Labor; now-former Baltimore Ravens running back Ray Rice and his wife, Janay Palmer (at the time); attorney Heather McPhee, representing Rice and Palmer; and Ravens officials Dick Cass and Ozzie Newsome.
On November 5 and 6, 2014, former federal judge Barbara S. Jones, the neutral arbitrator selected by the NFL and NFL Players Association (NFLPA), will likely hear from all or some combination of the individuals present on that June day. Because Arbitrator Jones has issued a gag order as to the arbitration proceedings, it will be difficult to know exactly what happens. It also might be difficult at first blush to glean what will transpire. But, a careful look at the issue might peel back some of the excess layers.
Arbitrator Jones has one basic issue before her: whether there was just cause for the NFL to indefinitely suspend Ray Rice? The NFL’s argument will undoubtedly be “yes” because of a variety of reasons, including the nature of the offense and the fact that the NFL did not see the infamous video of Rice knocking his then-fiance to the ground in an elevator. The NFLPA will argue that the NFL violated the Collective Bargaining Agreement’s “One Penalty Rule”, which provides that a player cannot be punished twice (or more) for the same bad act.
At issue on June 16, 2014 was what happened back on February 15 at the Revel Hotel and Casino in Atlantic City, New Jersey. Those nine individuals that presented on June 16 may all tell their side of the story to Arbitrator Jones, recounting what was said and what was not said to Commissioner Goodell. Testimony, of course, is one component of the evidence presented in a legal proceeding. In arbitration, especially in the labor context, the rules of evidence are often relaxed, meaning that hearsay testimony that is not generally granted in a court of law will at least be considered. Arbitrator Jones may have several conflicting statements to sift through in determining which statement or statements are most credible and which should bear more weight in her ruling. However, it is not a slam dunk that any testimony will actually make a difference.
When the NFL issued the initial two-game suspension, it leaned, at least in great part, on the end result of the criminal process, in conjunction with Rice’s remorse for his actions. Upon the leaking of the in-elevator video, the Ravens terminated Rice’s contract and the NFL indefinitely suspended him. The NFL claims it never saw the in-elevator video and that it would have made a difference in determining discipline because it clearly shows Rice was not truthful about his level of physicality during that June 16 meeting at NFL headquarters. Rice has repeatedly said that he was truthful to Commissioner Goodell.
Article 46, Section Four of the NFL-NFLPA Collective Bargaining Agreement contains some key language:
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.
During the closed-door grievance arbitration hearing, this section of the NFL-NFLPA Collective Bargaining Agreement is likely the heart of the NFLPA’s legal argument. The testimony that will likely be presented by the NFLPA’s witnesses will perhaps demonstrate the intent of this language. However, this “One Penalty Rule” is nothing new to labor law; the industrial concept of double jeopardy is based on tenets of fairness, plain and simple. Because this language is contained in the contract, Arbitrator Jones may not need to infer through supporting testimony, or from prior arbitration or court cases whether industrial double jeopardy applies.
In turn, the NFL may attempt to somehow show that its discipline of Rice was not final. Industrial double jeopardy does not apply when, for example, an employer suspends an employee pending the results of a criminal investigation. The problem for the NFL here is that the two-game suspension was based at least in part on the materials it reviewed, which includes the information contained in the police report and other components of the criminal investigation.
Arbitrator Jones may have reams of transcripts to review in fashioning her decision, but the only thing that might matter in the end is Article 46, Section 4.