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An important labor relations lesson for all employers might lie at the heart of the white-hot issue of domestic violence and professional athletes. The topic has dominated headlines since Roger Goodell, commissioner of the National Football League (NFL), announced on Sept. 8, 2014, that Ray Rice, a player with the Baltimore Ravens football team, would be suspended indefinitely for hitting his wife, Janay Palmer.
The NFL Players Association (NFLPA) then filed an appeal of Rice’s suspension on Sept. 16, requesting a review and arbitration of the case. Union officials pointed out that, as a union member, Rice was guaranteed rights under the NFLPA’s collective bargaining agreement.
The union appears to have a strong case and could possibly have Rice’s suspension reversed, according to two labor relations attorneys who spoke with SHRM Online. The case offers an important lesson to all employers, according to Larry Malfitano, chair of labor and employment law for Bond, Schoeneck & King PLLC in Syracuse, N.Y.
“The lesson here is get it right the first time, make sure you are acting on the best evidence possible and then stand by your decision,” Malfitano said. “If you change a decision based on outside forces like public opinion, then this can lead to trouble. You have to make your decision based on what the evidence is and not on what someone might think or say after the fact.”
The NFL commissioner admitted during a Sept. 20 media briefing that his office had made mistakes in handling the case. Goodell vowed that he was going to do better and that the league was going to “get it right.” He announced that everyone in the NFL would receive training on domestic violence and sexual abuse and that the league would establish a conduct committee to “ensure that we are always living with the best practices.”
Goodell became embroiled in Rice’s case in July 2014, when he suspended the Ravens running back for two games after allegations surfaced that Rice had knocked his then-fiancée unconscious during a February 2014 visit to a hotel and casino in Atlantic City, N.J. Rice and Palmer were married several weeks after the incident.
After a hotel security video surfaced in early September that showed Rice punching Palmer in the face and then dragging her limp body from an elevator, Goodell announced that he was changing Rice’s two-game suspension to indefinite. The Ravens then cancelled Rice’s contract and removed him from the team roster.
Public outrage over Rice’s conduct and condemnation of the NFL have intensified as more domestic violence incidents committed by NFL players have come to light. Several of the league’s top sponsors, such as Anheuser-Busch, Procter & Gamble and Radisson Hotels, have criticized the NFL’s response. Radisson has withdrawn from a sponsorship deal with the Minnesota Vikings, and other companies are rethinking their relationship with the NFL, according to sources familiar with the issue.
Sound Footing for Appeal
Because Goodell issued the two-game suspension but then changed the punishment when public outcry intensified as the video went viral, the NFLPA appeal has some very sound footing, according to James M. Walters, a partner in the Atlanta law office of Fisher & Phillips LLP.
“Now it appears that Goodell changed Rice’s suspension when things got too hot, and the NFL’s image was suffering,” said Walters. “Problem is—you can’t arbitrarily change a punishment just because public opinion has turned sour and your organization’s image is damaged because of it.”
When announcing the appeal, the NFLPA claimed Rice was being punished twice for the same offense.
“This action taken by our union is to protect the due process rights of all NFL players,” the NFLPA said in a written statement. “The appeal is based on supporting facts that reveal a lack of a fair and impartial process, including the role of the office of the commissioner of the NFL.”
Walters said that the union attorneys most likely will contend that the original two-game suspension should not have been extended unless the NFL commissioner was acting on some new evidence. Goodell claimed that he did not see the hotel security video tape until it appeared on the Internet and became a viral sensation. Critics of Goodell’s actions have expressed disbelief that NFL officials had not seen the video beforehand.
“And this is where the NFLPA’s appeal and request for arbitration will tell the tale,” Walters said. “Because we all know the union’s attorneys will subpoena every e-mail, every memo and every bit of evidence collected by the NFL during its investigation of the incident.”
A Case of Double Jeopardy?
What if, during the discovery process, evidence is found that the NFL had possession of the entire security video?
“It could become a huge problem for the NFL, because you can’t dole out two separate punishments based on the same evidence,” Malfitano said. “Some people are calling this the double-jeopardy principle because, in effect, one can argue that Rice is being found guilty twice.”
Walters said that double jeopardy isn’t the correct term in this situation. He said the more applicable term would be “partial condonation, which approximates the relatively lenient nature of a two-game suspension. Exoneration or complete condonation would have translated to no suspension or no monetary penalty.”
The NFLPA’s appeal noted that “under governing labor law, an employee cannot be punished twice for the same action when all the relevant facts were available to the [League] at the time of the first punishment.” Malfitano said that the NFL’s defense most likely will be that the indefinite suspension came from a new piece of evidence or on the fact that Rice may have attempted to cover up the incident by lying about his involvement.
“The NFL will probably argue that the commissioner decided on an indefinite suspension not because of the video evidence but that Rice did something else to impede the investigation,” he said.
Basic Lessons for All Employers
The NFLPA’s request for arbitration is typical in a case involving the disciplinary action of an employee represented by a union. Even though the NFL is far from being a typical employer with a collective bargaining agreement, the same rules apply, and offer some basic lessons for all businesses, Malfitano said. He said the arbitrator in the Rice case would be looking to answer some basic questions: Was the rule reasonable, and was it enforced in a reasonable manner? Have the rules and any punishments been applied consistently?
“Too many employers fail when it comes to applying rules and punishments consistently,” Malfitano said. “In the NFL’s case, for example, the arbitrator will look back and see who in the league has received indefinite suspensions like Rice and what sort of punishments have been handed out for players who also have been involved in incidents of domestic violence.”
Singling out an individual employee for punishment that is overly severe can be a costly mistake, Malfitano said.
“Might as well break out your checkbook and be prepared to pay up,” he said. “Consistency is very important in cases like this, and it will be very interesting to see what happens next, because this case is fascinating on so many different levels.”
Bill Leonard is a senior writer for SHRM.
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