According to various sources, arbitrator Barbara S. Jones is expected to rule by Thanksgiving on running back Ray Rice's appeal for reinstatement into the NFL. In all likelihood, the former federal judge will reinstate Rice into the league.
There are at least four reasons to believe that the NFL's indefinite suspension of Ray Rice will not stand.
The first legal problem with the NFL's attempt to indefinitely suspend Ray Rice is that at the time of his indefinite suspension NFL Commissioner Roger Goodell had already suspended Rice from the league for two games for the same general incident of domestic abuse. Article 46(1)(a) of the NFL Collective Bargaining Agreement provides a set protocol for the NFL commissioner to suspend players for "conduct detrimental to the integrity of, or public confidence in, the game of professional football." In particular, Article 46(1)(a) requires the punishment of any player be "prompt," and implies there will be only a single punishment for each instance of misconduct. If Roger Goodell truly wanted to keep the door open for a lifetime ban of Ray Rice, he should not have first issued the initial two game suspension without clear caveat that future punishment may be forthcoming.
The second problem with the NFL's indefinite suspension of Ray Rice is that even if the suspension survives the requirements of Article 46(1)(a), it likely fails under the NFL's own internal policies on domestic violence punishments. Under the leadership of former NFL Commissioner Paul Tagliabue, player suspensions for domestic abuse typically ranged from one to two games. Meanwhile, in late August of this year, current NFL commissioner Roger Goodell issued a memorandum to NFL team owners indicating that moving forward he would punish players for six games for the first instance of domestic abuse. Not only does an indefinite suspension go against the past "sentencing guidelines" of Commissioner Tagliabue, but it even goes against the more recent memorandum issued by Commissioner Goodell.
A third problem with the NFL's indefinite suspension of Ray Rice is that equitable principles in sports labor law disfavor the lifetime or indefinite bans of athletes. As renowned arbitrator George Nicolau explained when overturning Major League Baseball's attempt to ban pitcher Steve Howe for life for repeated illegal drug use, banning a player from a professional sports is different from an employer firing a worker. It is the "ultimate sanction" because it could prevent an athlete for practicing his trade anywhere in the world. Thus, such an indefinite ban of a player is strongly frowned upon as a matter of public policy, even if a penalty of a long but stated duration may pose less of an issue.
Finally, a lifetime ban of an athlete such as Ray Rice might even be found to violate antitrust law as a form of group boycott by a collection of different employer-teams. While collectively bargained rules allowing for the permanent or indefinite suspension of players may be exempt from antitrust law under its non-statutory labor exemption, to the extent the NFLPA never agreed to grant Commissioner Goodell the power to indefinitely or permanently ban a player for such misconduct, Rice's suspension might also be seen as violating American principles of free trade.
For all of the forgoing reasons, it is reasonable to predict that Ray Rice will be awarded his second chance this Thanksgiving.
Hopefully, the former Baltimore Ravens star will use his opportunity, if granted, to change his life for the better both on and off the gridiron.
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Marc Edelman is an Associate Professor of Law at the City University of New York’s Baruch College, Zicklin School of Business, where he has written more than 25 law review articles including, most recently, "The District Court Decision in O'Bannon v. NCAA: A Gateway for Far Grander Change." He also consults for companies in the sports, online gaming, and social media industries. Nothing contained in this article should be construed as legal advice.
