By Erica Zonder, Guest Contributor
It has been a tough year for NFL Commissioner Roger Goodell. Most recently, the discipline he imposed on Tom Brady for allegedly deflating footballs, discipline that he himself, as a “neutral” arbitrator, upheld during the subsequent arbitration process, was tossed by a Federal District Court judge. “Deflategate” was, to borrow a metaphor, strike three. Previously, he saw discipline imposed on Ray Rice and Adrian Peterson also struck down through various court-related proceedings. While a murky and evolving domestic violence policy is partially responsible for the inconsistent suspensions of Rice and Peterson (Greg Hardy anyone?), Goodell pulled out all the stops with the Brady case, claiming that the “Integrity of the Game” honor code was broken. And further, he also used the broad power that Article 46 of the CBA grants the commissioner to discipline for “conduct detrimental to the integrity of, or public confidence in, the game of professional football” to justify his Brady decision.
This is not the first time that the Commissioner of one of the “Big 4” leagues has used their respective version of a “best interests of the game”-type policy to discipline players (or even owners!), nor are these recent football cases the first time that an arbitrator or court has stepped in to either uphold or reign in a commissioner’s power.
Major League Baseball
The “template of the omnipotent sports commissioner… took root” with baseball’s Kenesaw Mountain Landis (see a great article by S.L. Price in this week’s Sports Illustrated), and while the BlackSox scandal was really the first time a commissioner used these broad powers, there are more contemporary baseball decisions that have found their way to arbitrators or courts for review.
In 1976, Charlie Finley, the owner of the Oakland A’s, dealt away Rollie Fingers, Vida Blue, and Joe Rudi at the trade deadline (which sounds WAY worse than Price, Cespedes, and Soria – although I’m sure A’s fans then and Tigers fans now were similarly unhappy). Bowie Kuhn, the commissioner of MLB at the time (perhaps best remembered for opposing Curt Flood’s quest for “free agency”), rejected the trade as “inconsistent with the best interests of baseball, the integrity of the game and the maintenance of public confidence in it.” And further, the Commissioner expressed his concern for (1) the debilitation of the Oakland club, (2) the lessening of the competitive balance of professional baseball through the buying of success by the more affluent clubs, and (3) “the present unsettled circumstances of baseball’s reserve system.” Kuhn’s power was found in the Major League Baseball agreement (that language is currently found in Article XI(A)(1)(b) of the CBA – see also Bethany Withers enlightening article on domestic violence in professional sport in Harvard’s Journal of Sports & Entertainment Law).
Obviously, Finley objected to this ruling and the case made its way to Federal Court, which found that the Commissioner had the authority to use “his best interest powers.” While the Finley case wasn’t in response to discipline per se – Atlanta Braves owner Ted Turner was not so lucky when he skirted the rules to pry Gary Matthews from the Giants around the same time: Turner was suspended for a year and Kuhn’s “best interests of baseball” authority was upheld by yet another federal judge–the Finley case was considered seminal in terms of how courts viewed Commissioner power.
Since we are discussing the broad powers of the MLB Commissioner, one could also consider Alex Rodriguez’s recent suspension. While then-Commissioner Bud Selig threatened to use that same integrity of the game clause to keep A-Rod out of baseball (A NESN.com article called the clause “remote”), he found another way to suspend Rodriguez beyond the limits of the Joint Drug Agreement rules (50/100/life). After all, A-Rod never failed a drug test! He did, however, obstruct the investigation (it didn’t involve destroying a cell phone) and MLB ultimately used Article XII(B) of the CBA, the “mother of all catch-alls” according to Deadspin writer Sean Newell. It reads, in part:
Conduct Detrimental or Prejudicial to Baseball: Players may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball (emphasis added) including, but not limited to, engaging in conduct in violation of federal, state or local law.
A-Rod (backed by the Player’s Union), appealed the suspension through the arbitration process, and the arbitrator, Frederic Horowitz, was not nearly so deferential to the office of the Commissioner, reducing the ban from 211 games to 162 (it is worth mentioning here that Horowitz was hired by MLB after they fired previous arbitrator Shyam Das who notably overturned Ryan Braun’s original drug-related suspension). Horowitz looked at prior discipline in drug-related matters (such as Steve Howe, whose lifetime ban by Fay Vincent, for one of his many cocaine related-incidents, was reduced to a year-long suspension) as well as using the Joint Drug Agreement as a guide (basically 50 games for the first violation – and evidence of the use of three different drugs – so creatively 150 games as a benchmark) in determining the ultimate number of games. Specifically stating, “A suspension of one season satisfies the strictures of just cause as commensurate with the severity of his violations” (p.32). He does add, however, that there is no evidence of misconduct on the part of MLB in their investigation (which A-Rod asserted, although both sides apparently paid for information, and, the sex with a former Biogenesis employee by one MLB investigator apparently didn’t “yield any information relevant to the investigation” (p. 33)), so the reduction was not a complete slap in the face to Selig.
National Basketball Association
In a move unchecked by any court or arbitrator, in 2011, then-NBA Commissioner David Stern blocked a Chris Paul trade to the Lakers, citing “the best interests of the Hornets” and “basketball reasons.” At the time, the NBA “owned” the Hornets and “final responsibility for significant management decisions lies with the commissioner’s office.” This was a post-lockout, post LeBron “Decision” (1st one!) decision that Ian O’Conner at ESPN called an “outrageous abuse of power” and an attempt by the League to block players dictating where they want to play (Lakers GM Mitch Kupchak apparently still hasn’t forgiven Stern for this). While the Hornets situation was unique, the power of the NBA Commissioner is not. Article XXXI of the CBA gives the Commissioner the right to suspend a player “concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball.”
Hmm, sounds familiar.
Stern had a chance to use this power in 1997 when Latrell Sprewell choked Coach PJ Carlesimo. The incident occurred in December and Stern suspended Sprewell for one year. An arbitrator reduced the suspension to just the remainder of the season, and noted that the commissioner is “entitled to great deference as the spokesperson for the sport of basketball” but that the reduction “was more commensurate with the seriousness of Sprewell’s actions.” Sprewell later filed suit against the Warriors and the NBA for everything he could think of (including “civil conspiracy”), but at every step the arbitrator’s decision, and therefore his (reduced) suspension, was upheld.
Stern’s authority was also challenged in 2004. The “Malice at the Palace” resulted in multiple player suspensions, including the remainder of the season for Ron “Metta World Peace” Artest (who is rumored to be in talks with the Lakers for a comeback this year). For the sake of brevity, let’s just say that during a Pistons-Pacers game, a beer landed on Artest and he went into the stands to have a chat with a fan about it. It turned into a brawl that resulted in nine player suspensions and criminal charges against both players and fans. And Detroit lost the game (sigh–they were still good back then). The player’s union appealed three suspensions, including Artest’s and Jermaine O’Neal’s (25 games), calling the penalties “excessive.” The arbitrator, Roger Kaplan, reduced O’Neal’s suspension by 10 games, and upheld the rest. The NBA appealed that decision, claiming that the CBA only allows for the commissioner to hear appeals for on-court incidents (nowadays there seems to be a 12 game threshold). The federal judge deemed O’Neal’s behavior to have occurred off court (he was in the stands after all) so therefore arbitration appropriate (and reduction upheld). At the time, the attorney for the player’s union, Jeffrey Kessler (that name should ring a bell – he was Brady’s lawyer) said, “It means the world doesn’t revolve around a commissioner who can not be reviewed.”
Roger Goodell and “Integrity of the Game”
So Roger Goodell is not the only Commissioner to have his power checked. But as the above examples illustrate, typically that checking of power, if at all, seems to manifest itself as a reduction of suspensions – Goodell keeps managing to get his decisions actually vacated. Let’s not forget BountyGate. Former NFL Commissioner Paul Tagliabue, appointed by Goodell himself as “appeals hearing officer” (i.e. arbitrator) for the case, vacated all of Goodell’s player suspensions. And while he affirmed that three of the four players involved “engaged in conduct detrimental to the integrity of, and public confidence in, the game of professional football,” and further that he doesn’t “condone their behavior” and isn’t “substituting (my) judgment for the Commissioner’s judgment” he still found the player’s conduct to be undeserving of suspension. Tagliabue, not only a former NFL Commissioner, but Goodell’s former mentor, decided that Goodell overreached, and overreached badly. Now that is a slap in the face. Apparently the two men are no longer friendly (go figure). In an interview in GQ earlier this year, Tagliabue said of his former protégé, “We haven’t talked much since I left. It’s been his decision. ‘Bountygate” didn’t help.”
So why is there so much backlash against Roger Goodell? Has he really done anything that others in his position haven’t? Is it his repeated “bad” decision-making? His arrogance in using (or attempting to use) the broad powers granted to him under the CBA? His unwillingness to distinguish amongst the nature of the “crimes” when handing out sentences? The impact of social media? As we have seen, everyone has an opinion, including the courts, and for now at least, it seems that his power over arguably the most powerful professional sports league has come into question. The NFL has filed an appeal in Deflategate, so likely sometime next year we will get yet another court weighing in on the power of the Commissioner’s Office.
Erica Zonder is an Assistant Professor of Sport Management at Adrian College. She earned a J.D. from the University of Michigan and a Masters of Science in Sport Management from EMU. She can be reached at email@example.com and can be followed on Twitter @EricaZonder.