Judge, Jury, and Executioner: The Commissioner and the “Integrity of the Game”

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.

Roger Goodell. Courtesy of Wikimedia Commons.

Roger Goodell. Courtesy of Wikimedia Commons.

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).

Bowie Kurn (on right) seated with President Richard Nixon on Opening Day. Courtesy of Wikimedia Commons).

Bowie Kurn (on right) seated with President Richard Nixon on Opening Day. Courtesy of Wikimedia Commons).

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.

Bud Selig. Courtesy of Wikimedia Commons.

Bud Selig. Courtesy of Wikimedia Commons.

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 drugsso 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.

David Stern. Courtesy of Wikimedia Commons.

David Stern. Courtesy of Wikimedia Commons.

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 ezonder@adrian.edu and can be followed on Twitter @EricaZonder.

7 thoughts on “Judge, Jury, and Executioner: The Commissioner and the “Integrity of the Game”

  1. Erica,
    Great article! I think what is happening with Roger Goodell is important, not only because football is a massive entertainment mogul in America, but because it speaks to the heart of employee-employer relationships. Goodell’s insistence that he can issue whatever punishment he wants to an employee based on no set standard, is reminiscent of the very work environment that fostered the creation of labor unions in the first place. I think that is why so many of his decisions have struck a negative cord with so many. However, you brought some interesting questions at the end of your article that made me reconsider just how justified all this negativity aimed at Goodell truly is. You mentioned social media as a question mark amongst other question marks regarding Goodell’s treatment, however, do you feel that social media may be the biggest factor here since it is really has altered the way our society accepts, receives, disseminates, and views information? Again, great article and thank you in advance for your response.
    Matt Edgell

    Like

  2. Erica,
    This was a great article! I feel what Roger Goodell is doing is over using his power as the commissioner of the National Football League. It is a multi billion-dollar franchise industry. He is correct his obligations are to protect the integrity of the game. You are correct it is not just football where there have been harsh penalties given out, but baseball and basketball have given out harsher penalties as well and had their power checked. In the Deflate Gate case compared to the Greg Hardy case, Hardy had a ten game suspension and Tom Brady had a four game suspension for supposedly have the footballs deflated. Goodell reduced Hardy’s suspension to four games and Tom Brady’s suspension was upheld. He made it seem like that deflate game was worse than Hardy’s domestic violence case. Do you feel that Goodell sent out a bad message throughout the league when reduced Hardy’s suspension and upheld Brady’s suspension? This was a great article and thank you for all the great insight.

    Tyler Ozenbaugh

    Like

  3. Erica,
    All and all I found this article very easy to read. As a sports fan, I have a different view on this than most people do, and wondering if you believe the same. Theses an old saying, “Everyone tries to kick you when you’re down”. This being said do you think that the things Goodell has been slammed for the past 2-3 years have been blown way out of proportion? Also, on the field issues such as Deflategate or Bountygate, I think that the commissioner should step in, but off field incidents such as Rice and Hardy should just be left to the actual government. What do you think? I’ve received mixed reactions and always like to see what people have to say about this. Thank you for the reply!
    Nathan Cracraft

    Like

  4. Erica,
    I really appreciated this article. I have been saying for a long time that Roger Goodell has been abusing his power of being the commissioner of the NFL. I feel as though he believes that because he is in charge of one of the biggest leagues in the world, that would make him somehow even more powerful than he already is. The whole concussion issue is what really set me off from him but when the whole Deflategate thing happened, it really pushed me over the edge. It appeared to me that because of the whole Ray Rice incident he would have to prove something. I love what you did by comparing Roger Goodell to other commissioners of other leagues. This gives the reader who is not familiar with this situation a good understanding of where the issue is at. My one question would be what do you think would need to happen in order for him to be denounced by the owners? Thank you for this great article!
    Christopher Mota

    Like

  5. Erica,
    I like this article very much. I think that Roger Goodell. He doesn’t know what’s right and what’s wrong. I don’t think he even know right from left. This “commissioner” runs a billion dollar business and he hands out punishments like it’s a slap on their wrist. I understand that he has owners to deal with but he has to have no favorites with owners. He need to have neutral feelings for each team. That’s why I vote we should have a new commissioner. But I see a problem with that. The owners have too much control over him so if they brought a new commissioner in they won’t be able to control him like they did with Roger Goodell.

    Like

  6. Erica,
    I have really enjoyed reading your article. The main paragraph of yours I enjoyed was the article revolving around Roger Goodell and Tom Brady. I followed this case very closely and seeing someone else’s insight on it was enjoyable. I too viewed the commissioner of the NFL as a man who abuses his power. However after reading your articles and listening to the questions you asked, I realized that he may not be much different than other commissioners in different sports. Throughout your last paragraph, it gave me a chance to reflect upon questions I wasn’t able to ask myself due to bias reasons and thoughts I never came across. I have changed my decision on the leadership roles of Roger Goodell and recognized the fact that when placed in that type of power it’s different than when we as fans are just “looking in”. So my question for you is what do you believe would need to happen in order for the commissioners of sports around the world to make decisions that would create less anger by the fans and the players? I feel like no matter how they handle any given situation it will always rub a certain number of people the wrong way… can they ever win?

    Like

  7. Erica,

    I loved some of the points that you touched upon in this article. Specifically regarding Goodell’s take on the integrity of the game and his power abuse. Roger claimed that he wanted to do everything he could in order to protect the integrity of the game, but where do you draw the line? Does gunning after the golden boy of the NFL Tom Brady for allegedly deflating footballs help you protect the integrity of the game? Not really, instead of focusing on such awful stories being published such as the Greg Hardy case he was coming after one of the greatest players to ever live because he could. I am deeply disappointed with Goodell’s usage of power and hope he steps down so someone can properly run the NFL and turn their focus to winnable battles. Do you believe Goodell should be removed from a position of power?

    Like

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