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Pressure building for Roger Goodell's resignation
2:18 | NFL
Pressure building for Roger Goodell's resignation
Thursday September 11th, 2014

The Associated Press reported on Wednesday that a law enforcement official sent an NFL executive a copy of the video showing Ray Rice punching his then-fiancée, Janay Palmer, in an elevator of Revel Hotel and Casino in Atlantic City on Feb.15. This same official played to the Associated Press a voicemail purportedly from an NFL phone number on April 9 in which a female voice confirms receipt of the video. This stunning development appears to contradict statements made by NFL commissioner Roger Goodell to CBS News’ Norah O’Donnell on Tuesday. Goodell insisted that he had not seen the video until after TMZ posted it on Monday, and that no one at the NFL -- “to his knowledge” -- had seen it, either. Assuming that the Associated Press story is accurate, Goodell either lied to O’Donnell or was bafflingly ignorant of key pieces of evidence held by his own league.

Tonight’s developments pose potential legal consequences for Rice, Goodell, the NFL and the Baltimore Ravens.

Ray Rice now has legitimate grounds to challenge the lawfulness of his indefinite NFL suspension

It may seem unsettling that Rice, who viciously beat up and dragged Palmer, would be a beneficiary of the NFL’s troubled investigation, but that is a real possibility. In July, Goodell suspended Rice for two games in response to New Jersey Superior Court Judge Michael Donio sentencing Rice to a pre-intervention program that carried no jail or prison time. Goodell received sharp criticism for imposing a seemingly light suspension, particularly given that the public had watched video of Rice dragging an unconscious Palmer out of the elevator. On Monday, Goodell suspended an already-suspended Rice for an indefinite period. The indefinite suspension was in response to Rice’s conduct in a gruesome video, taken inside the elevator, made public by TMZ.

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Even with tonight’s developments, Rice would be hard-pressed to challenge the two-game suspension. Through its personal conduct policy, the league has wide discretion to punish players for conduct detrimental to the NFL. Regardless of who saw the elevator video and when, Rice was indicted by a grand jury for aggravated assault and was sentenced by a judge for his conduct. The NFL had clear grounds to suspend him based on the indictment and sentence alone.

Rice’s indefinite suspension, however, is much more vulnerable to legal challenge. Rice and the National Football League Players’ Association could choose from a wide-range of potential legal maneuvers. They include: Rice petitioning a court for an injunction that would make him eligible as a free agent following Week 2; Rice filing a civil lawsuit against the NFL for monetary damages; Rice, along with the NFLPA, filing a grievance pursuant to the collective bargaining agreement and obtaining an independent review; or the NFLPA filing an unfair labor practices charge.

Evaluating Rice’s potential legal arguments against the NFL

In any legal action against the NFL, Rice would begin by citing Article 46 of the collective bargaining agreement. Through its "one penalty" clause, Article 46 suggests that the NFL cannot punish a player twice for the same conduct or act. The clause bars the league and teams from double-disclipling a player for the same conduct or act. While the elevator video shows a different sequence of Rice hurting Palmer, it is arguably part of the same act of domestic violence. Both videos take place in the same hotel and in adjacent locations within that hotel, and they occur merely minutes apart.

For its part, the NFL could portray the two videos as depicting very different acts of violence. In the elevator video Rice is shown punching Palmer, while in the hallway video Rice is shown dragging her. In his CBS interview, Goodell also implied that Rice was untruthful about what happened in the elevator. The NFL could better justify its indefinite suspension if Rice was untruthful in speaking with Goodell.

The indefinite suspension is predicated, however, on the NFL not having seen the elevator video prior to Monday. If the “league” -- which should include any senior NFL official -- had seen the video but declined to incorporate it into the two-game suspension, Rice could argue the league waived its ability to use the elevator video as grounds for a new punishment. In response, the league might claim that the indefinite suspension reflects not the video per se, but rather the harm the video caused to the NFL’s public image. But Rice might then raise an “unclean hands”-styled argument against the NFL: the league engaged in its own wrongful conduct and should be barred from raising new rationales for punishments.

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While Rice could construct a potentially persuasive legal argument against the indefinite suspension, the NFL would be advantaged in court by an extremely deferential standard of review. Courts normally review league interpretation of its own rules by an “arbitrary and capricious” standard. This standard greatly favors defendants. It would likely require Rice to establish that the NFL abused its power and lacked reasonable grounds for his indefinite suspension. Keep in mind, “arbitrary and capricious” would require more than Rice merely showing that Goodell was incompetent in failing to know that his own employees had seen the video. Rice would also need to show deception and dishonesty, as those features would help Rice frame Goodell and the NFL as unpredictable and reckless. Even then, the league’s personal conduct policy is worded so broadly and without real limitation that a court might struggle to invalidate any plausible Goodell interpretation of the policy.

In addition to Article 46 and the league’s personal conduct policy, Rice might turn to Article 17, which details the league’s anti-collusion policy. This policy prohibits teams from acting in concert to deprive players of collectively bargained rights. Rice could claim that the NFL and its teams have conspired to prevent him from signing with any team. A collusion argument would require real proof, such as emails and phone records, rather than mere supposition. Collusion seems like a difficult legal argument for Rice, especially given that some teams might be interested in signing when his suspension ends.

Rice could also file separate civil claims against the NFL for fraud and negligence, and assert that the league’s investigation into him reeked of ineptitude and duplicity. A judge, however, would likely dismiss those claims. The NFL would contend, with some persuasion, that as a member of the NFLPA, Rice contractually agreed to resolve disputes through collectively bargained rules rather than by filing claims under states’ contracts and torts laws. The NFL has normally won in court by asserting that the CBA preempts these types of claims.

Rice has weaker legal arguments against the Ravens

NFL teams have wide discretion to release players under contract. Regardless of the NFL’s problematic investigation, Rice clearly engaged in graphic domestic violence against another person, and was sentenced by a judge for his conduct.

The Ravens standing by Rice until TMZ published the elevator video did not legally bar the Ravens from releasing him after video’s publication. This would be true even if the Ravens knew about the elevator video before Monday (the team denies it saw it). Keep in mind, employers reserve the right to change their mind on employees: they can decide to keep those employees and then decide to fire them. So long as Rice is paid in accordance with his contract, he likely has no viable legal argument against the Ravens.

Importance of pretrial discovery in threatening the NFL

While none of Rice’s potential legal clams may ultimately prove successful, Rice may nonetheless be in a position to extract a settlement from the NFL that returns him to the field. The NFL knows that if Rice files a lawsuit and it advances past a motion to dismiss, Rice’s attorneys would be in a position to force Goodell and other NFL officials to testify. Keep in mind, when Goodell speaks with O’Donnell and other journalists, any lying or obstruction would not constitute criminal behavior. That is not to suggest Goodell lies to journalists, but rather that any lying would not carry legal risk.

It would be a different story for Goodell if he’s forced to answer questions from Rice’s attorneys while under oath. Intentionally lying in that circumstance could give rise to criminal charges of perjury and obstruction, both of which are felonies.

Pretrial discovery would also require the NFL to reveal emails and other sensitive documents.  These materials could reflect poorly on Goodell and perhaps also NFL owners and coaches who were interviewed for the Rice investigation.

NFL owners could launch an independent investigation into the commissioner’s office handling of the Rice matter

Since becoming commissioner in 2006, Goodell has been the target of various criticisms. But the league has never been more profitable, and the direct beneficiaries of that profit are Goodell’s employers: NFL owners. Those owners seem to think highly of Goodell’s performance, as Goodell’s compensation has risen dramatically in recent years. Per data obtained by Robert Raiola, senior manager in the Sports & Entertainment Group of the accounting firm O'Connor Davies, LLP, Goodell’s compensation rose from $11.5 million in 2010 to $29.4 million in 2011 to $44.1 million in 2012, the last year in which compensation information is available.

But Goodell’s performance in the Rice investigation has raised many questions about his fitness to serve as commissioner. Influential groups and individuals, including the National Organization for Women and U.S. Senator Heidi Heitkamp, have encouraged Goodell to step aside. Wednesday’s revelations will only make those calls louder. 

In response to the growing controversy, the NFL has hired former FBI director Robert Mueller to conduct an independent investigation into the Rice matter. Mueller will reportedly have complete access to all NFL documents on Rice and be able to interview any NFL official. He will report to New York Giants owner John Mara and Pittsburgh Steelers owner Art Rooney. To be sure, “independent” is an arguably misleading adjective since Mueller will be paid by the organization he’s investigating. Also, NFL employees interviewed by Mueller will not be under oath, and Mueller will not enjoy subpoena powers to compel that records be produced. Still, the report is expected to be thorough and will made public. The NFL's hiring of Mueller signals the league understands the gravity of the situation and signals there is some pressure on Goodell.

Goodell as a main subject of an independent investigation will be a role-reversal for him. He famously oversaw investigations into the New Orleans Saints for “Bountygate” and the Miami Dolphins for bullying. As a subject, Goodell may be forced to address how the league could have possessed the elevator video but he somehow failed to see it for months. Goodell might also be asked to explain how TMZ obtained the video before he did. Along those lines, Goodell has yet to address whether he asked Rice’s attorney, Michael Diamondstein, for the elevator video. While Diamondstein would have been disinclined to share it, Goodell could have made clear that Rice would face a much longer suspension unless the NFL saw it. Instead, it appears Goodell sought the video from law enforcement, which had no legal obligation to share.

While Mueller will investigate the Rice matter, expect NFL owners to at least informally do the same, especially as to Goodell’s performance. If they find fault, owners could take a number of steps against Goodell, the most dramatic of which would be to fire him. A firing would constitute a breach of Goodell’s employment contract as commissioner and he would be owed monetary damages, which are likely stipulated in his employment contract. A less severe but still meaningful measure would be to issue a vote of no confidence against Goodell, just like Major League Baseball owners did against commissioner Fay Vincent in 1992. A vote of no confidence would inform Goodell the owners no longer want him around and there would be a strong expectation that he would “voluntarily” resign. 

Owners could instead keep Goodell and restructure the commissioner’s office so that he can focus on what he seems to do best -- make profitable business decisions of owners -- while leaving legal and investigative matters to league attorneys. Perhaps the league’s executive vice president and general counsel, Jeffrey Pash, could take on a more significant role, or the league might hire Gregg Levy, who is the NFL’s top outside counsel and the runner-up for NFL commissioner in 2006, to a senior position.

Or the owners could do nothing. It’s all up to them.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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