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What does Ray Rice's lawyers want Roger Goodell to say in testimony?
2:32 | NFL
What does Ray Rice's lawyers want Roger Goodell to say in testimony?
Tuesday November 4th, 2014

Ray Rice’s appeal of his indefinite NFL suspension will be heard on Wednesday and Thursday. The suspension stems from a troubling timeline that began on February 15 when Rice was arrested for assaulting his then-fiancée (now wife), Janay Palmer, in the Revel Hotel and Casino in Atlantic City, N.J. Four days later a frightening video surfaced of Rice dragging Palmer from the hotel’s elevator into a hallway. A month later, a grand jury indicted Rice on assault charges. The case was quickly resolved in May when New Jersey Superior Court Judge Michael Donio allowed Rice to enter a pre-intervention program that carried no jail time. NFL commissioner Roger Goodell met with Rice in June and a month later suspended Rice for just two games. Then, in September, a second chilling video -- this one of Rice punching Palmer in the hotel elevator -- was published on TMZ.com. Goodell, who insisted that neither he nor anyone at the NFL had seen this elevator video, suspended Rice indefinitely. The Baltimore Ravens then cut Rice.

Rice, supported by the NFLPA, is challenging the suspension and seeking reinstatement into the NFL. Rice’s core argument is that the NFL and Goodell knew about the elevator incident long before it became public and that Goodell and the Ravens have repeatedly disciplined him for the same conduct. Here is what to expect in the hearing and how it will impact the careers of Rice and Goodell.

Why it matters that Rice’s appeal will take place in arbitration and not trial

Barbara Jones, a federal judge from 1995 to 2013, will preside over Rice’s appeal. Jones is well versed on high-profile cases that feature alleged fraud. She presided over the 2005 trial of Bernard “Bernie” Ebbers, the former CEO of WorldCom whom a jury convicted of overseeing a record-breaking $11 billion accounting fraud. Jones would sentence Ebbers, who was 63 at the time, to 25 years in prison.

SI.com's complete coverage of Ray Rice

Jones will have a different role in the Rice hearing. She won’t be sentencing anyone to prison. In fact, she won’t even be a judge. She’ll be an arbitrator. This is a crucial distinction as arbitration is unlike a court proceeding in crucial ways. Arbitration is less rigid and it takes place in a less intimidating setting. Perhaps most importantly, formal rules of evidence are relaxed in arbitration, which makes it much easier to introduce information into the record. Take hearsay evidence, which in a basic sense refers to statements by people who aren’t testifying. Hearsay evidence is usually inadmissible in trial, but is often permitted in arbitration. This means that Rice and Goodell can likely testify to statements they heard other people say, even if those people, such as players or coaches, won’t be testifying. This opens the door to Jones considering purported statements by a wide-range of people.

Rice’s hearing will also occur in an office in New York City, not in a courtroom, and likely at a roundtable where both sides sit opposite each other. This dynamic is intended to encourage the parties to speak to one another and to engage in a fluid discussion.

AP

Jones will also make a decision based on what she believes is correct and fair, not on whether it follows precedent. This is because arbitration, unlike trials, doesn’t have “precedent” to follow. Arbitration is a private dispute resolution device designed to settle individual disputes quickly and privately, not to create rules that bind future parties. The Rice arbitration is unique in the sense that we know about it, as arbitration is normally concealed from the public. Businesses usually prefer arbitration to avoid the creation of a court record that can be read by the media, investors and competitors.

Assessing whether Rice was punished “twice”

The NFLPA will argue that the league violated Article 46 of the CBA and specifically the so-called “One Penalty” rule. This rule, as contained in Section 4 of the Article 46, states: "The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner's disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct." The language makes clear that the NFL and the Ravens are barred from suspending Rice for the same act or conduct. The language is unclear, however, on two important issues.

First, the phrase “same act or conduct” does not neatly match up with Rice’s misconduct. Video evidence indicates that he battered Palmer in the elevator and then dragged her in the hallway. Does battering and dragging someone, in different locations in the same hotel, constitute two separate acts? Or was Rice’s misconduct one sequence of domestic violence that began in an elevator and then, minutes later, continued in a hallway? The fact that the elevator and hallway incidents each contain a separate video, which each caused separate controversies for the NFL months in time apart, should help the NFL frame the acts are separate. If so, the NFL would have a more persuasive argument that Rice was not punished twice.

Then again, if Jones determines that the NFL knew about the video of Rice punching Palmer in the elevator at the time Goodell suspended Rice for two games, either through possessing the video or through Rice admitting the incident to Goodell, the NFL would seem dishonest and have weaker grounds to disaggregate Rice’s misconduct. The Associated Press, citing a law enforcement source, has claimed the NFL was in possession of the elevator video in April. The NFL insists it had no such video.

Second, the Ravens arguably did not “discipline” Rice. This is important because if the Ravens never disciplined Rice, there would be no “Club” discipline to trigger violation of the One Penalty rule.

Keep in mind, the Ravens never suspended or fined Rice for the hotel incident. Instead, they cut him after the NFL suspended him indefinitely. The Ravens’ contract termination might be interpreted as severing an employment relationship with Rice rather than disciplining him. Indeed, an employer “disciplining” an employee implies that there is an existing and ongoing relationship between the employer and the employee. Put another way, an employer can’t suspend a former employee, nor can it fine him or her. On the other hand, the ultimate “discipline” by an employer could be viewed as firing the employee. From that perspective Rice may have a swaying argument. It depends on how Jones interprets the meaning of the word “discipline.”

Separately Rice is pursuing a wrongful termination grievance against the Ravens over the team severing his $35 million contract. He has an uphill fight on that front, as teams have wide latitude under the CBA to cut players

Does Ray Rice have “due process” protection?

The NFLPA will claim the NFL violated Rice’s “due process rights” by punishing him for conduct the league may have already known about. “Due process” is a phrase often tossed around in sports controversies, but is usually misplaced. It refers to constitutional protections U.S. citizens enjoy from coercive government power and government actions that exceed legal authority. Due process guarantees citizens basic procedural and substantive rights when they interact with the government and with government actors, such as regulatory agencies and public universities.

Notice, however, that due process is about government action. Private employers -- like the NFL and the Ravens -- are not obligated to provide these protections. Instead, player contracts, the collective bargaining agreement and the personal conduct policy determine protections for NFL players.

As explained above, Rice has a plausible argument under Article 46 of the CBA that the NFL violated the One Penalty rule. But it is not obvious where else Rice has textual support for an argument based on inadequate process. The personal conduct policy indicates that Goodell has sweeping authority to discipline players. He has sole discretion to assess penalties for players’ off-field misconduct and to hear any appeals. Conversely, players are furnished few procedural protections from Goodell. Those protections are mostly about obtaining a prompt hearing and having access to NFLPA advocacy, among other process rights not at issue in the Rice matter.

But the Rice matter has unprecedented qualities that work against Goodell when it comes to process. Most significantly, Goodell and the office of the commissioner are implicated in this same controversy. This is significant because while private employers can sidestep due process, they still must follow their own rules and avoid corrupt practices. The NFL has all but admitted that its internal justice system failed with respect to Rice. The league has retained former FBI director Robert Mueller to investigate mistakes and is forming a committee that will be charged with overhauling the personal conduct policy. Jones may also place significance in the fact that she is even involved in this dispute. It is striking that Goodell is so compromised on Rice that the league needs Jones to hear an appeal that would normally be heard by Goodell.

If Rice can establish that the NFL and Goodell acted with deception and dishonesty in issuing the indefinite suspension, Jones would surely rule for Rice. As an arbitrator, Jones will focus on finding a fair and just outcome.

Goodell’s legal exposure in testifying

Goodell, like other witnesses in the Rice hearing, will testify under oath. This presents a very different setting from when Goodell conducts interviews with journalists or answers questions at press conferences. Goodell can lie in those settings and not break the law. Under oath, however, Goodell and other witnesses must tell the truth or risk potential felony charges for perjury.

Lying under oath is not, by itself, the same as knowingly lying under oath. If Goodell is mistaken about a point, and consequently lies in response to a question, he has not committed perjury. He must have known his answer was untrue when he gave it. As illustrated in the unsuccessful prosecutions of Barry Bonds and Roger Clemens for perjury, it is often difficult to establish that a person knowingly lied, even if few believe he was telling the truth. The person can say he misunderstood a question or misremembered the past. Alternatively, sometimes there is uncertainty among witnesses about what exactly was said in a conversation after some time has passed (recall Andy Pettitte’s testimony in the Clemens trial). Do Goodell and Rice still recall, with precision, the words used when they spoke in June?

Hypothetically, if the NFL had the elevator video in April but Goodell testifies the league did not have it, he would not have necessarily committed perjury. It would depend on whether he knew someone at the NFL had the video. Or if Goodell and Rice claim the other is lying about what Rice told Goodell when they met in June, there likely isn’t sufficient evidence to know who is telling the truth.

A more pressing concern for Goodell is to testify in a way that is effective and does further damage his reputation. Goodell has struggled to answer questions from journalists about Rice. It won’t get any easier answering questions from attorneys.

Limited impact of gag order

Jones has informed the parties and their representatives that they are forbidden from publicly commenting on the hearing. The gag order binds not only Rice and Goodell, but also Ravens president Dick Cass and other potential witnesses. Some or all of the statements made in the hearing will become known through the Mueller Report, but that won’t be published for months.

When a judge issues a gag order, it is serious business. Failure to follow a court order can lead to contempt of court criminal charges, among other potential sanctions. But Jones is now a private citizen and has a far more limited arsenal to regulate the public commentary of parties. This is particularly true if those parties leak info to the media, as has happened repeatedly since the Rice scandal broke in February. Jones has no authority to force a journalist to reveal a source and she can’t threaten criminal sanction for violating the gag order.

Still, the parties have at least a good faith obligation to act honorably and to adhere to the gag order. Plus, if names surface as breaking the gag order, Jones would be within her authority to issue a draconian sanction: rule for the other side.

Jones could take days or longer to decide

The Rice hearing is scheduled to last two days. While Jones could issue a swift decision, it is more likely that she will take several days and perhaps more than a week. She will carefully consider the evidence and testimony. She’ll then attempt to craft a well-reasoned opinion that will withstand intense media scrutiny.

Do not expect Jones to be influenced by the schedules of Rice or the NFL. She is surely aware that the NFL season will end in seven weeks. But she won’t rush a decision so that the NFL can put the Rice matter in the rear view mirror as the playoffs approach or so that Rice has enough time to sign with a team. Those are not her concerns. Her objective is to make the right decision and to word it properly.

Jones decision will be extremely difficult to challenge

It is unlikely but possible that the loser of the Rice appeal will challenge Jones’ decision in a federal court. Arbitration decisions are appealable, but only under very limited circumstances will an arbitration award be vacated. The Federal Arbitration Act and other statutes identify several grounds for this to occur, including fraud and the arbitrator exceeding her powers. These grounds are rarely found. Federal judges typically honor parties’ contractual decision to use arbitration in lieu of litigation and they seldom interfere with that choice.

Wild card: a last minute settlement and no hearing

With the hearing set to begin Wednesday, there isn’t much time left for the NFL and Rice to reach a compromise. But in law, any amount of time is enough time for parties to avoid a hearing. The NFL, and particularly Goodell, would seem to have the most to risk by going ahead with the hearing. League officials could be embarrassed as incompetent or dishonest, and their bosses -- NFL owners -- might demand major changes. Is it worth risking that kind of fallout over a player who has now been suspended for most of the season (nine games)? Would it make sense to offer him immediate reinstatement? Or would cutting a deal at this late hour with a player who viciously beat up a woman make the NFL look callous or like it had something to hide -- or someone important to protect?

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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