The biggest matchup in football this week might be taking place in a New York City law office. That's where an independent arbitrator will listen to Ray Rice appeal his indefinite suspension and the NFL argue the punishment is merited
In the most anticipated battle of Courtroom Football since the legal skirmishes of the 2011 lockout, Ray Rice will have his days in court this week as he appeals the NFL's decision to suspend him indefinitely. The “court” will be a conference room in the law offices of former federal judge Barbara Jones, the independent arbitrator jointly selected to hear the case by the NFL (Commissioner Roger Goodell wisely chose to cede his authority to preside over this case) and NFLPA. Let’s look behind the curtain at what is happening in that room.
The appeal is scheduled for Wednesday and Thursday at the law offices of Zuckerman Spaeder LLP—where Judge Jones currently practices law—in New York City. While two days is the reserved time frame, there is always the possibility of the appeal ending sooner or lasting longer depending on how the case proceeds.
Rice’s lead counsel will be Peter Ginsberg, an experienced lawyer with history in advocating against NFL discipline, most notably his representation of Saints’ players in the bounty disputes in 2012. Assisting Ginsberg will be longtime NFLPA outside counsel Jeffrey Kessler, as strident a labor lawyer as sports law has seen, and NFLPA counsel, including executive director (and attorney) DeMaurice Smith. Player advocates appear to be getting in line to question Goodell and others.
The NFL’s lead counsel will be Dan Nash, a longtime labor law advocate for the NFL from the Akin Gump firm. Senior NFL attorneys Jeffrey Pash and Adolpho Birch are certainly expected to be attend but, having been part of the initial disciplinary process with Rice, will be potential witnesses more than advocates.
Rice is requesting that Judge Jones lift his indefinite suspension—a penalty enhanced from an initial two-game suspension—allowing an immediate return to the NFL should a team want to sign him. Rice has a separate grievance pending against the Ravens alleging wrongful termination and back pay.
Article 46 of the Collective Bargaining Agreement gives arbitrators great latitude to conduct hearings. While they are generally more informal than court sessions, I would expect this case to closely mimic an official court proceeding with witnesses sworn in, objections heard and ruled on, etc. Judge Jones is known as a “by-the-book” judge and will operate her conference room more like a courtroom than an arbitration. In this regard, although she cannot “compel” parties to testify (there were mischaracterized reports of Goodell being “compelled” to testify) she has made it clear that all the parties who were present at the June 16 Rice disciplinary hearing should be available to testify. Judge Jones granted this NFLPA request—while denying other discovery requests—last week.
The crux of the case is this: Does Rice’s indefinite suspension amount to the collective bargaining version of double jeopardy? Rice’s team will argue the indefinite suspension was based on the same set of facts and circumstances—uncovered during a five-month investigation—the NFL imposed a two-game suspension. The NFL will counter that a change in circumstances—arising out of the explosive video released by TMZ on Sept. 8—called for enhanced discipline.
I would expect Rice, now adverse to both the NFL and the Ravens, to vigorously claim he gave a full and complete accounting of the February incident to the NFL (and the Ravens) at the June 16 hearing. Specific attention will be given to words used, such as “punched," “hit," “slapped," “open hand," etc. The NFL must clearly explain that new information led to the upgraded suspension, which, by necessity, will take aim at Rice’s integrity. They will need to show that Rice was not ambiguous—as Goodell has previously stated—but rather that Rice and his wife played the NFL and the Ravens with a fabricated story.
Beyond pointing out Rice’s deceit, the NFL will argue points grounded in labor law, namely that (1) Goodell has an established and collectively bargained right to apply personal conduct discipline as he sees fit, and (2) appeal hearing officers, unless they see an egregious misuse of power, defer to the initial hearing officers, in this case Goodell.
There is always the prospect of a negotiated settlement prior, during or after the hearing. Chances for settlement are remote, but that can quickly change when each side gets a peek at the other’s evidence.
As for their failure to obtain the video, the NFL likely will point to illegalities of obtaining such a tape and the fact that they would not do whatever TMZ did to acquire such evidence. This testimony would appeal to Judge Jones to put herself in her prior role as a former prosecutor. To counter this, Rice’s team will point to comments from Ravens owner Steve Bisciotti, who said he could have obtained the damning video, presumably from Rice’s criminal lawyer. It is here that Ginsberg, who has viewed the might of the league’s investigative reach up close in the bounty case, will shine the spotlight on NFL security.
The other primary basis for the appeal from Rice’s team is the argument that Rice’s punishment far exceeded any established precedent from Goodell for similar misconduct.
Rice’s team will point to past precedents with domestic violence cases during Goodell’s tenure, including:
- Brandon Marshall: three-game suspension (after multiple incidents), reduced to one game on appeal.
- Fabian Washington, Michael Boley, Tony McDaniel, Leroy Hill, and Erik Walden: one-game suspension.
- Shawne Merriman, Jermaine Phillips, Dez Bryant, Chad Johnson, Phillip Merling, Will Smith, William Moore, Al Jefferson Chris Cook, Daryl Washington, Greg Hardy, Bryan Thomas: no suspensions. (Note: Cook was suspended two games by the Vikings, Washington was later suspended pursuant to the NFL drug policy, and Thomas entered a pre-trial intervention program.)
In establishing this record, Rice’s lawyers hope to prove the indefinite suspension to be an impulsive, knee-jerk reaction to the release of the video. Bisciotti’s comments may come into play again, as he revealed his expectations for league discipline to be a two-game suspension. Rice’s lawyers will parse conversations between Bisciotti and the NFL and argue that discipline should be based on evidence and precedent, not public relations campaigns.
The NFL will counter with two arguments: (1) there is no similar case involving the contents of what was on that videotape, making precedent of little value here, and (2) Goodell has publicly admitted that the domestic violence penalties were not up to standard and needed enhancement, which he's already done.
Both sides expect Judge Jones to rule relatively quickly, although judges’ calendars do not move in football speed. Rice’s lawyers will certainly try to impress upon Judge Jones that Rice is unable to pursue employment and time is of the essence. I would expect a ruling within two weeks.
Of course, there is always the prospect of a negotiated settlement prior, during or after the hearing. The posturing—particularly from Rice’s camp—suggests that chances for settlement are remote, but that can quickly change when each side gets a peek at the other’s evidence.
Absent settlement, what will the ruling be? It is always hard to read the tea leaves, but my sense is the NFL must clearly present a marked differentiation from what they were presented in the June 16 hearing and the contents of the TMZ video. Up until this point, Goodell’s reasoning has been guarded, unrevealing and evasive. Absent cogent evidence as to how the NFL was misled by Rice—which the NFL may well have—I would slightly favor Rice's team in this week’s game in front of Judge Jones.
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