Newly released video of Ray Rice violently punching his then-fiancée, now wife, Janay Palmer, in an elevator at the Revel Hotel and Casino in Atlantic City on Feb. 15 raises serious legal questions for Rice and the NFL, even in the wake of the Baltimore Ravens' decision to release Rice and the NFL's announcement that Rice will be suspended indefinitely. Earlier this morning TMZ published the video, which provides new and chilling details to the previously circulated video of Rice dragging an unconscious Palmer out of the elevator.
Background on Rice’s criminal matter
In March, a grand jury indicted Rice on third-degree aggravated assault, a felony under New Jersey law that carries a maximum of five years in prison. Rice, who pleaded not guilty, avoided trial and in May was sentenced by New Jersey Superior Court Judge Michael Donio to a pre-intervention program for first-time offenders. The program carries no jail or prison time, but requires Rice to undergo extensive counseling and obligates him to stay out of trouble upon threat of immediate incarceration. While many commentators regarded the penalty as light, especially for such a violent offense, Rice had no prior criminal record and placement in a pre-intervention program is arguably consistent with penalties for most first-time offenders. It is also unclear whether Palmer, who later said she "deeply regretted" her role in the incident, would have been willing to testify against Rice. A victim testifying is not essential to a domestic violence prosecution, particularly one in which a video captured at least part of the incident, but it is advantageous to prosecutors in convincing jurors. Given these issues, acting Atlantic County Prosecutor Jim McClain assured the public that pre-intervention was the correct penalty for Rice. "After considering all relevant information in light of applicable law," McClain said at the time, "it was determined this was the appropriate disposition.”
NFL’s initial response to Ray Rice and rise of the new domestic violence policy
In July, NFL commissioner Roger Goodell suspended Rice for two games, a seemingly modest penalty that sparked widespread outrage. Goodell would later express regret about the penalty and in August announced a tougher domestic violence policy going forward. The new policy imposes a six-game suspension for first-time offenders, and a potential lifetime ban for repeat offenders.
The NFL has not clarified the threshold for what constitutes a domestic violence “offense” under the new policy. Along those lines, it is not clear whether “offense” requires a conviction or guilty plea, or a lesser threshold of an arrest, civil lawsuit or mere accusation. The absence of clarification is not relevant to Rice’s situation, given that he was sentenced, but could be relevant to the situations of other players. This is most immediately apparent with San Francisco 49ers defensive lineman Ray McDonald, who was recently arrested for suspicion of domestic violence, a felony under California law. The charge stems from an alleged incident between McDonald and a woman who is reportedly pregnant. McDonald, who has said “the truth will come out,” awaits punishment from the NFL.
NFL extending Rice’s suspension to “indefinite” is likely lawful under the personal conduct policy so long as the league was not aware of the elevator video
The NFL has broad legal authority to suspend players under the league's personal conduct policy, including the ability to modify penalties. The personal conduct policy does not include a “double jeopardy” provision like one found in the Fifth Amendment, although Article 46 of the NFL's collective bargaining agreement states that neither the NFL nor a team (such as the Ravens) can punish a player twice for the same conduct or act. Whether video of Rice punching a person in an elevator constitutes different "conduct" or "act" from Rice dragging that same person minutes later is debatable. NFL suspensions are not criminal sanctions, moreover, and players cannot claim protection from the Fifth Amendment to avoid NFL penalty. Additionally, players have contractually assented to the NFL’s disciplinary authority through the collective bargaining agreement negotiated by their union, the National Football League Players’ Association.
The NFL's authority to discipline is not boundless. As the NFL has extended Rice’s suspension in light of the new elevator video, a potentially key legal issue will be whether the NFL was aware or should have been aware of the elevator video when it suspended Rice in July. At this time it is unclear whether the NFL's understanding of Rice’s incident exceeded publicly available information. There had been, however, rumors of additional video footage existing and the league implied it knew more information was publicly available. Then again, if the NFL knew of the new -- and violent -- footage back in July, Rice presumably would have received a longer suspension than two games. The fact that the Ravens supported Rice in July but are today cutting him suggests the team, at least, was unaware of the video.The NFL should have also been aware that any additional video would eventually make its way online and potentially worsen the public's already adverse perception of Rice’s conduct.
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If the NFL was already aware of the elevator video and uses the personal conduct policy to justify the indefinite suspension, Rice and the NFLPA could sue the NFL and the Ravens
If the NFL knew of the elevator video when it originally suspended Rice but now uses the video’s public disclosure to justify its harsher suspension on Rice, Rice would surely sue the NFL as acting outside the wide boundaries of the personal conduct policy. While the policy is decidedly broad, it is not limitless, and Rice might contend that an elongated suspension based on information the league already knew constitutes “arbitrary and capricious” decision-making. Rice would assert that it is arbitrary to use old information to justify a new penalty but not take that approach with other players, and it would also be capricious since Goodell would seem unpredictable and erratic. In addition, the NFLPA could file an unfair labor practices charge with the National Labor Relations Board if Goodell imposed a new penalty based on prior information.
Rice might also contemplate legal action against the Ravens for cutting him, but any lawsuit against the team would likely go nowhere. NFL teams can easily cut players for any lawful reason, and cutting a player embroiled in a domestic violence matter is surely a lawful reason. The fact that the Ravens originally supported Rice does not bar the team from changing its mind.
Alternatively, NFL could cite the new domestic violence policy to extend Rice’s suspension
The NFL’s new domestic policy seemed at least partly designed to quiet criticism about Rice’s two-game suspension. If the NFL was not aware of the elevator video when it suspended Rice in July, the league could reason that new video constitutes new information and brings the Rice matter within the scope of the domestic violence policy. Under that interpretation, the NFL could justify its new suspension of Rice as consistent with the domestic violence policy, especially if “indefinite” becomes “six games."
One legal complication for the NFL using the new domestic policy to punish Rice is that the policy was not negotiated through collective bargaining. Instead, Goodell unilaterally imposed the policy, which he outlined in a memo to team owners. The origin of the policy is important as a legal matter because while collectively bargained rules that impact players’ wages, hours and working conditions are exempt from federal antitrust law, those same rules are subject to antitrust law when unilaterally imposed. In theory, Rice or another player disciplined by the league under the new domestic policy could challenge the NFL under antitrust law. The NFL would likely argue the domestic violence policy is a mere extension of the collectively bargained personal conduct policy and even if it is not, it is reasonable under the circumstances. Still, the NFL would prefer not to litigate the policy, and given that Rice was already suspended, his situation would likely not serve as an attractive test case for litigation.
Rice unlikely to face any new criminal charges
It is very difficult to charge someone with a crime if the case has already been tried, even if new and powerful evidence emerges. Rice’s attorney would argue, and almost certainly persuade any court, that Rice is protected from any additional charges under New Jersey law by double jeopardy, which is found in the Fifth Amendment of the U.S. Constitution and which bars prosecutors from retrying someone found not guilty and bars repeat prosecutions for the same underlying conduct. It is plausible that the grand jury and prosecutors have seen the elevator video and perhaps other video, but even if they didn't, Rice's attorney would contend the elevator video pertains to the same underlying conduct for which Rice has already been adjudicated.
Double jeopardy protection from new state charges, however, does not automatically extend to federal charges. Under the doctrine of dual sovereignty, a defendant can be prosecuted for federal charges on the basis of the same alleged conduct that already gave rise to state charges. This doctrine is based on the idea that federal and state governments employ separate bodies of criminal law. Rice’s situation, however, does not seem to present a federal case. The incident occurred in a hotel in New Jersey and does not appear to involve any interstate activity that could give rise to federal charges.
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.