In a decision that sharply repudiates the NFL’s handling of the Ray Rice matter and raises serious questions about the competency of NFL legal investigations, former U.S. District Judge Barbara Jones has ruled that the NFL wrongly suspended Rice twice for the same misconduct. The 27-year-old Rice, who was released by the Baltimore Ravens in September, is now eligible to sign with any team as a free agent.
Jones: Goodell wrongly punished Rice twice for the same incident
Rice’s central legal argument was relatively simple. He charged that the NFL violated Article 46 of the collective bargaining agreement and specifically the "One Penalty" rule, which forbids double punishment for the same act or conduct. The takeaway from Jones' ruling is that Ray was, in fact, double punished by the NFL.
The double punishment traces back to a meeting between Rice and Goodell in June. In that meeting they discussed an incident from Feb. 15, when Rice was arrested for assaulting his then-fiancée (now wife), Janay Palmer, inside the Revel Hotel and Casino in Atlantic City, N.J, and the aftermath of that incident. A video of Rice dragging Palmer into a hotel hallway attracted national headlines on Feb. 19. In May, New Jersey Superior Court Judge Michael Donio sentenced Rice to a pre-intervention program that carried no jail time. In July, Goodell suspended Rice for two games. In September, Goodell suspended Rice again, this time indefinitely, after TMZ.com published a video of Rice punching Palmer in the hotel elevator. Goodell then conducted media interviews in which he claimed neither he nor anyone at the NFL knew about the elevator incident. Representatives for Rice argued that Goodell was lying and that Rice distinctly told Goodell about the elevator incident. The Associated Press also reported that the NFL was in possession of the elevator video as early as April.
In her decision, Jones concluded that Rice’s second suspension was "based on the same incident and the same known facts about the incident, and [thus] was arbitrary." She reached this position because she believed Rice and she apparently did not believe Goodell. Rice testified that he clearly told Goodell in their June 16 meeting about the elevator incident. The commissioner testified -- unpersuasively -- that Rice did not adequately explain what took place in the elevator.
Jones' decision also raised questions about the NFL's system of justice in regards to Rice. She repeatedly wondered why the NFL would not request the elevator video when it knew of its existence. Goodell could have demanded the elevator video from Rice prior to issuing the first suspension in July. If Rice refused to turn it over, Goodell could have imposed a longer suspension or even an indefinite suspension until Rice complied. Goodell and other NFL officials who testified failed to provide Jones with a sufficient explanation as to why the NFL never sought the elevator video.
Serious defeat for Goodell as the NFL’s so-called "judge, jury and executioner"
Jones went beyond siding with Rice. She also bluntly criticized Goodell in how the NFL imposes discipline for domestic violence offenses. Most notably, Jones stressed, "The Commissioner needed to be fair and consistent in his imposition of discipline" but was instead "arbitrary." Describing the commissioner as “arbitrary” is a damning critique because it suggests Goodell operated without any rational rhyme or reason and in violation of the NFL’s own rules. Along those lines, Jones highlighted how the NFL's longest suspension for domestic violence until Rice was only two games, yet Rice served a suspension that now totals 11 games. Jones also lambasted the league for a failure to appropriately sanction players for domestic violence.
One of the defining hallmarks of Goodell’s tenure as NFL commissioner has been the personal conduct policy, which essentially lets Goodell determine what type of player misconduct warrants a suspension and the length of any suspension. It also gives Goodell exclusive hearing authority over any appeal. This all-encompassing power would be difficult for any one person, perhaps especially for someone without any legal training (Goodell, unlike NBA commissioner Adam Silver, NHL commissioner Gary Bettman and soon-to-be MLB commissioner Rob Manfred, is not an attorney). Goodell has already signaled a willingness to shrink this authority. He allowed Jones to hear Rice’s appeal and has appointed former NFL executive Harold Henderson to hear Adrian Peterson’s forthcoming appeal. An advisory committee is also studying changes to the NFL personal conduct policy, which was the subject of a recent meeting between Goodell and NFLPA executive director DeMaurice Smith. Jones’ disapproving remarks in her decision will likely accelerate changes to the personal conduct policy.
NFL took a chance by not settling with Rice, and it backfired
By the time Jones heard Rice’s appeal on Nov. 5, Rice had already been suspended nine games, which is roughly 56 percent of the regular season. We do not know if the NFL made a settlement offer to Rice prior to the hearing or if Rice would have agreed to one, but parties in a dispute usually have serious settlement talks before a hearing. If, hypothetically, the NFL had agreed to reinstate Rice prior to the Nov. 5 hearing, Rice would still have faced a long suspension and the league would have avoided the risk of an embarrassing defeat. While there is no guarantee Rice would have taken such an offer, reinstatement on Nov. 5 would have improved his chances to obtain his primary goal: an opportunity to play in the NFL this season. If the NFL was unwilling to reduce the suspension to time served, the league still could have offered Rice a settlement in which he would be reinstated after his suspension reached 10 games or a similar amount.
Hindsight is 20/20, and Rice may have wanted a hearing regardless of any NFL settlement offer. Rice clearly believed that Goodell lied and may have been determined to expose Goodell as a liar. But if there was an opportunity to find common ground with Rice prior to the hearing, the NFL likely now regrets not finding it. While Jones carefully avoided saying that Goodell lied, it is difficult to read her decision without concluding that Goodell either lied or was incompetent at least in regards to Rice. The NFL also saw Goodell struggle to answer questions about the Rice matter in a press conference on Sept. 19. If he couldn’t ably handle questions from journalists while not under oath, how would he respond to questions from attorneys while under oath? The answer to that question was as obvious then as it is now.
To be sure, a settlement with Rice would have been controversial for the NFL, especially since some would have concluded the NFL had something to hide. But a settlement would have avoided the hearing before Jones. It would have also avoided Goodell giving testimony and the undermining ruling by Jones against the NFL and its system of justice.
NFL can appeal but would face long odds
The NFL has a right to appeal Jones’ decision to federal court, but the league may decline that right. The Federal Arbitration Act provides that arbitration awards are to be accorded high deference by federal courts. The basic logic of this deference is that if parties choose to use arbitration to resolve their disputes, courts should respect that choice and not interfere. There are very few grounds that would justify a federal court vacating Jones’ decision. Those grounds include a finding of fraud and evidence of Jones misunderstanding basic concepts of law or exceeding her powers as an arbitrator. Jones is a former federal judge and a highly respected attorney. The odds that a federal court would find sufficient error in her work as an arbitrator are profoundly low.
The NFL must also worry about additional media backlash if it unsuccessfully petitions for an appeal. The NFL has lost the Ray Rice matter. To lose a second time sometime in the weeks or months ahead would bring attention back to how the NFL mishandled Rice’s suspension. Strategically, in my opinion, the NFL should honor Jones’ decision rather than fight it, and work towards fixing the problems that led to Jones siding with Rice. In a statement Friday night, the NFL signaled it intends to honor Jones' decision, which suggests the league will not appeal it.
Could Goodell have committed perjury?
Jones’ decision indicates that she believed Rice over Goodell, but that does not mean that Goodell committed perjury. First, at no point does Jones write that Goodell lied, only that she found Rice sufficiently believable to rule in his favor. This distinction may seem like a parsing of words, but it has legal significance: Jones avoided a description of Goodell that could attract the attention of prosecutors.
Second, perjury is very hard to prove. It requires a finding beyond a reasonable doubt that the defendant knowingly lied while under oath. This means that if Goodell believed he was telling the truth but was mistaken, he did not commit perjury. If Goodell, as Roger Clemens would say, "misremembered" what was said in his June meeting with Rice, he did not commit perjury. If Goodell somehow misunderstood a question asked to him during the Rice hearing, he did not commit perjury.
If no NFL team signs Ray Rice, could he have a collusion case against the NFL?
Rice is eligible to sign with any team, but what happens if no team signs him? At least in theory, Rice could refer to Article 17 of the CBA. Article 17 is the league’s anti-collusion policy, and it bars teams from coordinating to deprive a player of his collectively bargained rights. Rice would need more than suspicion that teams have agreed to not sign him. He would need actual proof, such as emails or notes, to corroborate such a claim. Keep in mind, if each NFL team independently concludes that it does not want Rice, there is no collusion. Collusion requires coordinated activity by two or more teams or by the NFL and its teams. Put differently, Rice has no inherent "legal right" to be signed by an NFL team. Given the controversy surrounding Rice, and given his disappointing 2013 season, when he averaged 3.6 yards per carry, there are multiple reasons teams would not want to sign him.
Does this decision help Rice in his wrongful termination grievance against the Ravens?
Regardless of whether Rice signs with another NFL team, he may still recover damages from the Ravens. In a separate grievance, Rice contends that the Ravens wrongly terminated his $35 million contract. Rice has an uphill legal fight on that front since NFL teams have broad legal discretion in releasing players. Video evidence of Rice hitting Janay Palmer and the accompanying public controversy likely provide sufficient justification for the Ravens. Still, Rice will stress that the Ravens stood by him until the NFL suspended him a second time. Along those lines, he'll maintain that the NFL's failure to properly investigate him made it impossible for him to receive a fair shake from the Ravens. Jones' decision and sharp critique of the NFL will only help Rice in that regard.
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.