What the NFL Can Learn from Administrative Law

Problems with off field behavior have long plagued the National Football League (NFL).  A  study of player arrests since 2000 shows 713 reported incidents where players had run ins with the law as reported by the media.  As these incidents have become more high profile, the NFL Commissioner's power over player misconduct has come under scrutiny.  The case involving Minnesota Vikings running back Adrian Peterson was upheld by an arbitrator.  However, other cases involving Greg Hardy,  Tom Brady, and Ray Rice were overturned or penalties reduced in Federal court or by an arbitrator.  While prior to the current Collective Bargaining Agreement (CBA), the Bountygate sanctions (as applied to the players, not the coaches) were overturned.

Recently, in Hewitt v. Kerr, the Missouri Supreme Court questioned the impartiality of an arbitration process where the Commissioner directly appoints the arbitrators.  The Court stated:

"Our recognition of the potential for very real bias is not intended to impugn the integrity of the Commissioner or his appointee. However, the very nature of bias is often subtle and unseen to the person or persons holding such bias. For that reason, it is imperative that an arbitration proceeding be overseen by an arbitrator selected in an objectively impartial and unbiased manner."

Further discussion on Hewitt v. Kerr can be found here. 

The issue here is how can the provisions of the CBA with respect to player misconduct be revised in a way that strengthens the Commissioner's decisions.  The answer can be found in governmental administrative appeals. 

First, the NFL Commissioner has had general authority over player conduct since 1968.   The relevant part of Article 46 of the CBA in effect now is as follows:

Section 1. League Discipline: . . .
(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field . . . or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.

* * *

Section 2. Hearings:
(a) Hearing Officers. For appeals under Section 1(a) above, the Commisioner shall . . . appoint one or more designees to serve as hearing officers. . . . [T]he Com- missioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.

Article 46 vests discretion with the Commissioner who may hand down the sanction before a hearing.  If the decision is appealed, the Commissioner has the discretion to appoint himself as the hearing officer.  The initial decision is being made at the top subject to appeal.  Generally, in the government context (local, state, or federal), the initial decision is made at a lower level, and then appealed to a hearing officer.  Further appeal may be made to the head of the agency, which is then accompanied by an administrative record.  In the Federal context, ultimate appeal of a Final Agency Order is to the Court of Appeals. 

In the case of the NFL, the Commissioner, while the head of the NFL, is making an initial decision to be appealed.  This may lead to scrutiny of the Commissioner's initial order.  The NFL could amend the CBA to allow a player to elect a hearing at the initial stage of the discipline process.  The appeal would then proceed to the Commissioner who would decide it based on the record established at the hearing.  This would provide greater due process and strengthen the Commissioner's role by being the final arbiter. 

To address the bias question posed by the Missouri Supreme Court, arbitrators should not be appointed by the Commissioner.  Rather, they should be permanent employees of the NFL for that sole purpose.  The hiring of hearing officers should be made jointly by the NFL and the NFL Players Association.  Removal could be limited to cause.

These changes will only strengthen the Commissioner's authority as he will be reviewing the appeal.  His authority will not be subject to the perception that it is waning every time he is overturned.  A change in the selection of hearing officers will provide a sense of impartiality.