Law And Order…

Before launching into today’s rant, let me offer a welcome to Wichita St and Florida Gulf Coast as they make it into the Field of 64 for March Madness. The bar for success for these teams has been set rather high. VCU was a play-in winner and made it to the Final Four. Good luck to both schools…

Reports yesterday said that the NFL and the NFLPA were talking about changing the role of Roger Goodell when it comes to discipline. Goodell has said that he would welcome changes there and according to reports yesterday there may be some movement toward that end. Obviously, that has engendered discussion and I think this is an opportunity to stand back and look at this issue broadly.

Tony Kornheiser – with whom I agree more often than I disagree – said on Pardon the Interruption yesterday that “disciplinary functions” were part and parcel of being “Commissioner”. I think that was the case in the past but that it is no longer the case. The whole concept of a “Commissioner” came out of the Black Sox Scandal in 1919 and gave MLB Judge Landis as the “Overlord of the Sport”. In the early 1920s, that was probably a good idea because it was a necessary idea. Baseball was in a situation where the viability of the enterprise itself was in jeopardy; the sport – which was a business then just as much as it is a business today – needed a no-nonsense figure in charge of its rectitude. Judge Landis was then in a very different situation than Roger Goodell is today – or Rob Manfred or Adam Silver, or Gary Bettman is.

I believe the disciplinary function today needs to be seen as a two-part problem. Back in September 2014, I wrote that Roger Goodell was in a very difficult situation as the NFL’s de facto disciplinarian. Now that there is potentially serious consideration being given to making a change there, let me offer some broader perspective on the subject.

I will use Roger Goodell as my example here but I think that everything I suggest with regard to the NFL and the NFLPA would translate for the most part to the other sports. First, I would separate “Disciplinary Situations” into three categories:

Discipline Category #1 – Existential Threats to the Sport: For this category, the Commissioner has to be the one to make the call. If a player or coach is found to be gambling on games that he participates in, that person has to be banned from the sport permanently; that has to be the Commissioner’s call. If an owner is found to be tampering with players on other teams, that owner needs to be disciplined; that has to be the Commissioner’s call – even though it means he will have to discipline one of his employers.
Shades of Grey: What about a situation where someone does something that could well damage the sport – say reduce revenues by 30% – but would not “kill the sport”? I recognize there is a lot of wiggle-room here but I would tend to put this sort of necessary disciplinary judgment in the hands of the Commissioner also.

Discipline Category #2 – On-field/In-game Discipline: For this category, I think the current system works satisfactorily because there have been a priori negotiations to frame the scope of the punishments handed down. However, if the idea is to look at the problem from afar to design a better mousetrap, “satisfactorily” is not good enough. Moreover, the current system which allows and justifies the situation whereby Roger Goodell hands down the disciplinary decision and then he is the unilateral arbiter of any appeal filed on behalf of the offending party is beyond tolerable. As I suggested back in September 2014, these decisions should be handed down by a small entity set up and funded jointly by the NFL and the NFLPA. That entity would not be “beholden” to either side; the people in charge would have to be acceptable to both sides; with nothing else to do, that entity can gather information and hand down decisions efficiently – and hopefully effectively too.

Discipline Category #3 – Violations of Law/Anti-social behaviors: This is where it gets sticky… Let me use the infamous “Ray Rice Incident” as an example here. What Ray Rice did was inexcusably wrong under any circumstance short of self-defense where he was in fear for his life. I have no interest in “re-litigating” that event. However, what he did was not an “existential threat” to the NFL nor was it any sort of action that had any effect on the field of play. The judicial system of the United States is the place for punishment/exoneration to be determined and not the NFL or the NFLPA. The problem here is that such behavior does generate a negative image for the league and that does – potentially – affect the bottom line. Ergo… I would put this category in the basket of responsibilities of my suggested neutral entity – although I am sure that any people who might work there in the future would probably wish it were somewhere else.

So, how might disciplinary matters be handled in the future? Consider the sorts of common “infractions” and where they fall in my categories:

Failing a PED test: That is Category #2. Players who use drugs previously determined to be PEDs are affecting on-field games. That means the Commissioner does not make the call here.

Failing a “recreational drug” test: That is Category #3. Unless the failed drug test was administered – and analyzed – five minutes before kickoff of a game, this is a matter for law enforcement and not the league or the union. It does not affect the game on the field.

After-the-fact “personal fouls”: That is Category #2. When the Commissioner fines a player $25,000 for a blow to the head – or in the case of Vontaze Burfict also adds a suspension on top of that – that should be handled by the neutral entity.

DUI/Domestic violence/etc.: These are clearly Category #3. The challenge here is for the neutral entity to find ways to bring these matters to closure in a time-frame that is shorter than the one typically found in the judicial process. Whether or not one agrees with the lengthy suspension for Adrian Peterson, it would not have been a “good look” for the league to have him on the field for an entire season while the legal process made its way through the legal system. As I said above, this category can get very sticky and it will require serious negotiation by both the NFL and the NFLPA to come up with boundary conditions within which the neutral entity can operate in situations such as these.

The Framers of the US Constitution as a whole constituted a body of men with a degree of wisdom and foresight that would certainly be the equal of any group assembled to negotiate these changes. I mention that because even the Framers of the US Constitution recognized the need to be able to adapt to change in the future and included the mechanism to amend the Constitution. Likewise, if the NFL and the NFLPA come up with some version of what I call the “neutral entity” here, they also need to create ways to amend what it does and how it does the job. Since CBAs tend to be 5 years or more in duration, it is insufficient to say that the changes will come as part of those periodic negotiations. My suggestion would be for the three parties – the NFL, the NFLPA and the “neutral entity” to meet annually to consider changes in the processes and that any of the three parties should be free to offer suggested changes at such convocations.

Before I wrap up today, let me mention some significant discipline problems that are ongoing in another sport – tennis. It was not all that long ago when police in Europe charged gamblers with fixing tennis matches; one of the pros said proximal to the Australian Open that he had once been offered a hundred thousand dollars to tank a match; more recently, Maria Sharapova failed a drug test – for a PED – and said that what she was taking was under a doctor’s prescription and that she had been taking it for about the last 10 years.

[Aside: If she had been taking it for 10 years before she failed a drug test, may I suggest that the tennis mavens change either the “randomness” of their sampling or the testing lab they employ…]

These incidents are “existential threats” to the sport. If tennis were anything more than a niche sport in the US, this would be a big deal as sponsors reacted to the barrage of bad news. This is not such a big deal in the news cycle simply because most people do not care enough about tennis at this time to do more than shrug their shoulders and turn the page to something more interesting to them.

The message for leagues, players and unions that represent players is that the bigger the sport gets economically, the more stringent the disciplinary boundaries need be drawn and the more severe the penalties for going over the boundary lines. The reason is simple; there is more at stake. If the NFL and the NFLPA find a way to break the logjam here and come up with some significantly different ways to investigate infractions and hand down discipline, it could be the model for every other major sport.

Finally, since I have been talking about the NFL and “disciplinary matters” today, here is an item from Gregg Drinnan recently in his blog, Keeping Score:

“The Cleveland Browns released quarterback Johnny Manziel last week, after just two seasons. Still, Bud Shaw of the Cleveland Plain Dealer won’t refer to Manziel as the Edsel of NFL draft picks. As Shaw points out: ‘Let’s be fair. The Edsel lasted three years.’”

But don’t get me wrong, I love sports………