By Charles Bennett, J.D.
Ray Rice is not guaranteed Due Process of law with respect to the termination of his NFL contract. Earlier this week the Baltimore Ravens terminated Ray Rice’s contract after a video surfaced apparently showing him hitting his then-fiancée. The NFL quickly responded by indefinitely suspending Rice.
All of this came shortly after commissioner Roger Goodell announced a new policy to strengthen domestic violence penalties against players. The NFL Players Association objected to the stricter penalties on the grounds that they denied players Due Process of law. While the NFLPA is free to demand rules that protect the Due Process rights of NFL players, the players have already given up many of their Due Process rights in their contracts.
Every NFL player, including Ray Rice, signs a contract with the league that includes an arbitration provision. The arbitration provision prevents players from filing lawsuits against the NFL or NFL franchises for disputes arising from their contracts. Instead, the players’ contracts and the NFL’s Collective Bargaining Agreement require the players to participate in an arbitration proceeding to resolve their disputes. The NBA and MLB have similar arbitration provisions in their contracts and CBAs. The arbitration provision agreed to by the players gives up many of their Due Process rights with respect to disputes over their contracts––including termination.
Constitutional Due Process protections do not extend to private conduct. Since the late 1800’s, in a line of cases called the Civil Rights Cases, the US Supreme Court has held that the Due Process requirements of the Fifth and Fourteenth amendments offer no shield against private conduct. The question is whether the conduct in question is “fairly attributable” to the state.
There is no doubt that the NFL and its franchises are private entities and not affiliated with any government. Any action taken by the NFL or its franchises is likely not “fairly attributable” to any state. This even applies to the arbitrations the players have elected to use to resolve their disputes.
Numerous courts around the country have repeatedly held that the no state action is involved in private arbitration. Arbitration between private entities, including between an employer and its employees, is conducted pursuant to contract by a private arbitrator. And even though Congress, in the exercise of its commerce power, provides some governmental regulation of private arbitration agreements via the Federal Arbitration Act, courts have repeatedly held that private arbitration proceedings do not meet the state action requisite for a constitutional Due Process claim.
All of this means that, even though Rice has not been convicted of domestic violence for his apparent actions against his then-fiancée, the Ravens may terminate Rice’s contract and the NFL may suspend Rice indefinitely without providing him Due Process of law.
Charles Bennett is the CEO and Executive Director of the IBPA and currently clerks at BFSN Law while awaiting his results from taking the Texas Bar in July 2014. Mr. Bennett played professional basketball in Europe from 2001–2008 and graduated cum laude from SMU Dedman School of Law in May 2014.