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.
Email him at [email protected], find him on LinkedIn, follow him on Twitter at @IBPA_Basketball, and follow IBPA on Facebook.
12 replies on “Ray Rice And All Other NFL Players Gave Up Their Due Process Rights”
I think the NFLPA was referring to the process rules required by the CBA. I don’t think they were referring to Constitutional due process. More like due process-esque rights guaranteed by the CBA and antitrust and labor law.
This article is a bit of a mess. It makes it sound as if the players lost their “Due Process rights” as a result of signing a collective bargaining agreement. In fact, in the absence of a collective bargaining agreement (or an individual contract stating as much) players are “at will” employees and may be fired for any reason or no reason. No employee of a private sector employer has constitutional due process rights, and the due process rights of even public sector workers are very limited.
I don’t know whether the NFL collective bargaining agreement covering Ray Rice has a clause preventing the Ravens from firing players without “just cause,” although many such agreements do If the NFL agreement does, and if it also includes an arbitration clause, the players association may take the case before a neutral arbitrator if it deems the firing worthy of challenge. That arbitrator may apply a form of industrial (not constitutional) due process. But the main point is, with a CBA and a “just cause” clause the players are much better off than they would be without it. To the extent this article implies otherwise it does its readers a disservice.
You’re absolutely right, Podgorney. Moreover, professional labor arbitrators routinely deal with issues of due process in discipline and discharge cases. Where the employer has violated the employee’s due-process rights, the discipline is generally overturned or reduced, depending on the significance of the violation and the egregiousness of the employee’s proven misconduct. To suggest, as this author does, that it’s some sort of kangaroo court is utter nonsense.
The issue of due process is based on neither public or private reasons. The NFL and the players union have written agreed upon written procedures for handling issues, having hearings and handing out punishments. Which by the way would be similar to a company having an employee’s manual. Once the rules are in writing it is not legally advised to divert from them. An example would be an at will employee being fired for performance without the company giving warnings and having documentation. Which leads me to further opinion, I am fairly sure that the NFL/player’s agreement does not say that after having a hearing and having announced a punishment that the commissioner has arbitrary rights to change his mind and hand out more punishments after the fact in perpetuity without the defense having the opportunity to respond. If so, what length of time after having given a punishment can the commissioner continue to give another punishment. Exactly how many punishments for the same offense is a commissioner allowed to give? How about 12? Maybe 20! And then 10 years after retirement he can the punish the player again with a million dollar fine! Ridiculous! This is the reason why “due process” could be a serious allegation in this case. It could cost the NFL way more than the remaining worth of Rice’s contract. In this case, since the additional punishments came for the same offense, and the reaction was knee jerk by the NFL, I could see a lawsuit for ‘due process’ double jeopardy”, loss income on the contract, plus constitutional violations, not to mention psychological damages. I am thinking there are some back room conversations and deals being discussed before anything is filed in the courts as I believe that Ray Rice wants a second chance and would rather not take that path.
One other thing to note. The NFL first disciplined Mr. Rice by way of a 2-game suspension. Then, the NFL suspended Mr. Rice indefinitely. Under labor law, this would seem to be double jeopardy.
Great post but what consistiutes the difference between public and private?
Congress can’t even do it’s job, how can it do the Commissioner’s? Blumenthal is a proven liar (said he was in Vietnam war and wasn’t). By the time they finish the NFL will be the VA. Goodell made a HUGE mistake bringing the civilian world into the NFL with his new DV directives. The NFL is like the Army Rangers, Delta Force, and the casino industry…they ONLY work 1 way. If you don’t believe me look at “Lone Survivor” (the crazy rules Congress put on the SEALS got them all killed) and Atlantic City (broke due to going against what has worked in the casino industry for 50+ years). Time to do the 1 thing we haven’t done in America in 30 years tell ourselves the TRUTH and do what actually WORKS instead of following the EMASCULATED, EFFEMINIZED culture we have become.
A few FACTS that prove the DV directives cannot work:
-What is CONGRESS’ DISAPROVAL rating? How many CONGRESSMEN have been caught with kids, prostitutes, and stealing?
-Did you know that according to all the data shows that a minimum of 50% of requests for restraining orders are FALSE? (Including judges such as George Steeh III)
-According to a top FEMALE DA in NYC- HALF of all her rape cases are false (see NYPD Commissioner Ray Kelly son’s case)
-GOOGLE Study On WHY Politicians LIE
-Did you know the DV experts Goodell used to draft his new rules and the DV experts commenting on Ray Rice are NOT domestic violence experts?
-The DV INDUSTRY has no intention on ending DV because of all the money made by lawyers, judges, and DV organization heads. (The Violence Against Women’s Center’s director was a cabinet level position n 1994-WHY is it not now? Because CONGRESS spent $1.6 billion to end domestic violence, and instead it went UP…)
The NFL was warned that the new domestic violence (DV) rules would put a bounty on the heads of every player/personnel’s head. The domestic violence (DV) “experts” Commissioner Goodell consulted, are not experts-he got extremely inaccurate information. It was a mistake to invite this cancer (being politically correct/social engineering NOT based on science and fact) into the NFL. Trust me, I am a real expert/university lecturer in the area of DV-it cannot work. The NFL is like the Army Rangers and the casino industry…they only work 1 way, and any attempt to change it will result in a “Lone Survivor” situation/lost wars, and Atlantic City (which went AGAINST what worked for casinos for over 50 years). Goodell should get out of the social engineering business while he still can, and before he ruins the NFL totally. Ray Rice’s punishment was adequate the first time and it worked for all involved. Allowing Congress to get involved in micro managing the NFL will have the NFL looking like the VA. (What is Congress’ disapproval rating?)
I appreciate the comments, both positive and negative. The
point of the above article was to demonstrate that the CBA and the arbitration
procedures provided therein require different process from the criminal justice
due process many of us are accustomed to.
No doubt private employers have a right to take action to
terminate employees for a multitude of reasons without providing a hearing in
front of a neutral magistrate. However, these players are public celebrities
making millions of dollars, and the NFL and its franchises are obviously swayed
by public opinion, i.e., Twitter. Very few other private employees in this
country face the same public scrutiny as professional athletes.
As such, where does the NFL draw the line on punishing
players for private acts that become public? Should any player charged with a
crime be terminated or suspended, e.g., Adrian Peterson? What level of process,
if any, should NFL players have a right to before facing suspension and
termination of their contracts? Should a player be terminated from a contract
if he is acquitted of the crime he is charged with? Is it really possible to
find a neutral arbitrator who is paid for his decision and nominated by a
repeat player in the process like the NFL?
I know, player contracts can be terminated at any time, but to be penalized twice seems wrong. Rice was suspended 2 games, but then after Goodell was made to look like a fool, given an indefinite suspension. That’s my only complaint.
I think that the NFL and the Ravens did what had to be done.
However, I do think that it should have been done right the first time, not
after the video came out. It makes the NFL look bad because they knew the
action of Rice knocking his fiancé out was going to vicious. Anyone who is
knocked out takes a severe blow, and by the NFL only suspending him two games
the first time, it shows that they were trying to cover up some of the story to
make the league look better. This turned out to be a huge PR hit and the league
is still tarnished by these actions and the actions of other players around
this same time. With the NFL suspending Rice indefinitely and the Ravens
cutting him it does make this situation a little bit better. Also, I think the
league and the team can and should be able to punish a player like this. Other
companies can fire employees for posts on the Internet or something they said,
so to think that Ray Rice needs to go through some type of due process is
absurd. Everyone has seen the video and it has caused a lot of turmoil for the
Ravens and the NFL, which is plenty of reason to fire Rice. Along with this, the parties involved must engage in the communities to win back some of the fans that were lost due to
the mishandling of this case. The PR teams have to find positive stories about
the players and employees to put this incident and the incidents of the past
few months behind them.
Having the right to due process taken away by anything in this country seems a bit unconstitutional to me. Contract or no contract, due process is the means of determining a person’s guilt or innocence and to take action without determining this is a bit arbitrary, especially with the technology we have at our fingertips today. The NFL knew about this incident before the public did, and I would guarantee that a part of the NFL’s damage control process is asking the player(s) involved if there is any physical evidence that could potentially surface such as a picture, video, email, etc. For the NFL to basically ignore this information, especially in today’s society, goes to show how naive and nonchalant the NFL, the commissioner, and the Ravens have been throughout this entire ordeal. Rice’s first (and hence only) punishment should have taken all of this into consideration; however, the “authorities” involved chose to spend their time trying to cover up the situation, which ultimately lead to the problems the NFL is currently experiencing.