On Wednesday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player never charged or convicted of any crime to be suspended under the NFL Personal Conduct Policy. According to Commissioner Roger Goodell, the decision to suspend Roethlisberger was the result of “some bad decisions” that Roethlisberger made in recent weeks, which emerged during the Georgia police’s investigation of him for sexual assault.
Allegations of sexual assault are not to be taken lightly. However, not all such allegations are true. See, e.g., the Duke Lacrosse scandal. And whether Roger Goodell even has the power to suspend a player where no criminal wrongdoing is found is questionable. The issue depends entirely upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement…
For starters, while Commissioner Goodell claims to have the power to suspend Roethlisberger under the NFL Personal Conduct Policy, whether the NFL Personal Conduct Policy is even part of the NFL Collective Bargaining Agreement (“CBA”) is not entirely clear. NFL club-owners announced the league’s current Personal Conduct Policy on April 10, 2007, which postdates the most recent CBA. While the NFL Personal Conduct Policy was informally approved by a group of NFL players, the NFL Personal Conduct Policy was never written and signed into the CBA (at least not according to publicly available information). This may present a problem for Commissioner Goodell’s enforcement of the NFL Personal Conduct Policy because Article LV, Section 19 of the NFL CBA states that “[n]one of the Articles of this Agreement may be changed, altered, or amended other than by a signed written agreement.”
Even assuming the NFL Personal Conduct Policy is not part of the NFL Collective Bargaining Agreement, Commissioner Goodell could still argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for “being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football.” Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not clear that Ben Roethlisberger has done anything “detrimental to the League or professional football” (most of this conduct relates to gambling or using/distributing drugs), nor is it clear that he is in any way “guilty” as the term may be defined by that paragraph.
Finally, it is worth noting that Paragraph 11 of the NFL Player Contract grants individual club owners the power to terminate any player contract if that player “is engaged in personal conduct, reasonably judged by [the club] to adversely affect or reflect on [the club].” This clause seems to be far broader than Paragraph 15 of the NFL Player Contract and may present grounds for the Steelers to terminate Roethlisberger’s contract. However, this clause extends only to a player’s team, and not to the Commissioner, who is acting on behalf of the league overall.
Thus, Ben Roethlisberger may have strong grounds to challenge Commissioner Goodell’s suspension in court (after a bizarre, required appeal to the Commissioner himself), either by alleging his suspension is arbitrary and capricious in light of the collective bargaining agreement, or arguing that the suspension is an illegal group boycott of his services under Section 1 of the Sherman Act (a claim that is far stronger in some circuits than others).
Marc Edelman, Above the Law’s sports columnist, is an Assistant Professor at Barry University’s Dwayne O. Andreas School of Law, where he teaches in the areas of contracts, property, antitrust and sports law. His full collection of law review articles is available here.