Negotiating Punishment in the NFL and the NBA

Posted on Categories Legal Scholarship, Sports & Law

Every few months, there is a new media feeding frenzy surrounding a star athlete for something he has done or said off the playing field.  The allegations of sexual assault against Ben Roethlisberger provide just one recent example.  Although off-the-field misconduct may sometimes result in serious legal liability (see Plaxico Burress), the most damaging sanctions are often those imposed by a league commissioner.  For instance, in a world of multimillion-dollar sports contracts, a suspension for even a few games (like Roethlisberger’s) can be extraordinarily expensive.  Yet, such sanctions are typically imposed under vaguely worded league rules and without much by way of formal procedural protections.

For these reasons, Matt Parlow wonders in an interesting new article whether the player unions will make an issue of the commissioners’ authority to punish in the impending renegotiation of collective bargaining agreements in the NFL and the NBA.  Whether or not they do, Matt makes a good case that the unions should pay close attention to this issue. 

The article, entitled “Professional Sports League Commissioners’ Authority and Collective Bargaining,” appeared at 11 Tex. Rev. Entertainment & Sports L. 179 (2010).  It is available here on SSRN.  The abstract appears after the jump. 

With the National Basketball Association (NBA) and National Football League (NFL) collective bargaining agreements set to expire within the next two years, many experts are already predicting what changes may be made to both leagues’ governing labor documents. One likely point of contention between the owners and the players’ unions — though rarely discussed in the experts’ predictive discourse — is the power of the respective league commissioners to punish or discipline wayward players for misbehavior committed off of the court or field. This article will analyze this area of sports law by exploring this power of each league’s sports commissioner, as well as its place and significance in collective bargaining.

This article will begin in Part II by giving a brief overview of the rise in commissioner discipline for players’ misbehavior committed off of the court or field and why commissioners punish in this manner. Parts II and III will track and situate the source of the commissioners’ power to discipline for such reasons — namely, in the leagues’ respective collective bargaining agreements. Part IV will describe how courts and arbitrators have treated commissioners’ decisions to punish players for their actions off of the court or field, and posit why such treatment is a concern for the labor unions representing professional athletes in these two leagues. Part IV will then give an overview of the collective bargaining process and the effect it has on this power of each league commissioner. Part IV will also explore why the players’ unions will likely make this power of the league commissioner a provision of the collective bargaining agreement that will be negotiated over, unlike in years past. Finally, Part V will provide some concluding insights.

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