Off-court misbehavior: sports leagues and private punishment.

• Author: Kim, Janine Young
• Position: Symposium: Essays on the Intersection of Professional Sports and the Criminal Law

1. INTRODUCTION

   Hardly a day goes by without news of misbehavior by a professional athlete. In the month of February 2009, for example, the media reported such misbehavior on at least twenty-two out of twenty-eight days. (1) Often, such misconduct involves criminal behavior by an athlete that occurs off the athletic field or court. (2) Some have suggested that professional athletes are particularly prone to criminal behavior. (3) Others have countered that this is merely a perception created by greater media scrutiny of professional athletes. (4)

   Whether such criminality is perceived or real, sports leagues have begun to take a firmer stand on disciplining athletes for their transgressions. Commissioners of these leagues are imposing harsher and more frequent penalties when athletes commit criminal acts. (5) This trend raises interesting questions regarding the authority of professional sports leagues to punish athletes for such misbehavior. Leagues' exercise of punitive authority over public, criminal acts by individuals also calls for a theoretical analysis that explores the relationship between private and public criminal law in the sports law context.

   Part II of this Essay begins this analysis by describing the power of professional sports leagues, and, in particular, the commissioners of those leagues, to discipline their athletes for criminal acts committed off the court or field. In addition, this Part analyzes courts' and arbitrators' treatment of these private acts of punishment. Part III explores the reasons why professional sports leagues discipline their athletes for such misbehavior. Part IV traces the rise of private punishment, as distinct from public law punishment. Part V grapples with the question of whether a professional sports league's discipline of its athletes for off-the-court or off-the-field criminal acts should be construed as public or private punishment, especially in light of the reasons discussed in Part III. Finally, this Essay concludes by reflecting on the significance of this recent development in sports and criminal law.

2. AUTHORITY AND PROCEDURE

   1. SOURCES OF POWER

      The power of professional sports leagues to discipline athletes for criminal activity off the court or field is relatively clear and settled, yet highly controversial. Across the four main professional sports leagues, (6) "commissioners and/or presidents of the various professional sports leagues notoriously possess dominant powers in governing league matters." (7) In these sports leagues, the commissioners' powers derive, in part, from league constitutions and bylaws. (8) These general powers include the authority to punish athletes for criminal acts committed outside the scope of play. In particular, constitutions, bylaws, and collective bargaining agreements of the major sports leagues contain provisions granting commissioners the authority to discipline players for acts deemed not in the "best interest" of the sport. (9)

      The "best interest" clause developed in Major League Baseball (MLB) in response to the Chicago Black Sox scandal during the 1919 World Series, where gamblers bribed players to throw the coveted baseball championship. (10) After the scandal, MLB consolidated power in a newly created Commissioner (11) and appointed Judge Kenesaw Mountain Landis as its first Commissioner. (12) Among the powers of the new Commissioner was the authority "to impose punishment and pursue legal remedies for any conduct ... that [the Commissioner] determined to be detrimental to the best interests of the game...." (13) The MLB Commissioner's broad authority was reinforced in Milwaukee American Ass 'n v. Landis, (14) where the court acknowledged that "the commissioner is given almost unlimited discretion in the determination of whether or not a certain state of facts creates a situation detrimental to the national game of baseball." (15)

      Other professional sports leagues later adopted similar provisions in their respective constitutions and bylaws. The commissioner's power under such a clause varies a bit from league to league, but it is similar in nature, particularly in how it generally grants indeterminate discretion to the commissioner in considering and meting out such discipline. (16) This seemingly boundless discretion, which is further discussed below with regard to arbitration and judicial review, has been the source of much controversy and criticism. (17) It is worth noting that the scope of the commissioner's best interest powers may be limited by the particular league' s collective bargaining agreement. (18)

      Two additional sources provide commissioners with the power to discipline athletes for misbehavior: (19) individual player contracts and the collective bargaining agreements of each league. (20) For example, the standard NBA player's contract contains a "good moral character" clause. (21) This clause allows a team to terminate a player's contract if the player's conduct and actions do not comport with standards of good morals and citizenship. (22) However, the NBA Commissioner has also used this clause to impose punishment for player transgressions. (23) In addition, through collective bargaining, some professional sports leagues have adopted more specific provisions covering their commissioners' authority to discipline players for acts committed outside the course of play. While MLB and the NBA have not adopted such policies, the NFL and NHL have done so. (24)

      In 2007, the NFL implemented its new Personal Conduct Policy (NFL PCP). (25) The NFL PCP requires that "[a]ll persons associated with the NFL," including the players, "avoid 'conduct detrimental to the integrity of and public confidence in the National Football League.'" (26) An athlete can be punished for such detrimental conduct, even if his actions do not result in a criminal conviction. (27) This approach is in stark contrast to the NFL's previous conduct policy, which required the NFL Commissioner to withhold punishment of an athlete unless there was a conviction or some form of plea by the athlete. (28)

      With the new NFL PCP in place, the Commissioner may discipline the athlete at any time--once the league has conducted an investigation--so long as he satisfies a proportionality requirement: "The specifics of the disciplinary response will be based on the nature of the incident, the actual or threatened risk to the participant and others, any prior or additional misconduct (whether or not criminal charges were filed), and other relevant factors." (29) Such discipline may include probation, fines, suspension, or even banishment from the league. (30) In addition, the Commissioner may, separate and apart from any punishment he imposes, require the misbehaving athlete to participate in counseling and other education programs. (31) However, the athlete does have the right to appeal any discipline imposed by the Commissioner through Article XI of the collective bargaining agreement and the NFL Constitution and Bylaws. (32)

      The NHL has also adopted a similar type of policy in its Behavioral Health Program (BHP). (33) This policy allows the NHL Commissioner to require a player to attend counseling sessions if he has a history of criminal behavior. (34) Interestingly, the Commissioner not only has sole discretion in deciding whether to require such counseling, but his decision is not reviewable by an arbitrator, as is the case with other NHL disciplinary decisions. (35) The BHP has four stages. In the first stage, the player attends counseling, but is not subject to any other penalty. (36) In the second stage, the player continues treatment, but the NHL can suspend the player without pay. (37) In the third stage, the NHL automatically suspends the player for six months. (38) In the final stage, the NHL suspends the player without pay for one year with no guarantee of reinstatement. (39)

      Once an athlete is disciplined in one of the main professional sports leagues, the athlete can appeal the decision--depending on the league--to a neutral arbitrator, to the commissioner, or to the judicial system after these administrative appeals have been exhausted. (40) However, as the next section suggests, the commissioners' authority in disciplinary matters has been, and in many ways continues to be, plenary in nature. (41)

   2. JUDICIAL AND ARBITRATOR REVIEW OF COMMISSIONER-IMPOSED PUNISHMENT

      Not many cases challenging commissioners' authority have made their way to the courts, but those that have suggest significant judicial deference to commissioner determinations. For example, in Molinas v. NBA, (42) the court upheld NBA President Maurice Podoloff's indefinite suspension of Jack Molinas for gambling on the Fort Wayne Pistons, the team that drafted him. (43) Molinas sued to be reinstated to the NBA, but the court found for Podoloff, reasoning that eliminating gambling from the NBA was important enough to justify the punishment. (44) While the NBA did not have a best interests clause at that time, the court's reasoning in the case demonstrates a deference to the NBA President's determinations--at least so far as gambling is concerned.

      While seminal cases do not involve challenges to commissioners' imposition of disciplinary measures, they are indicative of how courts might treat such actions. For example, in Charles O. Finley & Co. v. Kuhn, (45) the Seventh Circuit Court of Appeals upheld MLB Commissioner Bowie Kuhn's denial of Oakland Athletics owner Charles Finley's attempt to sell the contracts of many of his marquee players in light of their impending free agency. (46) Finley had attempted to trade players such as Vida Blue, Rollie Fingers, and Joe Rudi--those that the team would not be able to afford when they became free agents--to other teams in order to use the added resources to invest in the team's farm system. (47) Commissioner Kuhn blocked this move, explaining that it ran contrary to the best interests of baseball, the integrity of the...