Vanderbilt Journal of Entertainment & Technology Law
Volume 3 Issue 1 Winter 2001 Article 8
2001
Flag on the Play: 25 to Life for the Offense of Murder
Sean Bukowski
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Part of the Entertainment, Arts, and Sports Law Commons
Recommended Citation Sean Bukowski, Flag on the Play: 25 to Life for the Offense of Murder, 3 Vanderbilt Journal of Entertainment and Technology Law 106 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol3/iss1/8
This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Flag on~m the Plag:. 25 to Life for the Offense of murder by Sean Bukowski
O n November 16, 1999, an unknown assailant shot 24-year- a. old Cherica Adams four times in a heinous drive-by shooting)
A month later she died from these gunshot wounds. 2 At the
time of the shooting, Ms. Adams was six-and-a-half months
pregnant. According to police, Carolina Panther Rae Carruth
was the father of this baby.4 Based on further evidence involv-
ing Carruth's connection to the assailant, the district attorney
charged him with first-degree murder.5 This NFL star now
sits in jail accused of murder and facing a possible death sen- tence.
Carruth is not the only athlete charged with committing vio-
lent crimes. It seems every day we read about an athlete get-
ting arrested for beating his wife6 or getting into a barroom
brawl. 7 News and sports reports almost run together so that
it is difficult to tell which is which. During the 2000 Super
Bowl week, NFL Commissioner Paul Tagliabue admitted that s or-S n, te player-committed crime has become a critical issue for ciences in the leagues' means of dealing with violent the NFL.8 Indeed, this problem is evident in all profes- crime, including the ways in which current policies and sional sports leagues. programs might be unfair to players. Whether the athletes like it or not, children do look up Finally, the Note will explore some options for the to them as role models. Society does not want its role leagues to consider in attempting to handle player-com- models committing violent crimes. Moral concerns aside, mitted crime. It will argue that the leagues are in a bet- this is a vital matter for the individual leagues since ter position to discipline the players than are teams or their profitability and sustainability depend on it. 9 As its players' associations due to obvious conflicts of interests. players continue to commit violent crimes, a league's Leagues are concerned only with their health. For this image is tarnished and its profitability is endangered. reason, many leagues, either through collective bargain- Baltimore Ravens' owner Art Modell admitted that as the ing agreements 18 or official policies, 19 have given their number of NFL players who are charged with crimes commissioners the power to discipline players for off-the- 10 rises, the NFL's advertising revenue could decline. field actions. However, rather than relying on amor- This statement from Modell occurred during the same phous powers vested in league commissioners, the Note week he testified as a character witness for the Ravens' will call for definitive processes established for the ulti- Pro Bowl linebacker Ray Lewis during Lewis' bail hear- mate benefit of the leagues. teams, players, and even the ing for felony murder.1 1 After testifying, Modell conclud- fans. Also, it will suggest that the real focus of future dis- ed that if the NFL suspended everyone who committed a cussions should be on measures aimed at the prevention misdemeanor, each team would only have about four of violent crimes by educating and rehabilitating players, players eligible to play.12 not by simply kicking them from one team to another. There are many other issues surrounding athletes and criminal law besides just violent crime. Certainly, many ARE ATHLETES COMMITTING athletes have had problems with drugs and bouts of petty MORE VIOLENT CRIMES? mischief. 13 However, violent crime committed by any- A number of athletes have been charged with violent one, especially athletes, has a damaging effect on socie- crimes in recent years. In 1995, perhaps the most ty.1 4 When someone commits a violent crime, everyone famous murder trial in United States history took in the community has their stability and sense of safety place. 20 Hall of Fame running back O.J. Simpson was threatened. 1 5 Violent crime also rips at the moral fabric accused of murdering his wife and Ron Goldman outside of society.1 6 This effect, coupled with the increased expo- of his wife's condominium. 2 1 In addition, the prosecution sure of athletes committing these crimes, is why this accused Simpson of beating his wife for seventeen Note limits its analysis to violent crime. years.22 This Note will consider the extent to which the "pro- O.J. Simpson is far from the only athlete charged with fessional athletic" community should add its own sanc- committing violent crimes, however. Heavyweight boxer tions to those imposed by public law. First, it asks Mike Tyson has been convicted of raping a woman in whether athletes are getting into more trouble than in Indianapolis 2 3 and assaulting motorists after a minor the past, as it is possible that athletes are just following traffic accident. 2 4 More recently, Baltimore Ravens' line- a trend of society, and thus are no more prone to violence backer Ray Lewis plead guilty for obstructing justice in a than anyone else. 17 Nevertheless, violent crime, espe- murder case; 2 5 Rae Carruth was arrested for allegedly cially that committed by role models like athletes, is conspiring to murder his ex-girlfriend; 2 6 three New York especially damaging to society. Therefore, the Note then Jets were arrested for a barroom addresses why the sports leagues should care whether brawl;2 7Indianapolis Colts' defensive their athletes are committing such offenses. back Steve Muhammad allegedly It will then examine how the individual major sports assaulted his pregnant wife; 28 St. leagues-the National Football League (NFL), Major Louis Rams' linebacker Leonard League Baseball (MLB), the National Hockey League Little killed a woman while driving (NHL) and the National Basketball Association (NBA)- drunk;2 9 New England Patriots tight are currently addressing the problem of athletes and vio- end Ben Coates and outfielder Wil lent crime. Particular attention will be given to the defi- Cordero both allegedly assaulted their by Sean Bukowski S ''AN B KO iSK wives; 30 and, of course, running back Lawrence Phillips especially strong when children see the relatively light 3 1 continued to amass a long history of criminal problems. sentences that athletes sometimes receive and the corre- Since the end of the 1999 football season, the NFL alone sponding lack of consequences for their professional 3 2 3 9 has had thirty-eight players arrested. careers. A child might get the impression that there With all of the media attention that athletes draw, it is are limited consequences to violent crimes, and that debatable whether there are actually more cases of ath- therefore it is permissible to commit them. letes committing violent crimes, or whether the coverage For both the players and the teams, the athlete's of the accusations has just made it more visible. Athletes crimes can directly affect profitability. Many teams now 40 are high-profile public figures. As they draw higher use athletes to entice fans into buying tickets. Players salaries, they garner more media attention. With this participate in Pro-Am golf tournaments, call season-tick- increased scrutiny, every aspect of an athlete's life, et holders on the phone, and parade in front of fans on 4 1 including any crime he commits, is spotlighted. Thus, their way to the locker room. If and when fans replace what seems like a greater number of athletes committing admiration with disgust as a result of the actions of cer- violent crimes could simply be a function of increased tain players, the star quality of athletes ceases to be a media coverage of those athletes committing crimes. useful commodity for the league. NFL Commissioner Regardless of whether athletes are committing more Paul Tagliabue is deeply concerned about the image that crimes than in the past, the fact is they are committing NFL players who commit a lot of violent crimes are pro- crimes relatively often. In a special report in Sports jecting and the influence that image can have on the 4 2 Illustrated, William Nack and Lester Munson found that league's profitability. male college athletes are Players themselves also responsible for a signifi- lose money when they cantly higher percentage commit violent crimes. of the reported sexual They can make tremen- assaults on Division I dous amounts of money by campuses than the rest of becoming spokesmen for 43 the male student popula- advertising campaigns. But corporate tion.3 3 Some people sug- America gest that athletes might be more prone to violent acts off likes to sign wholesome, heroic athletes to endorsement 4 4 the field because of the violent behavior they display on deals. Thus, keeping a positive public image is finan- the field.3 4 After all, athletes are trained to use violence cially important to the player, whose endorsement deals 4 5 and intimidation, and they may have difficulty separat- depend on a good name and a clean record. ing that behavior from their personal relationships. 35 In Despite all of the incentives to distance themselves locker rooms, it is commonplace for athletes to boast from criminal athletes, teams continue to give athletes 46 about physically and sexually aggressive behavior chance after chance. In professional sports, everything 4 7 towards women. 3 6 The pursuit of dominance lies at the revolves around winning. Thus, even if an athlete has heart of all athletic contests, and this quality may be the a troubled past, many teams are willing to give that ath- 37 same force behind many violent crimes. lete second, third, and even fourth chances, hoping he Aside from the danger these crimes pose to the vic- can help them win. Lawrence Phillips is a perfect exam- tims, violent crime by athletes has other harmful effects ple. He is the sixth all-time leading rusher in University 48 on society. Professional basketball player Charles of Nebraska football history. In 1994 alone, he rushed 3 8 4 9 Barkley once stated that he was not a role model. for 1,722 yards. But while at Nebraska, he also However, whether Barkley accepts it or not, he cannot excelled in deviant behavior, getting himself convicted of 50 ignore the fact that many children see athletes as larger- assaulting his girlfriend and charged with drunk driv- 5 1 than-life heroes to emulate while watching the games. ing. Despite this, the St. Louis Rams rewarded him by This adoration could be difficult to shed during the other selecting him in the first round of the NFL draft and 52 days of the week. When an athlete commits a violent signing him to a three-year contract worth $5.6 million. crime, the child could possibly emulate that act, just as The Rams eventually released him after a subsequent 5 3 they cheer a fierce hit on the gridiron. The danger is drunk-driving conviction. The Dolphins then signed S Or S n te him, but they also released the troubled star after addi- The Collective Bargaining Agreement- both Contract tional disciplinary problems. 54 The San Francisco 49ers and Public Law 5 5 gave him yet another chance in the NFL. Continued All of the major sports leagues have provisions in their disciplinary problems eventually led to his release from collective bargaining agreements that allow their com- 5 6 his third NFL team. missioners to discipline an athlete if that athlete violates The lesson is clear. Phillips' promise on the field com- any league rules.63 Commissioners also guard the "best pensated for crime after crime. Teams wanted to win, so interests of the sport. ' 64 For example, NBA policy allows they overlooked all of the negative consequences that the commissioner to suspend or fine a player if the play- came with this talent. Talent wins games; it also buys er violates the NBA Constitution or the NBA/NBPA second chances. Collective Bargaining Agreement. 6 5 The scope of a commissioner's power was first revealed TRADITIONAL METHODS FOR in 1919 when Boston Red Sox pitcher Carl Mays walked DEALING WITH ATLETE- off the field in the middle of a game. 66 Soon after, the COMMITTED VIOLENT CRIME Red Sox sold Mays to the New York Yankees. 67 When The Phillips example shows why leaving the discipline American League President Byron "Ban" Johnson of players who commit violent crimes to the teams is an learned of this sale, he immediately suspended Mays for ineffective solution. The better option would be for the deserting the Red Sox. 68 The Yankees challenged this leagues to control the athletes. Traditionally, the power action in American League Baseball Club of New York v. to discipline players for their off-field conduct has rested Johnson. 6 9 In that case, the Court ruled that Johnson in the hands of the commissioner of the league. This only could discipline a player in the performance of his power comes from the individual league's constitution. duties, which it defined as the power to regulate the actu- 70 However, with the proliferation of athletes committing al playing of the game on the field. crimes, some leagues have introduced more stringent After the Black Sox Scandal of 1919,71 baseball decid- policies. For example, the NFL has introduced a Violent ed to unite its two leagues under one commissioner, Crime Policy; the NHL has a Behavioral Health Kenesaw Mountain Landis.7 2 Landis accepted the posi- Program. Whether other leagues will follow these exam- tion only after the league agreed to give him broad pow- ples is unknown. ers as commissioner to discipline players in the best interest of the game. 7 3 In Milwaukee American Ass'n v. SOURCES OF LEAGUE POWER Landis, the Supreme Court upheld these broad powers.7 4 Individual Player Contracts The Court showed great deference to the commissioner All of the major sports leagues have standard player by holding that it was solely his decision what was in the 5 7 contracts. In these contracts, the players must agree to best interests of baseball. 75 This strong power has been a number of provisions, including disciplinary provi- a mainstay of MLB commissioners with the exception of 5 8 sions. Ingrained in these contracts generally is a pro- a short period when the commissioner did not use his 5 9 vision relating to the player's conduct. For example, in broad powers to discipline players.7 6 However, the last the NHL's standard player contract, a player has to agree two decades have seen a resurgence in the commission- to conduct himself to the highest standards of honesty, er's power.7 7 In Charles 0. Finley & Co. v. Kuhn, the 6 0 morality, fair play, and sportsmanship. The player also court upheld Commissioner Bowie Kuhn's right to deter- must refrain from conduct detrimental to the best inter- mine whether an act is in the best interest of baseball. 78 6 1 ests of the sport. This continues to be within the scope of the commission- 79 It is unclear what a team could do if a player violates er's powers. this provision of his contract. However, at the minimum, This basic structure of commissioner-initiated disci- if the player violates a provision of his contract, the club pline is the same in all of the other major sports could void the contract and release the player. This abil- leagues.8 0 How the leagues invoke this power to deal ity allowed the Golden State Warriors to release Latrell with athletes who commit crimes, however, varies quite 6 2 Sprewell after he choked his coach, P.J. Carlesimo. dramatically. The NFL and NHL have instituted indi- vidual policies outlining specific instances where the S ANB KO SK commissioner will invoke his power. MLB and the NBA, THE NATIONAL BASKETBALL ASSOCIATION on the other hand, allow the commissioner to discipline The NBA has no specific policy governing violent players whenever the "best interests" of the game are at crimes committed by players. Like MLB, the NBA pun- risk. ishes players through its Constitution and a clause in the standard player contract. 90 This clause gives the com- MAJOR LEAGUE BASEBALL missioner the sole power to fine or suspend any player 9 1 Major League Baseball has not set up any special poli- who violates any clause of either document. Players 9 2 cies to deal with violent crime. MLB has continued to may however appeal any decision to an arbitrator. punish players via a provision in the Major League In addition to the general powers of the commissioner, Agreement and Collective Bargaining Agreement the NBA contract also has a "good moral character 93 Standard Player Contract. 8 1 This provision allows the clause." Under this clause, if a player does not conform and cit- commissioner, in his discretion, to punish athletes if they his personal conduct to standards of good morals 9 4 violate the terms of the Collective Bargaining Agreement izenship, the team can terminate his contract. This is 8 2 and also the League Agreement. precisely what the Golden State Warriors did in 1997 9 5 MLB has suspended players in the past for off-field with their star player, Latrell Sprewell. After Sprewell conduct that is detrimental to the game. For instance, in choked his coach, P.J. Carlesimo, the Warriors voided and cit- 1997, MLB suspended Boston Red Sox outfielder Wil Sprewell's contract for breaching the good morals 9 6 Cordero for assaulting his wife. 8 3 MLB commissioners izenship clause of his contract. In addition to the have also repeatedly used the power to suspend players, Warriors' termination of Sprewell, the NBA suspended 8 5 including Darryl Strawberry8 4 and Steve Howe, for Sprewell for a year based on the "best interests" ration- 9 7 drug abuse. ale. Due to double jeopardy concerns, an arbitrator The clout of the players' association makes it uncertain eventually dismissed the NBA's suspension of 9 8 whether MLB could enact a violent crime policy similar Sprewell. to the one enacted by the NFL. 8 6 However, the MLB commissioner has been very active in suspending players NEW METHODS FOR DEALING for conduct that is detrimental to the game of baseball, WITH ATHLETE-COMMITTED 8 7 per his power in the Major League Agreement. VIOLENT CRIME Recently, MLB owners voted unanimously to expand Like MLB and the NBA commissioners, the commis- Commissioner Bud Selig's powers to unprecedented lev- sioners of both the NFL and NHL can discipline players 9 9 els. 8 8 With these new powers, Commissioner Selig may in the "best interests" of the game. However, instead of take any action he deems appropriate to ensure competi- relying solely upon these vague powers, these leagues tive balance in baseball. 89 Surely this includes the power have gone beyond this provision of their constitutions to suspend and/or fine players for committing violent and enacted specific policies to deal with their players crimes. It is not too difficult to conclude that violent committing crimes. The NFL has a Violent Crime 10 0 Health crime is detrimental to the league in general. When a Policy; the NHL has enacted a Behavioral 1 0 1 player commits a violent crime, it upsets the competitive Program. balance by depriving some teams of the services of play- ers. In addition, the bad publicity could damage the THE NATIONAL FOOTBALL LEAGUE in team's profitability, which can affect the team's possibili- The NFL seems to be the most progressive league ty of signing free agents. Thus, violent crime could pos- taking steps to eliminate player-related violent crime. In Crime sibly lead to an upsetting of the competitive balance. 1998, the League instituted a new Violent the With the new powers the League granted to Policy.102 This policy allows the league, specifically Commissioner Bud Selig and the effectiveness of pro- commissioner, to suspend and/or fine an athlete for being 10 3 the grams in other leagues, MLB could enact a stronger and charged with any crime of violence. In addition, more clearly defined anti-crime policy. Violent Crime Policy requires the accused player to undergo counseling and clinical evaluation.104 sc ;orts nte This policy raises two important questions. The first missioner. 117 is whether a league should punish people for a violent Despite its ambiguity, the policy sends a clear message crime before a criminal court determines the player's to the players that the NFL will not tolerate criminal guilt. With the NFL's policy, the commissioner can sus- activity. And in its relatively short history, the NFL's pend and/or fine a player as soon as he is charged with a Violent Crime Policy has affected numerous players. 10 5 violent crime. Certainly the state can abridge a per- Situations ranging from Minnesota Vikings' safety son's rights prior to adjudication in the criminal courts, Orlando Thomas' alleged domestic abuse1 18 to Rae through incarceration, bail requirements, or similar reg- Carruth's first-degree murder indictment 1 9 have 10 6 ulatory means. However, when the state does this, it prompted investigations by the NFL. Commissioner is generally in pursuit of legislatively ordained interests, Tagliabue also invoked the policy when he fined San such as to assure that the accused will show for trial or Francisco 49ers running back Lawrence Phillips at the 10 7 to protect society against any further dangers. When beginning of the 1999 season. 12 0 Tagliabue ruled that the NFL chooses to suspend and/or fine a player before Phillips would be fined his first four weeks of pay for conviction, it looks much more like premature punish- pleading guilty to an assault outside a South Florida ment. This runs contrary to our fundamental assump- nightclub in 1998.121 tion of innocence until guilt is proven. A player should The NFL, through its Violent Crime Policy, has taken not be suspended and/or fined until he has been convict- steps to curb the violent crimes committed by its play- ed of the crime, or at least been given some due process ers. 122 The policy gives the commissioner greater power by the league. This way the player will be given at least to discipline players accused of violent crimes. 12 3 the appearance of fairness. When a person believes that However, there are still problems with the policy, which he is being treated fairly, he is much more able to accept the NFL needs to address. the final discipline and rehabilitation. 1 08 Second, though the NFL's policy gives some examples THE NATIONAL HOCKEY LEAGUE of what might constitute a "violent" crime, it does not In addition to a "best interests" clause in the National 10 9 provide a specific definition. Moreover, the examples Hockey League Constitution, 12 4 the NHL also has a 11 0 are given "without limitation." Thus, outside the few Behavioral Health Program. 125 This program allows the examples the policy lists, it is unclear what else might NHL to require players to attend counseling sessions if compose a "violent" crime. According to the Cambridge they have a history of criminal behavior. 126 The decision American English Dictionary, a "violent action" is a force- to require counseling is solely in the commissioner's dis- ful action that is intended to hurt a person or is likely to cretion and is not reviewable by an arbitrator.127 111 cause injury. However, the United States Criminal Discipline under the NHL's Behavioral Health Code defines a violent felony to include burglary and Program has four different stages. 12 8 In stage one, the 11 2 other crimes creating a serious risk of injury. So while NHL treats the player through counseling but does not the NFL's Violent Crime Policy would clearly apply to enforce any other penalty. 129 In stage two, treatment is Rae Carruth, who was charged with first-degree mur- continued in the counseling program, but the league can 113 der, it is unclear whether the policy would include also suspend the player without pay.130 In stage three, Cecil Collins, who was charged with a single count of the league automatically suspends the player for six 114 13 1 burglary. months. Finally, in stage four, the NHL suspends the This discrepancy creates too much uncertainty under player without pay for one year with no guarantee of the NFL's policy. Clearly, no athlete should put himself reinstatement. 132 in a position where he might be subject to the policy. The commissioner originally assigns the player to the However, where exactly is that point? According to the Behavioral Health Program. 13 3 Once the player is in the NFL's policy, the commissioner has sole discretion to pun- program, the administering physicians determine when 115 ish an athlete if he violates the policy once. It would a player should move from one stage to another.13 4 It is appear that the commissioner also has the sole discretion unclear what criteria they use to make such a determi- 116 to determine what constitutes a violation. If the play- nation. 1 35 When discussing NHL player Kevin Stevens' er violates the policy twice, however, the NFL automati- recent arrest for drug-related crimes, a program admin- cally suspends him for a time determined by the com- istrator stated that when a player gets into trouble, the SAN B KO SK 14 7 physicians evaluate the player's previous progress in the NHL's, then there is at least a better probability that program and then use their professional judgment to the players will go on to become better citizens and bet- determine whether they should move a player from one ter athletes. 13 6 stage to another. The NHL and the Players' Association developed the DUE PROCESS CONCERNS OF THE POWER TO Behavioral Health Program to have more of a "family" DISCIPLINE appeal by involving a player's family and teammates in Unilateral Actions by the Commissioner under the "Best the counseling. 137 The motto of the program is that the Interest" Clauses NHL itself is a family. 138 The program also treats the As previously stated, all four major sports leagues players through education. 13 9 It does not focus on deter- have provisions in their respective constitutions and col- rence through threat of sanction, but rather through edu- lective bargaining agreements which allow the commis- cation, so that the players do not commit future sioner to discipline players for conduct against the best 1 48 crimes.140 interest of the sport. The decision on whether to sus- 14 9 The NHL originally created the Behavioral Health pend or fine a player is solely up to the commissioner, 14 1 Program to be a substance abuse program, and it based on his own investigation. The only warning the mainly functions in this capacity. Currently, the NHL player might get is a notice of the investigation and some 150 does not seem to be too concerned with violent crime, limited discovery rights. Similarly, the only signifi- since, according to an NHL official, violent crime is not cant safeguard for the player is the right to appeal the 15 1 widespread among hockey players. 1 42 However, there is decision of the commissioner to a neutral arbitrator. evidence of the program's usefulness in dealing with vio- This arbitration determination can be appealed, but 152 lent crime. Nashville Predator Sergei Krivokrasov pled courts grant the arbitrator's decision great deference. guilty to a 1992 assault of a woman in Minnesota, and This lack of protection of players' rights raises ques- 1 43 the NHL required him to enter the program. He now tions of fairness. The questions may even implicate con- 14 4 stitutional concerns inherent in the Due Process Clause attends regular therapeutic meetings with doctors. of the United States Constitution. 15 3 The Constitution PROBLEMS WITH LEAGUE requires the government to give due process to an indi- PUNISHMENT POLICIES vidual whom they accuse of a crime. 15 4 Generally, courts All of the leagues' current policies dealing with ath- have not applied the Due Process Clause to private 1 5 5 letes committing violent crimes have problems. In par- employers who wish to discipline employees. ticular, MLB's and the NBA's use of the commissioners' However, when a private employer deals with a union in power to discipline in the "best interests" of the game are a collective bargaining agreement, the employer is gen- problematic. erally held to some substantive and procedural due 15 6 First, relying on this power does not directly inform process standards. For example, when a union the player what kind of behavior is intolerable. The dis- employee, whose employer has disciplined him, appeals ciplinary power is solely the commissioner's. Therefore, to an arbitrator, the arbitrator applies a due process 15 7 where one player is disciplined, another may escape pun- rationale to the employer's actions. If an employer ishment entirely-despite identical offenses. A definitive fails to meet due process requirements, most arbitrators 1 58 policy would clear up any confusion. will refuse to sustain the discipline. Second, relying solely on the commissioner's powers Most arbitrators give a limited meaning to the due does not guarantee a player due process. As stated pre- process required in the workplace, which is commonly 1 45 15 9 viously, due process is essential to maintain fairness. called industrial due process. For example, an arbi- In addition, due process gives the appearance of fairness, trator will not hold an employer to strict criminal due 16 0 the which helps to rehabilitate the player. 146 process. This extreme protection is reserved for Finally, rehabilitation can be an essential part of a vio- criminal realm because incarceration is a much more lent crime program. Both the league and society have a severe punishment than workplace discipline.161 vested interest in rehabilitating these athletes so they Essentially, the decision for an arbitrator in employer- don't commit more violent crimes. If there is a process employee disputes focuses on whether the process was 16 2 set to counsel and educate the players, similar to the fundamentally fair for the employee. If the arbitrator s or s n te feels that the employer has complied with the spirit of individual who administers it. 174 This diminishes his due process and management's failures to comply with chances for successful rehabilitation. 17 5 This problem certain procedures did not prejudice the employee, the of due process, however, is not limited to the NFL. 16 3 arbitrator may uphold the discipline. However, indus- The NHL's Behavioral Health Program does not trial due process still requires that the accused is given adhere to any real due process standards either. not only sufficient notice, but also the opportunity to Similar to the NFL's Violent Crime Policy, the NHL's present evidence, and that the program is implemented solely determination is based on the on the decision of the commis- evidence presented.164 In addi- sioner, who alone determines 1 7 6 tion, industrial due process may placement in the program. require employers to investigate Unlike the NFL, however, this 1 65 a matter thoroughly before disciplining an employee. ldecision is not 17 7 appealable to an arbitrator. Once In sports, by the time a player gets to appeal to an the player is in the program, his progress through the arbitrator, the commissioner already has made a unilat- four stages is left to the sole discretion of the doc- 1 6 6 eral decision. Even though the arbitrator tries to be tors. 1 7 8 The player has no input in these decisions neutral, there may be some presumption of guilt based on removed from his progress as evaluated by the doc- the commissioner's findings. An arbitrator might think tors. 1 79 Moreover, there is no standard process set up that the commissioner would not have taken action to govern a player's progress. unless the player committed the offense. Thus, there Departures from due process can result in arbitrary may be a real concern as to whether the player is getting rulings. 18 0 Without consistent procedures in place, due process. players have no guarantee that they will be disci- plined in the same manner for the same crime. 18 1 An WIDE RIGHT: NFL AND NHL Miss THE MARK arbitrary decision by a commissioner can be extreme- The stakes are even higher in the NFL, where accord- ly devastating to the psyche of the player and the ing to the Violent Crime Policy, the commissioner can goodwill of the fans. The player may not understand 16 7 essentially act as judge, jury, and executioner. This why a fellow player receives a lesser punishment for raises some very serious questions about an athlete's what seems like a greater crime. In addition, fans right to defend himself against accusations. The fact may become disillusioned by such disparity in punish- that a private employer has more liberties in disciplining ment-recall fan confusion when Atlanta Braves' an employee than a public employer does not mean that pitcher John Rocker was suspended for thirty days for a private employee should be devoid of any protections non-criminal, albeit racist speech, 1 8 2 while Colorado 16 8 from a private employer. Due process protects indi- Rockies pitcher Pedro Astacio, who pled guilty to beat- viduals from an abuse of authority.169 Without it, there ing his wife, received no punishment at all from base- is no guarantee that an accused is getting a fair investi- ball. 18 3 The risks are especially prevalent when com- 170 gation. Due process also serves a rehabilitative func- missioners discipline players according to their pow- tion, partly ensuring that a person does not commit these ers to uphold the "best interests" of the game. At least 1 7 1 crimes again. in the defined policies, like the NFL's Violent Crime When an individual commits a crime, part of the after- Policy, there are some guidelines as to how and when math should ideally be an attempt to rehabilitate the punishment will occur. individual. The NFL, in its Violent Crime Policy, attempts to rehabilitate individuals through counseling Ex POST FACTO IMPLICATIONS 1 72 and clinical evaluation. The policy mandates this An ex post facto law poses punishment on an act that counseling any time a player is even charged with a vio- was not punishable when the act was committed. 18 4 The 1 7 3 lent crime. Since the commissioner can determine United States Constitution specifically prohibits ex post when and how a player should be disciplined before a facto laws. 1 8 5 Granted, the United States Constitution court determines guilt, the player may not feel like he is only applies to the government, not to private institu- being treated fairly. If a player perceives injustice, he is tions. But the spirit and political philosophy embodied likely to resent the "punishment" handed down and the therein may well justify a wider application at times. S ANB KO0SK " Unilateral Actions Under the "Best Interest" Clauses only for actions that would fall under the NFL's Violent When a commissioner decides to discipline a player Crime Policy, but also for Phillips' history of indecent behav- is to rehabilitate the under the "best interest" clause, he makes a unilateral ior. If one of the NFL's objectives 200 decision to do so. 18 6 There is no guidance in the clauses offenders, as it would seem to be, then the commissioner for past acts.20 1 to determine when a commissioner may invoke it. This should not be punishing allows the has led to seemingly inconsistent applications, such as The NFL's Collective Bargaining Agreement an when Boston Red Sox outfielder Wil Cordero was sus- commissioner to punish a player if that player commits 20 2 pended for abusing his wife, 18 7 while Colorado Rockies act detrimental to the league. Because of this, it can be pitcher Pedro Astacio received no discipline from baseball argued that Phillips, and others like him, had notice of the 18 8 for very similar acts. commissioner's power to suspend under the Violent Crime facto rule. Since there is this incongruity in punishments, it is Policy and were not harmed by an ex post is ill-defined, and very difficult for a player to understand what type of con- However, the power of the commissioner duct is contrary to the best interests of the sport. Thus, the Violent Crime Policy goes well beyond any punishments the player has no warning when the commissioner might available to the commissioner in the Collective Bargaining requires discipline him. The reason the United States Agreement. For example, the Violent Crime Policy Constitution outlaws ex post facto laws is because they counseling when the player is accused of a violent crime, as 18 9 a violent do not give people fair warning. Since a commission- well as an automatic suspension when convicted of 2 03 er's unilateral action under a "best interests" clause is crime. This includes cases where the player pleads 20 4 These not clearly defined and comes without warning, it may be either to a lesser crime or pleads nolo contendere. under the an unfair, ex post facto action. rules are not stated in the commissioner's powers Collective Bargaining Agreement. Thus, Lawrence Phillips pled to the The NFL Violent Crime Policy has not Alleviated this might not have been suspended or fined when he Problem DUI and assault cases. Under the new policy, though, he is Lawrence Phillips has pled guilty to abusing his for- automatically subject to the commissioner's fine or suspen- mer girlfriend and to DUI charges. 190 In spite of these sion.205 players for actions, the San Francisco 49ers, prior to the 1999 NFL The policy also allows the NFL to punish 20 6 19 1 in the league. season, signed Phillips to a contract. Prior to joining crimes committed while they were not rule where the NFL the 49ers, however, NFL Commissioner Paul Tagliabue This, in effect, is another ex post facto they had no required Phillips to meet with him to discuss Phillips' seeks to hold the players accountable for rules troubles. 192 Tagliabue then fined Phillips for pleading reason to suspect applied to them. Violent Crime Policy is guilty to a misdemeanor assault outside of a South The stated purpose of the NFL's 3 to the Florida nightclub. 1 9 This assault happened while that the prohibited conduct would be detrimental 20 7 alienates the Phillips was a member of the Miami Dolphins and after integrity of the league. Violent conduct 1 9 4 in the league.20 8 the NFL had passed its Violent Crime Policy. fans and tarnishes public confidence commit- However, Tagliabue judged Phillips on all of his past However, when the NFL punishes a player for acts player can be equally crimes while at the University of Nebraska and in the ted before entering the league, the negotiations NFL. 19 5 Since Tagliabue has such tremendous power damaged. The NFL's policy could hurt contract If he under the policy, he can essentially act as judge, jury, and and limit the player's options in signing with a team. 19 suspension, very few executioner. 6 Thus, Phillips had no choice but to accept is going to be subject to an immediate go Tagliabue's punishment if he wanted to play in the NFL teams might want his services. Thus, this penalty could again. well beyond the intended punishment. In such a case, the 19 7 him for committing his crime, Retroactive laws are generally unjust. They do not NFL is not only suspending reaching his give an individual warning as to what can be pun- but also might actually be prohibiting him from ished. 19 8 When Commissioner Tagliabue punished full salary potential or from playing altogether. Moreover, Lawrence Phillips through the NFL's Violent Crime the punishment effectively becomes a condition of employ- must accept Policy, he did not give Phillips a warning that his past ment; if the player wants to sign a contract, he 199 did with transgressions were punishable. He nevertheless the punishment. This is exactly what the league 20 9 fined Lawrence Phillips a substantial sum of money not Lawrence Phillips. S or s n te THE LEAGUE'S PUNISHMENT OF A PLAYER MIGHT THE NFL's VIOLENT CRIME POLICY MAY INTERFERE CONSTITUTE DOUBLE JEOPARDY WITH JUDICIAL PROCEEDINGS Double Jeopardy Dilemma Under Unilateral Plea bargaining is an integral part of the criminal Commissioner Action judicial process. 2 2 3 Without plea bargaining, it is quite In industrial due process, an arbitrator will often possible that the judicial system would collapse under interpret a "just cause" provision to mean that an the weight of too many trials. 2 2 4 Thus, plea bargaining employer is subject to some sort of "double jeopardy" allows for resolutions in criminal cases that might never 22 5 limit on discipline. 2 10 Often this means that an employ- come about otherwise. er may not punish an employee more than once for the Some league policies, especially the NFL's Violent same offense. 2 11 In professional sports, it is quite possi- Crime Policy, could discourage a player from pleading to ble that this double jeopardy clause could bar both a a lesser charge offered by the prosecuting attorney. The team and a league from punishing a player separately for policy subjects the player to discipline even if he pleads 2 26 a single offense. A player can be suspended with pay guilty or nolo contendere to a violent crime. It also pending an investigation, if the league and team are subjects the player to discipline if the player pleads down to a lesser crime after he was accused of a violent clear that the original suspension is a precursor to future crime. 2 27 Thus, players might be discouraged from plea punishment. 2 12 However, if a team suspends a player bargaining because they know it inevitably leads to sanc- without pay, and then the league further suspends that tions from the NFL, regardless of his punishment from player, this could constitute double jeopardy.2 13 The orig- the state. Instead, he could decide that it is better for inal suspension is one punishment, the subsequent sus- him to go to trial and take his chances than automatical- pension another-and both for only one action by the 2 14 ly subject himself to the NFL's punishment. player. This is troubling for a number of reasons. If the NFL This is one of the reasons that Latrell Sprewell's sus- discourages plea bargaining, it could damage the judicial pension by the NBA was not sustained by an arbitra- system by causing more cases to go to trial.2 2 8 When a tor.2 15 Immediately after the choking incident, the case goes to trial, it costs both the player and the gov- Golden State Warriors started an investigation, which ernment tremendous amounts of time and money. was joined by the NBA. 2 16 Soon thereafter, the Warriors Despite the relatively small number of athlete criminal suspended Sprewell for ten days. 2 1 7 When the NBA then cases, such cases often require substantial effort and wanted to further suspend Sprewell, the arbitrator ruled resources due to their high profile nature. Causing these jeopardy.2 18 that this violated double cases to go to trial also can damage the NFL. Trials can Double jeopardy can also be invoked when an employ- often become long, drawn out occurrences with heavy er immediately disciplines an employee and then further media scrutiny. This publicity may damage the NFL's 2 1 9 disciplines him after a subsequent investigation. For image, even if the player is acquitted. example, if the Warriors had suspended Sprewell for ten Similarily, since prosecutors rely heavily on plea bar- days, then after further investigation, decided the sus- gains, they sometimes bring greater charges than the pension should last a full season, this would amount to conduct warrants in order to entice the accused to plead 2 20 multiple punishments for a single infraction. guilty to the appropriate charge. 2 29 Under the NFL's pol- icy, however, a player might be more inclined to fight the Double Jeopardy in the NFL charge in hopes of gaining an acquittal rather than auto- Under the NFL's Policy, a player simply accused of a vio- matically subjecting himself to NFL discipline. If the lent crime is automatically placed into counseling and prosecutor has overcharged, this decision to go to trial 22 1 evaluation. If he is then convicted, he is automatical- could subject the athlete to more severe punishment than 22 2 ly suspended. This suspension could be considered a the case actually warrants. second punishment for the same crime, and thus double Such potential for interference with the judicial plea jeopardy. The first punishment is the forced counseling; bargaining system was evident in the 1999 case of the second punishment comes when the league suspends Florida State University (FSU) wide receiver Peter the player. SIE ANB Warrick. 2 30 Warrick was charged with felony grand policies also need to have more uniformity of punish- theft.2 3 1 He was ready to accept a negotiated plea that ments and better notice provisions so that players, would reduce the charge to a misdemeanor and require teams, and fans alike know what to expect. him to serve thirty days in jail after the football sea- The NFL and NHL's policies might not be perfect, but son. 23 2 However, before Warrick could accept the plea, at least they offer something. The NFL's Policy may not FSU President Talbot "Sandy" D'Alemberte told be working as well as Commissioner Tagliabue thinks it 23 7 reporters that he did not like the idea of a player playing is, but certainly having a policy at all signals a recog- 2 33 for FSU with a jail sentence yet to be served. nition of the problem of violent crime and an attempt to D'Alemberte stated that Warrick must get all of his trou- deal with it. Thus, the NBA and MLB should follow their bles with the criminal justice system behind him before fellow leagues' lead and enact some sort of violent crime he could play for FSU again. 2 34 Because of this, Warrick policies-bearing in mind the concerns detailed below. went back to the district attorney and negotiated a new 2 3 5 deal that did not include any jail time. THE INHERENT UNFAIRNESS OF THE POLICIES OF THE The additional penalty that D'Alemberte was going to LEAGUES levy on Warrick directly The current NFL and interfered with the judicial NHL policies need some process. In this instance, it changes. As addressed eventually benefited above, they are potentially Warrick by allowing him to unfair to the players and avoid jail time. However, may undermine the play- the interference is not good ers' faith in the system and for society. We entrust our their potential for rehabili- 2 3 8 government officials to I tation. For example, the make fair plea bargains. If NFL fined Baltimore the bargaining process is constrained by outside interfer- Ravens' linebacker Ray Lewis $250,000 for obstructing 2 3 9 ence, this decreases the chances for an equitable solution. justice in a murder investigation while they suspend- 2 40 The interference also can severely limit a player's possi- ed Jumbo Elliot entirely for fighting in a bar. These bility of attaining a plea bargain. Fortunately for kinds of inconsistencies can undermine an effective poli- Warrick, the district attorney was willing to accept a plea cy. In addition, fining players like Lawrence Phillips where Warrick did not serve jail time. However, if he was before he even has a contract or a chance to address the 2 4 1 not willing, the university's threat of additional suspen- situation can discourage the player and reduce his sion could have precluded Warrick from accepting a plea. chance to become a productive person and athlete. For This is the same type of interference that the NFL's these reasons, the leagues' policies should be amended. Violent Crime Policy involves when it subjects players to First, all the leagues should implement more due the policy if they plead down a violent crime. process measures. For example, whenever a player is subject to discipline for violent activities, he should be SUGGESTIONS FOR THE MAJOR allowed to present a defense to the commissioner. The SPORTS LEAGUES player should have a right to an attorney and be able to THE NBA AND MLB SHOULD ADOPT A VIOLENT CRIME present extenuating circumstances or defenses in his POLICY favor. This would allow the player to receive a fair hear- Currently, neither the NBA nor MLB have any defini- ing, and hopefully, a fair judgment. Such a result would 2 42 tive proposals in place to deal with athletes who commit be more effective in rehabilitating the player. violent crimes. Both of these leagues rely solely on the The NFL also should modify its stance on considering 2 4 3 power of the commissioner to discipline players in the a player's prior acts when punishing the player. Past "best interests" of the game. 2 3 6 As previously discussed, crimes are not admissible in a courtroom; they should not 2 4 4 there are numerous problems with relying solely on these be considered here. At the minimum, there should be powers. The leagues need to address the growing public some safeguards implemented to consider a player's concern over athletes committing violent crimes. These rehabilitation since the previous crimes. Simply having s or s nte the commissioner evaluate the player is not enough pro- However, therapy and counseling can help get to the root 2 5 8 tection. of the problem. The NFL also should wait until a player is convicted The professional sports leagues make a tremendous before disciplining him through the Violent Crime amount of money from the athletes involved. 2 59 In 24 5 Policy. In the United States, a person is innocent until return, the athletes are paid large salaries. 26 0 To ensure proven guilty; this presumption should not be abandoned that the money continues to flow, athletes have to take upon entering the NFL. Additionally, the NFL should not responsibility for their actions and stop committing vio- 24 6 take such a negative stand on plea bargains. By sub- lent crimes. However, it is also in the leagues' best inter- jecting the player to punishment for lesser pleas, the ests for the athletes to stop committing crimes. To pro- League discourages him from making a plea bargain in a tect the profitability of both the leagues and the players, criminal court. This is detrimental to the player and to the leagues should take measures to counsel its players the criminal justice system as a whole. on violent crime.
THE FOCUS OF THE POLICIES SHOULD BE ALTERED THE LEAGUES SHOULD BECOME MORE DEFINITIVE IN The NHL's Behavioral Health Program has taken a THEIR JUDGMENTS very progressive and novel approach to dealing with vio- Lawrence Phillips has had numerous chances in the 2 4 7 lent crime. By insisting on counseling in a family NFL. 2 6 1 As stated previously, he is an exceptional ath- environment, the NHL is attempting to rehabilitate the lete, and exceptional athletes get second and third player to make him a more productive member of socie- chances. However, the multiple opportunities supplied 2 4 8 ty. This is the focus that all of the leagues should take. to Lawrence Phillips send conflicting messages In the opening of the NFL's Violent Crime Policy, the throughout the league. It says to any player, if you are league states that since crime alienates fans, the policy good enough you can do anything you wish, for even if 2 4 9 was enacted to protect the NFL's image. This reason- caught, the NFL will give you a second chance. ing is understandable. The owners have a tremendous There are undoubtedly numerous violent actions 2 50 amount of money invested in their teams, and it is log- that go completely unpunished by the NFL. 2 62 Players ical for them to want to protect that investment by pro- often brag about things such as their physical con- tecting the public image of the NFL. However, there may quests of women in locker rooms.2 6 3 Having these be more effective ways of doing so. actions go unpunished also sends a negative image to The NHL policy embodies such an approach. the players since leagues rarely, if ever, take action Everything from the name of the program (the until the government spurs them to it. Even when a 2 51 Behavioral Health Program) to the remedies institut- league does act, it seldom keeps an athlete away from 2 5 2 ed suggest that the NHL the game for long. is interested in getting to Essentially, the league is the root of the problem and sending the players two trying to prevent future messages. One, don't get crimes. When the NHL sub- caught. Two, if you do get jects a player to its caught, the league will give Behavioral Health you repeated chances as Program, the ultimate solu- ...... long . as you are a good 2 5 3 tion is treatment. The League concentrates on send- enough player. These messages do not help alleviate ing the player to counseling in order to stop the violent the violent crime problems. 2 54 behavior. They do withhold the right to punish, of In their policies, the leagues must send assurances 2 55 course, but choose to give preference to rehabilitation. that if caught, regardless of talent, a player will be The NFL should realize, as the NHL has, that there is punished. A blanket system of punishment should be a lot of value in the rehabilitation of its stars.2 5 6 If a introduced. This would cover any player who commits player has the talent, teams are always going to be will- a violent crime. It should not matter if that player is 2 57 ing to sign him. Certainly, fines and suspensions can an All-Star or a bench warmer. When a superstar is work to help deter an athlete from committing crimes. punished in the same way that a backup is punished, it 17 S 'AN Bi KO VSK shows all the players that no one is above the law. This is time to put away petty differences and help solve a would send a message that the league is serious about growing epidemic. which afford full not tolerating violent crime. The policies need rigid standards, due process protections to the accused. They also should THE FOURTH QUARTER not interfere with the criminal process through plea bar- 26 4 26 7 be on reha- Violent crime permeates present day sports. It has gaining. The focus of the policies should players and the a rippling effect that goes beyond the sports arena. It bilitation. The leagues want talented To ensure that these damages society by deflating the emulation children give fans want to see talented players. and treatment should be athletes. These children grow up with tarnished images players are playing, counseling does commit a crime, of their heroes and may come to accept criminal activity. available to them. When a player him fairly and evenly. To combat these problems, the professional sports however, the league should punish combating violent crime leagues must have a definitive policy in place. The cur- Current league policies make 26 5 2 66 task. However, violent crime rent policies in place by the NHL and NFL are not an almost insurmountable athletes is not an insolvable problem. enough; lack of any policy in MLB or the NBA is, at best, committed by better plans and greater atten- irresponsible. All of the leagues should implement new Viable solutions require never been a stranger to the policies to deal with these problems. The strength of the tion. The sporting world has now becomes channeling that players' associations will make this a difficult process, latter; the struggle resource to the former. but the future of sport and the health of society depend on concessions from both sides of the bargaining table. It
der charges against Lewis in exchange for his guilty plea to a misde- 1 See Carruth's Girlfriend Dies and Murder Charge Is Filed, meanor charge of obstruction of justice. See Mike Lurie, Lewis Quietly N.Y. TIMES, Dec. 15, 1999, at D3. Returns to Practice with Ravens (posted June 12, 2000) 2 47 3 40959,00.htm>. 2 See id.
30 See Will McDonough, Coates Leaves Patriots in Awkward 49 See id. Position, BOSTON GLOBE, July 28, 1998, at El. 50 See Dolphins Sign Lawrence Phillips through 1998, supra 31 See Dolphins Sign Lawrence Phillips through 1998 (posted Dec. 2, note 31. 1997)
32 See Steve Schoenfeld, NFL Rap Sheet (posted Aug. 1, 2000) 52 See id.
33 See Ellen E. Dabbs, Intentional Fouls: Athletes and Violence 54 See i1dsee also Mark Soltau, PhillipsEnters 49ers Plansat Running Among Women, 31 COLUM. J.L. & SOC. PROBS. 167, 168 (1998) Back (posted July 8, 1999)
37 This "pursuit of dominance" is the driving force behind men 60 See id. who abuse women. See id. 61 See id. 38 See Terry Baker, Role Models Found Close By, DENVER POST, Dec. 4, 1999, at A30 (quoting Charles Barkley from a popular 62 See Mark Heisler, Warriors Terminate Sprewell; He's First to television commercial). have NBA Contract Voided for Insubordination, L.A. TIMES, Dec. 4, 1997, at C1. 39 See id. (Charles Barkley received community service and a $100 fine for throwing an Orlando man through a window at a 63 See PAUL C. WEILER AND GARY R. ROBERTS, SPORTS AND THE bar). LAW: TEXT, CASES PROBLEMS 2 (West Group. 2nd ed., American Casebook Series. 1998). 40 See Don Walker, Karl, Players Play Dual Role For Bucks; SP ANB KO , SK, Pulled from 64 See id. at 1. February, 2000. See Darryl's Dilemna; Strawberry Practices as He Awaits Decision (posted Feb. 23, 2000) < http://www.cnnsi.com/ baseball/mlb/news/2000/02/23/yan- 65 See National Basketball Ass'n and the National Basketball kees strawberry-ap/index.html>. Players Ass'n Collective Bargaining Agreement, Unif. Player Contract, supra note 18, at 266-267. 85 See Jeff Zogg, Pro Athletes Being Let Off Easy Sets a Bad INDIANAPOLIS STAR, Oct. 5, 1999, at S2. 66 See WEILER AND ROBERTS, supra note 63, at 1. Example, 86 The NFL's Violent Crime Policy is discussed in detail later in 67 See id. the Note. See NFL Violent Crime Policy, supra note 19. 68 See id. 87 See id. N.Y.S. 498 (1919)). 69 See id. at 4 (citing 109 Misc. 138, 179 88 See Ross Newhan, Baseball; In Bud They Trust; Owners Give 70 See id. Selig the Unprecedented Clout to Establish a Competitive Balance in Baseball, L.A. TIMES, Jan. 26, 2000, at Part D, Page 71 Eight Chicago White Sox players were suspended for life 1. from baseball after they were accused of throwing the 1919 89 See id. World Series against the Cincinnati Reds. See The Black Sox (last visited Feb. 22, 2000) 90 See National Basketball Ass'n and the National Basketball
81 See WELLER AND ROBERTS, supra note 63 at 3. 104 See id.
82 See id. 105 See id.
Lesson,' TAMPA TRIBUNE, Apr. 9, 83 See Cordero: 'I Learned My 106 See NEIL P. COHEN & DONALD J. HALL, CRIMINAL PRACTICE at 4. 1998, AND PROCEDURE: THE POST-INVESTIGATIVE PROCESS 73 Co. 1995). 84 Strawberry was suspended for drugs for the third time in (Contemporary Legal Education Series, The Michie s .,or "s nc. te 107 Incarceration pre-trial to protect society is a controversial 135 The Doctors refused to discuss specific instances, but would topic since it seems to be in contravention of the belief that an only comment on the process of determining whether to move a accused is innocent until proven guilty. See id. player from one stage to another in general terms. See id. 108 See In Re Gault, 387 U.S. 1, 26 (1967) (stating that the 136 See id. appearance of fairness in a juvenile proceeding can be thera- peutic for the juvenile). 137 See Raboin, supra note 101.
109 See NFL Violent Crime Policy, supra note 19. 138 See id.
110 See id. 139 See Brian Hanley, NHL Emphasized Education First, CHICAGO SUN-TIMES, Aug. 9, 1999, at p. 21. 111 See Cambridge Dictionary of American English, available at
116 See id. 145 See Spencer v. Texas, 385 U.S. 554, 563-564 (1967).
117 See id. 146 See In Re Gault, 387 U.S. at 26.
118 See Kent Youngblood and Don Banks, Thomas Charged 147 See Dellapina, supra note 134. with Domestic Violence on Wife, STAR TRIBUNE, Apr. 18, 1999, at 15C. 148 See WEILER AND ROBERTS, supra note 63, at 3.
119 See Carruth's Girlfriend Dies and Murder Charges are 149 See. e. ., WEILER AND ROBERTS, supra note 63, at 3. Filed, supra note 1. 150 See Jan Stiglitz, Player Discipline in Team Sports, 5 MARQ. 120 See Len Pasquearelli, Tagliabue Fines Phillips, but He SPORTS L.J. 167, 169 (1995) (citing Major League Won't Suspend Him (posted July 14, 1999), Baseball-Collective Bargaining Agreement, Art. XII (A)).
121 See id. 152 See NLRB v. South Cent. Bell Tel. Co., 688 F.2d 345, 350 (5th Cir. 1982) (stating that deference to an arbitration award 122 See NFL Violent Crime Policy, supra note 19. is an integral part of federal labor law). 123 See id. 153 See U.S. CONST. amend. V.
124 See WEILER AND ROBERTS, supra note 63. 154 See id.
125 See Raboin, supra note 101. 155 See Jill L. Rosenberg, Legal Issues Surrounding Employee Hiring, Privacy and Investigations, 547 PLI/LIT 569, 666 126 See id. (1996).
127 See id. 156 See ELKOURI & ELKOURI, How ARBITRATION WORKS 918-919 (Marlin M. Volz & Edward P. Groggins eds. 5th ed. 1997). 128 See NHL Alters Policy on Substance Abuse, N.Y TIMES, Sept. 27, 1996, at B12. 157 See id.
129 See id. 158 See id.
130 See id. 159 See 0. FAIRWEATHER, PRACTICE AND PROCEDURE IN LABOR ARBITRATION 267 (3d ed. 1991). 131 See id. 160 See id. 132 See id. 161 See id. at 268. 133 See id. 162 See In re National Basketball Players Ass'n. Latrell 134 See John Dellapina, Ranger Win Streak Over at Seven, N.Y. Sprewell and Warriors Basketball Club and National 0 DAILY NEWS, Jan. 28, 2000, at p.11 . Basketball Ass'n, Arb. Mat'l 86 (1998) (Feerick, Arb.) (quoting S ""ANB KO SKI Cameron Iron Works, 73 LA 878 (Marlett, 1979)). 191 See Soltau, supra note 54.
163 See ELKOURI & ELKOURI, supra note 156, at 919. 192 See Pasquearelli, supra note 120.
164 See FAIRWEATHER, supra note 159. 193 See id.
165 See ELKOURI & ELKOURI, supra note 156. 194 See id.
166 See WEILER AND ROBERTS, supra note 63, at 12-13. 195 See id.
167 See Pasquearelli, supra note 120. 196 See id.
168 See ELKOURI & ELKOURI, supra note 156. 197 See Eastern Enter. v. Apfel, 524 U.S. 498, 538 (1998) (Thomas, J. concurring) (citing 2 J. STORY, COMMENTARIES ON 2 7 2 169 See Dainels v. Williams, 474 U.S. 327 (1986) (stating that THE CONSTITUTION § 1398, p. (5th Ed. 1981)). the Due Process Clause of the United States Constitution is intended as a protection against abuses by those in power in 198 See Landgraf, 511 U.S. at 266-267. government). 199 See Pasquearelli, supra note 120. 170 See Spencer, 385 U.S. at 563-564 (stating that due process guarantees fundamental fairness in a trial). 200 See NFL Violent Crime Policy, supra note 19. 171 See In Re Gault, 387 U.S. at 26. 201 See In Re Gault, 387 U.S. at 1.
172 See NFL Violent Crime Policy, supra note 19. 202 See WEILER AND ROBERTS, supra note 63, at 27.
173 See id. 203 See NFL Violent Crime Policy, supra note 19.
174 See In Re Gault, 387 U.S. at 26. 204 See id.
175 Studies have been done that show when a person does not 205 See id. think he is being treated fairly, the chances of being rehabili- tated were diminished. This was a leading reason the United 206 See id. States Supreme Court extended due process protections to juve- nile proceedings. See In Re Gault, 387 U.S. at 26 (citing 207 See id. JUVENILE DELINQUENCY-ITS PREVENTION AND CONTROL 33 (Russell Sage Foundation 1966)). 208 See id. 176 See NHL Alters Policy on Substance Abuse, supra note 128. 209 See Pasquerelli, supra note 120.
177 See id. 210 See FAIRWEATHER, supra note 159, at 301.
178 See Hanley, supra note 139. 211 See id.
179 See id. 212 See id.
180 See In Re Gault, 387 U.S. at 19. 213 See id.
181 See id. 214 See id.
182 See Joe Falls, Selig Dealt Properly with Rocker, DETROIT 215 See In re National Basketball Players Ass'n, Latrell NEWS, Feb. 3, 2000, at C2. Sprewell and Warriors Basketball Club and National Basketball Ass'n, Arb. Mat'l 96 (1998) (Feerick, Arb.). Jan. 29, 2000, at B2. 183 See Metro Digest, DENVER POST, 216 See id. 386, 390 (1798). 184 See Calder v. Bull, 3 U.S. (3 Dall.) 217 See id. I, § 9, cl. 3 185 See U.S. CONST. art 218 See id. 186 See WEILER AND ROBERTS, supra note 63. 219 See FAIRWEATHER, supra note 159, at 301. Lesson,' supra note 83. 187 See Cordero: 'I Learned My 220 See id. Digest, supra note 183. 188 See Metro 221 See NFL Violent Crime Policy, supra note 19. 511 U.S. 244, 266-267 189 See Landgraf v. USI Film Products, (1994) (stating that ex post facto laws ensure a person has fair 222 See id. warning). 223 See Blackledge v. Allison 431 U.S. 63, 71 (1977). 190 See Dolphins Sign Lawrence Phillips through 1998, supra note 31. 224 Approximately ninety percent of cases in the United States s orts note are pled out for various reasons. See COHEN & HALL, supra note McNair paid $700 million for the rights to the NFL's 32nd fran- 106, at 357. chise. See Houston Wins NFL's 32nd Franchise (posted Oct. 6, 1999)
229 See id. 255 See Raboin, supra note 101.
230 Although this is an example from the collegiate levels, it 256 The NFL does employ some counseling in its Violent Crime illustrates the point. See News in Brief: Knight to be Cited in Policy. When a player is accused of committing a violent crime, Hunting Mishap, DETROIT NEWS, Oct. 22, 1999, at E2. he is automatically sent to counseling and a clinical evaluation. However, once a player has been convicted, the policy immedi- 231 See id. ately switches to a punishment phase. No longer is the thought of counseling even mentioned - only fines and suspensions. See 232 See Bruce Lowitt, A Chronology of the Events Involving NFL Violent Crime Policy, supra note 19. Warrick, ST. PETERSBURG TIMES, Oct. 23, 1999, at 10A. 257 Lawrence Phillips is the perfect example. See Soltau, supra 233 See Lucy Morgan, Now FSU, Warrick and We Can Move note 54. On, ST. PETERSBURG TIMES, Oct. 23, 1999, at 6B. 258 See Raboin, supra note 101. 234 See id. 259 See. e.g., Paul Campos, Owning a Team an Egoists Dream, 235 See Lucy Morgan, FSU Star Warrick Cleared to Play, ST. ROCKY MOUNTAIN NEWS, Nov. 9, 1999, at 37A (stating that the PETERSBURG TIMES, Oct. 23, 1999, at 1A. Jacobs brothers sold the Cleveland Indians for a $290 million profit after 13 years of ownership); Thomas Heath, Some Blue 236 See WEILER AND ROBERTS, supra note 63, at 3. Amid Redskins Green; Playoff-Bound Team Benefits Financially,But a Few Fans are Upset, WASHINGTON POST, Jan. 237 See Matt Winkeljohn, NFL's Image: Despite 7, 2000, at D1 (stating that the Washington Redskins make an Downward Trend in Crimes, Problems Continue; annual profit of approximately $20 million). Recent Spectacular Allegations Include Sexual Assault, Battery and an Attack on a Police Car, ATLANTA JOURNAL 260 The average salary of a Major League baseball player has AND CONSTITUTION, Feb. 2, 2000, at 6A. risen from $50,000 in 1976 to $370,000 in 1985 to over $1 mil- lion in 1992. This does not include endorsements. See WEILER 238 See generally In Re Gault, 387 U.S. at 26. AND ROBERTS, supra note 63, at 228, 233. 239 See Ravens Lewis to Appeal Stunning Fine (postedAug. 19,2000) 261 See Soltau, supra note 54.
245 See NFL Violent Crime Policy, supra note 19. 266 See NFL Violent Crime Policy, supra note 19.
246 See generally id. 267 Id.
247 See Dellapina, supra note 134.
248 See id.
249 See NFL Violent Crime Policy, supra note 19.
250 For the new expansion team in Houston, for example, Bob
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