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              Professional sports are not played by the lackadaisical.  They require a certain amount of dedication and forcefulness, no matter the sport.  As such, it is not unusual for tempers to flare and for actions to be taken on the playing field that are aggressive beyond the scope of the game – whether that be verbally or physically. While many sports have built-in rules regarding illegal conduct during play, such as penalties in the National Hockey League (“NHL”)[1] and fouls in Major League Soccer (“MLS”)[2], there are occasionally incidents during play that are determined to warrant further review in order to determine if the player committing the offense will be penalized further.

              A survey of the respective Collective Bargaining Agreements (“CBA”) from the NHL, MLS, National Football League (“NFL”) and Major League Baseball (“MLB”) reflect that each of the organizations includes a provision that discusses additional penalization for misconduct occurring on their respective playing surfaces.  However, there are notable differences in the scope of each provision, including whether the ‘on-field’ provision extends beyond just the playing surface and the level of detail provided as to the process of the disciplinary procedures.  Most notably, it appears only one league, the NHL, provides any sort of procedure to help prevent actions requiring discipline in the future.

Major League Soccer

              Major League Soccer contains one of the briefest on-field conduct provisions, though it is perhaps the broadest in what it classifies as ‘on-field’.  Not only does the provision extend to the field, it reaches to areas “including, but not limited to: the playing field, locker rooms, parking lots, spectator stands or other spectator facilities, and other back-of-house and underground areas, including those used by television production and other media.”[3]  However, defining the scope of where the provision extends to is the most detailed portion of the clause.  With regard to the potential action against the players, the provision notes only that players may appeal to an Impartial Arbitrator solely to see if the Commissioner’s decision to impose the disciplinary action against the player was arbitrary and capricious.[4]  This seems to be an incredibly high bar to overcome for any player wishing to contest discipline.

              To impose discipline for an on-field action, the MLS establishes a five (5) member Disciplinary Committee consisting of at least two (2) former MLS players.[5]  As such, the MLS does have parameters for discipline outside of the CBA, within the Disciplinary Committee Principles and Parameters,[6] but overall the appeals procedure does not appear to be in the favor of players.  In fact, to appeal red cards in the MLS (which lead to an automatic one game suspension[7]), a player’s team must provide a $25,000.00 bond and risk the imposition of double the penalty if an appeal is deemed frivolous, in addition to losing the right to appeal further red cards issued that season.[8]  For a league that still lags behind the ‘Big Four’ financially[9], this seems to be an overly steep penalty to impose for a small likelihood of success.

Major League Baseball

Major League Baseball presents a slightly more detailed grievance procedure within its CBA but limits the scope of on-field conduct to “on the playing field or in the ballpark,”[10] a slightly narrower construction than the MLS.  While he MLS does not provide the player with a report of the incident for which they are being suspended, the MLB does provide players with an incident report for their review, followed by a seven (7) day period in which the player can appeal.[11]  The appeals procedure is more thoroughly laid out in Appendix A of the CBA,[12] which details the general procedures for Grievance Arbitration Hearings.  In contrast to the MLS, no bond is needed to secure the appeal and there are no additional penalties in the event an appeal fails.[13]  In fact, none of the other CBAs surveyed appear to have a bond and additional penalty clause. The costs imposed by the MLB’s CBA include only that each side must pay for their own expenses during the hearing.[14]  Further, it appears that the MLB eschews the MLS’s discipline decision-making policy of using a panel of decision makers.  Instead, the Senior Vice President, Standards and On-Field Operations or the Commissioner impose penalties.[15]

National Football League

              Much like the MLB, the NFL’s disciplinary actions are initially determined by a single individual. “Fines or suspensions imposed upon players […] shall be determined initially by a person appointed by the Commissioner after consultation concerning the person being appointed with the Executive Director of the NFLPA.”[16]  Unlike the MLB, where the individual is a member of the MLB organization, the NFL’s CBA does not list where the individual imposing discipline will be drawn from. This presents an interesting dilemma regarding the potential bias of the persons chosen. Not only is this individual chosen by the Commissioner and the Executive Director of the NFLPA (presumably both in order to avoid the individual leaning toward one side or another) but the same two individuals choose who should serve as Hearings Officers in the event that the initial decision is appealed.[17]  In fact, the Commissioner himself may serve as the sole Hearing Officer if he so chooses.[18]  It seems almost impossible for there not to be an appearance of bias with regard to the outcome of these hearings; all of the decision-making power can rest in the hands of one individual. As such, this may be a large flaw in the NFL’s CBA.  

National Hockey League

The NHL’s CBA follows many of the standard clauses outlined above but has the most detailed of the disciplinary procedures for misconduct while playing.  In addition to noting general incidents that may result in additional discipline, the CBA details five (5) factors that will be considered, including whether the player is a repeat offender and any injury to the opposing player.[19]  In addition, unlike the above leagues, there is more than one level of appeal open to the alleged offender in the event that they are disciplined for six (6) or more games.[20] If an appeal to the Commissioner is unsuccessful, the player may appeal to a Neutral Discipline Arbitrator, who is jointly appointed by the parties and must have “substantial experience as an arbitrator or judge.”[21]

There are two further sections of the NHL CBA that warrant closer looks, as they do not appear to exist with regard to ‘on field conduct’ within the other CBAs discussed. That is, Criminal Investigation[22] and Educational Videos[23].  The NHL appears to be the only league which includes a provision regarding a criminal investigation surrounding a play made during a game, perhaps spurred by the criminal investigation that was conducted against Zdeno Chara of the Boston Bruins for a hit on Max Pacioretty of the Montreal Canadiens in 2011.[24]  A hit by Chara on Pacioretty left Pacioretty with a severe concussion and cracked vertebra.[25] While Chara was given a game misconduct, the league ultimately decided not to suspend him.[26]

The NHL is also the only league of the four surveyed herein where the CBA contains a provision that provides players with video footage of incidents that have “warranted the imposition of Supplementary Discipline for On-Ice Conduct and educational video footage regarding points of emphasis.”[27] If leagues are willing to punish players for their conduct on the field or the ice, they should be willing to educate the players to work toward avoiding these incidents in the first place.

              Overall, the NHL, of the four CBAs surveyed, does the best job presenting a comprehensive overview of disciplinary procedures for misconduct while playing a professional sport.  It is the only league with multiple appeals procedures as well as an avenue which will ideally prevent future misconduct through education – though that policy can most certainly stand to be strengthened.  It is unclear why the NHL’s policies are more stringent, though perhaps it has to do with the nature of the game itself and the likelihood of injury to the players.  Regardless, when it comes time to renegotiate the CBAs of Major League Soccer, Major League Baseball, and the National Football League, they could stand to learn a few things from the National Hockey League.

 

[1] National Hockey League, National Hockey League Official Rules 2017-2018, NHL.com, 25-48 (2017), http://www.nhl.com/nhl/en/v3/ext/rules/2017-2018-NHL-rulebook.pdf.

[2] The International Football Association Board, Laws of the Game 2017/18, TheIFAB.com, Law 12 (2017), http://static-3eb8.kxcdn.com/documents/293/092810_310517_LotG_17_18_LAW12.pdf.

[3] Major League Soccer Collective Bargaining Agreement §20.2

[4] Id.

[5] Id.

[6] MLS Press Box, MLS Disciplinary Committee Principles and Parameters, MLSSoccer.com, http://pressbox.mlssoccer.com/content/mls-disciplinary-committee-principles-and-parameters-0 (last visited Mar. 5, 2018).

[7] Id.

[8] http://pressbox.mlssoccer.com/content/appeal-review-red-card-decision

[9] Steve Davis, With 'big four' mentality, MLS still fighting for place among major leagues, FourFourTwo (Feb. 22, 2017) https://www.fourfourtwo.com/us/features/major-league-soccer-big-four-sports-when-will-mls-pass-nhl.

[10] Major League Baseball 2012-2016 Basic Agreement, Article XI(C).

[11] Id.

[12] Id. at Appendix A.

[13] Id. at Article XI(C).

[14] Id. at Appendix A.

[15] Id. at Article XI(C).

[16] National Football League Collective Bargaining Agreement, Article 46.

[17] Id.

[18] Id.

[19] Collective Bargaining Agreement Between National Hockey League and National Hockey League Players’ Association (hereinafter “NHL CBA”), Article 18.

[20] Id. at Article 18.13.

[21] Id. at Article 18.14.

[22] Id. at Article 18.19

[23] Id. at Article 18.20.

[24] Cops open Zdeno Chara hit probe, ESPN (Mar. 11, 2011) http://www.espn.com/nhl/news/story?id=6201094.

[25] Id.

[26] Id.

[27] NHL CBA supra note 19 at 

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