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In the United States, you don’t need to be a sports fan to hear news about scandalous misconduct among athletes. Many Americans remember the wave of steroid allegations circulating in the MLB back in the early 2000’s, and the NHL is a breeding ground for on-ice feudal physical conduct. But chief among all the major sports leagues is the NFL, which has consistently been the primary contributor to a huge slew of off-field, non-game-related misconduct. Every year lay people like myself, Americans uninvolved in the world of sports, get wind of various allegations through typical media outlets, most of which come from NFL players. Domestic violence, weapon charges, drug offenses, driving while intoxicated, the list goes on, but above others we see NFL players in the spotlight for reprehensible conduct. Some might point the finger to the inflated egos of these players. The professional sports industry has a knack for turning mere people into superstars, some feeling they are above accountability. This notion that athletes are above the law might start at a younger age, where college level athletes get their misconduct swept under the rug, but what are the professional leagues doing to keep their icons and role models in line, and why do we see such a disproportionate number of football players stepping out of line?


One piece of the puzzle can be found in the terms of Collective Bargaining Agreements (CBA) that players must agree to in order to be signed to a team and get their career rolling. Nearly all of these CBA’s contain provisions that regulate player misconduct, both on and off of the field. Each is loaded with different objectives of the league, which are ultimately very telling as to the values many of these professional sports organizations may have. The NBA’s CBA, for example, contains separate provisions for firearms, violence, motor vehicle misconduct, substance abuse, and more. However, taking a look at the NFL’s 2011 CBA, while there might be a separate tidbit concerning substance abuse, there is but one provision acting as a catch-all for any non-game related misconduct: Article 42 § 1(xv). Titled “Conduct detrimental to Club”, this provision allows the NFL to impose either a fine amounting to one week’s salary, and/or unpaid suspension not to exceed four weeks as a consequence to “any deactivation of a player in response to player conduct (other than a deactivation in response to a player’s on-field playing ability)...”. NFL 2011 CBA 42 § 1(xv). This means that at the most, a player will be penalized by four weeks of pay. When the average player makes well over $2 million, this may seem like a harsh consequence, especially considering that NFL players actually tend to make significantly less than other athletes. However, contrasting this to the CBA’s of other sports, that opinion will likely change and may begin to explain why so many NFL players fear disciplinary actions with a slap-of-the-wrist mentality.


The NHL, for example, has a CBA that allows for the league to put its foot down and severely discipline a player. Under their Article 18-A.2, where a player has been or is guilty of conduct detrimental to the welfare of the game of hockey, not only can players be suspended for an indefinite period of time, but entire contracts can be terminated at the league’s discretion, not to mention the maximum cap on fines being fifty percent (50%) of the players base annual salary, as provided in Article 18.7(b), the section pertaining to on-ice misconduct. NHL 2012 CBA § 18-A.2. With players wary of losing half their annual salary, or even their entire livelihood, it’s no wonder hockey players might be more cautious about their public image and outside conduct. While this might not help the epidemic of athletes feeling they are above the law, per say, the NHL’s CBA fills this void by giving hockey players a real sense of accountability.


Penalizing players who engage in egregious misconduct like domestic violence and intoxication-related crimes is only half the battle, however, the other half is rehabilitation. Often times the heinous activity of athletes is glamorized rather than corrected, but the MLB takes a proactive step to correct its players wrongful conduct, as provided in their CBA. Attachment 27 of the 2012 CBA provides that a treatment program be offered to players involved with substance abuse or violent conduct. Not only does Attachment 27 seek to target on and off-field intoxication, crimes related to intoxication, and any sort of violent crime, but it gives players the opportunity to seek out help for their underlying issues. Although voluntary, participation in a specialized programs is incentivized as participation can be considered as a mitigating factor when determining the league’s disciplinary action.


In contrast to these other sports, the NFL’s provisions on misconduct seem to be increasingly disparaged. Where NFL players are penalized with minor fines and a slap on the wrist, there is little to no incentive to correct wrongful behavior. Meanwhile, other professional sports leagues are able to hold their players to higher standards as a result of their CBA’s. It is no wonder we as the public hear such an influx of NFL related scandals to those of other sports. While crafting heftier covenants penalizing player misconduct might not be getting to the heart of the issue with athlete misconduct, it is a step in the right direction and will hopefully produce new generations of more mindful and responsible athletes. If the ethical values of our nation cannot regulate the egos we’ve overinflated, perhaps it is time to look to contract law to do what the criminal law could not.


Gabriel Feltenstein 2019 © For Educational Use

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