-- When a professional sports player is in trouble legally and there's nothing he can say to justify what he did, the player turns to "due process" for a career lifeline. Adrian Peterson, Alex Rodriguez, Ryan Braun, Greg Hardy and Ray McDonald have all done it. Former Ravens running back Ray Rice is in the middle of a battle against the NFL over this very issue right now.
Due process is one of the most revered ideas in American law; its origins are in the U.S. Constitution, after all. When due process is applied to player misconduct, though, it comes in the legal form of "industrial due process."
When lawyers for players demand due process and league officials assert that they have already provided it, it can be confusing to fans. Throw in the fact that the players are governed by collective bargaining agreements and it can be even more confusing.
The meaning of the term "due process" can be elusive, even intimidating. But it is not as difficult as it might seem, and commissioners can avoid the embarrassment a player and his lawyer can inflict when there is a failure of actual due process by keeping in mind the following:
Give the player fair notice of the league violation: The player has a right to know the specific allegations against him. Not only should the player understand the nature and scope of the charge but he should also know the possible consequences if the evidence supports the charge. This is something that must be done before any discipline is imposed.
If there is a second incident, there must be a second notice to the player that specifies the charge. When new or additional evidence is discovered, it would be very easy to quickly add to the punishment. He was guilty the first time, he is guilty again, and he should be punished. But, no, don't do it. That is not the way it works. The league must inform the player and begin the process all over again.
If, for example, a previously unseen video shows Ray Rice punching his fiancée in an elevator, there must be a second notice before any additional punishment may be imposed. This can be done in a hurry with the commissioner or arbitrator giving the player sudden deadlines of a day or two. Then, after giving the player notice of a second charge and a chance to respond, new punishment can be added in a matter of a few days.
If there is no second notice after a discovery of new evidence, the player will cry "double jeopardy," as Rice has. It might not actually be double jeopardy, a doctrine that technically applies only to criminal charges in court and not to industrial due process, but it might be a fatal failure to provide fair and proper notice to the player of the new charge against him.
Give the player a chance to respond: It could be in writing or in a personal interview, but the player's version of the incident is necessary. Punishing a player without listening to his story is one of the few mistakes that could cause a court to intervene in the league's discipline and arbitration process, something that almost never happens. If there is a suspension or a fine without hearing from the player, it would be based on assumptions or partial facts, a fatal flaw in this process.
Do a fair and comprehensive investigation and show it to the player: A complete investigation includes interviews of the accuser, the accused player and anyone who might have seen any part of the incident. Questions in the interviews must be free of the language of bias or any hint of attitude. If a question begins, "Isn't it true that you ... ," it's not a proper question.
When the investigation is complete, give all of it, every interview and every scrap of paper, to the accused player. It is especially important to give the player any evidence that might indicate innocence (known as "exculpatory" evidence among lawyers). Players can afford to hire the best lawyers. These lawyers will discover anything that is held back and use it to accuse the commissioner and the league of cheating in the investigation.
Withholding contradictory or equivocal evidence is not worth the risk of giving the player a chance to embarrass the commissioner and fire up the player's fans. There is nothing worse for a commissioner than to be caught in a cover-up of evidence that supports the player's version of what happened.
It is also important that the investigation be balanced. A player cannot be required to produce a corroborating witness for his version if the league (and the accuser) are not required to produce corroboration for their version.
Act quickly and conclusively: There can be no delay in the investigation or in the decision on suspensions and fines. As time passes, memories fade, witnesses depart or disappear, and records are discarded. Even more important than the effect on the evidence, immediate and dramatic action adds to the message that the player's action is totally unacceptable. If the investigation languishes over weeks or even a month, the passage of time leads to the conclusion that the player's conduct was not that terrible.
Do it right, and there is nothing the player can do: Following these rules enhances the integrity of the investigation and the persuasive power of the commissioner's decision, and it increases the likelihood that the action will be affirmed and approved in any court challenge. It is almost impossible for a player to persuade a judge in any court to reverse a decision made by a commissioner or an arbitrator who follows these rules of due process.
A player can, of course, file a lawsuit that seeks to reverse a suspension or a fine. Alex Rodriguez did it, for example. It's a dream situation for the player's lawyer. There is a season or a career at stake. The player can easily afford to pay substantial fees. There is nothing better for the lawyer than a big fee for a case he is not expected to win, a situation that produces quixotic lawsuits. When the lawsuit is inevitably dismissed, the lawyer explains that the law does not permit the reversal of a disciplinary decision that is based on due process.
The lawyer would be correct when he says the law is against the player in these circumstances.
The U.S. Supreme Court made it clear in 2001, in a decision on a claim from former Los Angeles Dodgers first baseman Steve Garvey for a contract extension he lost during the baseball collusion conspiracy. In an 8-1 decision, the high court ruled that when an arbitrator makes an "improvident, even silly" decision, the error does "not provide a basis for a court to refuse to enforce" the decision. To make sure that everyone understood its ruling, the court added that even when a judge is convinced that a commissioner or an arbitrator "committed serious error, it does not suffice to overturn his decision."
The due process rules are based on notions of simple fairness. There are differences in procedures and in the roles of arbitrators in the four professional leagues, but all commissioners have the authority to initiate player discipline and the power to insist on fairness in the treatment of players who are in trouble. Any commissioner can ensure that his investigators and lawyers follow the rules. This is not difficult. To punish a player for conduct detrimental to the league, to make sure his action is upheld, the commissioner need only do what is fair.