Ray Rice’s Pyrrhic Victory – Huffington Post

Arbitrator Barbara Smith has set aside the indefinite disciplinary suspension NFL Commissioner Roger Goodell imposed on Baltimore Ravens’ running back Ray Rice after an unprecedented proceeding under the collective bargaining agreement between the League and the Players Association. The opinion clearly evidences former federal judge Smith’s experienced hand at writing judicial opinions. Her ultimate determination — that the Commissioner’s decision increasing Rice’s suspension from two games to potentially a lifetime ban was “arbitrary” — was well founded.

The Ray Rice incident has come to a close at least as far as the parties’ dispute resolution procedure is concerned. Rice’s conduct, which gave rise to his discipline in the first instance, has now received the universal condemnation it deserved. Arbitrator Smith briefly mentions in her opinion the NFL’s previous failure to adequately censure cases of domestic violence. There can be little doubt that the NFL has learned its lesson.

In her opinion, Arbitrator Smith focused on the central factual controversy: what did Ray Rice tell the Commissioner during his meeting with Goodell on June 16th? A labor arbitrator is often asked to determine the “facts.” Of course, he or she is at a comparative disadvantage. The arbitrator generally is the only person at the arbitration hearing who was not present at the event in question. Stories presented in arbitration from the various witnesses who were there often differ, sometimes quite substantially.

An arbitrator “finds facts” by examining the conflicting recollections and whatever documents might be available. Here, the Arbitrator had the advantage of using the written notes taken by some of the participants at that meeting. She concluded that Rice had told the Commissioner that he “hit” his fiancée in the elevator that night. Although the Commissioner’s version differed, Arbitrator Smith wisely did not suggest that Goodell was lying. In fact, he likely was not lying, but rather remembered a different version of the event. Arbitrators need not accuse one witness or another of fabricating testimony. Such an accusation would likely exacerbate the parties’ continuing relationship. It is preferable for the arbitrator simply to state the facts as she finds them.

The Commissioner’s more significant error in the Ray Rice investigation was in failing to obtain the tape of what had occurred inside the elevator. The Arbitrator does state that the NFL knew that the recording existed. Seeing the tape of Rice’s left hook landing on his fiancée’s face would have rightly infuriated the Commissioner and led to more serious discipline right from the start.

The media has explained Arbitrator Smith’s decision as based on concepts of “double jeopardy,” although she does not use that precise term. She does rely on the Commissioner’s own pledge to insure that “fairness” prevailed in this matter. Essential to the concept of fairness in the workplace is management’s obligation to thoroughly investigate an incident before imposing discipline. An employer who rushes to punish an employee and then discovers further evidence that would warrant increasing the penalty would likely have its more serious discipline overturned in arbitration. The arbitrator acts to preserve the employee’s right to fair treatment, including a thorough investigation. That does not mean an employee must be kept at work – or, in this case, on the football field – while the investigation proceeds. Management can suspend an employee pending completion of the investigation.

The hearing before Arbitrator Smith and her resulting arbitration decision demonstrates how due process can operate in the workplace. It would seem incumbent upon the Players Association during the next set of negotiations with the League to establish a contractual procedure for arbitral review in these types of cases – a process that is not currently available under the collective bargaining agreement and was only used because the Commissioner would otherwise have had to testify in a proceeding where he was the sole adjudicator. The parties have used the services of an arbitrator in other types of cases and have recently agreed to such impartial review under their new “Policy and Program on Substances of Abuse.”

Ray Rice’s victory in arbitration, however, is unlikely to return him to the Ravens’ backfield or even to the roster of any of the other 31 clubs in the NFL. The hearing focused on how badly he had behaved that night in Atlantic City, and he prevailed only because the Arbitrator believed that he had told the Commissioner about his censurable misconduct. Returning Rice to the football field would provide exactly the type of distraction NFL clubs abhor. Nothing good for “number 27” will come out of this proceeding. On the other hand, for those men and women who are victims of domestic violence, the public attention focused by the Rice proceeding might make more people aware of this societal scourge.

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