ESPN’s September 8, 2015, report on how the National Football League (NFL) handled the 2008 Spygate case, in combination with the league’s recent player scandals and misconduct decisions, should create debate among the league’s franchise owners of outsourcing the investigation and enforcement of alleged player, coach and team misconduct to an external and independent firm or agency.
According to the ESPN report (which can be read by clicking here), quarterback Tom Brady and the New England Patriots’ Deflategate case was “seen by some owners as a ‘makeup call’” over the 2008 Spygate case, which involved the Patriots “videotap[ing] the signals of opposing coaches in 40 games” from 2000 to 2007.
The NFL is this nation’s premier professional sports league (in revenue, television ratings and other metrics). However, increased off-the-field scandals will erode the NFL’s brand and the public trust—which will slowly, but surely, affect the league’s revenue. One way to reverse the trend is to turn over the investigation and enforcement of its rules to an external body. A professional, consistent, independent and objective approach to investigation and enforcement should earn the respect of the fans, decrease litigation and serve as a deterrence to potential wrongdoers.
Here is a brief (and broad) sketch of a sample outsourcing system:
- Oversight and Financial Support. The operations of the independent investigation and enforcement operation would supervised by an independent and conflict-free board (the “Board”) whose members would be jointly appointed by the NFL and National Football League Players Association (NFLPA). The operations would be financed by the NFL.
- External Compliance and Investigations. The NFL would retain an outside agency or body (e.g., law firm, investigative agency) or create an independent entity to receive and investigate allegations of serious misconduct involving players, coaches and teams (which would be referred to as the “Compliance and Enforcement Office”). [Note: Minor rules infractions (e.g., Illegal hits, on-the-field fights) would continue to be processed under the current disciplinary system.] The Compliance and Enforcement Office also would be tasked with ensuring each franchise complies with league rules by conducting regular audits and providing ongoing education on league rules. The Compliance and Enforcement Office, which would be staffed with experienced and conflict-free investigators and attorneys, would be housed in a New York City facility separate from the NFL headquarters or stationed in one or more locations throughout the country. The Board would hire the members of the Compliance and Enforcement Office.
- Outsource Enforcement Decisions. Instead of the NFL commissioner deciding punishments on serious misconduct, the league would establish two independent entities (referred to as the “Enforcement Committee” and “Enforcement Appeals Committee”) to serve that purpose. The committees would consist of lawyers and former judges, law enforcement professionals, politicians, players and coaches. The committees’ chairs and members would be selected by the Board. The seven-person Enforcement Committee would be charged with conducting hearings to resolve the charges brought by the Compliance and Enforcement Office against a player, coach or team. The Enforcement Committee would issue a written decision. The players, coach or team could appeal to a three-member Enforcement Appeals Committee, which would conduct a hearing and issue a binding written decision.
I believe the implementation of an independent investigation and enforcement scheme would create long-term benefits for the NFL. As recent events has demonstrated, the public believes (and, I am sure, some owners and players know) the current system is not working. Now is the most opportune time to fix it and get it right.
Michael L. Buckner, a Buckner attorney and a former private investigator, provides investigative and compliance consulting services for sports entities and educational institutions. Mr. Buckner can be reached at +1-954-941-1844 or firstname.lastname@example.org.