Brett Favre and the NFL's Personal Conduct Policy

| by

Back in 1919, Ban Johnson, the president of the American League, suspended pitcher Carl Mays from the New York Yankees. While with his former team, the Boston Red Sox, Mays had walked off the mound and taken the next day off to go fishing. Johnson suspended Mays under the provision in the league constitution that gave the league president the power to suspend players "for conduct detrimental to the general welfare of the game."

Sound familiar?

The NFL's Personal Conduct Policy gives the NFL Commissioner power to suspend players for "conduct detrimental to the integrity of and public confidence in the National Football League." Like the suspension of Mays by Ban Johnson, it appears Brett Favre may be subject to suspension for sending sexually provocative photographs and engaging in other sexual conduct directed toward some Jets' employees.

So why bring up the 1919 suspension of Carl Mays? How is that event relevant to the Favre situation?

Here's why. When Johnson suspended Mays, the New York Yankees sued. They termed Johnson's suspension an impermissible interference with Mays' contract and a violation of their property right to the player and to pursuing a championship. The Yankees argued that the president's constitutional power, while sweeping, was limited to misconduct on the playing field and went no further. Johnson's contention that "conduct detrimental" extended to any conduct, anywhere and anytime, according to the Yankees effectively converted Johnson from a constrained league president to an "unmolested despot."

And the Yankees won. The league's personal conduct policy did not extend to off-field conduct. Should it?

1.The limitations imposed on the commissioner's authority by the court in the Mays case are history, so to speak. Beginning with baseball's decision, in the wake of the 1919 Black Sox scandal, to create the office of the commissioner and endow the commissioner with virtually unconstrained authority, no court would find that baseball's constitution today limits the commissioner as it did the league president in 1919. The NFL patterned its sweeping personal conduct policy after similar language in baseball's current constitution. Clearly Roger Goodell has the legal authority to suspend Favre for his off-field conduct.

2. Consider this problem with including off-field events under the personal conduct policy. What happened, out there in the real world? It's easy when there's criminal misconduct that results in a prosecution: the police investigation, grand jury subpoenas, and probation report give all the details that the commissioner would need. But what about when the off-field misconduct falls short of a crime? It's not easy to determine "what happened" in any situation. The Commissioner cannot easily replicate the painstaking fact-finding of the criminal justice process.

3. Consider this other problem. What kind of misconduct fits the bill? The NFL policy, by way of example, lists several crimes and other threatening behavior. But the personal conduct policy is not limited to criminal behavior. It proscribes any conduct that is detrimental to the integrity and public confidence in the NFL. Does a married man's making romantic/sexual advances to women/employees meet the standard? Favre's personal conduct appears not to have been admirable. But can the commissioner seriously suspend a player for (potentially) breaking his marital vows? From what I hear, quite a few players might fall short of this standard.

4. Goodell should exonerate Favre and in doing so should clarify the limits of his authority. The personal conduct policy is not unlimited. It proscribes conduct that affects the integrity of the NFL and public confidence in the NFL. The NFL is a fall football league that features sixteen regular season games and a playoff tournament. Does anything Favre allegedly did threaten public confidence in the integrity of those contests? Is the argument that, if Favre cheats on his wife, he'll cheat during the game? No, there's no threat to the game's integrity. There's no threat in the public confidence in the NFL. The commissioner's authority extends to off-field conduct only insofar as it threatens that confidence. The commissioner should not punish off-field conduct just because it's bad conduct.

5. What about illegal dog-fighting? Should Vick have been suspended? Dog fighting is terrible. So is cheating on your spouse.