Lawyer David Cornwell discusses 'due process' issues for Ray Rice following indefinite suspension
By By Aaron Wilson
The Baltimore Sun|
Sep 16, 2014 | 1:28 PM
A contentious dispute between former Ravens star running back Ray Rice and the NFL has removed him from the football field through an indefinite suspension. Now, this high-profile situation stemming from a domestic violence incident is about to enter the legal arena.
The NFL Players Association is poised to file a grievance by today's deadline on behalf of Rice, demanding that the discipline levied a week ago by NFL commissioner Roger Goodell be overturned.
The players' union is also expected to ask that Goodell recuse himself from hearing the appeal since he would likely be a witness after stating in a letter that he based his increased discipline on new video evidence.
Rice's initial two-game suspension was increased shortly after the Ravens terminated his $35 million contract. Those actions followed the release of a graphic video showing the three-time Pro Bowl runner knocking out his then-fiancee, Janay Palmer, whom he later married. The video triggered a national outcry.
Due process and the concept of double jeopardy are expected to be at the heart of the effort to attempt to get Rice reinstated, according to sources. Rice has been declared ineligible to sign an NFL contract.
"The enduring fundamental issue is there's a reason we have a collective bargaining agreement, and it's a serious policy despite the public fervor and outcry with the particular circumstances and conduct that we're discussing with Ray Rice," said attorney David Cornwell, a former NFL counsel who doesn't represent Rice but successfully represented former Pittsburgh Steelers quarterback Ben Roethlisberger and Ravens wide receiver Donte' Stallworth in NFL disciplinary cases. "By virtue of these documents, we are guaranteeing a player due process and establishing a reasonable expectation of what discipline is attached for certain conduct and a uniformity designed by the very existence to prevent discipline that wavers and swings with the pendulum of public opinion and media outcry. Now is the time to stand up for these policies. Now is the time to take action."
A large portion of the argument from the NFLPA is expected to concentrate on Article 46, Section 4 of the collective bargaining agreement, which deals with "One Penalty."
The NFLPA could make the argument that the NFL can't suspend Rice twice for the same violation of the NFL personal-conduct policy and contend that the NFL and the Ravens have punished him more than once for the same infraction.
"The Commissioner and a Club will not both discipline a player for the same act or conduct," the provision states. "The Commissioner's disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct."
Legally, Rice's case has already been adjudicated. He avoided jail time after being accepted into a pretrial intervention program that requires him to continue couples counseling with his wife, take anger management classes and remain out of trouble.
But Rice lost his job and his future in the NFL is uncertain. When his contract was terminated, Rice lost $3.529 million this season.
In a letter to Rice and the players' union on Friday explaining the amplified punishment, Goodell wrote that the full video differed from a version of events presented by Rice during a meeting at league headquarters attended by his wife, Rice's representatives and Ravens team president Dick Cass.
"This video shows a starkly different sequence of events from what you and your representatives stated when we met on June 16, and is important new information that warrants reconsideration of the discipline imposed on you in July," Goodell wrote in the letter. "Based on this new information, I have concluded that the discipline imposed upon you in July was insufficient under all the circumstances and have determined instead to impose an indefinite suspension."
Ravens general manager Ozzie Newsome told The Baltimore Sun last week that Rice didn't lie to him. There was "no ambiguity" from Rice in what he told the Ravens and the NFL, according to sources.
Former FBI director Robert Mueller III is investigating the NFL's handling and pursuit of evidence in the Rice case. The Associated Press reported that the NFL received a copy of the tape in April. Both the Ravens and the NFL have denied seeing the full video prior to it leaking last Monday on TMZ, the popular celebrity gossip website.
Should it be determined that Goodell saw the video prior to punishing Rice again, the NFLPA could say that Goodell was just reacting to the public relations problem and not discovery of new evidence.
It all makes for a complicated appeal process.
"You have to separate all the moving parts and the emotion that arises because of the underlying issue," Cornwell said. "Based on what's left, it's not a very complicated set of acts. It's a circumstance where a player is subject to commissioner discipline, went through the disciplinary process and a final determination was reached and discipline was imposed.
"Thereafter, based on what the league contends is newly-acquired evidence, the league has made a determination that the player was not truthful in the hearing and that raises a couple of problems, whether the information is newly-acquired. I do not believe Roger saw the video. I don't believe that. He said he hasn't. Therefore, I believe he has not.
"That's not the only test. The test is whether the tape was available to them. If not, then why not? It's being debated whether Ray and Janay were truthful in the hearing. They contend that they were, as do others in the room. That's an issue. Even if they weren't, I don't believe that's necessarily a basis for enhanced discipline even if you find a player wasn't credible in a hearing. It's hard to set a precedent based on you telling X, Y and Z in a disciplinary hearing and now, 'We don't think you were truthful.'"
Rice is also contemplating additional legal action and has consulted several lawyers. He's also likely to hire a crisis management firm, according to sources.
In a previous case governed by the NFL personal-conduct policy, Stallworth was reinstated by the NFL and signed by the Ravens following a driving under the influence vehicular manslaughter case in Miami Beach, Fla.. Stallworth served a year-long suspension and was reinstated by Goodell.
Roethlisberger was originally suspended for six games after being investigated for an alleged sexual assault of a female college student in Milledgeville, Ga. After Roethlisberger did a mandatory professional behavior evaluation, the suspension was reduced to four games.
In that case, it was also Goodell who took two games off of the suspension.
In the New Orleans Saints' 'Bountygate' scandal, it was ultimately former NFL commissioner Paul Tagliabue who vacated Goodell's punishments.
"They really need to appoint a third party for the Rice case," Cornwell said. "I don't know that Paul Tagliabue would want to do it. If one of the league folks are the hearing officer, their job could be on the line. That's a tough situation. It's going to be interesting."
If Rice was to lose his bid for reinstatement, he could find himself asking the NFL for leniency at a later date after challenging them previously.
"That's a critical element," Cornwell said. "Filtered through Roger's prism, he may think that you're attacking him through the appeal. That's a no-win battle. This thing has to be handled delicately. There's clearly a path back into the NFL.
"The question is, 'how do you separate these kind of circumstances from the public outcry?' That's one of the things we confronted with Donte. People were mad at us that he got 28 days in jail. People were mad. That made it more difficult. Ray is in a tough situation, but he has rights and that's an important thing to remember and protect."