A Quick-Reference Guide to the NFL Constitution & Bylaws, Article VIII
Unless you have been living under a rock like Patrick Star, you know the name Roger Goodell. Goodell is the current NFL Commissioner who has reigned over the League since being the chosen one to succeed Paul Tagliabue in 2006. His name has not been able to escape media attention and public criticism since taking the position thanks to a combination of (a) the successive "scandals" by teams and individuals, (b) the increasing popularity of non-traditional news platforms like social media & online video streams, and (c) a more widespread understanding of the NFL Constitution & Bylaws outside of the League, where experts in the sports industry (e.g., me & my fellow sports attorneys!) are educating the fans on what the heck is going on with the product - the game itself and the people involved - they love.
Commissioners of professional sports leagues play an extraordinary unique role. They are known as the face of their league because they speak on behalf of their league. They are "the CEO of the league" because they look out for the best interests of the team owners and the overall operation of the business. Furthermore, they are in charge of looking after the best interests of their league as a whole. Special duties are intimately attached to the commissioner role, which is why we see them wear many hats depending on the circumstances. In short, no traditional business has a position quite like a professional sports league commissioner who (a) needs to protect the integrity of the game, (b) tackles the delicate responsibility of enforcing rules and disciplining players and/or team owners, and (c) resolves a variety of disputes, big and small.
The NFL Constitution and Bylaws forms the contractual relationship between the League and the owners, particularly, whereas the Collective Bargaining Agreement forms the contractual relationship between the League and the players. Article VIII of the Constitution and Bylaws, plainly titled "Commissioner," covers the many rules touching who the Commissioner is, what his responsibilities are, and what he is authorized to do. I know a lot of people have been asking me questions about this portion in general. Hopefully, your questions get answered, and if they do not, ask away in the comments!
Who is the Commissioner, Exactly?
Legally speaking, the NFL Commissioner an elected official employed by the League. The role is intended to be filled by "a person of unquestioned integrity" because it has special responsibilities and authority to act "in the best interests of either the League or professional football." The Commissioner has the responsibility to interpret, establish, and set policies and procedures based on section 8.5 and, most importantly, the responsibility to enforce League policies and procedures. A couple relatively minor conditions to the Commissioner job position that are still meaningful enough to be written into the NFL Constitution and Bylaws include delivering the annual report at the Annual Meeting each year, filing and maintaining a $50,000 surety bond, keeping financial independence by having no interest - direct or indirect - in any professional sport.
To become NFL Commissioner, a person first needs to be nominated. Then, the nominee needs to receive an affirmative vote from either two-thirds of the League members or 18 League members, whichever is greater, since the number of League members is based on the number of teams in the NFL. From a contract drafter's perspective, this kind of language is used because the number of teams potentially could change overtime, and despite that fact, this document can be enforceable and apply as written through its term. Moreover, the commissioner's employment contract terms are not clearly defined by Article VIII, for section 8.1 simply states that the League will, as a unit, determine his compensation and employment period. The looser language here allows the owners to collectively have some checks over the commissioner because, as you will see below, the commissioner wields an abundance of diverse authority, and much of said authority is employed using the commissioner's own discretion.
Now that "a person of unquestioned integrity" language becomes pretty consequential, am I right?
What powers does the Commissioner have?
1. Arbitrator Power (section 8.3)
This section gives the Commissioner 100% authority to arbitrate a variety of disputed scenarios:
- Member of the League/Party who holds a certified ownership interest in a team v. Member of the League/Party who holds a certified ownership interest in a member club;
- Player/coach/other League member employee (or any combination of those) v. Member club(s);
- Player(s)/coach(es)/ other member club employee(s) v. Player(s)/coach(es)/ other member club employee(s), besides unrelated disputes & disputes outside the scope of employment within the League;
- Player v. League Official; and
- Member(s) of the League/player(s)/other League member employee(s) (or any combination of those) v. Member(s) of the League/player(s)/League member employee(s) (or any combination of those), where the issue stems from "conduct detrimental to the best interests of the League or professional football" as determined by the Commissioner according to section 8.6.
Moreover, the power accorded here rises to the level expressed as "full, complete, and final jurisdiction." Strictly speaking, the Commissioner gets the power paralleling one of our nation's branches of government - the judicial branch - from this section because the NFL Commissioner can (a) sit and hear each side's case and then make an enforceable final determination on the dispute, and (b) interpret the rules and determine what constitutes "conduct detrimental to the best interests of the League or professional football."
As you'll see below, powers paralleling our nation's other two branches of government - the legislative and executive branches - are also bestowed upon the Commissioner through the rules in Article VIII. The arbitrator power is easily susceptible to public criticism, and every NFL Commissioner has steadily seen a fair share of it because in the grand scheme of things, it feels unnatural and unfair given our democratic preferences for one entity to hold so much "endgame" power, and this authority could be the most natural and fair to pass off to another entity for checks-and-balances' sake.
2. Financial Power to Conduct League Business (section 8.4)
Similar to the president of any traditional business entity, the Commissioner sits on the NFL Executive Committee and has the most powerful voice in the room (i.e., he is the head honcho and has power paralleling executive branches of government). So, as the League's principal executive officer, he must preside at all League and Committee meetings and maintain supervision of League business affairs, generally. All proper business charges go through him for approval before payment as well.
The Commissioner has financial-related authority outside the meeting room, too. Akin to presidents, the Commissioner can act and incur necessary costs on behalf of the League in its ordinary course of business without approval from anyone else. In other words, the Commissioner "in his sole discretion" can bind the entity to what he determines are necessary costs, and section 8.4(A) expressly uses that language. Actions falling under this provision include, but are not limited to, "the leasing of office space and the hiring of employees and other assistance or service." This makes sense. If the Commissioner has to give the stamp of approval for all proper business charges anyway, he has the final say on what are proper or necessary as opposed to extraordinary costs or major investments like capital contributions that would need more eyes and more thumbs-up to pass before they are even incurred.
3. Power to Select and Hire Officials (section 8.7)
If you do not like the officiating in general or specific officials, you can direct your opinions to Mr. Commissioner himself. Although it does not expressly say the commissioner has sole discretion, the NFL Constitution and Bylaws give the position authority to select and hire all game officials for pre-season, regular season, and post-season play, as well as to pick and hire a Supervisor of League Game Officials.
For example, remember in 2012 when the officials were on strike, and the League was forced to either give in to negotiations with the officials' association, the NLRA, or hire substitute referees? That was surely not the finest use of his authority with respect to officials. I will admit that Goodell has learned from his experiences and presently manages this power with a more astute approach. This season marks the first time the NFL actually hired some full-time officials! It is common knowledge that many of the refs have other jobs when they are not on the field and only do this duty part-time. Now, there are 21 full-time NFL officials on the 124 roster hired. Goodell wisely used his power to establish a stronger officiating foundation that, if all goes well, should ultimately result in greater consistency in game management to help the game itself.
4. Power Over a Public Relations Department (section 8.8)
This power is one that we often either flat-out ignore or are so accustomed to what public relations is meant to do that we brush it under the rug because we acknowledge the NFL can manipulate its own public image to an extent. In addition to hiring League employees, the Commissioner has the green light to not only form a NFL Public Relations Department but to maintain exclusive control over the department. Whether it's hiring, firing, compensating, or directing, the employees in this department act according to his will.
In practice, this means that Goodell is the puppetmaster, and the public relations department employees are his puppets. In truth, he is the ultimate puppetmaster because his career in professional football began thirty-ish years ago as a public relations intern. No other Executive Committee member can give the department mandatory direction. Any inconsistencies in positions or factual inaccuracies that the League presents to the public can directly be traced to him because, contractually, the department is his responsibility and his only.
5. Power Over League Contracts, Including Broadcasting Rights (sections 8.9 & 8.10)
The Commissioner, exclusively, is the only person who can arrange for the sale of and/or sell the League's broadcasting rights to the AFC and NFC Conference Championship games and the Super Bowl game. Obvi, there are some lines he cannot stray too far away from, and those lines are laid out in Article X and include, among other things, the infamous television restrictions and network provisions as well as broadcasting income distribution across the League.
6. Power Over Player Discipline (section 8.13)
Relative to the other commissioner powers deriving directly from the NFL Constitution and Bylaws, the commissioner's disciplinary powers are much more thorough, expressed, and controversial. The explanation spans across more than five pages, whereas the Commissioner section in gross takes up only nine pages of the 118-page document (excluding the Table of Contents and accompanying attached documents). This section outlines the different ways the Commissioner can discipline violating parties. Moreover, if he wants to change the imposed discipline by either increasing or decreasing it, he may do so on his own, i.e., without requiring approval, see section 8.13(E).
First and foremost, he must provide notice and a hearing to players before disciplining players. Just like in our government's judicial system, there is (a) a "notice" requirement and (b) an opportunity for a hearing "due process" style that needs to be satisfied before the fact-finder can properly order a penalty. Here, the fact-finder is the Commissioner, and this section gives him authority to choose among a plethora of penalties to distribute where he finds that a "player, coach, officer, director, or employee thereof, or an officer, employee or official of the League has either violated the Constitution and Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or to professional football."
For instance, he may do the following or a combination of the following under section 8.13(A):
- Suspend and/or fine the offendor up to $500,000, in general;
- Suspend and/or fine the offendor the greater of (a) $500,000, and (b) an amount equal to 15% of the transaction value, where the person engaged in an unrescinded unauthorized sale, transfer, or assignment of a membership or an interest in membership to anyone other than the transferor's immediate family;
- Cancel any of the offendor's contracts with the League or with any League member; and
- Award and/or deprive teams draft selections and/or fine the offending team up to $500,000, where the violation affects competitive aspects of the game of professional football.
You know, though, sometimes the above discipline just does not seem to cut it. In those cases involving truly detestable violations where the above prescriptions are deemed insufficient, under section 8.13(B), the Commissioner may refer the matter to the Executive Committee after considering the offense's nature and gravity. For these rarer instances, if a ruling gets the greater of 75% or 20 member votes, the Commissioner's ruling or decision becomes "final, conclusive, and unappealable".
These are some of the measures that the Commissioner has the power to recommend as additionally imposed discipline:
- Forfeit the franchise of any member club involved, sell it, & properly dispose of it;
- Forfeit the implicated party's interest in a member club, sell it, & properly dispose of it; and
- Put offending players into free agency or reassign an offending club's player contracts to other clubs.
He also can discipline those who are connected to the League or member clubs who bet money or other things of value on games - the outcome itself or the score - and those who merely have knowledge of or received an offer to fix a game or bet some kind of consideration on the game without reporting it. Notably, the Commissioner is unrestricted in disciplining here so long as it stayed within the outlined means itemized in section 8.13(C).
7. "Miscellaneous Powers" (section 8.14)
The NFL Commissioner gets a handful of other powers from this Article, too. He can disapprove player-team contracts that violate the NFL Constitution and Bylaws or if one party has engaged in conduct detrimental to the League or professional football without holding a hearing, propose amendments and modifications to the Constitution and Bylaws, and hear and settle disputes among teams without certification that involve or could affect League policy and with certification by either or both teams on any matter.
How does he fit into recent lawsuits such as those involving Tom Brady, Adrian Peterson, Ezekiel Elliott, and Colin Kaepernick?
All hail another infamous "conduct detrimental" provision, section 8.6:
The Commissioner is authorized, at the expense of the League, to hire legal counsel and take or adopt appropriate legal action or such other steps or procedures as he deems necessary and proper in the best interests of either the League or professional football, whenever another party or organization not a member of, employed by, or connected with the League or any member thereof is guilty of conduct detrimental either to the League, its member clubs or employees, or to professional football.
When a player wants to take something to court after receiving an unfavorable investigatory and arbitration outcome, Goodell can "bring it" for as long as he feels is necessary to protect the business or the product itself. If a player receives a favorable outcome at the trial court level, he can have the NFL attorneys appeal to the next level, and if that fails to give Goodell the desired outcome, in theory, he can keep fighting until he exhausts all legal options. This, together with his power over player discipline from section 8.13 described above that all these players were unfortunately subject to before their respective lawsuits took off, are how Goodell fits into these plot lines.
In these cases, the NFL Commissioner can potentially wear two hats at the same time. The Commissioner can decide to sit as arbitrator, a role that many times is routinely designed to be neutral, unbiased, and objective by way of a contract provision or industry practice in other business industries, but here, there is no such provision or similarly agreed-upon coming together of the minds that mandates the arbitrator be truly neutral, unbiased, and objective. Justice would have it be that way regardless of who takes the arbitrator seat, but it is hard for a person - even "a person of unquestioned integrity" - to be truly objective when he is so closely affiliated with the League as an executive and legislator already. The Commissioner also acts in an executive role because he is the one initiating and overseeing the investigations, much like the F.B.I conducting operations within the executive branch of our federal government.
Can these powers be taken away, or can the commissioner be fired?
Source: https://joemontanasrightarm.com/2017/08/11/will-jerry-jones-go-to-battle-with-roger-goodell-over-zeke-elliotts-suspension/
Article VIII does not address whether the Commissioner's powers can be taken away or whether (and if so, how) the Commissioner can be fired. Do not fear, though. Section 6.5(G), which outlines the powers of the Executive & Other Committees of the NFL, gives us the answer! Lo and behold, the language anyone who wants Goodell booted *cough cough Jerry Jones* needs to treat as Gospel and promote it across the lands:
In the event that the Commissioner or any other officer of the League shall be convicted of a crime involving moral turpitude or be physically or mentally incapacitated to perform his duties or shall fail or refuse to abide by the Constitution and Bylaws of the League, and the Executive Committee finds that such action by such officer is detrimental to the best interests of the League, or in the event the Commissioner or any other officer of the League fails or is unwilling to perform his duties, then such Committee shall have the power after notice and hearing to suspend or remove said officer and to terminate any contract between such Commissioner or officer and the League.
Here is what the above provision translates to: There are only a select few ways the NFL Commissioner (or any NFL officer) can be fired, i.e., have his contract with the League terminated. This is how things would have to roll:
- The Commissioner or League officer is convicted of a crime involving moral turpitude + Executive Committee finds it to be "conduct detrimental";
- The Commissioner or League officer is physically or mentally incapacitated to perform his duties + Executive Committee finds it to be "conduct detrimental";
- The Commissioner or League officer fails or refuses to abide by the NFL Constitution and Bylaws + Executive Committee finds it to be "conduct detrimental"; OR
- The Commissioner or League officer fails or is unwilling to perform his duties
+
Executive Committee provides him with Notice
+
Hearing held to suspend/remove him
+
24 out of the 32 Executive Committee members vote in favor of suspension or removal
A complete run-through of the above steps would have to take place for the NFL Commissioner to be fired. Looking more closely at the first step, which provides one of four routes to get the removal process started, Route 1 and Route 2 are very narrow while Route 3 and Route 4 are written broadly and that broad language can still be more broadly construed. What actions qualify as failing to abide by the NFL Constitution and Bylaws or failing to perform the duties of the job? Do we need to hear a clear expression of his refusal to perform duties, or can it be inferred from other action he takes? What's more, what exactly is "conduct detrimental" to professional pigskin that a Commissioner can take that warrants employment termination?
It may seem odd that three of the four routes have an additional requirement, Executive Committee finds it to be "conduct detrimental," but from a business perspective, it is logical. Performing a job's duties is expected within the scope of employment, but some crime convictions or lacking some physical or mental capacity may not interfere with your ability to do your job well and may not in actuality have an adverse impact on the NFL's best interests. Also, abiding by the NFL Constitution and Bylaws, which is a contract all League officers are bound to uphold, could reasonably mean different things to different people. Therefore, those routes requires further conversation to determine whether the conduct interferes with the NFL's best interests
If the NFL Commissioner DOES get fired, what happens next?
Although Jerry Jones reportedly backed down on his rather absurd threat to sue the NFL and a few owners, let's say Jerry Jones is not satisfied with the amount of "accountability" Goodell upholds. He gets his proposal heard to terminate Goodell's contract via Route 3 or Route 4 along with a successful vote in favor of ousting Goodell. What happens from there? Under section 7.6, the Executive Committee has the power to have any other member of the Commissioner's staff fill the void and play the Commissioner role, performing his duties as decided upon. We have never had the thrilling delight to see something like this play out before, and it is indeed unlikely that we will anytime soon, but if it did, I would bet a decent amount of money that Jerry Jones would say "F--- it" and campaign to be in the running for "makeshift Commissioner," at least for the next handful of years until someone with more long-term potential was found.