With GAVIN GOFFE
Wednesday, September 24, 2014
BY now you’ve probably heard of Ray Rice, for all the wrong reasons. He is the NFL player who landed the blow-felt-round-the-world on his then fiancée which left her unconscious in a hotel elevator in Atlantic City.
The brutal knockout was caught on camera, but NFL Commissioner Roger Goodell only saw the footage months after imposing a two-game ban on Rice. Now he’s hit the star player with an indefinite suspension and the Players’ Union is calling foul.
Whilst the NFL is more of a regulator than an employer, the tenets of due process required of both roles is largely the same. If this had happened in Jamaica, the Union would surely prevail, and here are five reasons why.
1. The NFL didn’t conduct a thorough investigation
There were two videos of this incident, The one that Goodell saw before imposing the two-game ban was seen in February of this year and showed footage taken immediately after the hit, outside the elevator. You can see Rice dragging his unconscious fiancée, Janay Palmer, out of the elevator into the hallway where she slowly comes to.
The video from inside the elevator is the one that shows ‘Sugar’ Ray’s left hook. It was obtained and released by TMZ earlier this month but according to the hotel, was always available to the NFL had they simply requested it. In fact, Rice’s lawyer had a copy of the tape all along.
One of the fundamental principles of industrial relations law and practice is that the employer has a responsibility to conduct a reasonably thorough investigation before taking disciplinary action against a worker. The investigation should extend to all factual matters that are in dispute or that are likely to affect the employer’s decision, whether positively or negatively.
In interviews given to the media, Goodell claimed that the NFL asked the police for the video and was denied on the basis of it being evidence in a criminal complaint. But one doesn’t get the sense that the commissioner was too keen on seeing the tape and was prepared to make a decision based on incomplete material.
2. The NFL disciplined an employee twice for the same offence
This is one of the main grounds of appeal being put forward by the Union. The League suspended Rice for two games, knowing at the time that he knocked out the young lady. Why does seeing the actual punch “change everything” as the commissioner said after handing down the heavier sentence? Perhaps it’s because the violence itself is a serious offence, but so too is bringing the game into disrepute, which, arguably, was made much worse when the video was publicly released.
On the other hand, the League has probably brought more shame on itself by its handling of the matter than Rice did with his man-handling of his lady.
Goodell has also suggested that Rice’s version of events from inside the elevator is not consistent with what was shown on the video, which could give rise to a separate offence involving dishonesty or obstructing an investigation. The NFL has not sought to go this route, however.
The commissioner has accepted responsibility for not getting the punishment right in the first instance and for basing his decision on the meeting he held with Rice and Palmer, instead of on objective video evidence. This appears to be a clear case of double jeopardy and could undermine the entire disciplinary process.
3. The offence had nothing to do with Rice’s job
The Players’ Union is not advancing this argument, but it’s not one that is unfamiliar to the Jamaican industrial relations landscape. It is most commonly used in cases where the employee doesn’t have a contractual duty to refrain from any conduct that could potentially embarrass the employer or negatively affect the employer’s business.
It’s often difficult to know where to draw the line between someone’s profession and their private life, particularly where these types of ‘morality clauses’ are not included in employment contracts. In some cases, the conduct is so naturally offensive to human dignity that no matter the capacity in which it is done, the employer could no longer be expected to associate itself with the employee. Unfortunately, not everyone agrees that domestic violence falls into that category.
There was a case at the Ministry of Labour recently in which a female employee physically assaulted a male employee and chased him with a knife. There was no dispute that she did it and the female employee was immediately fired. She took her complaint to the Ministry of Labour on the basis that she was not afforded a hearing.
A hearing to determine what, one might ask? The conciliation officer at the Ministry of Labour recommended to the employer that it should settle and pay the employee $50,000 or else he would be forced to refer the matter to the Industrial Disputes Tribunal for settlement where he was sure the employer would lose and end up paying more money.
The conciliation officer also justified his recommendation by saying that the male employee wasn’t actually injured and the incident happened outside the company’s gates. Perhaps his position would have been different if the male had been the aggressor.
4. Rice is facing unresolved criminal charges
This is a common argument advanced by unions — if an employee is facing criminal charges, then the employer should await the outcome of those charges before initiating internal disciplinary proceedings.
This argument lacks an appreciation of the difference between internal disciplinary proceedings and crimes. Take, for example, the case of a security guard at a bank who deliberately leaves a door unlocked so that his cronies can rob the bank. There is no reason in law why the bank cannot take immediate disciplinary action in respect of the guard’s failure to do his duty.
There is no need to wait for a ruling on the bank robbery. Many businesses have suffered financially by paying the salaries of suspended employees who are waiting for criminal trials to get under way.
Management has a duty to the employee and to the stakeholders in the business to deal with disciplinary matters expeditiously. This is what the NFL sought to do with Rice, but perhaps too expeditiously.
Gavin Goffe is a partner at Myers, Fletcher & Gordon. Gavin may be contacted at gavin.goffe@mfg.com.jm or through www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
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What if Ray Rice were your employee?
