Friday, April 11, 2014

Double Jeopardy, Burden Shifting, and Deterrence in Sports’ Personal Conduct Policies

While dozens of professional athletes have been fined, suspended, or subjected to other discipline for misdemeanor and felony convictions, and often merely arrests, Will Chope, a promising twenty-three-year-old mixed martial artist, recently found himself being retroactively disciplined for something he did five years ago.

Chope was scheduled to fight at the UFC Fight Night 38 event in Brazil on March 23, 2014, but his fight was canceled the morning of the bout.  The day before, published information regarding Chope’s discharge from the Air Force after he had repeatedly assaulted his then-wife and threatened her with a knife in 2009.  According to the report, Chope received a sentence of five months confinement and a bad conduct discharge.  Although Chope was only one fight into a three-fight contract with the UFC, his fight was canceled and he was released from the contract that morning.  The UFC released this statement:

Tonight's featherweight bout between Will Chope and Diego Brandao has been canceled after UFC officials were made aware of Chope's previous military conviction. The UFC does not condone behavior of this nature whatsoever and Chope has been released from his contract.

Strict policies governing athletes’ conduct off the field (or court, ice, ring, etc.) have become commonplace in recent years.  Because professional sports are part of the entertainment industry and rely heavily on the marketability of their players’ images, league commissioners and team owners have worked hard to combat, as the NFL describes it, “conduct detrimental to the integrity of and public confidence in the National Football League.”

In its bid to achieve the popularity of other major American sports leagues like the NFL, MLB, NBA, and NHL, the Ultimate Fighting Championship (UFC) has followed suit and begun enforcing its own strict personal conduct policies.  In the twenty-one years since its birth, the UFC has grown from a pay-per-view sideshow to a global sports company worth over $2 billion.  However, the evolution of the UFC’s image is ongoing.  Professional mixed martial artsevents are still banned in several states as many see the sport as too violent, and the UFC has worked tirelessly to combat the image of their athletes as thugs or brutes by instituting its own conduct policy.

Chope insists that he alerted the UFC about the conviction when he first joined the promotion.  “I didn’t plead guilty to a felony and I wasn’t convicted of a felony,” he said.  “The crime is classified as simple assault.  It’s a misdemeanor and I put that on my UFC contract and my application.”  Both he and his ex-wife also insist that the court documents obtained by are exaggerations of an admittedly serious event they have since both moved on from.

Nonetheless, Chope’s release surprised the entire mixed martial arts community.  Never before has a UFC fighter been released from a contract for his or her actions that far in the past.  In fact, numerous UFC fighters have criminal convictions on their record, and several have served time.  As recently as 2012, UFC Fighter Jeremy Stephens was arrested in Minneapolis for outstanding warrants from a 2011 incident in Iowa when he was charged with assault.  At the time, UFC President Dana White himself showed up at the jail and posted bail for Stephens.  White explained at the time:

Jeremy Stephens' side of the story is that he never hit the guy. It wasn't him. It was one of his friends, and they were all together, and he hit the guy. The guys were accusing him of hitting the guy because they're trying to get money out of him. Because he's a UFC guy, they think they can make money off of him or whatever. That's his side of the story, and I like Jeremy Stephens. He's a good kid. I've known him for years, and if that's what he tells me, I take grown men for their word.

The irony of this double standard is not lost on the fans.  Even Chope’s opponent for the canceled bout, Diego Brandao, had recently threatened to stab an opponent with a pen while waiting backstage to weigh in, yet faced no discipline.  Chope has maintained a clean record since 2009, and has asked for forgiveness for his prior actions and a second chance at a UFC career.  Giving him that second chance does not require a person (or company) to condone his past.  Collateral consequences of convictions are common and expected, but Chope served his punishment and over the last four years has earned a chance to be more than the sum of his past mistakes.

Of course, Chope’s situation is just one facet of the many objections to professional sports’ personal conduct policies.  In 2006, the team owners in the NFL hired Roger Goodell as the new league commissioner, and in the wake of highly publicized egregious acts by NFL stars like Michael Vick, Goodell announced in 2007 a far more expansive version of the NFL personal conduct policy than had existed before.  The new policy empowered the commissioner to suspend players for a wide range of conduct.   No longer did the commissioner need a criminal conviction or even a finding of criminal wrongdoing to punish a player.  One effect of this was to shift onto the players the burden of proving one’s innocence when accused of wrongdoing.[1]  In this wake, athletes’ agents and personal attorneys have begun to play the role of pseudo-criminal defense attorneys to defend clients not only to the commissioner’s office but also in the no-rules-court of public opinion. 

However, despite how the broadening reach of personal conduct policies has increased responsibilities of athletes’ representatives, it is unlikely to negate the need for criminal defense attorneys.  Unfortunately, the examples of how these policies have failed to deter both criminal conduct and “bad behavior” are too numerous to count.[2]  As leagues continue to sharpen their policies’ teeth, there is growing room for a discussion about the intersection of criminal law, entertainment law, employment law, contract law, and even at the extreme end, antitrust law.[3]

Kyle O’Grady
Senior Editor, Criminal Law Practitioner 

[1] It should be noted that the NFL Players Association publicly supports the personal conduct policy.
[2] To track the efficacy of the NFL’s personal conduct policy, the newspaper U-T San Diego has attempted to catalogue all NFL arrests since late 2010
[3] See Professor Marc Edelman’s speech, published by the DePaul Journal of Sports Law & Contemporary Problems, for a discussion about how the NFL’s personal conduct policy may violate the Sherman Act.

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