In the NFL, No Dice on Double Jeopardy

In the legal world, a concept exists that prevents the prosecution of a person twice for the same offense.

double jeopardyIn the wake of Judge Richard Berman’s ruling on the now infamous Deflategate scandal, it is important to understand that in the NFL double jeopardy – as the concept is called – is virtually nonexistent.

What is NFL double jeopardy?

The legal concept of double jeopardy goes as follows: “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is contained in the Fifth Amendment to the Constitution. Many states also offer a similar guarantee. The concept applies to certain types of criminal cases – all felonies, misdemeanors and juvenile delinquency adjudications, for example. The NFL, however, has rules of its own, and though Deflategate has stretched on for nearly eight months, if you pinpoint the beginning of New England Patriots quarterback Tom Brady’s battle against the NFL as the Jan.18 AFC Championship game against the Indianapolis Colts, the sure-shot Hall of Famer has only been punished once by the league.

A brief explanation of Deflategate

For those uninitiated into this saga of footballs and the gaseous regulations the NFL applies to them, after the aforementioned game the league discovered that some of the Patriots’ footballs may have been underinflated according to the league’s rules regarding air pressure. Following the slow and varied release of information on what exactly happened that night, it was announced that NFL general counsel Jeff Pash, and attorney Ted Wells, would launch an investigation into who, exactly, deflated the footballs and whether Brady, Patriots’ coach Bill Belichick or executives within the Patriots organization knew about the deflation of the game balls.

Wells found that Brady was at least somewhat aware of what was going on and the quarterback was handed a four-game suspension, which he, along with the the NFL Players Association, appealed. After a lengthy litigation process presided over by Berman, Brady’s suspension was lifted on Sept. 3. Following yet another blow to Commissioner Roger Goodell’s authority, it has been generally assumed that the Patriots will take the field this season with vengeance on their mind, and all will be well – maybe with the exception of an NFL appeal.

The commissioner can punish a player twice for the same offense 

However, something NFL players should know is that in the league a player can be punished twice for the same offense. Whether that second punishment will hold up is a different story, but, nonetheless, there’s nothing stopping Goodell from handing down yet another punishment to Brady, according to Sports Illustrated, except maybe another public relations hit and continued, costly litigation.

Berman’s ruling applies only to Goodell’s decision to uphold Brady’s four-game suspension, SI explained. While that punishment has now been lifted, that doesn’t mean another doesn’t lie in wait for the quarterback. This is similar to how the commissioner twice suspended Ray Rice, first after initial domestic violence allegations came to light, then again, following the release of a video which clearly showed the extent of the harm the former Baltimore Ravens running back caused his then-fiancee. Though the second suspension was later overturned by a judge, that ruling was not handed down because the commissioner cannot punish a player twice in reaction to the same offense. It was voided because the second suspension handed down to Rice was done so in an “arbitrary manner.”

The fact remains, Goodell can punish a player twice the for the same offense.

The right to punish twice under the collective bargaining agreement

Article 46, Section 4 of the collective bargaining agreement between the NFL and the NFLPA states that the league and any given organization, like a player’s team, cannot discipline a player for the same act. However, it does not state that the NFL cannot punish a player multiple times for the same offense. The league has not lost its right to punish a player under the agreement, simply because a judge voided previous disciplinary act through his ruling, SI explained. Since Brady was not criminally prosecuted, but simply punished under the collective bargaining agreement – however dubiously and arbitrarily the process may or may not have been – double jeopardy does not apply here.

The NFL has its own set of laws, and under them, Brady is not free from punishment yet. However, it must be considered that, after the Shield was so thoroughly dented in today’s ruling, is another punishment really something Goodell is willing to try?

If you find yourself questioning any punishment handed down by the league, seek out the help of an attorney with an extensive knowledge of sports law to help you determine your next step.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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