The National Football League has faced a complicated year as an organization. Rocked with serious allegations of domestic violence and child abuse in 2014 and other criminal conduct in recent years, the NFL brand and image have taken tremendous hits. The crime rate in the NFL has become such a public concern that the San Diego Union-Tribune created an NFL Arrests Database.
On Dec. 10, at a league meeting in Dallas, the NFL addressed the public’s concerns by unanimously endorsing a revised and strengthened Personal Conduct Policy for all NFL employees, union and nonunion. In an e-mail to all fans on the NFL’s e-mail list, NFL Commissioner Roger Goodell explained that the policy is “clear, consistent, accountable and transparent, and applies to everyone including owners, general managers, coaches, players, other team employees, game officials, and all league employees.”
More than just a sports organization, the NFL also is in the entertainment business, and it can’t afford the public perception that all football players are thugs, especially in the offseason.
A model for other employers
“The revised policy is a way to ensure that the NFL’s image as family, diversity and female friendly is preserved,” says Richard F. Vitarelli, a partner representing management only in McCarter & English’s labor and employment law practice group. “It’s issued under the league’s management right to promulgate reasonable work rules.” The Personal Conduct Policy also gives the NFL the right to conduct its own investigation into certain categories of off duty conduct and includes whistleblower coverage.
The policy was well drafted and could be a model for any similarly situated employer that is concerned about its public image, Vitarelli says. It articulates the reasons why the policy is necessary and identifies the conduct to be prohibited in line with those reasons. It takes a positive, proactive approach and is not all punitive, he explains.
The Personal Conduct Policy includes progressive discipline as well as education, counseling and additional resources as appropriate, recognizing the lingering effect on some players and employees of their past personal experience with domestic violence or abuse. The policy also affords players who are being investigated the right to have a representative from the NFL Players Association present, as provided by the collective bargaining agreement. Players may appeal any disciplinary decision as outlined in the agreement or in applicable league procedures for non-players.
The policy and its procedures are a “liability limiting exercise,” in addition to addressing a serious problem, and that should have a positive effect on the employment practices liability (EPL) insurance carrier’s assessment of risk for the league and the various teams. The NFL drew a clear roadmap of steps that it will follow when complaints are made or when the league becomes aware of possible criminal conduct that would violate the policy.
Lessons for the rest of us
All employers should think about how vulnerable they are to off-duty conduct. “What kind of off-duty conduct affects the operation or image of my business or organization? How would the occurrence of some categories of off-duty employees’ conduct have on the business, and how would my customers, community stakeholders and employees expect my business to act?,” Vitarelli advises employers to ask themselves.
It’s not just entertainment companies like Sesame Workshop, the nonprofit educational organization behind Sesame Street, which suffered when the actor playing Elmo was accused of sexual child abuse. Think about public school districts like Stamford, Conn., where a high school English teacher was arrested for having an affair with one of her underage students, and the principal and assistant principal were arrested on charges of failing to report the abuse to the state Department of Children and Families. The issue is even more significant for pricey private schools that rely on their sterling reputations to attract students.
It’s also important to sensitize supervisors to the issue and to reinforce the point that the cover-up is always worse than the crime. It hurts the victims and the image of the organization.
You should include your EPL coverage in your annual insurance review, and be sure the broker or agent understands the nature of your business and helps you understand the possible exposures you face. If appropriate, include your employment counsel in the conversation. Careful planning could keep your company out of the headlines for bad off-duty conduct by employees.