In Roger Goodell’s NFL, punishment is swift and it is severe. For proof, one need look no further than the 1-year suspension meted out to Saints coach Sean Payton for his role in Bounty-Gate (not to mention the first ever suspension of a General Manager, Saints GM Mickey Loomis). But why can Commissioner Goodell hand down such a steep sentence, and will Payton be successful in his appeal? The answers lie in the extreme power structure that is Commissioner’s Authority in the National Football League.

Under the Personal Conduct Policy (PCP), the NFL Commissioner has without question the greatest authority to punish of any Commissioner in the major American sports leagues. The PCP applies to every individual associated with the League and allows the Commissioner to fine, suspend, or banish those who violate its rules. The scope of the PCP is wide-ranging, covering both conduct on the playing field, as well as conduct that is detrimental to the integrity of the game. And it is that “integrity of the game” provision of which Sean Payton, by overseeing a system of bounties on players and then lying about it, has run afoul.

However, perhaps the biggest advantage Commissioner Goodell has is the lack of independent review of his decisions. While all of his decisions under the PCP are appealable, they may be appealed only to the Commissioner himself (unless the dispute has to do with the language of a contract). While this lack of independent review has been challenged in court, Holmes v. NFL, held that the lack of arbitration does not violate due process, as arbitration (or the lack thereof) was a voluntary component of the collective bargaining agreement (CBA) and therefore constitutional rights did not attach.

So whether the Payton appeal is successful by any measure will be a matter for the Commissioner to decide, in his role as both judge and jury. But would the appeal be successful in another league? While both the NBA and MLB Commissioners have similar ability to punish behavior that is detrimental to the integrity of the game, both are also subject to review by independent arbitrators (in MLB for every penalty and in the NBA for any suspension). Just ask Ryan Braun how important that right of independent arbitration can be.

But this is Roger Goodell’s NFL and he has an image to protect; an image of purity in a game whose real goal is destruction.

Governor Chris Christie of New Jersey does not like Jersey Shore; neither its cast nor its message are appealing to the governor.  Christie’s objection to both the show and the New Jersey Film Tax Credit Transfer Program led to his veto of a $420,000 tax credit to 495 Productions, the production company in charge of Jersey Shore.  In a letter sent to the New Jersey Economic Development Authority, Christie said, ”I have no interest in policing the content of such projects, however, as chief executive I am duty-bound to ensure that taxpayers are not footing a $420,000 bill for a project which does nothing more than perpetuate misconceptions about the state and its citizens.”  Thus, the question becomes whether Christie can veto this tax credit, and then whether he should be able to.

It is likely that Christie can veto the credit, although nobody has questioned such use of veto power from a legal realist perspective.  Even if they did, courts are probably reticent to dig too deeply into the decision since it is based on an explicit executive power granted to him in the New Jersey Constitution over both spending and administrative agencies.

But so what?  What if courts did look into his decision?  It is possible that such use of veto power would be allowable, depending on which legal theory holds for government tax credit programs, since government funding can be cut from certain organizations for particular kinds of speech.

No state has been challenged on denying funding credits to entertainment companies, so it is unclear what analysis would apply.  But, three cases from the Supreme Court offer the current law on government restrictions of funding based on speech: Rust v. Sullivan, Rosenberger v. Univ. of Virginia, and National Endowment for Arts v.  Finley.  Viewpoint restrictions are treated differently in each of the cases; a brief analysis of the facts of each compared to the facts at hand should help analogize which is most appropriate to apply here.

In Rust, doctors were forbidden to discuss abortion as a family planning option lest they lose federal funding.  The Supreme Court held that such a restriction was constitutional.  In Rosenberger, a restriction preventing a religious newsletter from receiving funding from the state university was found to be constitutional, as long as the restriction was not aimed at any particular religion.  Finally, Finley allowed the National Endowment for the Arts to reject funding to candidates for grants, as long as the determining factor in disbursing funding was not to suppress disfavored viewpoints.

The core question is: is a tax credit for a show more like a situation for a college newspaper, a doctor speaking to patients in a professional capacity, or the National Endowment of the Arts making funding decisions on artists?  This seems to analogize most closely to Finley.  Both Finley and this case involve works that, by their very nature, involve a lot of artists or artistic productions competing against each other for limited funds to create that content.  It becomes hard to separate the quality of the show from qualities other than content of the show when weighing the rationale for Christie’s veto of the tax credit.  If litigated, I believe a court would rule that Governor Christie violated the First Amendment, because viewpoint (namely, fear that the reputation of the state of New Jersey and its citizenry) was his clear, decisive factor in vetoing the tax credit to 495 Productions.  I may dislike the show as much as everyone else–including the millions who watch it and claim to hate it–but I do not think the government should insert its opinion about the quality or “worth” of shows or productions that they fund.  In this case, MTV is hardly affected since the show is so profitable, but restricting individuals or production companies from receiving tax credits purely on the basis of their point of view or message should be worrisome.

Editor-in-Chief: Miles Wiley
Executive Editor: Kelly Donnelly
Executive Editor: Brandon Hammer
Executive Editor: Jenna Hayes

The Harvard Journal of Sports and Entertainment Law (JSEL) provides the academic community, the sports and entertainment industries, and the legal profession with scholarly analysis and research related to the legal aspects of the sports and entertainment world.  The legal issues raised in these fields frequently draw from areas as diverse as antitrust law, civil procedure, constitutional law, contract law, corporate law, copyright law, labor law, and real estate law.  JSEL serves as a forum in which scholars from these and other disciplines can discuss the law as it relates specifically to the sports and entertainment industries and the unique issues raised therein.  JSEL strives to be the premier source for academic analysis of these issues, such that scholars, industry professionals, news media, and the general public turn to JSEL when complicated legal issues arise in the sports and entertainment community.

JSEL is currently published as an online journal, once a year, during the spring semester.  Issues will contain approximately four articles by professors, practitioners, or students on current topics relating to sports and entertainment law.  Each issue will also contain several case comments or notes discussing current legal issues in these fields.

As alumni of Harvard Law School have played, and continue to play, major roles in shaping the sports and entertainment industries, JSEL’s faculty/alumni advisory committee will provide guidance to ensure that the journal addresses the most critical issues in sports and entertainment law while maintaining the highest standard in legal scholarship.

ISSN 2153-1323