By Douglas Hand, Jr. and Marc S. Reiner
Englishman Charles Frederick Worth is credited as the father of the modern fashion industry in the nineteenth century. Through his brand – House of Worth – he was the first designer to create a catalogue of designs to be worn by models in his store from which his clients could choose. This move away from a bespoke business model was the first prominent example of what we know now as a fashion line.
Today, the United States fashion industry generates over $250 billion per year. Despite the great value that must be placed upon the fashion designs that are generating this enormous revenue, most commentators and academics agree that United States law offers little intellectual property rights for fashion designs. Putting aside whether protection for fashion designs is advisable, one of the few areas of intellectual property law that offers protection to fashion designs is trademark law, provided that the design is non-functional and has acquired “secondary meaning” – i.e., it has achieved renown that is associated with a particular source through longstanding use and widespread sales. Due to the short half-life of most fashion styles and the relatively limited market for any particular high-fashion design, very few fashion designs therefore endure long enough to become eligible for trademark protection.
This article discusses a potential way that this hurdle may be overcome. One limited way that certain trademarks can gain secondary meaning, and therefore protection, is through the use of those trademarks in popular works of fiction. As discussed below, certain trademarks have been deemed protectable based on the renown they have achieved through their use in television programs or movies even though they have not been used in actual commerce. Due to the much broader reach of these types of media, a particular design may achieve the type of renown and secondary meaning that would be sufficient to provide trademark protection. This article discusses the potential likelihood of such protection and the issues that may arise in trying to extend protection in those circumstances.
II. Current United States Intellectual Property Regime
The current intellectual property regime in the United States offers three basic areas of protection: copyright, patent, and trademark. In each of these areas, fashion designs are granted scant protection.
In the United States, Copyright protection for fashion designs is limited. The Copyright Act provides that the design of a useful article, like a piece of clothing or handbag, is protected under copyright “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” The seminal case of Kieselstein-Cord v. Accessories by Pearl, Inc., established that a predominantly ornamental component of an otherwise useful article may be entitled to copyright protection under a “conceptual separability” theory. Because the Copyright Act does not protect “useful articles,” clothing is exempted from protection because it is considered “useful” insofar as it covers the body for reasons of warmth or social norms. Therefore clothing designs generally receive no protection under copyright law.
Certain aspects of a design, like original prints, patterns, unique color arrangements, however, have been eligible for protection. The current legal landscape provides copyright protection for only certain categories or characteristics of fashion design, which can be summed up as follows: fabric patterns of sufficient originality; images affixed to garments; some embroidery, beading, and lace; some sculptural components of fashion; original jewelry; and certain elements of “fanciful” costumes.
B. Design Patent
Design patents protect the look or ornamental nature of a design, so long as it is novel, non-functional, and non-obvious. It is not uncommon for the designs of handbags, shoes, and jewelry designs to be the subject matter of design patents. “While the article may be useful in nature, design patent protection is unavailable where ‘functional features dominate the design’ of the article.” Because clothing designs have generally been considered predominantly useful, clothing designs typically do not fall within the protections afforded by design patents. Additionally, many original designs that seemingly provide a distinguishable and appealing variation on a trend or prior design will fail to meet the novelty and non-obviousness standards required for a design patent.
For most articles of apparel, and even some accessories, design patents are not a feasible option because of the resources required to prosecute the patent before the US Patent and Trademark Office. The process of applying for a design patent can take several years, which exceeds the life expectancy of the market for most designs. Most commonly, a particular clothing design will no longer have marketing appeal by the time patent protection takes effect.
Trademark law provides protection for names, logos, slogans, or even product designs that serve as source identifiers. Protection of fashion design fits under the product-design category of trademarks. In order to acquire trademark protection for a product design, the design must not be functional and the design itself must be what indicates its source in the minds of consumers. The design seeking protection cannot be influenced by its function. For this latter reason primarily, most clothing designs fail to meet the standards required for trade dress protection.
Additionally, the design must have acquired such a level of distinctiveness that a consumer could identify its source simply based on the design. In other words, the design must have acquired what is known as secondary meaning. One of the more prominent examples of trade dress protection for fashion designs was at issue in the famous case Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc. In that case, the renowned designer Christian Louboutin sought to protect its signature red sole. In the minds of consumers, a contrasting “red-bottom” was a sure-fire indicator of a Christian Louboutin shoe.
Secondary meaning can be acquired but the burden is a heavy one for product design trademarks and secondary meaning must often be acquired over a considerable period of time. As a result, the fast-paced and ever-changing seasonal nature of the fashion industry makes it difficult for any particular design to acquire the renown and secondary meaning necessary for trademark protection.
III. Actual Protection for Fictional Trademarks
It is a fundamental tenet of United States trademark law that trademark rights derive from actual use of that trademark in commerce. If a designation is not used in actual commerce to identify a particular source of goods or services, it cannot be considered a trademark and there can be no claim of infringement. Not only is use in commerce a prerequisite for trademark rights, but those trademark rights are made stronger by the extent that the term is used in commerce. That is, the more that goods bearing the trademark are marketed and sold, the stronger the trademark rights become. Few tenets of trademark law are as fundamental as this one.
But even a bedrock principle like the requirement of use in commerce for trademark rights is subject to certain exceptions. The most prominent exception is the “well known marks” or “famous marks” doctrine. Pursuant to that doctrine, if a trademark used only on products or services sold overseas is so famous that its reputation is widely known in the United States, then that trademark is protectable in the United States even if its owner has not used the mark commercially in the United States. The origins of this doctrine dated back to 1936 when the owners of the well-known Prunier restaurants in Paris and London obtained a preliminary injunction against a restaurant named Prunier in New York.
Another exception to the use-in-commerce requirement for trademark rights has emerged more recently. Rather than involve trademarks used in geographically distant commerce, these trademarks are used in commerce that is entirely fictional. That is, trademarks that are used only in fictional worlds have been protected from infringements in the real world. For example, the newspaper at which Superman’s alter ego Clark Kent works – the DAILY PLANET – has been protected as a trademark even though no such newspaper exists in any metropolis other than Metropolis. Similarly, the fictional substance Kryptonite that originated from Superman’s fictional home planet of Krypton was also given trademark protection sufficient to prevent the registration of the trademark KRIPTONIA for packaged alcoholic fruit cocktail. As with conventional trademark protection, the courts deciding these cases were concerned that consumers would be confused, albeit with a product that, though highly familiar, had not been offered for sale in actual commerce.
These courts relied upon the underlying motivation of United States trademark law: the goal of minimizing consumer confusion. As the Supreme Court has held:
In principle, trademark law, by preventing others from copying a source-identifying mark, reduces the customer’s costs of shopping and making purchasing decisions for it quickly and easily assures a potential customer that this item – the item with the mark – is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past.
Furthermore, trademark rights are granted as a matter of priority of use. The party that is first to continuously use a particular trademark has superior rights to all others who seek to use that trademark if confusion is likely to occur.
Based on these rationales for trademark law, why should companies that have made no effort to use a particular trademark in actual commerce be allowed to prevent others from using that trademark in commerce? Furthermore, why do courts believe that consumers will believe that products that are in actual commerce are either from the same source or under common control as purely fictional products? The answer to these questions seems to lie in the extremely fluid relationship between movies and television programs and the products that are sold in connection with those copyrighted works.
Product tie-ins for movies and television programs are by now a long established trend. It is no surprise, in fact, that the examples cited above deal with a media property that originated in comic books targeted at children, as that is where most such tie-ins began. Toys, lunchboxes, and other paraphernalia depicting copyrighted works from children’s programming have been a mainstay for over half a century, with the same products that were once avidly collected by children now being sought after by adults as collectors’ items. Although the trend originally was products being sold based on established television programs and movies, the next step was television programs or movies being created based upon existing products. For example, television programs were made to feature existing games and toys such as Pac Man, Care Bears, and others.
Aside from products that depicted the characters featured in these programs and movies, product tie-ins in movies also featured actual products that were sold in the marketplace. Perhaps the most prominent example of this phenomenon was the use of Reese’s Pieces in the blockbuster movie E.T., which led to an explosion of awareness for that brand. Since that time, product placement in television programs and movies has turned into a cottage industry with those forms of media becoming, in part, another commercial for those products. Memorable product placements have included Ray Ban sunglasses in the movie Risky Business, Junior Mints in the television program Seinfeld, FedEx in the movie Cast Away, and Omega watches in the movie GoldenEye. The manufacturers of the products often engage in cross-promotion advertisements advising moviegoers to look out for their products in the movies. Similarly, music videos, such as “Hotline Bling” by Drake, and viral videos, such as “Damn Daniel,” have been responsible for remarkable increases in sales of the products that are featured in those videos.
From this perspective, it is no surprise that consumers would view a television program, movie, or video as just another advertisement that would be the equivalent of the use in commerce that is required under trademark law. Even items that are clearly fictional can be seen as genuine products. For example, the self-lacing sneakers worn by Marty McFly in Back to the Future II were the subject of a grassroots campaign by consumers who very much wanted to buy these products. Nike eventually relented and sold a limited run of the shoes in 2016. Similarly, the movie Forrest Gump featured a shrimping company named “Bubba Gump Shrimp Co.” After the great success of that film, Viacom (the parent company of the film’s studio Paramount Pictures) was able to open a chain of restaurants under that same name. In other words, the producers of the film first created a fictional brand and then were able to use that brand in real life due to the success of the film. Because of this decades-long history of commercialism in television and movies, consumers seem to essentially equate brands in those media with brands in real life. Perhaps as a result, courts have also begun equating the use of brands in fictional commerce with their use in actual commerce.
IV. Fictional Trademarks and Fashion
In the sections above we have seen that: (1) fashion designs are eligible, to a certain extent, for trademark protection; and (2) trademarks that are used in fictional settings are eligible for trademark protection. The question then becomes: Can a fashion design that is only used in a fictional setting achieve trademark protection?
A. Trademark of an Actual Product Design From a Fictional Setting
Take the instance of a potentially trademarkable fashion item such as the iconic body suit worn by Milla Jovovich in 1997’s science fiction film, The Fifth Element. This novel garment consisted of little more than white bands arranged horizontally on the wearer with one vertical band holding the garment together and was designed by John Paul Gaultier who in the same year of the movie’s release formed his eponymous haute couture label.
The band body suit itself very likely evokes the movie for many viewers and arguably coveys any goodwill associated with it. So is there potential trademark protection generated by the design? And if there are trademark rights, who holds them: the producers of the film or Gaultier? Very likely there is a work-for-hire agreement that Gaultier entered into in connection with designing costumes for the film which would convey any intellectual property rights to the producers. But the questions nevertheless remain and are, appropriately enough, quite provocative.
These same questions might have also come up as far back as 1939 with Dorothy’s unique ruby slippers in The Wizard of Oz or the stunning black dress worn by Anita Ekberg in that fashionable Fellini classic from 1960, La Dolce Vita.
Less stylishly but no less acutely, these questions also arise when considering the thong “mankini” featured in Borat. That is, the innovative design of the “mankini” as a trademark and who might own it. But what about the no less innovative name “mankini”?
B. Trademark of a Fictional Brand or Designer
Yes, the “mankini” would seem like a trademarkable product name. Its origins are, however, unclear and neither Sacha Baron Cohen nor the film’s other producers, have yet applied for trademark registration. But fictional brands and characters that portray fashion designers are also presented in film and television. Consider the fictional designer “Cinna” played by a subdued Lenny Kravitz in the films The Hunger Games and Catching Fire. In the films Cinna is credited with creating the famous (or at least famous in the fictional dystopia of Panem) flaming designs worn by the protagonist of the films Katniss Everdeen.
Applying the concept of fictional trademarks here, we would be considering an actual fictional brand name rather than a fashion item. So more clearly, one could imagine the Cinna name affixed to more mundane garments in the real world conveying the goodwill of the films. It seems reasonable to assume that the purchaser of such a Cinna branded product would think that they were buying an item associated with the films themselves. Indeed, as noted above, film and television producers have cut deals with actual retailers in order to allow the use of a film or program’s goodwill to sell fashion items. Take for example The Great Gatsby collection from Brooks Brothers or Banana Republic’s Mad Men collection. So there is every reason to believe that “Cinna” would be a trademark in the actual universe, not just the dystopian future presented by the Hunger Games.
Again, there would be legitimate questions regarding who might own such a trademark, the producers of the film or, in this case, the author of the book upon which it was based. Alternatively, the owners of the trademark might be the actual designers of the clothes that appeared on screen. After all, a trademark’s primary purpose is to associate a name, logo, or other signifier with a particular product. If the designs of the products are owned by their designers, a strong argument can be made that the associated trademark would be as well. Knowledgeable legal counsel representing each party here would, most likely, have sorted out this issue in contracts, but, given the novelty of the concept, perhaps not.
Due to the great financial importance that fashion designs represent, it is more than understandable that fashion designers seek to increase the limited protections that United States intellectual property currently affords to those designs. Trademark protection achieved through the renown that comes with being featured in popular entertainment may provide one avenue to do so. But designers will need to make clear, both in their agreements with the producers of those works and also in branding in the works themselves, that they are the owners of all renown and goodwill that is associated with those designs. Otherwise, they might find that those rights belong to the producers of the works, which may very well be more painful than there being no protection at all.
 Partners at Hand Baldachin & Amburgey LLP. The authors want to thank their associates Ashley Valdes and Chana Ben-Zacharia for their invaluable contributions to this article.
 See Jessa Krick, Charles Frederick Worth (1825-1895) and The House of Worth, The Metropolitan Museum of Art (June 8, 2016), http://www.metmuseum.org/toah/hd/wrth/hd_wrth.htm.
 See Olivier Courteaux, Charles Frederick Worth, The Empress Eugénie and the Invention of Haute-Couture, Napoleon (June 8, 2016), http://www.napoleon.org/en/history-of-the-two-empires/articles/charles-frederick-worth-the-empress-eugenie-and-the-invention-of-haute-couture/.
 See H. Shayne Adler, Pirating the Runway: The Potential Impact of the Design Piracy Prohibition Act on Fashion Retail, 5 Hastings Bus. L.J. 381, 382 (2009).
 Report of Joint Economic Committee of U.S. Congress, The Economic Impact of the Fashion Industry (Feb. 6, 2015), http://www.jec.senate.gov/public/_cache/files/2523ae10-9f05-4b8a-8954-631192dcd77f/jec-fashion-industry-report—-sept-2015-update.pdf.
 See, e.g., Alexandra Manfredi, Haute Copyright: Tailoring Copyright Protection to High-Profile Fashion Designs, 21 Cardozo J. Int’l & Comp. L. 111, 113 (2012); Brittany West, A New Look for the Fashion Industry: Redesigning Copyright Law with the Innovative Design Protection and Piracy Protection Act (IDPPPA), 5 J. Bus. Entrepreneurship & L. Iss. 57, 58 (2011).
 Mitchell M. Wong, The Aesthetic Functionality Doctrine and the Law of Trade-Dress Protection, 83 Cornell L. Rev. 1116, 1131-32 (1997-1998).
 17 U.S.C. § 101.
 632 F.2d 989, 993 (2d Cir. 1980).
 See Charles E. Colman, An Overview of Intellectual Property Issues Relevant to the Fashion Industry, in NAVIGATING FASHION LAW: LEADING LAWYERS ON EXPLORING THE TRENDS, CASES, AND STRATEGIES OF FASHION LAW (Aspatore 2012), 2012 WL 167352, at *3.
 Id. at *6.
 Id. at *21.
 See, e.g., Handbag, U.S. Patent No. D609,468 (issued Feb. 9, 2010); Single-Sole Shoe with Red Stripe and Red Sole, U.S. Patent No. D757,407 (issued May 31, 2016); Shoe Heel, U.S. Patent No. D748,388 (issued Feb. 2, 2016); Jewelry Design, U.S. Patent No. D758,240 (issued June 7, 2016).
 Id. (quoting Tough Traveler v. Outbound Prods., 60 F.3d 964, 971 (2d Cir. 1995) (Jacobs, J., concurring in the result)).
 Henry Petroski, Invention by Design 16 (1996).
 Id. at *22.
 See Law of Merchandise and Character Licensing § 8:2.
 See, e.g., Groeneveld Transp. Efficiency, Inc. v. Lubecore Int’l, Inc., 730 F.3d 494, 503 (6th Cir. 2013).
 See, e.g., id. at 506.
 See, e.g., id. at 504.
 696 F.3d 206 (2d Cir. 2012).
 See id. at 226-27.
 See, e.g., Kaufman & Fisher Wish Co., Ltd. v. F.A.O. Schwarz, 184 F. Supp. 2d 311, 318 (S.D.N.Y. 2001), as amended (Oct. 22, 2001), aff’d sub nom., Kaufman & Fisher Wish Co. v. F.A.O. Schwarz, 51 F. App’x 335 (2d Cir. 2002).
 3 McCarthy on Trademarks and Unfair Competition § 19:108 (4th ed.) (“As required by the Lanham Act § 45, 15 U.S.C.A. § 1127, definition of use in commerce quoted above in this section, a trademark must be appear in connection with a ‘bona fide’ use in connection with goods ‘sold or transported’ in commerce in the ‘ordinary course of trade.’”)
 4 McCarthy on Trademarks and Unfair Competition §25:54 (4th ed.)
 4 McCarthy on Trademarks and Unfair Competition §23:40.50 (4th ed.). Relatedly, the more that a trademark is used and promoted, the greater the secondary meaning that is associated with the trademark, as discussed in the previous section.
 5 McCarthy on Trademarks and Unfair Competition § 29:4 (4th ed.)
 More specifically, such a well-known trademark may be protectable under federal unfair competition law, but it still would not be eligible for registration under U.S. law. Id.
 Maison Prunier v. Prunier’s Restaurant & Cafe, 159 Misc. 551, 288 N.Y.S. 529 (Sup. Ct. 1936); see also Vaudable v. Montmartre, Inc., 20 Misc. 2d 757, 193 N.Y.S.2d 332, 123 U.S.P.Q. 357 (Sup. Ct. 1959) (The famous MAXIM’S restaurant in Paris obtained an injunction against a MAXIM’S restaurant in New York City.)
 See DC Comics, Inc. v. Powers, 465 F. Supp. 843, 847 (S.D.N.Y. 1978).
 See DC Comics v. Pan American Grain Mfg. Co. Inc., 77 U.S.P.Q.2d 1220 (T.T.A.B. 2005).
 Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-64 (1995) (quoting McCarthy on Trademarks and Unfair Competition § 2.01, at 2-3 (3d ed. 1994)) (internal quotation marks omitted).
 4 McCarthy on Trademarks and Unfair Competition §16:1.50 (4th ed.).
 See DC Comics, Inc. v. Powers, 465 F. Supp. 843, 848 (S.D.N.Y. 1978) (stating that DC Comics’ extensive licensing of the Superman story, which included several references to the Daily Planet, was enough to create a likelihood of confusion on the consumer level).
 See Pac-Man and the Ghostly Adventures, Common Sense Media (June 8, 2016), https://www.commonsensemedia.org/tv-reviews/pac-man-and-the-ghostly-adventures#.
 See Care Bears, Wikipedia, https://en.wikipedia.org/wiki/Care_Bears.
 Bryan Gardiner, The Gear That Made E.T. the Pinnacle of Product Placement, Wired (Mar. 3, 2015), http://www.wired.com/2015/03/et-gadgets-and-gear/.
 Stacy Conradt, The Stories Behind 10 Famous Product Placements, Mental_Floss (Apr. 6, 2008), http://mentalfloss.com/article/18383/stories-behind-10-famous-product-placements. This phenomenon is not limited to movies or television programs.
 Erica Tempesta, How Hotline Bling became a fashion hit: Rapper Drake DOUBLES Moncler’s sales after donning the luxury brand’s $1,150 ‘Maya’ jacket for his latest music video, DailyMail.com (Oct. 23, 2015, http://www.dailymail.co.uk/femail/article-3286632/How-Hotline-Bling-fashion-hit-Rapper-Drake-DOUBLES-Moncler-s-sales-donning-luxury-outerwear-brand-s-red-Maya-jacket-latest-music-video.html; Vans Sees Meteoric Rise in Sales All Thanks to “Damn Daniel,” .Mic (May 2, 2016), http://mic.com/articles/142344/vans-sees-meteoric-rise-in-sales-all-thanks-to-damn-daniel#.MMrXFjFjO
 The 2015 Nike Mag, Nike News (Oct. 21, 2015), http://news.nike.com/news/nike-mag-2015.
 The Fifth Element (Columbia Pictures 1997).
 Mason Cusack, Throwback: The Fifth Element, Redbrick (June 8, 2016), http://www.redbrick.me/film/throwback-the-fifth-element/.
 The company is co-owned by Hermes which has a 45% stake.
 Or the producers of the film A Clockwork Orange which Jean Paul Gaultier listed among his influences?
 The Wizard of Oz (Metro-Goldwyn-Mayer 1939).
 La Dolce Vita (Pathé 1960). These questions, and perhaps more, would come up in the context of the company Rodarte’s designs in the film The Black Swan, as there was some debate regarding who had more input in to some of the iconic dresses from the movie; the film’s costume designer Amy Westcott or the designing sisters/founders of Rodarte Kate and Laura Mulleavy.
 Borat: Cultural Leanings of America for Make Benefit Glorious Nation of Kazakhstan (20th Century Fox 2006).
 The Hunger Games (Lionsgate 2012).
 The Hunger Games: Catching Fire (Lionsgate 2013).
 Mad Men Clothing, Banana Republic (June 8, 2016), http://www.bananarepublic.com/products/mad-men-collection.jsp.
 These questions would also come up in the context of the fictional designer James Holt, from the film The Devil Wears Prada, the Pixar animated designer Edna Mode from the film The Incredibles and the fictional designers from televisions Gossip Girl Eleanor Waldorf as well as Jenny Humphrey.
This commentary piece was written by Dr hab. Marek Krzysztof Kolasiński, professor at Nicolaus Copernicus University in Toruń, and was submitted in conjunction with Professor Kolasiński’s recent interview with JSEL which can be found here.
Influence of the Private Enforcement of Competition Law on Sport in the European Union against the United States Law Background
Private enforcement of competition law is a relatively new phenomenon in European Union law. However, there is a clear tendency towards its enhancement. Adopting the Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union is of particular importance.
Strengthening the role of individuals in competition law enforcement in the EU could significantly change the landscape of European sport. It would particularly decrease the role of cooperation between the European Commission and international sport associations, which is currently of vital importance.
There is a risk that enhancing private enforcement of competition law will especially disturb the European sport system until the case law is settled. To diminish it, one can look at the rich experiences in the United States, where almost all antitrust sport cases are private, and consider the possibility of applying them to the European Union legal system.
1.The consequences of private enforcement of EU competition law for sport in the European Union
European Union (European Community) competition law has been effectively applied to sport since the mid-seventies. The best-known outcome of it was remodeling the basis of the athletes’ transfer system. The European Commission has proved to be very efficient in this area.
However, broadly speaking, in recent years the European Commission has been careful in order to avoid the over-enforcement of competition law in sport. For example, as C. Davies noted, the European Commission “accepted that football was a special case and should not be subject to a month’s termination clause”. The European Commission seems to be particularly reluctant to enforce competition law standards in cases which are less related to the European Union internal market freedoms. Its attitude in the Meca-Medina case is characteristic. Contrary to a subsequent Court of Justice judgment, the European Commission took a position that the issue of anti-doping rules did not fall within the scope of European Union competition law.
The most recent example of a balanced approach of the European Commission to sport is a case of UEFA Financial Fair Play Regulations (FFP). The central principle of FFP is that <<clubs should “live within their own means” or “break even”>>. In other words, according to the rules, “football related income should at least match football related expenditure”. 
Former vice-president of the European Commission, Joaquín Almunia, expressed an enthusiastic attitude to FFP. Together with the UEFA President, Michel Platini, he gave a statement according to which “the principles underlying FFP could serve, with adoptions, as an effective model for other sports facing similar financial challenges”. Joaquín Almunia declared that he fully supports “the objectives of UEFA’s financial fair play rules” and he believes that “it is essential for football clubs to have a solid financial foundation.” In his opinion, “the UEFA rules will protect the interests of individual clubs and players, as well as the football sector in Europe as a whole.” Former vice-president Almunia congratulated “President Platini for his leadership on this issue.” 
The European Commission’s hospitality towards the FFP reached its highest level in the decision of 14 October 2014 adopting the Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA) . According to point 2.6 thereof “financial solidarity between elite sports and grassroots, but also among clubs of all sports at the professional level, is important in maintaining long-term financial viability and competitive balance, thus also protecting the integrity of sporting competitions. In this respect, redistribution mechanisms concerning, for example, audiovisual media revenues and training compensation fees should be recommended, in accordance with the EU acquis.” The European Commission also expressed an opinion that “financial stability, transparency and better governance within sport can be pursued through responsible self-regulation. In this respect, and subject to compliance with competition law, measures to encourage greater rationality and discipline in club finances with focus on the long-term as opposed to the short-term, such as the Financial Fair Play initiative, contribute to the sustainable development and healthy growth of sport in Europe” (point 2.7).
A.Bret claims that “the agreement appears to give UEFA a free pass from any formal investigation by the Commission into whether its rules comply with EU competition law, at least for the next three years.” 
Thanks to the European Commission’s balanced approach, the activity of sport associations, leagues, teams and other organizers of professional sport has not been significantly disturbed over the last few years by competition law scrutiny. Things are changing now because private enforcement of European Union competition law is being enhanced. The risk of over-enforcement of competition law in sport seems to be much clearer now than it was a few years ago. Some opinions which are currently expressed go in the direction of a very far-reaching competition law scrutiny of sport.
It is particularly apparent that the role of non-binding agreements between the European Commission and international sport associations will be diminished. The same can be said about decisions making the commitments offered by undertakings to meet the concerns expressed to them by the Commission, binding (Article 9 of Regulation 1/2003). This is due to the fact that neither of them can deprive private parties of the possibility of enforcing competition law to practices which are the subject of such agreements or decisions in a private procedure. Motion 13 of Regulation 1/2003 states that “commitment decisions should find that there are no longer grounds for action by the Commission without concluding whether or not there has been or still is an infringement. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding and decide upon the case.
It is justified to say that the fact that the European Commission has approved UEFA Financial Fair Play Regulations is of limited importance today. Moreover, its importance will be further reduced along with progresses in strengthening private enforcement of competition law. This conclusion is reinforced by the fact that the problem of the relationship between competition law and FFP has been examined by Belgian courts in a private case.
National courts may show less understanding to the necessity of protecting financial long-term rationality and discipline in football at the cost of limiting competition to the detriment of the current football teams’ business partners. It seems that the natural consequence of adopting FFP will be to limit clubs’ spending. This must result in cutting their business partners’ income. Further doubts arise from the fact that FFP has reduced the possibility of strengthening the position of clubs with borrowed money. This solution has important advantages, but at the same time it makes challenging the leading position of the currently strongest teams more difficult too. It is very difficult to draw a clear line between clubs’ legal efforts towards “financial stability” by “responsible self-regulation” of football associations, and anticompetitive collusion.
It can be also expected that enhancing private competition law enforcement in the European Union will further diminish the European Commission’s and national Competition Law Authorities’ interest in investigating sport issues. Angelique Bret and Trevor Watkins have noted that the Commission rejected a complaint that FFP infringed EU competition law “primarily on the basis that the matter was already being considered by the Belgian courts.” 
It looks as if the rules of competition law scrutiny of sport activity in the European Union are becoming similar to the United States standards. In this country, most of conflicts related to sport are resolved under privately enforced antitrust law. Note that the United States Federal Trade Commission and the Department of Justice have hardly ever enforced antitrust law in sport.
2.Collectively bargained agreements and competition (antitrust) law
In the United States, non-statutory antitrust exemption is the crucial legal construction thanks to which leagues are able to follow a policy of competitive balance. To give a very general picture of it, one may point out that in the first years after the basis of the US antitrust had been passed ,courts, contrary to the intention of Congress, used antitrust law to proscribe union activity. That line of case law did not change even after passing “sections 6 and 20 of the Clayton Act (in 1914), which Congress intended to be a statutory exemption from the Sherman Act for the unions.” Statutory legal exemption for unions was recognized only after Congress had passed the Norris-LaGuardia Act and the judgment in the Apex Hosiery Co. v. Leader case had been rendered.
Jeffrey Hoffmeyer finds that “shortly after Apex recognized the statutory exemption from antitrust liability for unions, the Supreme Courts, in United States v. Hutcheson, began to articulate, yet failed to define, a non-statutory exemption from antitrust liability for unions: Allen Bradley Co. v. Local Union No.3, United Mines Workers of America v. Pennington, and Jewel Tea Co.” It can be inferred from those cases that:
- union activity is contained by a special protection from antitrust law in order not to undermine their right to use collective bargaining for improving labor conditions;
- unions are allowed to use “legitimate bargaining tactics”;
- “an agreement struck by the union with an employer is exempt from antitrust liability regardless of whether the agreement was with a single employer or with multiple employers, as long as the bargaining was at arm`s length”.
According to Peter Carfagna’s observations, “after the double blow of Smith and Mackey, the NFL realized that it needed the protection of non-statutory labor exemption and would have to collectively bargain for its desired set-up with the NFLPA in order for the current NFL practices to survive antitrust scrutiny”.
The scope of non-statutory labor exemption is ambiguous. However, one may seriously doubt if it would be possible to effectively apply the draft system or other solutions ensuring competitive balance without it.
Collective bargaining agreements are also an important part of social policy in the European Union. Nevertheless, relationships between social provisions of European Union law and EU competition law are rather vague. While examining these relationships in Albany International BV, Advocate General Francis Jacobs stated that “the authors of the Treaty either were not aware of the problem or could not agree on a solution. The Treaty therefore does not give clear guidance.” He concluded that in that situation “one must draw a line according to established principles of interpretation. Since both sets of rules are Treaty provisions of the same rank, one set of rules should not take absolute precedence over the other and neither set of rules should be emptied of its entire content. Since the Treaty rules encouraging collective bargaining presuppose that collective agreements are in principle, lawful, Article 81 (1) (current Article 101 (1) Treaty on the Functioning of the European Union – TFEU – MKK) cannot have been intended to apply to collective agreements between management and labor on core subjects such as wages and other working conditions. Accordingly, collective agreements between management and labor on wages and working conditions should enjoy automatic immunity from antitrust scrutiny.”
Following that way of thinking, Advocate General Francis Jacobs proposed “three conditions for ipso facto immunity. First, (…) the agreement must be made within the formal framework of collective bargaining between both sides of industry. Unilateral coordination between employers unconnected with the collective bargaining process should not be automatically sheltered, whatever the subject of the coordination may be. Secondly, the agreement should be concluded in good faith. In that context account must be taken on agreements which apparently deal with the core subjects of collective bargaining such as working time but which merely function as cover for serious restriction of competition between employers on their product markets. In those exceptional cases, too, competition authorities should be able to examine the agreement in question. Thirdly, it is necessary to delimit the scope of the collective bargaining immunity, so that the immunity extends only to those agreements for which it is truly justified. It will not be easy to find a criterion which draws the line in the right place and also provides the requisite legal certainty. I would tentatively suggest as a possible criterion that the collective agreement must be one which deals with the core subjects of collective bargaining such as wages and working conditions and which does not directly affect third parties or markets.”
The inferences of the Court of Justice in the Albany case are not as precise as the Advocate General’s analysis but court hospitality towards collective labor agreement seems to be on a similar level. The Court of Justice stated that “it is beyond question that certain restriction of competition are inherent in collective agreements between organizations representing employers and workers. However, the social policy objectives pursued by such agreements would be seriously undermined if management and labor were subject to Article 81 (1) of the Treaty (current Article 101 (1) TFEU – MKK) when seeking jointly to adopt measures to improve conditions of work and employment. It therefore follows from an interpretation of the provisions of Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labor in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 81 (1) of the Treaty (current Article 101 (1) TFEU – MKK)”. This way of thinking is similar to the position taken by the Eighth Circuit in Mackey v. NFL. The US court emphasized that “the basis of the non-statutory exemption is the national policy favoring collective bargaining” and stressed the fact that “under the general principles surrounding the labor exemption, the availability of the non-statutory exemption for a particular agreement turns upon whether the relevant federal labor policy is deserving of pre-eminence over federal antitrust policy under the circumstances of the particular case. ”
In Drijvende Bokken BV , the Court of Justice confirmed the correctness of legal findings presented in the Albany judgment. It was particularly emphasized that the agreement was derived from social dialogue between employers and workers and had a form of collective agreement. The Court stressed also the fact that the agreement was to improve the working conditions.
In van der Woude, Advocate General Nial Fenelly made an important attempt to precisely define the conditions for antitrust immunity. He expressed an opinion that it is clearly correct that “exceptions established in the Albany cases must be narrowly constructed and, in particular, must respect the principle of proportionality.”
The Court did not refer to that theoretical analysis and rendered the decision based on the previous case law. In the judgment, there is a statement that “agreements entered into in a framework of collective bargaining between employers and employees and intended to improve employment and working conditions must, by virtue of their nature and purpose, be regarded as not falling within the scope of Article 85 (1) of the Treaty (current Article 101 TFEU – MKK).”
In the EU Member States, the legal status of athletes often does not entitle them to be a part of the formally understood collective bargaining agreements. Nevertheless, the mere fact that in particular situations athletes are not allowed to bargain collectively for reasons arising from labor law should not automatically deprive them, clubs and leagues of all advantages of relaxing competition law scrutiny for social reasons. To support this point of view, one may mention the fact that the EU attitude to relationships between competition law and collectively bargained agreements is based on functional interpretation. There are no statutory obstacles to the possibility of equalizing deals concluded by athletes associations which do not have the status of collectively bargained agreements with narrowly understood collectively bargained agreements, if they fulfill the same functions. Emphasis should be put rather on functions fulfilled by such agreements than on their legal status.
For the purposes of comparison, note the Australian experiences. Prior to 2006 “collective bargaining was not available to non-employed workers who were economically dependent on the sale of their labor (for example, independent contractors and self-employed persons) as a tool to improve their working conditions.” That situation was disapproved of by the Dowson Report – the Review of the Competition Provisions of The Trade Practice Act. The main conclusion of that paper is a thesis that non-labor collective agreements “could generate public benefits”.
The Dowson Report provided basis for legislative action. The Trade Practices Legislation Amendment Act has significantly increased the ability of non-employed workers to bargain collectively. Shae McCrystal points out that “the Amendment Act has altered the TPA, supplementing the existing authorization process with a new notification process which permits relevant individuals or corporations to lodge a `collective bargaining notice` with the Australian Competition and Consumers Commission (ACCC) of their intention to engage in collective bargaining with a named target. Once in force, such a notice protects the parties engaged in collective bargaining from Part IV liability with respects to collective boycotts, price fixing or contracts, arrangements or understandings which may substantially lessen competition.”
It can be inferred from the Australian experiences that the attitude to relationships between competition law and collective labor agreements should not be too formalistic. The fact that a contract has a form of a collective agreement recognized by labor law should be taken into account when determining the scope of competition law scrutiny, but at the same time it should not be overestimated.
The major obstacle to using collectively bargained agreements in European Union sport in a manner similar to the American one is of a functional nature. One may doubt if the real purpose of the United States collectively bargained agreements in sport is always or usually “improving employment conditions”. It seems that they rather decrease athletes’ wages and deprive them of the advantages which they could expect from the effectively functioning competition mechanism.
The above problem can be illustrated by examining the history of the NFL players’ struggle for contractual freedom. It should be stressed that they used arguments taken from antitrust law and questioned the restrictions on changing clubs. On the other hand, the core strategy of the employers – i.e. of the NFL clubs – was to invoke collective bargaining labor agreements which they entered into with the players’ union (NFLPA). In those cases, the employees had to abandon the bargaining role of their labor organization and “restructure the Union as a voluntary professional association to act on behalf of former and active NFL players using methods other than collective bargaining” in order to avoid the employers’ argument that restrictions on the employees’ contractual freedom were protected from the antitrust scrutiny as a non-statutory labor exemption. Finally, mainly thanks to antitrust law, players succeeded in improving their working conditions.
When analyzing those cases, it should also be kept in mind that the European system of collective labor agreements is different from the American one, and in most European countries such far-reaching restrictions on workers’ contractual freedom as those imposed on NFL players would probably be considered invalid under labor law.
It is justified to say that different standards of antitrust scrutiny are applied to collective bargain agreements in the United States and in the European Union. American non-statutory labor exemption provides a much more efficient protection for teams’ owners against antitrust attack than similar legal construction could offer them in the European Union.
However, the fact that restrictions on competition were accepted in the process of fair negotiations between social partners should be taken into account in the European Union competition law scrutiny. This can be particularly meaningful in cases of limiting competition within relatively small and weak leagues. Athletes who represent teams belonging to them are often in danger of suffering harm as a result of clubs’ bankruptcy. Polish speedway “Ekstraliga” is a good example of it. Despite the fact that speedway is very popular in Poland, after the 2014 season, two out of eight clubs belonging to “Ekstraliga” were deprived of licenses because of financial problems, and some riders weren’t paid their remuneration. That was mainly due to an uncontrolled race for top athletes. To make things worse, serious injuries are not rare in the speedway industry and sportsmen are provided hardly any support if they have been affected. An agreement between the riders’ association and clubs in which the former would accept some “competitive balance” solutions in exchange for financial stability and reliable insurance would be reasonable and should be treated leniently in competition law scrutiny.
3.Other instruments for limiting disturbances which may be caused to sport by private enforcement of competition law
3.1.Arbitration in competition (antitrust) sport cases
As it was previously mentioned, private enforcement of competition law can lead to disturbances in sport activity. Arbitration is an interesting way of reducing them .
One may expect that specialized arbitrary tribunals will show more understanding to the socio-economical specificity of sport and will apply competition law to sport in a relatively predictable way. However, it should be emphasized that arbitrary clauses are binding only on its parties. As a consequence, they have no effects on public enforcement of competition law.
It should be further stressed that potential abuses of the arbitrary dispute resolution system can be a subject of competition law scrutiny. The creation, by a league, of a biased system of arbitration to make the possibility of private enforcement of competition law by athletes illusory could be considered a violation of Article 102 TFEU. The German Higher Regional Court (Oberlandesgericht) has established high standards of neutrality for sport arbitration in the Pechstein case.
Please note that in the United States very broad, mandatory arbitrary clauses are part of standard contracts concluded with players in all big leagues.
The unpredictability of the effects of private enforcement of European Union competition law in sport, especially until the case law is settled, could be very problematic to sport leagues and their business partners. For example, doubts about the risk of violating competition law could decrease the value of TV rights packages sold by leagues.
Sometimes one may avoid or limit the negative effects of the uncertainty about the results of competition (antitrust) law scrutiny by filing a request for a declaratory judgment. As emphasized in point 3.4 of this paper, it was an issue examined in the United States v. NFL (NFL II) case.
In the European Union, declaratory actions can be particularly convenient. The differences in the effectiveness of private enforcement of competition law between the European Union member states are significant. This encourages forum shopping on a wide scale. It can sometimes be the best solution for a sport league to file a request for a declaratory judgment in the court of a member state whose legal system is not particularly enthusiastic about the idea of private enforcement of competition law. The possibility of applying this tactic was confirmed by the Court of Justice in Folien Fischer AG, Fofitec AG v. Ritrama SpA.
It should also be kept in mind that there are some legal constructions specifically tailored to ensure the homogeneity in interpreting EU law. It is necessary to take advantage of them in sport cases which are privately enforced under competition law. The preliminary reference procedure is of particular importance.
3.3.Single entity defense
Single entity defense used to play a vital role in the antitrust strategy of the US leagues. In Copperweld Corp. v. Independence Tube Corp.  , the Supreme Court expressed a view that <<the coordinated activity of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purposes of § 1 of the Sherman Act. A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal “agreement,” the subsidiary acts for the benefit of the parent, its sole shareholder.>>
Thanks to the single entity defense, leagues tried to avoid antitrust liability under section 1 of the Sherman Act, which was regarded to be stricter than liability under Section 2. Basically, now the defense is not effective for sport leagues any more. However, it should be stressed that in Chicago Professional Sport Ltd.v. National Basketball League,the Seven Circuit stated that a sport league can be treated as a single firm in the broadcasting market. It was emphasized that a sport league produces a single product and that cooperation between teams is essential. The court considered that “in order to determine whether a unity of interest exists, courts should analyze a sport league on case-by-case basis, one facet at a time”.
The majority of the United States courts have been taking a different position and continued to rule “that sport leagues are not single entities”. Judgments in cases McNeil v. National Football League and Sullivan v. National Football League are good examples of it. Currently, the possibility of using antitrust single entity defense even by a very centralized Major League Soccer is doubtful. It also seems that nowadays antitrust liability under section 1 of the Sherman Act is not much stricter than liability under section 2.
Currently, the single entity defense is of a very limited value in sport cases in the United States and is of no use in the European Union. It should be stressed that in the European Union, the concept of undertaker, which is crucial for Articles 101 and 102 TFEU, is purely functional and the legal status of clubs is of a little meaning.
Moreover, excluding Article 102 TFUE from legal bases of clubs’ and leagues’ liability under competition law would not have significant influence on competition law scrutiny standards. In the European Union, it would be pointless to make any attempts to persuade courts that clubs are single entities. Even if teams were successful, it would not give them any competitive law advantage.
In the United States the most important antitrust statutory exemption was introduced by the Sport Broadcasting Act (SBA) of 1961. To outline the current role of this regulation, it is useful to present its legal history.
NFL I case examined a league regulation according to which a team was prohibited from broadcasting its game “into the market of another team, unless permission was granted by the home club. Therefore, each team had a seventy-five mile radius to which it could broadcast the game without fear that another team would broadcast its game on a different station within the same market (e.g., The Detroit Lions had the exclusive right over a seventy-five mile radius to broadcast the team`s game)”. The judgment <<enjoined the NFL from making any agreements among the teams that had “the purpose or effect of restricting the areas within which broadcasts or telecasts of games (…) may be made”>>. 
The marketing strategy of the NLF was further undermined in the NFL II. The league “petitioned the United States District Court for the Eastern District of Pennsylvania to construe NFL I to allow its contract with CBS. Because the CBS-NFL contract prohibited teams from selling broadcasting rights for their own games to any other television network, the court found that the NFL violated NFL I decision. The NFL`s restriction on its member teams, which eliminated all competition for the sale of broadcasting rights, was an unreasonable restriction of trade”.
The Sport Broadcasting Act (SBA) of 1961 was passed in response to NFL I and NFL II judgments. The main body thereof states that “the antitrust laws (…) shall not apply to any joint agreement by or among persons engaging in or conducting the organized professional team sports of football, baseball, basketball, or hockey, by which any league of clubs participating in professional football, baseball, basketball, or hockey contests sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games of football, baseball, basketball, or hockey, as the case may be, engaged in or conducted by such clubs.”
Peter Carafagna underlines that the Act “applies only to television broadcasts, not cable, satellite or internet, or other new media broadcasts”. Moreover, the exemption covers only four sports and section 2 of the Sherman Act is entirely beyond its scope.
There are doubts about how the SBA should be interpreted. However, the general idea that the exemption should be read narrowly is accepted. The legal situation could have been clarified in the Shaw v. Dallas Cowboys Football Club, Ltd.  case, but the NFL decided not to use that opportunity and reached a settlement. It should also be mentioned that an argument for revoking the statutory antitrust exemption was used to put sports leagues under pressure not to limit the availability of watching sport events.
Competition (antitrust) law is mainly about efficiency and consumer welfare. If it is intended to limit the scope of pursuing these goals to promote other values in sport, passing statutory legal exemptions in the European Union is necessary. The necessity of developing some antitrust exemptions for sport in the European Union seems to be more urgent than in the United States. This is due to the fact that the legal system of the latter has a more established case law.
The US experiences in applying antitrust law to sport are valuable from the European Union point of view. However, it would not be proper to simply copy solutions accepted in the United States into the EU legal system. Private enforcement of competition (antitrust) law in sport should be analyzed against a broad socio-economical background, which is significantly different on both sides of the Atlantic. Nevertheless, the structure of the tension existing between competition (antitrust) purposes and indispensable cooperation between teams forming a league is similar in the European Union and in the United States.
 See Anneli Howard, The Draft Directive on Competition Law Damages – What does it mean for infringers and victims?, 35 (2) European Competition Law Review 52 (2014); Commission staff working document. Impact assessment report. Damages actions for breach of the EU antitrust rules Accompanying the proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Strasburg 11.6.2013, SWD (2013) 203, p. 15.
 OJ L 349/1.
 See Bosman  ECR I‑4921.
 Chris Davies, Football`s Transfer System Post-Bosman: Freedom of movement for players versus football`s financial future?, 35 (1) European Competition Law Review 9 (2014). See also Chris Davies, Labour Market Controls and Sport in Light of EUFA`s Financial Fair Play Regulation, 33 (10) European Competition Law Review 438 (2012).
  ECR 16991.
 Case COMP/38.158.
 See Romano Subiotto, The Adoption and Enforcement of Anti-Doping Rules Should Not Be Subject To European Competition Law, 31 (8) European Competition Law Review 323 (2010).
 Joint Statement by Vice-President Joaquín Almunia and President Michel Platini, 21 March 2012, http://ec.europa.eu/competition/sectors/sports/joint_statement_en.pdf.
 C(2014) 7378 final.
 Angelique Bret and Trevor Watkins, Does EU agreement with UEFA send out mixed message on competition law scrutiny in football?, http://www.out-law.com/en/articles/2014/october/does-eu-agreement-with-uefa-send-out-mixed-message-on-competition-law-scrutiny-in-football-/
 See Leanne O`Leary, “If it moves out there, we sell it”: Super League and the intellectual property of rugby league players, 32 (4) European Competition Law Review 185 (2011).
 OJ 2003 L 1/1.
 See Chris Kerse & Nicholas Khan, EU Antitrust Procedure, 323, 379 (sixth ed. 2012).
 See Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty, OJ 2004 C 101/65; Ignace Maselis & Hans Gilliams, Rights of Complainants in Community Law, 22 (2) European Law Review 111 (1997); Bemim v. Commission  ECR I-2181.
 Angelique Bret & Trevor Watkins, Does EU agreement with UEFA send out mixed message on competition law scrutiny in football?, http://www.out-law.com/en/articles/2014/october/does-eu-agreement-with-uefa-send-out-mixed-message-on-competition-law-scrutiny-in-football-/
 The Sherman Act was passed in 1890.
 Jeffrey Hoffmeyer, Fourth Down and an Appeal: The Nonstatutory Exemption to Antitrust Law in Clarett v. National Football League, 13 Sports Lawyers Journal 195 (2006).
 310 U.S. 469 (1940).
 312 U.S. 219 (1941).
 325 U.S. 797 (1945).
 381 U.S. 657 (1965).
 381 U.S. 676 (1965).
 Hoffmeyer, supra note 20, at 196.
 Id, at 198. See also Lisa P. Masteralexis, Antitrust Law: Professional Sport Applications, (in: ) Law for Recreation and Sport Managers, ed. C. Doyice & John T. Wolohan 634 (2007)
 Smith v. Pro Football, Inc, 593 F.2d 1173 (D.C. Cir. 1978).
 Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976).
 National Football League.
 National Football League Players Association.
 Peter Carfagna, Sports and the Law. Examining the Legal Evolution of America`s Three “Major Leagues”, 82-83 (2nd ed. 2011).
  ECR I – 5751.
  ECR I – 6121.
  ECR I – 7111.
 Shae McCrystal, Collective Bargaining and the Trade Practice Act: The Trade Practice Legislation Amendment Act (No 1) 2006 (Cth), available at http://ssrn.com/abstract=1079872.
 Scott Backman, NFL Players Fight for Their Freedom: The History of Free Agency in the NFL, 9 Sports Lawyer Journal 30 (2002).
 See Jan Piątkowski, Uprawnienia zakładowej organizacji związkowej, 47-52 (1999).
 See http://www.speedway.info.pl/index.php/polska/115-pzm/873-pzm-w-sprawie-czestochowy-i-gdanska.
 OLG München, Teil-Urteil vom 15. Januar 2015, Az. U 1110/14 Kart.
 See Carfagna, supra note 32, at 46-47.
 See Katrin Lefever and Robin Kerremans, Football on (Must-) Offer, 32 (12) European Competition Law Review 621 (2011); Bill Bathelor and Tom Jenkins, FA Premier League: The Broader Implications for Copyright Licensing, 33(4) European Competition Law Review 157 (2012); O`Leary, supra note 12, at 185.
 196 F. Supp. 445 (E.D. Pa. 1961).
 See. Stephen Wisking, Kim Dietzel and Mally Herron, European Commission finally publishes measures to facilitate competition law private actions in the European Union, 35 (4) European Competition Law Review 193 (2014); Howard, supra note 1, at 52.
 See Fiona Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v. Presse Alliance SA.,  ECR I-415; Handelskwekerij G. J. Bier BV v. Mines de potasse d’Alsace SA.,  ECR 1735; Jürgen Basedow, Jurisdiction and Choice of Law in the Private Enforcement of EC Competition Law, (in: ) Private Enforcement of EC Competition Law, ed. Jürgen Basedow, 250 (2007).
 C-133/11, (not yet reported).
 Article 267 TFEU provides that the Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
 467 U.S. 752 (1984).
 See Nathaniel Grow, There`s No “I” in “League”: Professional Sports Leagues and the Single Entity Defense, 105 Michigan Law Review 185 (2006); Keith N. Hylton, Antitrust Law, Economic Theory & Common Law Evolution, 163 (2003).
 See Robert M. Bernhard, MLS` Designated Player Rule: Has David Beckham Single-Handedly Destroyed Major League Soccer`s Single Entity Defense?, 18 Marquette Sports Law Review 419 (2008).
 95 F.3d 593 (7th Cir. 1996).
 See Bernhard, supra note 52, at 420.
 See Grow, supra note 51, at 187. Masteralexis, supra note 27, at 632.
 See Grow, supra note 51, at 187.
 790 F.Supp. 871 (D.Minn 1992).
 34 F.3d 1091 (1st Cir. 1994).
 See Mark W. Lenihan, Major League Soccer Scores an Own Goal: A Successful Joint Venture Attains Market Power in an Internal Sport, 62 Depaul Law Review 889 and next (2013); Bernhard, supra note 52, at 431; Fraser v. Major League Soccer, 97 F. Supp. 2d 130 (D. Mass 2000).
 See Andrew I. Gavil, Copperweld 2000: The Vanishing Gape Between Section 1 and 2 of the Sherman Act, 68 Antitrust Law Journal 88 (2000); Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of Antitrust Law, § 22.05d, 67-68 (third ed. 2004).
 15 U.S. Code § 1291.
 United States c. National Football League,116 F. Supp. 319 (E.D. Pa.1953).
 Ariel Y. Bublick, Are You Ready for Some Football?: How Antitrust Laws Can Be Used to Break Up DirectTV`s Exclusive Right to Telecast NFL`s Sunday Ticket Package, 64 Federal Communications Law Journal 231 (2011).
 Id, 232.
 Lacie L. Kaiser, Revisiting the Sports Broadcasting Act of 1961: A Call for Equitable Antitrust Immunity from Section One of the Sherman Act for all Professional Sport Leagues, 54 Depaul Law Review 1245 (2005).
 Carfagna, supra note 32, at 76.
 See Kaiser, supra note 65, at 1246, 1249, 1252.
 172 F.3d 299 (3d Cir. 1999).
 See Kaiser, supra note 65, at 1249, 1250.
 See Bublick, supra note 63, at 239.
Without Consequence: When Professional Athletes Are Violent Off the Field
In Spring 2010, I wrote an article reviewing the treatment by Major League Baseball (“MLB”), the National Football League (the “NFL”) and the National Basketball Association (the “NBA”) of professional athletes who are accused of domestic violence. At the time, there was very little written on the subject—a number of articles in the late 1990s focusing on the murders of Nicole Brown Simpson and Ron Goldman by famous former running back, O.J. Simpson (and the countless 911 domestic violence calls placed by Nicole Brown Simpson that preceded those deaths) and some pioneering works by author Jeff Benedict.
Just five years later, the story is quite different. The NFL’s treatment of domestic violence was selected as the sports story of 2014 in an annual vote conducted by the Associated Press. For the first time since the late 1990s, the media is publicly recognizing the silent story that has laid dormant, overshadowed by the story of fame, glory, athleticism and America’s favorite pastimes.
As in the late 1990s, the recent media attention on professional athletes and acts of off-field violence was precipitated by a widely publicized act of violence. Ray Rice, the esteemed running back for the Baltimore Ravens, was caught on camera punching Janay Rice—his then fiancée and now wife—unconscious in a casino elevator and then, with seeming indifference, dragging her limp body from the elevator. This action resulted in an initial two-game suspension handed down by NFL Commissioner Roger Goodell, but was later increased to an indefinite suspension after the graphic video of the events that took place inside the elevator surfaced. Ray Rice appealed the indefinite suspension and, ultimately, it was overturned by a neutral arbitrator, former U.S. District Judge Barbara S. Jones, who found the penalty “arbitrary” because Ray Rice admitted he struck Janay Rice and never misrepresented the facts to Commissioner Goodell—the increase in the suspension seemed solely linked to the public backlash, largely influenced by the images caught on camera, rather than any new evidence. As Judge Jones wrote, “That the League did not realize the severity of the conduct without a visual record also speaks to their admitted failure in the past to sanction this type of conduct more severely.”
As in many domestic violence cases, Janay Rice has supported her husband throughout the media storm, criminal process and league punishment. It is unfortunate that her personal life has become the fodder for a much-needed debate that should have been happening for some time. The point of the debate should never be the reaction of the survivor. However, it is telling to learn that the Baltimore Ravens suggested that she, Janay Rice, apologize for her role in the domestic violence incident alongside her husband. The Ravens tweeted (and later deleted): “Janay Rice says she deeply regrets the role that she played the night of the incident”.
Janay Rice has since said that she is glad the incident brought awareness to the issue of domestic violence. The leagues, the public and even Congress are now debating the issue of violence against women. Violence against women is not unique to professional sports, but professional sports provides a unique platform from which we can judge not only the leagues’ reaction to violence against women, but also the consequent response (or lack of response) by the criminal justice system. Some may argue that MLB, the NFL and the NBA should only be concerned with the on-field behavior of their respective athletes, but this is not the stance the leagues have taken. Each of MLB, the NFL and the NBA has consistently doled out punishment for off-field conduct unrelated to the game, such as driving under the influence, using non-performance enhancing drugs like marijuana and even making racist or homophobic statements (which, while repugnant, is not criminal behavior). If the leagues were only to concern themselves with on-field behavior (or off-field behavior that affects the outcome of games, such as use of performance-enhancing drugs), at least it would be a logically consistent policy. Instead, the leagues have been inconsistently punishing players for certain off-field criminal behavior—arguably implicitly condoning the off-field criminal behavior that typically goes unpunished, such as violence against women. As Senator Claire McCaskill (Democrat of Missouri) said in her testimony at a Senate Committee on Commerce, Science and Transportation hearing on the issue of professional sports and violence against women: “With great power and influence comes great responsibility.”
The leagues seem to understand their responsibility now—or at least that there will be a media backlash if they do not think critically about drafting and, even more importantly, implementing policies that recognize violence against women as a punishable offense by the leagues. The NFL is leading the way, with Commissioner Goodell having hired three female experts in the field to inform NFL policy—Lisa Friel, the former head of the Sex Crimes Prosecution Unit in the New York County District Attorney’s Office, Jane Randel, co-founder of NO MORE, and Rita Smith, the former executive director of the National Coalition Against Domestic Violence. Further, the NFL owners have approved a revised personal conduct policy that, among other things, sets forth a process of review and punishment with respect to allegations of domestic violence and sexual assault (the “Revised NFL Policy”). Commissioner Goodell stated, “Character and values sit[s] above everything else because [the NFL represents] something that means so much to so many people.” Specifically with respect to domestic violence and sexual assault, Commissioner Goodell stated: “Each is a societal problem that is frequently underreported . . . As a league, we must have a continued focus on the needs of victims and families; among other things, we must encourage victims and those who observe such misconduct to come forward, to report offenses, and to seek help.”
Unfortunately, this recent rhetoric does not align with the way the leagues handled domestic violence and sexual assault prior to the media maelstrom—in fact, it is a departure. A review of domestic violence and sexual assault allegedly perpetrated by athletes in MLB, the NFL and the NBA from January 1, 2010 through December 31, 2014 shows that the leagues have not had such a “continued focus” to date. Based on a Westlaw search of newspapers across the United States, there were 64 reported incidents of domestic violence or sexual assault allegedly committed by athletes in MLB, the NFL and the NBA during this five-year period. The results show that only one of the 64 reported allegations resulted in conviction for the alleged crime (though four players pleaded guilty to lesser charges and five pleaded no contest), only seven players were punished by their league, and only two players were punished by their team.
If this statistic is not shocking enough, it is likely that the actual odds of a professional athlete being punished, by the criminal justice system, leagues or teams, for domestic violence or sexual assault are even lower than is evidenced by calculations based on media reports of such incidents. First, many victims of domestic violence and sexual assault do not report to the police. As discussed below, domestic violence and sexual assault have distinct complicating factors, including, for domestic violence, an intimate relationship with the perpetrator and related emotional and economic dependencies, and, for sexual assault, the reality that the victim will likely not be believed and can even be blamed for her own assault.
Second, even when victims have the courage to report to the police, allegations of domestic violence or sexual assault often go unreported by the media until formal charges are pressed. For instance, on January 14, 2015, it was reported that Josh McNary, a linebacker for the Indianapolis Colts, was formally charged with rape, criminal confinement and battery for an incident that took place on December 1, 2014. The original incident and police report were never publicized despite having taken place a month and a half prior to the formal charges—even the Colts indicated that they were unaware of the allegations until the charges were pressed. It is unlikely that we would have learned of the allegations if the prosecutor declined to press criminal charges, which, as detailed below, happens more often than not.
The research suggests that professional athletes are rarely formally charged with crimes related to domestic violence or sexual assault, even when there is evidence against them. And in the cases where these professional athletes are indicted, they are almost never convicted. If the leagues continue to shape their collective bargaining agreements and/or personal conduct policies based on the results of the justice system, we cannot solve this problem—professional athletes are not punished as harshly or as consistently as their general public counterparts. We value professional athletes for their aggressiveness and brute strength and, without consequence, we have created a class of individuals who are above reproach when these characteristics present outside of the game.
In this article, I review my findings based on the above-described search related to incidents of domestic violence and sexual assault allegedly perpetrated by players in MLB, the NFL and the NBA in the years 2010 through 2014 and highlight certain allegations, the handling of which should inform our approach to such allegations in the future. Next, I review the league responses to the recent media attention on domestic violence and sexual assault and, in particular, describe and analyze the Revised NFL Policy. Lastly, I consider what steps should be taken to create effective policies in MLB, the NFL and the NBA that account for the realities of domestic violence and sexual assault and ensure that this behavior is no longer left unpunished—even for our most decorated athletes.
- A FIVE-YEAR REVIEW: 2010-2014
The five-year search results based on a review of local and national newspapers are illuminating, not so much because of the total number of allegations, but because of the failure of the criminal justice system, the leagues and the teams to properly investigate and address these allegations. Of the 64 total reported allegations of domestic violence and sexual assault by professional athletes from 2010 through 2014, 39 were against NFL players, 16 were against NBA players and 9 were against MLB players. 18 were allegations of sexual assault and 46 were of domestic violence. Only one of the allegations of domestic violence resulted in conviction (though four players pleaded guilty to lesser charges and three players pleaded no contest), and none of the allegations of sexual assault resulted in conviction (though two players pleaded no contest). Let that sink in for a minute. These numbers reflect a systemic failure, from the leagues to law enforcement to the justice system.
Breaking it down by league, there were four sexual assault allegations and five domestic violence allegations against MLB players from 2010 through 2014. Only two players, Milton Bradley and Evan Reed, were formally charged with a crime. Only Milton Bradley was later convicted. Bradley was sentenced to three years in prison. Prosecutors indicated that he attacked his wife five times in 2011 and 2012, in one incident pushing her against a wall and choking her after she asked him to stop smoking marijuana in front of their children. Not one of these nine MLB players was punished by his respective team or the league, though Bradley was released by the Seattle Mariners in 2011 after requesting a leave of absence.
There were two sexual assault allegations and 14 domestic violence allegations against NBA players from 2010 through 2014. Only three NBA players had formal charges brought against them. Of these three players, Jordan Hill pleaded no contest, and Greg Oden and Jeff Taylor pleaded guilty to lesser charges—none were convicted of the crime with which they were charged. Only one team, the Boston Celtics, punished its player—Jared Sullinger, who was arrested for assault and battery, intimidation of a witness and malicious destruction of property after allegedly pinning his girlfriend to a bed and the floor, received a one-game suspension. The charges against Sullinger, like the large majority of other professional athletes who are arrested on domestic violence charges, were ultimately dismissed. The league also punished one player—Jeff Taylor of the Charlotte Hornets received an unprecedented 24-game suspension after he was charged with misdemeanor domestic violence assault and malicious destruction of hotel property. Significantly, Taylor is the only NBA player who was arrested for domestic violence or sexual assault since the recent public focus on the issue—it is unimaginable that NBA Commissioner Adam Silver would have handed down a similar suspension had the Ray Rice incident, and related criticism of Commissioner Goodell’s response, not occurred. Commissioner Silver stated, “This suspension is necessary to protect the interests of the NBA and the public’s confidence in it. Mr. Taylor’s conduct violates applicable law and, in my opinion, does not conform to standards of morality and is prejudicial and detrimental.”
Lastly, there were 12 sexual assault allegations and 27 domestic violence allegations against NFL players from 2010 through 2014. Ten of the sexual assault allegations were for rape or attempted rape, while the other two allegations related to other sexual acts committed against a woman’s consent. Of the ten rape or attempted rape allegations, only four players were formally charged—Brandon Underwood and Perrish Cox were arrested and charged with sexual assault, Jarriel King was arrested and charged with first degree criminal sexual conduct and Josh McNary was arrested and charged with rape, criminal confinement and battery. Of these cases, Brandon Underwood avoided trial by pleading no contest to a prostitution charge and paying a fine of $379, Perrish Cox and Jarriel King went to trial and both were acquitted, and Josh McNary’s case is pending. The result: 12 sexual assault allegations, and zero convictions (though two players pleaded no contest to lesser charges). The only league or team punishment related to these allegations was the well-publicized six-game suspension (later reduced to four games) by the NFL of Ben Roethlisberger. Though the prosecutor declined to press charges against Roethlisberger (discussed in more detail below), Commissioner Goodell stated that Roethlisberger’s conduct was not “admirable, responsible or consistent with either the values of the league or the expectations of the fans.”
Of the 27 domestic violence allegations involving NFL players from 2010 through 2014, only seven allegations resulted in formal charges. Of these seven allegations, four athletes pleaded down to lesser charges or pleaded no contest and three went to trial. Of those three trials, Chris Cook of the Minnesota Vikings was acquitted of felony domestic assault by strangulation after allegedly strangling his girlfriend, Chantel Baker. This, despite evidence that Baker suffered a perforated eardrum, lost hearing in that ear for two weeks, sustained a bloody nose, and had marks on her neck and hemorrhaging in her eyes consistent with strangulation. Greg Hardy was convicted of assault on a female and communicating threats, after allegedly beating, strangling and threatening to kill his ex-girlfriend, though he appealed the conviction to a jury trial and the charges were ultimately thrown out when the victim could not be reached to testify at the jury trial. While Hardy was awaiting the appeal, he was placed on the Commissioner Exempt List and collected his $13.1 million salary for the 2014 season, as well as an additional $48,000 from the Carolina Panthers’ playoff victory. Jonathan Dwyer’s trial began March 4, 2015—he is facing one felony and eight misdemeanor aggravated assault charges for allegedly assaulting his wife during two separate arguments. Investigators indicate that Dwyer broke his wife’s nose with a head butt, and the next day punched her. Of these 27 allegations, only five resulted in league punishment and one resulted in team punishment.
Overall, the lasting message from these past five years is that professional athletes rarely face formal charges, and are almost never convicted, for domestic violence or sexual assault. The failure of the justice system has been replicated by the leagues themselves, which have only handed down seven punishments out of the 64 reported domestic violence and sexual assault allegations—six by the NFL, one by the NBA (only after the recent media attention on the issue) and none by MLB. While the leagues have spent countless hours developing stringent standards related to other off-field conduct, such as drug use, driving under the influence and even acceptable apparel, they have neglected to consider the prevalence and complexities of domestic violence and sexual assault and appropriate processes and procedures for addressing them. Professional athletes are admired for their talents on the field, but these talents should not excuse them from being held accountable for violent off-field behavior. The leagues’ historical lack of action with respect to domestic violence and sexual assault suggests they tolerate this behavior, and do not see it as harmful to society as the other off-field behavior they consistently condemn. At this point, it is unclear whether the justice system is failing to successfully prosecute athletes because the public (i.e., jurors) has received the message from the leagues that domestic violence and sexual assault are mere distractions, or whether the leagues have failed to take action due to their reliance on flawed law enforcement practices. Either way, someone needs to step up to the plate.
- FACTORS CONTRIBUTING TO THE LACK OF CONSEQUENCES AND RELATED CASE STUDIES
As Senator Claire McCaskill said, “By and large, professional sports teams have relied on the failure of the criminal justice system to get convictions as their excuse as to why very few players have been held accountable.” So, what is happening with these domestic violence and sexual assault cases? Why are they not being successfully prosecuted? To answer this question, we must consider the societal biases and assumptions that affect our response to allegations of domestic violence and sexual assault and explore how these factors may have played a role in certain case studies—specifically, this section will analyze the domestic violence allegations against Chris Cook and DeAndre Liggins, and the sexual assault allegations against Ben Roethlisberger, Perrish Cox and Jarriel King.
Domestic Violence: Understandably Reluctant Witnesses
The U.S. Department of Justice reports that nearly one in four American women have experienced domestic violence, and, on average, more than three women are murdered by their intimate partners in the United States every day. Both domestic violence and sexual assault typically take place behind closed doors, without witnesses, which make them difficult crimes to prosecute. The primary evidence is, of course, the victim herself. With domestic violence in particular, a victim may call 911 out of fear, but, once the situation is diffused, may be reluctant to testify against her current or former partner. Many victims of domestic violence are not in a position to leave their partners, due not only to an ongoing emotional connection but also due to economic dependencies and fear of further retaliation, in many cases fear of being murdered (which, as the U.S. Department of Justice statistic illustrates, is not unfounded). Even if an abused woman has the strength to leave her violent partner, going forward with charges against someone you at one time loved or cared for is complicated. When the alleged abuser is a professional athlete, in addition to the above-referenced considerations, many victims fear that their abuser’s career will be put in jeopardy if she reports the abuse or moves forward with charges against him. When these factors do not dissuade the survivor from testifying, professional athletes also have the financial resources to make an offer that the survivor cannot turn down in exchange for her silence, especially when the alternative is publicly reliving a terrifying event with no promise of punishment.
Given all of these factors weighing against continuing to cooperate in pressing charges, many women alter their testimony or refuse to show up for court appearances. For instance, in 2011, the girlfriend of Erik Walden of the Green Bay Packers, who was treated at a hospital for injuries to her head and hand after calling the police and alleging Walden pushed her, changed her story claiming that she hit him first. Similarly, Chantel Baker testified that she lied to police because she was angry with Cook—prosecutors contended she backed off her story under coercion and because she was afraid of ruining his career. Victims of abuse allegedly perpetrated by Quincy Enunwa of the New York Jets, Kelvin Hayden of the Atlanta Falcons, James Johnson of the Memphis Grizzlies, Matt Barnes of the Sacramento Kings, Francisco Rodriguez of the Milwaukee Brewers and Manny Ramirez of the Oakland Athletics, also decided not to pursue charges—prosecutors declined to press formal charges in each case.
Despite the understandable considerations that convince many women not to testify against former or current loved ones, there is other evidence upon which the leagues and law enforcement can rely. For instance, County Attorney Mike Freeman, who prosecuted the case against Cook, indicated jurors could have still believed Baker’s initial statements over her retractions. He went forward with the case despite Baker changing her story, stating that his office turned in convictions in other domestic violence cases when alleged victims denied abuse even more vehemently than Baker. In some cases, there are eyewitnesses, and even when there are not eyewitnesses, prosecutors can present evidence consisting of the 911 calls, photographs of the crime scene and victim’s injuries, hospital reports and first responder interviews of the victim. In addition, domestic violence is generally a pattern of abusive behavior that is used by one partner to gain or maintain power and control over another partner; as such, it is not unusual for one to discern this pattern from prior allegations of abuse.
Unfortunately, many prosecutors do not ultimately press formal charges against domestic violence offenders—whether due to the lack of victim cooperation or otherwise. For instance, the charges against DeAndre Liggins of the Oklahoma City Thunder were ultimately dropped, despite his being arrested for two counts of kidnapping, two counts of domestic violence and battery with a dangerous weapon, three counts of domestic abuse in the presence of a minor and one count of violating a protective order. In this case, there was also a witness other than Liggins and his girlfriend who he allegedly attacked. This witness, Marcus Rogers, allegedly taunted and made fun of the victim in a cellphone recording of the attack, but later as the attack ensued stepped in between Liggins and the victim allowing her to run to a neighbor’s house. According to the probable cause affidavit, she was thrown out of bed to the ground, punched 11-12 times, stomped on and kicked and then dragged back into the house upon trying to escape twice—all in front of their two-year old son. The doctor who examined her indicated she suffered a shoulder separation, bruising on the back of her head and multiple scrapes. Liggins never faced legal or league punishment—the Thunder released him, but he returned to the NBA after the charges were dropped.
The leagues have followed the prosecutors’ lead, rarely doling out punishment despite, in some cases, overwhelming evidence of illegal violent behavior. Instead of focusing on this distortion of justice, the public focus tends to shift to why the victim continues to support, or at least not outwardly accuse, the alleged abuser. Why is the onus on the victim, who has been both physically and emotionally harmed and may remain fearful for her life or wellbeing, to determine whether or not a professional athlete should be punished for a crime evidence suggests was committed? Why can we not prosecute domestic violence committed by professional athletes? Is it the continuing sense that domestic violence is a family matter? Or the stereotype of the victim who deserves the punishment if she refuses to leave? Or is it our tendency to look past all evidence to the contrary to believe that the professional athletes we idolize are incapable of such repulsive conduct?
Sexual Assault: Victim Blaming and Fear of False Accusation
Misguided focus on the victim and her actions is also apparent in sexual assault cases; in this case the public (and, by extension, law enforcement and the leagues) envision that the victim somehow “asked for it”, by drinking, wearing revealing clothing or consenting to some sexual contact, or that the accusation is false—a cry for attention and, in the case of professional athletes, money. With these often-held stereotypes, the fact is that “reasonable doubt” always already exists with rape accusations in a way that it doesn’t always already exist for accusations of other criminal activity—we are culturally trained to doubt the victim, especially when the alleged rapist does not match our idea of who a rapist is. The combination of public perception of alleged rape victims and, in contrast, professional athletes, makes it next to impossible to prosecute rape in this context.
The fear of false accusation is one of the driving forces behind the public’s immediate inclination to blame the victim and disbelieve her story. It has been reported that “[m]any men in college—athletes, fraternity members, and others—believe they or their friends are at a significant risk of being falsely accused of rape by a woman.” Yet, credible sources report that false rape accusations range between two-percent and eight-percent. In comparison, the approximate false accusation rate for all criminal offenses is two-percent to three-percent. Thus, false rape accusations are, at most, slightly above average, but also quite possibly occurring at exactly the same rate as false accusations of other crimes. Thus, the American public “dramatically overestimates the percentage of sexual assault reports that are false.” Interestingly, commentators have used sexual assault cases involving athletes as an example of such fears:
[W]e have all seen how victims are portrayed in the media accounts of rape accusations made against popular sports and cultural figures. These media accounts show us just how easy it is for us as a society to believe the suspect’s statements (a respected cultural icon) and both discount the victim’s statements and disparage her character. This tendency to overestimate the percentage of false reports can then introduce bias into an investigation and prosecution because it causes us to give less credibility to victims and more credibility to suspects.
The FBI statistic that should startle people is that 80%-90% of rapes go unreported. Instead of solely focusing on potential false accusations, we should consider the number of rapists that continue to walk our streets (and play professional sports), either because the victim’s accusation is never prosecuted or because the victim never reports in the first place, likely because she is aware that her allegation will result in her disparagement and his continued freedom.
There are significant odds that work against rape victims, especially those who are raped by professional athletes. Remember, of the 18 reported allegations of sexual assault committed by professional athletes in the past five years, only seven arrests were made and no convictions (though two players pleaded no contest to lesser charges). The sexual assault cases involving Ben Roethlisberger, Perrish Cox and Jarriel King illuminate how the above-described biases, victim blaming and pro-athlete sentiment coalesce, despite seemingly convincing evidence of wrongdoing.
While most people remember the headlines regarding an alleged sexual assault committed by Roethlisberger against a Georgia college student, the details of the Roethlisberger case are important—including, for instance, that he has reportedly also been accused of sexual assault on three other occasions. He was publicly accused of sexual assault by a woman in Nevada—the prosecutor declined to press charges on her behalf, so she initiated a civil suit. In addition, two other sexual assault accusations surfaced against Roethlisberger that were not as publicized, given the accusers’ reluctance to come forward to the police or to initiate a civil suit.
The much publicized Georgia case against Roethlisberger was mishandled at best, and a total failure of the justice system allowing a serial rapist to continue playing professional football at worst. In the case against Roethlisberger, a Georgia college student was at a bar with her sorority sisters, allegedly led down to a bathroom by Roethlisberger’s bodyguards and then raped by Roethlisberger. The alleged victim immediately reported the rape and Sergeant Jerry Blash conducted the initial interviews—he was the only individual to interview Roethlisberger and he was the officer to whom the accuser made her initial report and, as such, would ordinarily be a key witness in her case, as he could attest to her condition and what was said immediately after the alleged assault. Blash had been pictured smiling with the quarterback earlier in the evening and was overheard by multiple witnesses calling the accuser a “drunken bitch” and saying, “This pisses me off, that women can do this,” statements which Blash later admitted making. He also discouraged her from reporting the rape and immediately notified Roethlisberger of the allegation. Further, he coordinated with the off-duty police officer and state trooper that served as Roethlisberger’s bodyguards that night. Blash has since resigned from the Milledgeville police force. The crime scene was never sealed off and, twelve hours after the incident, the club’s janitor swabbed the bathroom with Clorox and Pine-Sol.
Georgia District Attorney Fred Bright was in charge of examining the evidence and concluding whether it was sufficient for the state to press charges against Roethlisberger. In the press conference in which Bright announced his decision not to press charges, he stressed the accuser’s intoxication and her inconsistent statements. Bright mentioned Roethlisberger’s drunken state only once when he said “[b]oth parties had been drinking alcohol.” Bright overlooked the botched investigation and Blash’s biased statements and neglected to recount the accuser’s version of events, as well as her sorority sisters’ eyewitness accounts.
As revealed in the report by the Georgia Bureau of Investigation, which investigated the Georgia allegations along with the Milledgeville police force, the accuser said that one of Roethlisberger’s two bodyguards, later identified as police officer Anthony Barravecchio, escorted her into a hallway and sat her on a stool, at which point Roethlisberger walked down the hallway and exposed himself. It was at this point that she said it wasn’t okay, tried to leave, and went to the first door she saw, which happened to be a bathroom—Roethlisberger followed her into the bathroom, shut the door, and then, allegedly, had sex with her against her will. Her friend, Nicole Biancofiore said that she saw the accuser “dragged by a bodyguard to the back room.” Two other friends said they saw the bodyguard lead the accuser down the hallway and knew she was drunk and were worried about her. Ann Marie Lubatti claims she approached one of Roethlisberger’s two bodyguards and said, “This isn’t right. My friend is back there with Ben. She needs to come back right now.” According to her, the bodyguard, later identified as Pennsylvania state trooper Ed Joyner, would not look her in the eye. Upon questioning, Bright conceded that the accuser’s friends said they spoke to one of the bodyguards in an effort to get their friend from the bathroom and that he would not look at them. Further, he said that the accuser’s friends confronted the manager who “basically said, look, he’s an NFL quarterback with the Steelers – something to that effect – he’s not going to risk his career doing anything foolish.” After the accuser reported the alleged assault to the police, she then went to the hospital and the examination showed lacerations, bruising, and bleeding in her genital area, though the doctor indicated that he could not conclusively say if these resulted from trauma or sexual assault.
Roethlisberger was never prosecuted—a discouraging outcome, given that many rape victims (a) do not immediately report to the police, (b) do not go to the hospital, (c) lack evidence of physical trauma to the genital area (whether conclusive or not) and (d) are not raped in public places with multiple witness accounts as to suspicious behavior of the alleged rapist. This evidence provides valuable insight into the events that occurred that night, and more evidence than many other rape victims have when faced with the decision of whether to report a sexual assault. If this allegation of rape does not lead to prosecution in a court of law, it is not hard to figure out why so few women report rape.
The cases against each of Perrish Cox and Jarriel King were not as publicized as Roethlisberger’s case, though, unlike Roethlisberger, each player was formally charged with sexual assault. Perrish Cox was in his rookie year with the Denver Broncos when he was accused of sexual assault in 2010. Cox’s accuser claimed that she, Cox, his teammate Demaryius Thomas and Cox’s girlfriend, Carthy Che, went out together and then returned to Cox’s apartment. The alleged victim believed she was drugged, as she remembered little about what happened that evening even though she only had four drinks. Though she was suspicious that something had happened the next morning, she did not file a complaint because she could not remember the details and did not want to make unfounded charges. Instead, she came forward on October 28, 2010 after learning she was pregnant, with the doctors placing the date of conception around the date that she was at Cox’s apartment. Both before and after the alleged victim came forward with the accusation, Cox repeatedly denied having sex with the alleged victim, thus restricting him from using the defense most commonly used by men accused of rape—that the sex was consensual. Nonetheless, the DNA sample taken from the fetus matched the sample taken from Cox.
Not only was there DNA evidence, coupled with a history of Cox vehemently denying that he had sex with the woman, there were also witnesses. Thomas testified against Cox and indicated that the alleged victim was passed out at Cox’s home, and Cox then brought her into his bedroom and said to Thomas: “I think she’s ready.” Thomas left the apartment shortly thereafter. While many things were debated during the trial, it was not contested that the alleged victim was passed out, incapacitated—unable to consent.
Without having the typical defense of consensual sex to rely on, the defense attorney, Harvey Steinberg, went to the second best option—painting a picture that the alleged victim was a drunk party girl and arguing that the DNA results were unreliable. Steinberg clinched his case, saying, “Let’s just call this what it is. These were a couple of party girls . . . What did [the alleged victim] herself do?” Prosecutor Bob Chappell countered, “You just heard why, the reason women are reluctant to report rape.” And the jury followed through—they acquitted Cox shortly thereafter.
The case against Jarriel King of the Seattle Seahawks was similar to Cox’s, given the unusual amount of evidence that was present for a rape case. A woman alleged that King and his friend, Arthur Lee Denson-Holmes, drugged her and raped her in a North Charleston, South Carolina apartment despite her cries to stop the sexual assault. In this case, the defense attorneys argued that the sex was consensual and that the woman concocted the accusations in order to get her hands on King’s money. But unlike typical he-said, she-said cases in which, due to the lack of physical evidence, the prosecution relies almost exclusively on the victim’s word alone, there was a text message sent from King’s cellphone at 4:20 a.m. the morning of the incident that said, “Let’s get her sleepy.” King also sent the woman a text to apologize for anything that might have happened to her. In addition, a drug often used in sleeping pills and cold medicine was found in the woman’s system. Despite all of this evidence, a jury acquitted King.
The Roethlisberger, Cox and King cases illustrate the uphill battle women face in pressing sexual assault charges generally, but more specifically, against professional athletes. Typically, prosecutors must rely on the word of the victim, together with accounts of the officers who take the initial report. If they are lucky, the victim may have had the strength to go to the hospital immediately after the attack and have evidence of physical trauma, though most rape kits do not produce such results in adult women. The above-referenced cases had additional evidence including witness testimony, DNA evidence, evidence of the use of sleeping pills and text messages documenting the state of mind of the alleged perpetrator. And yet one case did not even get to court, and the other two resulted in acquittals.
It is not surprising that there have been no convictions of professional athletes for sexual assault from 2010-2014, despite 18 allegations, and that prosecutors rarely even press formal charges—their cases are already lost. Instead of focusing on the rates of false accusation, these numbers and stories suggest we should focus on the sexual assaults committed by professional athletes that go unreported given the likely outcome—being vilified in the media as a party girl and liar and having only a slim chance of seeing even an incredibly strong case result in conviction. The arrest affidavit for Cox’s accuser stated:
“She said she was worried about filing a police report because she saw how the media tormented the victim in the Kobe Bryant case. She feels that society has the mentality that because of an athlete’s social status he wouldn’t have to force someone to have sex with him. She said all of the athletes have the money to get big lawyers and they pay their way out of it. She said she doesn’t want to be harassed in the media.”
Team Complicity with Law Enforcement
In addition to general victim blaming and stereotypes that exist with respect to victims of domestic violence or sexual assault, forming a strong case against a professional athlete is complicated by the relationship between team security, a player’s personal security and law enforcement. In many cases, there is a comradery amongst these individuals, oftentimes due to mutual friends and connections. In many other cases, members of law enforcement supplement their income by actually serving as team security or player personal security while off-duty—thus, making it difficult to discern in what capacity they are acting and creating a conflict of interest. The teams foster this relationship, routinely employing such off-duty officers as uniformed escorts or team security, paying them, providing perks and covering travel costs.
As discussed previously, the fact that Roethlisberger’s two bodyguards, Barravecchio and Joyner, were an off-duty police officer and state trooper responsible for leading the alleged victim to the bathroom and then barring her sorority sisters from assisting her indicates some level of complicity—at the very least, they knew they were facilitating some sort of private interaction, likely sexual, between Roethlisberger and a drunk, underage woman whose friends were concerned for her. At the worst . . .
The formal relationship between Roethlisberger’s bodyguards and law enforcement (and other bodyguards and team security with law enforcement) underlies and informs the bias that police officers have exhibited in favor of professional athletes accused of domestic violence and sexual assault. Roethlisberger’s bodyguards were not the only biased witnesses on hand when, and shortly after, the alleged attack occurred—witnesses claim that Sergeant Jerry Blash demonstrated little patience with the alleged victim, allegedly saying, “You can file a statement but this man has a lot of money and good attorneys.” After the accusation was made, Blash warned Roethlisberger and his bodyguards, telling Barravecchio, “We have a problem, this drunken bitch, drunk off her ass, is accusing Ben of rape.” He told Joyner, “There is no way it could have happened.” Former District Attorney J. Tom Morgan observed, “With that kind of attitude, what victim would want to go through with a prosecution? . . . After the way she was treated, it was going to be hard to move forward with this case.”
Ray McDonald’s recent run-ins with the police have been no different. The defensive end for the San Francisco 49ers was arrested for felony domestic violence against his then-pregnant fiancée in August 2014, and accused of sexual assault more recently in December 2014. In each case, McDonald reached out to the 49ers organization when police became involved. In fact, Sergeant Sean Pritchard, who provided private security to the 49ers, was already present at the house when the officers arrived on the scene to investigate the domestic violence allegations. After this apparent conflict of interest arose, the San Jose Police Department later suspended its officers from working private security for the 49ers but claimed it had no bearing on the investigation; nevertheless, it took a month for the San Jose Police to forward its investigation of McDonald to the District Attorney’s office. The 49ers stood behind McDonald, allowing him to play for the entire 2014 season even though he was facing the domestic violence charge; since the sexual assault allegation surfaced, the 49ers released him citing a “pattern of poor decision-making”. He still has not been formally punished by the league or a team for these incidents, other than his release from the 49ers which occurred after the completion of the 2014 season—he has since been signed by the Chicago Bears, so he will seemingly not miss a game.
It is not only team and player security and law enforcement that may be biased, but also third parties to whom alleged victims report. In 2010, Eric Foster of the Indianapolis Colts was accused of sexual assault by a 22-year old hotel clerk who claimed Foster confined her in a hotel room and had sex with her against her will, hours before the AFC Championship game. She returned to the hotel lobby to report the incident to a hotel security official, who then promptly called the Colts security liaison but not police. The accuser’s attorney claims that both hotel security and the police mishandled the investigation—for instance, the police later failed to take the uniform that she was wearing during the assault as evidence. Though the police filed a probable cause affidavit, the prosecutor declined to file charges.
These issues may arise from the fact that the teams themselves encourage reporting criminal conduct internally, to the teams, instead of the police. Mercedes Sands indicated that the Cincinnati Bengals coach, Marvin Lewis, advised her and her husband, Robert Sands to reach out to the Bengals first if there were further problems after a domestic violence incident in 2012. Robert Sands agreed that Lewis encouraged them to keep their problems “in house.” When interviewed about a New York Times article that revealed this practice, Lewis stated, “Mercedes doesn’t have a very good memory of things” (despite the fact that Robert corroborated her story), and shrugged off the multiple alleged domestic violence incidents saying, “You had two young kids who didn’t really have a good feel for what life is . . . Their relationship was very tumultuous.” Lewis continued, “Domestic violence is a matter of law. It’s not our deal.” Apparently, Lewis is not aware of the NFL’s personal conduct policy (both the old policy and the newly revised version), which expressly makes it the NFL’s “deal.”
The overlap between local law enforcement and team and player security, and the potential influence that has over third parties, is a systemic problem. In fact, Broward County Sheriff Al Lamberti initiated an internal affairs inquiry into the special treatment of Miami Dolphins player Phillip Merling, after he was charged with aggravated domestic battery on a pregnant woman, Kristen Lennon, in 2010. Lamberti said that “deputies who were caught up in the glamour of a big-time sports franchise could lose sight of their allegiance.” At the time of Merling’s arrest, six deputies from the Broward County Sheriff’s Office were employed by the Dolphins. Similarly, in a 2008 memoir, Bodyguard to the Packers, Jerry Parins, a police officer who became the security director for the Green Bay Packers, recounted how his connections to the police force were useful when players were in trouble.
These stories are not fun to recount or acknowledge, but they happened, and we cannot pretend that they didn’t. The general discounting of evidence by the justice system and the leagues and teams is astounding. It is not surprising that, when Manny Ramirez was interviewed as he was released from jail after an arrest for domestic violence, he told the reporters, “The case is closed.” When the reporters questioned him further, he stated, “I closed it. I closed it because I’m the protagonist.” It would not be surprising if many professional athletes feel that they can close their own cases, given the dearth of league punishment and legal consequence over the past five years. We need to get beyond the stereotypes of false accusation, stop questioning the victims’ actions, acknowledge that these are crimes and not personal or family matters and confront our pro-athlete bias. A shield has been created by the inextricably linked security, police, teams and leagues, creating a class of individuals that are seemingly above reproach.
- LEAGUE ACTION
Since the Ray Rice video surfaced and Commissioner Goodell’s initial two-game suspension came under scrutiny, MLB, the NBA and the NFL have each dedicated more resources toward better understanding domestic violence and sexual assault and the impact that inaction may have on both the leagues and the players. As set forth below, each of the leagues’ commissioners has a tremendous amount of discretion in punishing players for conduct that is detrimental to the league or impacts the integrity of the game. The question is how consistently this power is used, and the process that is used to determine whether or not certain conduct warrants punishment, especially when reliance on the criminal justice process has been proven ineffective.
The MLB commissioner has the authority to discipline “conduct by Major League Clubs, owners, officers, employees or players that is deemed by the commissioner to not be in the best interest of baseball.” Nonetheless, MLB has been the most reluctant to punish players for domestic violence and sexual assault. In fact, “At no time in the last quarter of a century has there been a commissioner-level sanctioning of any player for domestic violence, and most teams haven’t bothered either.” As stated earlier, there were nine allegations of sexual assault and domestic violence against MLB players from 2010 through 2014, and no league or team punishments for such incidents. The problem may be that former Commissioner Bud Selig is apparently unaware that MLB players commit these crimes. In September 2014, Commissioner Selig said, “We haven’t had any cases [of domestic violence] I’m happy to say for a long, long time. I can’t remember when the last time was. . . We deal with situations as they occur.” But does he? He went on to say, “We are a social institution and I’m proud of our record in dealing with a myriad of subjects, and we deal with them, I think, quite effectively.”
If inaction is a response, Commissioner Selig has been quite effective. MLB’s reported allegations are admittedly fewer than those in the NFL and the NBA (which has fewer players), but that does not diminish the fact that MLB players have been involved in similar incidents. The case against Cincinnati Reds pitcher, Alfredo Simon, is particularly troubling. He was accused of anally raping a woman in April 2013—a rape kit revealed anal tears, abrasions and protruding tissue. Despite the fact that the woman went to the hospital and testified before a grand jury, the U.S. Attorney’s Office for the District of Columbia decided not to file charges against Simon without even polling the grand jury. MLB and the Cincinnati Reds similarly took no action—it is unclear who, if anyone, fully investigated these allegations to determine if they were founded. Pete Rose—banished from MLB for gambling—observed, “I picked the wrong vice. I should have picked alcohol. I should have picked drugs or I should have picked beating up my wife or girlfriend because if you do those three, you get a second chance.” Crass, but undeniably accurate.
Currently, MLB does not have a personal conduct policy but its collective bargaining agreement handles domestic violence through a treatment program administered jointly by MLB and the Major League Baseball Players Association. This should not be downplayed, as treatment is an essential part of any comprehensive domestic violence program, but this internal process does not provide for any punishment that could act as a deterrent, and implicitly seems to suggest that this is a matter to be handled in-house. However, in December 2014, MLB indicated that it will be meeting to discuss parameters of a disciplinary program (likely in response to the negative press the NFL received regarding the Ray Rice incident). Further, MLB is implementing a mandatory domestic violence training for all teams in spring 2015—each team is required to meet with a local domestic violence and sexual assault prevention organization for such training. It is yet to be seen whether MLB will put in place a formal assessment and punishment process making clear that domestic violence and sexual assault are not tolerated in the way that MLB does not tolerate other off-field conduct, such as gambling and driving while intoxicated.
Under the NBA Constitution, Commissioner Silver has the right to impose fines or inflict suspensions on players who, in his opinion, are guilty of conduct that “does not conform to standards of morality or fair play, that does not comply at all times with all federal, state, and local laws, or that is prejudicial or detrimental to the [NBA].” In addition, the NBA Collective Bargaining Agreement indicates that, if the NBA and National Basketball Players Association (“NBPA”) agree there is reasonable cause that a player has engaged in any type of off-court violent conduct, the player will be required to undergo clinical evaluation and counseling. Domestic violence and sexual assault are expressly considered types of “violent conduct”. Mandatory punishment for violent off-court conduct is limited to convictions for felony violent conduct, and the NBA Collective Bargaining Agreement expressly states that a team shall not impose discipline on a player solely on the basis of the fact that the player has been arrested, but can do so if the conduct underlying the arrest “has an independent basis for doing so”.
Unlike MLB, the NBA has not suggested that it will reform its policies with respect to violence against women; however, Commissioner Silver exhibited a change in his approach through his punishment of Jeff Taylor. The NBA launched an investigation of Taylor’s case independent of law enforcement and conducted separate interviews of all parties. Commissioner Silver also involved domestic violence experts in the investigation and assessment of the appropriate punishment. In addition to the 24-game suspension, Taylor was sentenced to 80 hours of community service, and Commissioner Silver suggested that he direct his community service toward helping victims of domestic violence. Though Commissioner Silver indicated that he would continue to assess player conduct on a case-by-case basis, with no formal change to the NBA’s policies, each of these actions was a departure from how domestic violence allegations have been handled by the NBA in the past. So much so that the executive director of the NBPA, Michele Roberts, criticized the decision, stating, “We have a scheme of discipline that was the result of collective bargaining between the parties that has been applied consistently over the years. While we appreciate the sensitivity of this societal issue, the Commissioner is not entitled to rewrite the rules or otherwise ignore precedent in disciplinary matters.” Roberts is wrong that Commissioner Silver rewrote the rules, though she is correct that Taylor’s punishment was not consistent with past inaction by the league—but sometimes change is warranted and, here, long overdue. As Commissioner Silver explained, “While the suspension is significantly longer than prior suspensions for incidents of domestic violence by NBA players, it is appropriate in light of Mr. Taylor’s conduct, the need to deter similar conduct going forward, and the evolving social consensus—with which we fully concur—that professional sports leagues like the NBA must respond to such incidents in a more rigorous way.”
Of course, even with murmurings of a revised MLB disciplinary program and Commissioner Silver’s evolving mindset, focus remains on the NFL. Under the Constitution and By-Laws of the NFL, the NFL commissioner may discipline players who are “guilty of conduct detrimental to the welfare” of the NFL. The recent media attention on the NFL distracted the public from the fact that it is the only league to have developed a distinct personal conduct policy, and has been the most consistent in doling out punishments related to off-field violent conduct. However, it can obviously do better.
In the wake of the Ray Rice backlash, Commissioner Goodell made a number of changes, including to personnel, policy and procedure. First, as mentioned above, he hired Lisa Friel, Jane Randel and Rita Smith to advise him—each experts in the fields of domestic violence and/or sexual assault. In addition, Anna Isaacson, currently the NFL’s vice president of community affairs and philanthropy, was tapped to take an expanded role as vice president of social responsibility. It is important for the leagues to not only have input from knowledgeable sources on domestic violence and sexual assault, but also to have female voices present in this predominantly male atmosphere—a different perspective could be refreshing.
Initially, the public and media was skeptical about the female hires, suggesting that they were publicity driven and did not reflect an honest commitment by the NFL to understand and discipline for domestic violence and sexual assault. Lindsay Jones, a journalist who currently works for USA Today and has historically covered many stories on professional athletes and violence against women, interviewed Friel and came to the opposite conclusion. Jones thinks that, while part of the hirings were for the sake of public appearance (since the NFL looked like an old boys’ club that did not know how to handle the Rice incident), Friel is not going to be pushed around. Jones stated, “[Friel] would not do this for a PR move and she won’t be used as a pawn.”
Friel, Randel and Smith will assist with building training curricula and educational programs for NFL personnel and identifying and managing domestic violence and sexual assault resources for NFL personnel and their families. In addition, they have already provided valuable assistance regarding the Revised NFL Policy, which was unanimously approved by the owners in December 2014. The Revised NFL Policy is much more specific with respect to procedures and processes to be used when assessing allegations of violent off-field conduct than its predecessor policy. Friel played a large role in forming the policy with Commissioner Goodell and other advisors. As she revealed in an interview with Jones, much of her focus was on considering the stage at which you take a player off the field and, secondly, the stage at which you impose discipline—after an allegation, arrest, formal charges or conviction? The NFL wants to ensure that it balances due process and the rights of the accused with the interest of the leagues and teams to uphold a certain standard of behavior.
Commissioner Goodell stated that the steps taken to improve the NFL’s prior personal conduct policy come from a clear, simple principle: “Domestic violence and sexual assault are wrong. They are illegal. They have no place in the NFL and are unacceptable in any way, under any circumstances. That has been and remains our policy.” The new policy states that, if the NFL becomes aware of a possible “violation”, it will undertake an investigation, which may be conducted by NFL security, independent parties or a combination of the two. A “violation” occurs if: (a) the player has a “disposition of a criminal proceeding”, which includes “an adjudication of guilt or admission to a criminal violation; a plea to a lesser and included offense; a plea of nolo contendere or no contest; or the disposition of the proceeding through a diversionary program, deferred adjudication, disposition of supervision, conditional dismissal or similar arrangements” or (b) if the evidence gathered by the league’s investigation demonstrates that the player engaged in conduct prohibited by the Revised NFL Policy. Players may be placed on paid administrative leave or the Commissioner Exempt List if formally charged with a crime of violence (which may be in the form of an indictment by a grand jury, the filing of charge by a prosecutor or an arraignment in a criminal court), or if an investigation leads the commissioner to believe that there has been a violation of the Revised NFL Policy. Josh McNary is currently on the Commissioner Exempt List, as the NFL conducts its internal investigation regarding his conduct. The commissioner’s discretionary decision to place a player on paid leave “will not reflect a finding of guilt or innocence and will not be guided by the same legal standards and considerations that would apply in a criminal trial.” This leave with pay will last until it is determined whether or not a player has violated the policy.
As such, the much discussed mandatory punishment for violations that involve assault, battery, domestic violence, dating violence, child abuse and other forms of family violence, or sexual assault involving physical force or committed against someone incapable of giving consent, only kick in upon a “disposition of a criminal proceeding” or if the “evidence gathered by the league’s investigation demonstrates” a violation of the policy. A first offense receives a baseline suspension without pay of six games, while a second offense results in permanent banishment, though a player can petition for reinstatement after one year. The commissioner will consider mitigating and aggravating circumstances when determining the extent of the suspension. If a player appeals his punishment, the process will unfold pursuant to Article 46 of the NFL Collective Bargaining Agreement, under which players may appeal disciplinary action to the commissioner. However, the commissioner can name a panel that consists of independent experts to recommend a decision on the appeal pursuant to the NFL Collective Bargaining Agreement.
Importantly, the Revised NFL Policy also states that NFL teams are obligated to report any matter that comes to their attention that may constitute a violation, and failure to report is grounds for disciplinary action. “This obligation to report is broader than simply reporting an arrest; it requires reporting to the league any incident that comes to the club’s attention which, if the allegations were true, would constitute a violation of the Revised NFL Policy.”
Each of these changes is a step in the right direction, but does the new policy go far enough? What is the real-life impact of these changes? How does it differ from the previous NFL regime, and can we expect real change? While some may view professional sports leagues and violence against women as disparate topics, the overlap between renowned athletes and a profoundly serious societal problem has created an opportunity for widely impactful social change. As Kim Gandy, president and CEO of the National Network to End Domestic Violence stated, “Beyond addressing issues of player discipline, I would hope that they would use the power of the NFL’s brand to begin changing public attitudes about masculinity and violence . . . I think few entities in the country that have the ability—both financially and in terms of impact—to accomplish a thing like that.”
- ENSURING CHANGE IN THE NEXT FIVE YEARS
The Revised NFL Policy is a good starting point, especially as compared to MLB’s inaction and the NBA’s less structured approach of dealing with domestic violence and sexual assault allegations on a case-by-case basis under the commissioner’s disciplinary authority (which is, essentially, what each of the leagues has done unsuccessfully and inconsistently in the past). The practical impact of the Revised NFL Policy was already evidenced by the NFL’s ten-game suspension of Greg Hardy. Even though Hardy’s conviction was thrown out, as discussed above, the NFL conducted its own internal investigation of his conduct and concluded that Hardy “violated the [Revised NFL Policy] by using physical force against Nicole Holder in at least four instances.” Commissioner Goodell wrote in his decision, “The net effect of these acts was that Ms. Holder was severely traumatized and sustained a range of injuries, including bruises and scratches on her neck, shoulders, upper chest, back, arms and feet.” He continued, “The use of physical force under the circumstances present here, against a woman substantially smaller than [Hardy] and in the presence of powerful, military-style assault weapons, constitutes a significant act of violence in violation of the [Revised NFL Policy].”
That said, there is still room for improvement—certainly within the NBA and MLB, and even within the NFL. With the backdrop of 64 allegations resulting in only one conviction, seven league punishments and two team punishments in the past five years, we should take some time to get this right and consider where even the NFL Revised Policy may continue to fall short. Namely, more attention needs to be given to (a) the punishment that players face who are never formally charged with crimes or convicted, since these players account for the large majority of players who face allegations of domestic violence or sexual assault, (b) the role and duration of paid leave, (c) team accountability and reporting, including with respect to player and team security personnel who moonlight as police officers, and (d) effective efforts to train and educate both the players and the public and to, especially, debunk the myths surrounding domestic violence and sexual assault.
As the statistics from the past five years indicate, professional athletes are rarely formally charged with crimes. Even if initially arrested for domestic violence, those charges are typically dropped altogether or in exchange for counseling, treatment or community service. Conviction is even more rare—actually non-existent with respect to rape allegations against MLB, NFL and NBA players in the past five years. As such, the new structure which introduces mandatory paid leave upon formal charges and mandatory suspension upon conviction would only affect outlier cases.
That said, the new definition of a “violation” of the Revised NFL Policy moves the pendulum in the right direction. A violation includes not only convictions or guilty pleas, but also pleas to a lesser and included offense, pleas of nolo contendere or no contest and the disposition of a proceeding through a diversionary program, deferred adjudication, disposition of supervision, conditional dismissal or similar arrangements. In the past five years, there were 22 professional athletes that would have fallen into this category. The large majority of these players were facing domestic violence charges and agreed to participate in counseling, educational programs and/or community service in exchange for dismissal (sometimes conditional dismissal) of such charges. While only nine punishments related to domestic violence or sexual assault were doled out by teams or leagues in the past five years, if the Revised NFL Policy had been in effect in all leagues during this period, this number would have been at least 22.
Commissioner Goodell has recognized that it is not enough to “defer entirely to the decisions of the criminal justice system, which is governed by processes and considerations that are not appropriate to a workplace, especially a workplace as visible and influential as [the NFL’s].” So, what do the leagues do if they do not defer to the decisions of the criminal justice system? The Revised NFL Policy puts in place an investigatory process under which claims will be assessed but ultimately does not answer this question. As USA Today reporter Lindsay Jones considers, “The foundation of the legal system is due process and the leagues need to give all players this right and an unbiased investigation; however, there comes a point in the investigation when you realize a player should not be continuing to play and this is not always after formal charges have been pressed.”
The investigatory procedure outlined in the Revised NFL Policy will aid in the NFL’s private investigations into player conduct. Not only should the NFL consider reports and evidence provided to it by law enforcement, but it should conduct comprehensive interviews of the involved parties, as well as teammates and coaches. Both sexual assault and domestic violence are crimes that can sometimes be predicted, as they are typically committed by repeat offenders. As I suggested in my 2010 article, the leagues should consider a three-strikes policy (possibly, a two-strikes policy) under which a player will be suspended if he has multiple allegations of domestic violence or sexual assault reported to the team, league and/or law enforcement, regardless of whether such allegations result in arrest. Even without formal charges, such a pattern of misconduct is problematic and the likelihood that the player is being pre-judged or punished without fault is diminished.
The paid leave policy also needs to be reexamined. While it is undoubtedly trying to strike a middle ground between allowing the player to continue playing until the internal investigation and/or law enforcement proceedings conclude and suspending the player upon the report of an unsupported allegation, an indefinite leave with pay also seems unfair under certain circumstances. In cases where the facts suggest that criminal conduct indeed occurred, I would suggest placing the player on leave without pay until the internal NFL investigation concludes, at which point the player should be punished regardless of the stage of the criminal proceeding, which can take far longer than the leagues’ assessment of the facts. For instance, while the Indianapolis Colts requested that Josh McNary be added to the Commissioner Exempt List, resulting in his full payment while the sexual assault allegation against him unfolds, the Arizona Cardinals placed Jonathan Dwyer on the reserve/non-football injury list, which gives them the option of not paying Dwyer. In appropriate circumstances, the league should also consider placing players on a similar list that maintains the player’s status in the league but does not reward him with ongoing payment. At the very least, there should be a time limitation on how long a player remains in this limbo status, whether paid or unpaid. Whether or not a player is placed on paid leave versus unpaid leave would inevitably come down to the commissioners’ discretion, but it is better than having a presumption that runs in the face of the facts presented in certain cases.
Next, as illustrated above, the role of team security and player personal security in internal investigations and law enforcement proceedings needs to be addressed. The pro-player bias that results from the overlap between teams and local law enforcement is tremendously damaging to a survivor’s case—it is not irrational to conclude that people invested in the team and its reputation may, at best, be biased in their assessment of the facts and, at worst, cover them up and discourage victims from reporting. As Jones observed from her experience, “There is a sense that the team will cover for the guys.” The mandatory reporting under the Revised NFL Policy, and added pressure from the media, will help keep teams honest, but why don’t we go one step further? Should team or player security personnel ever be involved in processing a domestic violence or sexual assault allegation? There is no reason that I can think of where this would be rational or desirable. The leagues should implement a bright line rule that team and player security must recuse itself from any such investigation.
Further, the teams should be prohibited from suggesting that domestic violence is an internal issue that should be referred to the team alone. Domestic violence is a crime that can result in severe injury, including death, and its proper place of referral is law enforcement. Suggesting that players have team resources and support available if players have issues outside of the clubhouse is one thing; using this suggestion as an attempt to divert all criminal conduct to a biased forum that can keep the matter from being released to the public or law enforcement is another. Victims should be encouraged to come forward, not stifled. And any support system that is extended to the families of players should not be retracted if a member of that family determines that she also needs assistance from law enforcement during a domestic dispute.
Lastly, the leagues’ efforts to educate and train both their personnel and the public need to be in earnest—not as an effort to placate the recent media attention, such that we will hear no more of this training after a few months have passed. In particular, the content of the training and public education is critical. According to Jones, the initial training that each of the NFL teams attended in 2014 was based on a very basic PowerPoint presentation that outlined the definitions of domestic violence and sexual assault, and what actions could be considered to fall in these categories. This may be where the leagues need to start, since they have not previously confronted these issues head-on. However, in addition to covering basic topics, the leagues have a duty to target and address the public’s misconception about, and myths surrounding, domestic violence and sexual assault. The NFL has started to foster this larger public dialog by providing each team with lists of domestic violence and sexual assault groups in its community. However, only some teams have moved forward with establishing those relationships. For instance, after Ray McDonald was arrested in 2014 for domestic violence, a group of Bay Area domestic violence support groups proactively reached out to the 49ers and offered their services and expertise. Five months later, even after 49ers’ fullback Bruce Miller was arrested on March 5, 2015, the 49ers still have yet to respond to this letter.
We must first change our cultural understanding of domestic violence and sexual assault before we can expect justice—changing league policy or law will make no difference if the public (including the very jurors who decide the cases as well as the prosecutors who decide whether to press charges) are still operating under false conceptions of domestic violence and sexual assault. We need to accept that domestic violence victims may amend their stories or decline to take the stand, for the variety of reasons considered in this article. We need to accept that sexual assault victims may have been drinking or willing to consent to certain sexual activities, but that these factors do not mean they were not raped. That incredibly talented players in MLB, the NFL and the NBA may also be beating their girlfriends or raping women. And that none of these factors should keep us from assessing the actual facts and determining whether one of our culturally elite abused his power and deserves to be punished.
The NFL has put a tremendous amount of resources into addressing domestic violence and sexual assault by its players since the Ray Rice incident surfaced, but we still must question if the proposed solutions actually address the problem, and also what the NBA and MLB are doing to address the same violent conduct by players in their leagues. It is not clear that a change in policies and procedures is going to result in real change unless we change the perception that the public and other players and league employees have about domestic violence and sexual assault. Leagues and teams, who likely know their players and their behaviors better than law enforcement, should take action when there is evidence of domestic violence or sexual assault regardless of whether the athlete is prosecuted or convicted through our criminal justice system—a system which rarely punishes professional athletes. Athletes are the culturally elite; they are placed on pedestals, respected, and imitated. While they should be admired for the work they do on the field, we cannot ignore their conduct off the field.
* Bethany P. Withers is a graduate of Harvard Law School (2010), an attorney at Goodwin Procter LLP and the author of The Integrity of the Game: Professional Athletes and Domestic Violence, 1 Harv. J. Sports & Ent. L. 146 (2010). Prior to joining Goodwin Procter LLP, Ms. Withers served as the Policy & Programs Manager at the Massachusetts Chapter of the National Organization for Women. She also has experience working and volunteering at domestic violence shelters. The information contained in this article reflects the opinions of the author and is not an official opinion of Goodwin Procter LLP.
 Id.. For purposes of this article, the “leagues” means MLB, the NFL and the NBA, and “professional athletes” means players in the leagues.
 Jeff Benedict is now a contributor for Sports Illustrated, and a writer for SI.com. His books on professional athletes and violence against women (Public Heroes, Private Felons: Athletes and Crimes against Women; Pros and Cons: The Criminals Who Play in the NFL; and Athletes and Acquaintance Rape) were, and still are, groundbreaking.
 Rachel Cohen, NFL Domestic Violence, LeBron Top Sports Stories of Year, Daily Herald, Dec. 25, 2014, archived at https://perma.cc/RQ4R-A6WF.
 Throughout this article, when referencing allegations against players, I refer to the team on which they played at the time of the allegation, even if the player no longer plays for that team.
 Ken Belson, Ray Rice Wins Reinstatement to N.F.L. in Arbitration, N.Y. Times, Nov. 28, 2014, archived at http://perma.cc/C3HZ-TZ2G.
 Id. Despite his reinstatement, Rice has not been picked up by a team for the 2015 season as of the date this article is written.
 Ray Rice Wins Appeal, Eligible to Sign, ESPN.com (Dec. 1, 2014), http://espn.go.com/nfl/story/_/id/11949855/ray-rice-baltimore-ravens-wins-appeal-eligible-reinstatement, archived at http://perma.cc/DME3-RECL.
 Aaron Wilson, Janay Rice Says Ravens Suggested She Apologize, The Balt. Sun, Dec. 2, 2014, at 5D.
 Id. Others also rushed to a victim-blaming response, such as color commentator Stephen A. Smith, who, in the wake of the Rice controversy, suggested that women should not do things to provoke their spouses or boyfriends to assault them. ESPN suspended Mr. Smith for one week for his comments. Kevin E. Reed, ESPN Fumbles on Domestic Abuse Issue, The Commercial Appeal, Sept. 9, 2014, at 7.
 Wilson, supra note 8.
 Domestic violence and sexual assault are also perpetrated against men. The focus on violence against “women”, and reference to victims/survivors using female pronouns, in this article is not meant to diminish the gravity of such offenses when perpetrated against men. However, each reported case of alleged domestic violence or sexual assault by a professional athlete in the NFL, NBA or MLB has been of such athlete committing such violence against a woman. Thus, I refer to violence against women, and use female pronouns, to focus the problem being addressed in this article.
 Steve Kraske, TheChat: Claire McCaskill Goes after Domestic Abuse in Pro Sports, Kansas City Star, Dec. 3, 2014, archived at http://perma.cc/DV9Y-AY7M.
 Will Brinson, NFL Hiring Female Advisers to Shape Domestic Violence Policies, CBSSports.com (Sept. 15, 2014), http://www.cbssports.com/nfl/eye-on-football/24710845/nfl-hiring-female-advisors-to-shape-domestic-violence-policies, archived at http://perma.cc/89M7-XF4K.
 Owners OK New Conduct Policy, ESPN.com (Dec. 11, 2014), http://espn.go.com/nfl/story/_/id/12009596/memo-roger-goodell-nfl-owners-outlines-conduct-policy-changes, archived at http://perma.cc/4P6W-6EU2. See NFL Personal Conduct Policy (Dec. 2014), http://static.nfl.com/static/content/public/photo/2014/12/10/0ap3000000441637.pdf, archived at http://perma.cc/Q78G-XX9A [hereinafter “Revised NFL Policy”].
 The Westlaw search captured all articles that included the terms “Major League Baseball,” “National Football League,” “National Basketball Association,” “MLB,” “NFL” or “NBA” and “domestic violence,” “sexual assault” or “battery” that were published from January 1, 2010 through March 31, 2015.
 The NFL Collective Bargaining Agreement and the NBA Collective Bargaining Agreement expressly indicate that league action supersedes team discipline; thus, players may only be punished by the league or by their team so as to avoid a double penalty. See NFL Collective Bargaining Agreement, art. 42, § 3(b) (Aug. 4, 2011), http://nflcommunications.com/current-cba, http://perma.cc/6J3X-CPV3 [hereinafter “NFL CBA”]; NBA Collective Bargaining Agreement, art VI, § 10(a) (Dec. 8, 2011), http://nbpa.com/cba/2011, http://perma.cc/ZGP4-EXX7 [hereinafter “NBA CBA”]. Note, however, that the NBA allows a double penalty where the player’s act or conduct is so egregious as to warrant it, but no such instances were found from 2010-2014. See id. The MLB 2007-2011 Basic Agreement does not specifically prohibit a double penalty, but it is a moot point for the purposes of this article; neither MLB nor any of the MLB clubs punished a player for domestic violence or sexual assault from 2010-2014.
 See Michael Anthony Adams et al., Prosecutor Sought No-Contact Orders for Witnesses in McNary Case, Indianapolis Star, Jan. 16, 2015, archived at http://perma.cc/5UUF-BWVP.
 For purposes of this article, I have not included domestic violence charges that are dismissed (or conditionally dismissed) in exchange for participation in counseling, treatment, community service or other diversionary programs as “formal charges”.
 See Section IV below (League Action) for more on personal conduct policies.
 It is generally difficult to generate and compare statistics related to domestic violence and sexual assault arrests, prosecution and convictions, given the level of under-reporting and distinctions in how the statistics are tallied. For instance, in domestic violence cases, it is difficult to draw comparisons regarding rates of formal charges or prosecution, as many published statistics do not expressly state whether dismissal of charges in exchange for participation in a diversionary program is counted as a case that was “prosecuted”. Similarly, statistics regarding “conviction” rates often do not distinguish between cases that go to trial and result in conviction for the charged crime, versus cases in which the defendant pleads down to a lesser charge or pleads no contest. That said, research has shown that the average arrest prosecution rate of domestic violence cases was 63.8% when looking at intimate partner prosecutions between 1973-2006. Andrew R. Klein, Practical Implications of Current Domestic Violence Research, Apr. 2008, archived at https://perma.cc/Y35L-TERQ. In comparison, the rate of professional athletes formally charged for domestic violence in the past five years is 25% (11 formal charges / 44 arrests—this number of arrests does not include the domestic violence allegation against Robert Sands, which did not result in arrest, or the murder-suicide committed by Javon Belcher). Even if we assume that the 63.8% prosecution statistic includes cases in which charges are dropped in exchange for participation in a diversionary program as cases that were “prosecuted”, the equivalent statistic for professional athletes would be 52.3% (11 formal charges + 12 diversionary program / 44 arrests). In sexual assault cases, statistics show that only 32% of cases are reported to the police and, of those cases, only 6.25% result in felony conviction. Reporting Rates, Rape, Abuse, & Incest National Network, archived at https://perma.cc/4DRL-HWWV. While that statistic is shocking enough (and yet another reason why the leagues should not necessarily use the results of the criminal justice system as a measure for punishment), 0% of professional athletes have been convicted over the past five years for felony sexual assault.
 The statistics presented in this article do not capture allegations that were made against college athletes (even if such athletes are now members of the leagues) or that were made against retired professional athletes. “Domestic violence” as used herein does not encompass violence against (a) family members other than spouses (e.g., the alleged violence committed by Adrian Petersen against his children) or (b) women who appear to have been unknown to the athlete prior to the incident (e.g., the alleged violence perpetrated by Santonio Holmes and Adam Pacman Jones, each of whom were accused of hitting women in bars who they did not know prior to the alleged incidents). “Sexual assault” as used herein includes any type of sexual contact or behavior that occurs without the consent of the victim, regardless of whether the victim knew the athlete prior to the incident.
 Note that, given the number of players in each league, it is logical that the NFL has the highest number of allegations. There are 1,696 players in the NFL (not including the five practice squad players on each team), 750 players in MLB (based on the 25-man roster, and not including the 15 additional players that make up the 40-man roster) and at most 450 players in the NBA.
 Milton Bradley was convicted of the crime with which he was charged (nine counts of spousal battery). NBA players Greg Oden and Jeff Taylor, and NFL players, A.J. Jefferson and Daryl Washington, pleaded guilty to lesser charges. NBA player Jordan Hill and NFL players Tony McDaniel and Brandon Underwood pleaded no contest. Even though Greg Hardy was originally convicted on domestic violence charges, his appeal was thrown out and thus he is not counted as having been “convicted” for purposes of this article.
 Brandon Underwood of the Green Bay Packers pleaded no contest to a lesser charge of prostitution-nonmarital sexual intercourse (originally sexual assault) and Albert Haynesworth of the Washington Redskins pleaded no contest to a lesser charge of simple assault (originally misdemeanor sexual abuse). NFL Arrests Database, UTSanDiego.com, available at www.utsandiego.com/nfl/arrests-database.
 Evan Reed of the Detroit Tigers was accused of third-degree criminal sexual conduct in 2014, Alfredo Simon of the Cincinnati Reds was accused of rape in 2013, Pablo Sandoval of the San Francisco Giants was accused of sexual assault in 2012, and Starlin Castro of the Chicago Cubs was accused of criminal sexual assault in 2011.
 The following players were arrested for domestic violence: Everth Cabrera, Francisco Rodriguez, Manny Ramirez, Jeremy Jeffress and Milton Bradley.
 The case against Reed is pending; trial is scheduled for July 13, 2015. Holly Fournier, July Trial Set for Ex-Tiger Evan Reed in Rape Case, Detroit News, Mar. 13, 2015, archived at http://perma.cc/7NGV-2DLW. He is accused of leading an incapacitated woman back to his hotel room and raping her on March 29, 2014. The case was originally dismissed by 36th District Judge Kenneth King, who criticized the alleged victim’s actions (questioning why she did not immediately report to the hotel or the police car that she passed when she left the hotel) and questioned her credibility. Wayne County Circuit Court Judge Michael Callahan heard the prosecutor’s appeal and ruled that Judge King had abused his discretion in dismissing the charges. Holly Fournier, Sexual Assault Charges Reinstated for Ex-Tiger Reed, Detroit News, Nov. 21, 2014, archived at http://perma.cc/6DAD-3ZPT.
 Associated Press, Former MLB Player Milton Bradley Gets Three Years in Jail for Spousal Abuse, N.Y. Daily News, July 3, 2013, archived at http://perma.cc/5573-GXXA.
 Id. 15 of the professional athletes that were accused of sexual assault or domestic violence from 2010-2014 were released by their teams relatively soon after the incidents occurred, or at the end of the then-current season. However, in each case, the team made a point of emphasizing poor athletic performance or remaining silent on the reason for release. Though it seems that the allegations may have at least been a tipping point in deciding to release these players, given that the teams did not expressly make the connection, this article does not consider a player being released by his team during or shortly after the season in which an allegation surfaced as “punishment”. Players are frequently released, so whether or not these allegations factored in the decision to release these players is difficult to discern; besides, the overall message to the public is that the players were released in the ordinary course—not because the teams were taking a stand against violence against women.
 Andray Blatche of the Brooklyn Nets and Michael Beasley of the Memphis Grizzlies were each accused of sexual assault in 2013. In Brief, Chi. Trib., July 10, 2013, at 6; Seth Pollack and Kevin Zimmerman, Michael Beasley Sexual Assault Investigation Resolved by Police, GrizzlyBearBlues.com, Sep. 24, 2014, available at http://www.grizzlybearblues.com/2014/9/24/6839521/michael-beasley-sexual-assault-investigation-resolved-by-police.
 The following players were arrested for domestic violence: Jeff Taylor, Greg Oden, James Johnson, DeAndre Liggins, Jared Sullinger, Terrence Williams, Matt Barnes, Dante Cunningham (on two separate occasions), Ty Lawson, Jordan Hill, Hamed Haddadi, Lance Stephenson and Charlie Villanueva.
 Jordan Hill was charged with felony assault in 2012; Greg Oden was charged with felony battery resulting in serious bodily injury, misdemeanor domestic battery and misdemeanor battery resulting in serious bodily injury in 2014; and Jeff Taylor was charged with misdemeanor domestic violence assault and malicious destruction of hotel property in 2014.
 NBA Report, Houston Chron., Nov. 2, 2013, at 2; In Brief, The Spokesman-Review, Sept. 4, 2013, at 2B.
 NBA Report, supra note 35.
 Jeff Taylor Suspended 24 Games, ESPN.com (Nov. 20, 2014), http://espn.go.com/nba/story/_/id/11904798/jeff-taylor-charlotte-hornets-suspended-total-24-games-pleading-guilty-domestic-violence-case, archived at http://perma.cc/573T-ZFKN.
 Though Commissioner Silver only assumed his position effective February 1, 2014, it is necessary to note that Greg Oden, James Johnson and Dante Cunningham were also involved in domestic violence incidents in 2014 – but prior to the release of the video of Ray Rice punching Janay Rice – and were not punished. Oden, like Taylor, was formally charged (in Oden’s case, with felony battery resulting in serious bodily injury, misdemeanor domestic batter and misdemeanor battery resulting in serious bodily injury) and later pleaded guilty to a lesser charge, and Commissioner Silver still refrained from handing down a suspension. Oden Reaches Plea Deal Over Battery Charges, Nat’l Post, Feb. 4, 2015, at B4.
 Jeff Taylor Suspended 24 Games, supra note 37.
 The following players were arrested for domestic violence: Kevin Alexander, Will Smith, Phillip Merling, Leroy Hill (on two separate occasions, in 2010 and 2013), Tony McDaniel, Jermaine Phillips, Erik Walden, Chris Cook, Brandon Underwood, Robert Sands (on two separate occasions, in 2012 and 2013), Bryan Thomas, Chad Johnson, Kelvin Hayden, A.J. Jefferson, Daryl Washington, William Moore, Amari Spievey, Chris Rainey, Jonathan Dwyer, Quincy Enunwa, Ray McDonald, Greg Hardy, Ray Rice and Junior Galette. This statistic also includes the murder-suicide committed by Jovan Belcher in 2012.
 The following players were accused of rape or attempted rape: Brandon Underwood of the Green Bay Packers, Perrish Cox of the Denver Broncos, Eric Foster of the Indianapolis Colts, Jarriel King of the Seattle Seahawks, Ray McDonald of the San Francisco 49ers (shortly after he was arrested for felony domestic violence in 2014), Sammie Hill of the Tennessee Titans, Josh McNary of the Indianapolis Colts, C.J. Spillman of the Dallas Cowboys (who counts for two of the allegations, having allegedly attempted to rape a woman in 2013 and raped a woman in 2014), and perhaps most infamously, Ben Roethlisberger of the Pittsburgh Steelers.
 Julian Edelman of the New England Patriots was arrested for indecent assault and battery after allegedly reaching under a woman’s costume at a Halloween party in Boston and grabbing her crotch. Around the NFL: Patriots’ Edelman is Facing Charges, L.A. Times, Nov. 2, 2011, at 3. Albert Haynesworth of the Washington Redskins was arrested for sexual abuse after allegedly touching a waitress’ breast at a Washington hotel. Albert Haynesworth Pleads No Contest, ESPN.com (Aug. 22, 2011), http://espn.go.com/boston/nfl/story/_/id/6884993/new-england-patriots-albert-haynesworth-pleads-no-contest-assault, archived at http://perma.cc/D6QA-PEYF.
 Allegations of sexual assault against C.J. Spillman of the Dallas Cowboys, Ray McDonald of the San Francisco 49ers and Sammie Hill of the Tennessee Titans surfaced in 2014. The investigations are pending.
 Steve Eder, N.F.L. Was Family, Until Wives Reported Domestic Violence, N.Y. Times, Nov. 17, 2014, archived at http://perma.cc/FC74-HQV2.
 Big Debate over Big Ben in Pittsburgh, FOXNews.com (May 3, 2010), http://www.foxnews.com/sports/2010/05/03/big-debate-big-ben-pittsburgh, archived at http://perma.cc/Z7XE-YASG.
 As noted above, with domestic violence allegations, formal charges are frequently not pressed in exchange for the accused agreeing to participate in community service, counseling or other diversionary program. In the past five years, ten NFL players did not face formal charges by instead agreeing to participate in such programs.
 Vikings’ Chris Cook Acquitted of Assaulting Girlfriend, USA Today, Mar. 16, 2012, archived at http://perma.cc/N9CG-YDEL.
 See Joseph Person and Jonathan Jones, Caroline Panthers’ DE Greg Hardy’s Court Date Pushed Back into 2015, Charlotte Observer, Nov. 4, 2014, archived at http://perma.cc/P9BL-LZB3l; Joseph Person, NFL Nears End of Greg Hardy Investigation, Charlotte Observer, Mar. 25, 2015, archived at http://perma.cc/RXL6-YAG9. Nicole Holder, Hardy’s ex-girlfriend, received a financial settlement from Hardy after his conviction but prior to the appeal date, allegedly in exchange for refusing to cooperate with prosecutors in the appeal. Christine Brennan, Greg Hardy’s Case a Test for NFL’s New Approach, Democrat & Chron., Feb. 10, 2015, at D15.
 Des Bieler, Panthers’ Playoff Win Put an Extra $48,000 in Greg Hardy’s Pocket, Wash. Post, Jan. 5, 2015, archived at http://perma.cc/YU3M-L8CT.
 Cardinals Jonathan Dwyer Pleads Not Guilty to Hitting Wife, AZCentral.com (Oct. 6, 2014), http://www.azcentral.com/story/sports/nfl/cardinals/2014/10/06/cardinals-jonathan-dwyer-pleads-not-guilty-to-hitting-wife/16825571, archived at http://perma.cc/A4S3-N5KM.
 The NFL handed down one-game suspensions to Tony McDaniel of the Miami Dolphins in 2010 and Erik Walden of the Green Bay Packers in 2011 and two-game suspensions to Ray Rice of the Baltimore Ravens in 2014 (later increased to an indefinite suspension which was overturned on appeal) and Brandon Underwood of the Green Bay Packers in 2011 (though it was unclear if this punishment was for the domestic violence allegation or the preceding sexual assault allegation against him). Most recently, the NFL suspended Greg Hardy for ten games. In addition, A.J. Jefferson received a four-game suspension in 2013 after being charged with felony domestic violence, but Commissioner Goodell later lifted this suspension. The NFL also claimed it suspended Robert Sands of the Cincinnati Bengals after multiple allegations of domestic violence, but Sands was released by the Bengals for performance reasons, never served the suspension and claims he was unaware of it. Eder, supra note 44.
 The Minnesota Vikings suspended Chris Cook for two games without pay in 2011 and then removed him from the active roster until his trial was completed and he was ultimately acquitted. NFL Arrests Database, supra note 26. As noted in note 31, supra, this does not account for NFL players that were released by teams the same year during which allegations of domestic violence surfaced, of which there were nine.
 Kraske, supra note 12.
 U.S. Dept. of Justice Access to Justice Initiative, Civil Legal Aid Supports Federal Efforts to Help Prevent Domestic Violence, U.S. Dept. of Justice, Apr. 2014, archived at http://perma.cc/WP7M-5R36.
 NFL Packers Expected to Start Walden, Arrest Over Weekend under Review, The Commercial Appeal, Dec. 1, 2011, at D6.
 Vikings’ Chris Cook Acquitted of Assaulting Girlfriend, supra note 47.
 The Greg Hardy case is particularly troublesome. The prosecutors dropped his case when it was on appeal, even after Hardy was convicted in a bench trial in which the survivor testified as well as two witnesses—one who was in the apartment at the time of the incident and heard arguing and someone being slammed into a wall and the other who saw the pile of guns on Hardy’s futon and took a picture of it. Michael Gordon, Joseph Person & Jonathan Jones, Panthers Greg Hardy Guilty of Assaulting Female, Communicating Threats, Charlotte Observer, July 15, 2014, archived at http://perma.cc/EX8U-XZ6V.
 Associated Press, DeAndre Liggins Signs 10-Day Contract with Miami Heat, Charleston Daily Mail, Feb. 26, 2014, at 4B.
 Jackson Katz, The Macho Paradox 218 (2006).
 See, e.g., id. at 219; Kimberly A. Lonsway et al., False Reports: Moving beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 43-MAR Prosecutor 10, 11 (2009).
 Lonsway et al., supra note 65, at 13.
 Katz, supra note 64, at 218.
 See generally, Jack McCallum, The Hangover: Roethlisberger, SIVault.com (May 10, 2010), http://sportsillustrated.cnn.com/vault/article/magazine/MAG1169185/1/index.htm, archived at http://perma.cc/L75J-3C8R.
 Jonathan D. Silver, Lawyer Says Client Made Roethlisberger Allegation, Pittsburgh Post-Gazette (Apr. 13, 2010), http://www.post-gazette.com/steelers/2010/04/13/Lawyer-says-client-made-Roethlisberger-allegation/stories/201004130232, archived at http://perma.cc/PQ5U-6WFD (reporting that another alleged sexual assault victim contacted Boston attorney Harry Manion but ultimately decided not to press charges); Timothy Egan, Nike’s Women Problem, N.Y. Times, Apr. 21, 2010, archived at http://perma.cc/P8ZH-CMAF (reporting that the 500-plus page investigatory report in the Georgia case revealed another Georgia woman had claimed Roethlisberger accosted her repeatedly on two occasions).
 McCallum, supra note 69.
 Christian Boone et al., QB’s Case in Trouble from the Start, Atlanta Journal-Constitution, Apr. 26, 2010, archived at http://perma.cc/T6V7-GVCK.
 Big Debate over Big Ben in Pittsburgh, supra note 45; McCallum, supra note 69.
 Accuser: Roethlisberger Exposed Self, ESPN.com (Apr. 16, 2010), http://sports.espn.go.com/nfl/news/story?id=5094224, archived at http://perma.cc/8S9X-3HGS.
 Georgia DA: ‘Don’t Even Have Probable Cause’, SteelCity Insider, Apr. 12, 2010, http://www.scout.com/nfl/steelers/story/961691-georgia-da-don-t-even-have-probable-cause#/story/961691-georgia-da-don-t-even-have-probable-cause, archived at http://perma.cc/3WS4-8JVS (citing D.A. Fred Bright Transcript plus the Post-Statement Interview).
 P. Solomon Banda, Trial opens for former Broncos CB Perrish Cox, NFL.com (Feb. 28, 2012), http://www.nfl.com/news/story/09000d5d8273ddac/printable/trial-opens-for-former-broncos-cb-perrish-cox, archived at http://perma.cc/HCV9-DBLJ.
 Carlos Illescas, Broncos Ex-Teammate’s Testimony Scathing at Perrish Cox Sex-Assault Trial, The Denver Post, Mar. 1, 2012, archived at http://perma.cc/APM7-HWZM.
 Banda, supra note 84.
 Illescas, supra note 85.
 Associated Press, Perrish Cox Acquitted of Sexual Assault, ESPN.com (Mar. 2, 2012) http://espn.go.com/nfl/story/_/id/7638140/ex-denver-broncos-player-perrish-cox-acquitted-sexual-assault, archived at http://perma.cc/C3YC-CVBJ.
 Katherine Redmond, Perrish Cox Verdict the Result of Victim Blame, Sexism and Status, Huffington Post (Mar. 7, 2012), http://www.huffingtonpost.com/katherine-redmond/perrish-cox-trial_b_1322908.html, archived at http://perma.cc/GWX3-MEWG.
 Christina Elmore, Charleston County Jury: Jarriel King, Friend, Not Guilty of Criminal Sexual Conduct, The Post and Courier, July 31, 2014, archived at http://perma.cc/TE7G-U29W.
 A woman alleged that Kobe Bryant, a basketball player for the Los Angeles Lakers, gripped her by the neck, bent her over a chair and raped her on June 30, 2003 in a Colorado hotel room. The case of People v. Kobe Bean Bryant was eventually dismissed by prosecutors when the 20-year-old woman declined to testify after evidence of her sexual activity was ruled admissible at trial (information that is typically protected from disclosure under “rape shield” laws). Prior to this ruling, the woman’s name and sealed transcripts regarding her sexual history were leaked to the press by court staff. See T.R. Reid, Rape Case Against Bryant is Dropped, Wash. Post, Sept. 2, 2004, at A01.
 Steve Eder, Whisked Out of Jail, and Back to the NFL, N.Y. Times, Nov. 16, 2014, archived at http://perma.cc/2HB6-JLKZ.
 Boone et al., supra note 72.
 As of the date this article is written, the sexual assault allegation against McDonald is still pending and no formal charges have been filed. McDonald has vehemently denied the allegations and filed a suit against the accuser for defamation—an unusual tactic with potentially far-reaching consequences, given that her account was given to the police and not to the public. Evan Sernoffsky, Ex-49er Sues Rape Accuser for Defamation, S.F. Chron., Mar. 17, 2015, at C2.
 Tim Keown, No Charges in Ray McDonald Case, ESPN.com (Nov. 10, 2014), http://espn.go.com/nfl/story/_/id/11852824/ray-mcdonald-san-francisco-49ers-cleared-domestic-violence-case, archived at http://perma.cc/FWL9-54RV.
 Christine Brennan, McDonald Release Handled Correctly, USA Today, Dec. 18, 2014, at 01C.
 Ex-49ers DE Ray McDonald Gets Second Chance with Bears, FoxSports.com (Mar. 24, 2015), https://www.foxsports.com/nfl/story/ray-mcdonald-chicago-bears-san-francisco-49ers-032415, archived at http://perma.cc/9HYC-SW6D.
 Colts Tackle Denies Sexual Assault, The Indianapolis Star, Apr. 21, 2010, at A15.
 Eder, supra note 44.
 Jay Morrison, Lewis: Abuse Story Not Truthful, Dayton Daily News, Nov. 20, 2014, at C1.
 Eder, supra note 101. After Merling was taken into custody, Miami Dolphins’ security director, Stuart Weinstein, called the Sheriff’s Office to get information on the allegation and to ask a commander who worked side jobs for the Dolphins to notify him when Merling’s bond was posted. Against policy, Merling was allowed to leave the jail through a rear exit to evade reporters and was also taken to get his belongings, even though a judge had ordered Merling to stay away from Lennon.
 Manny Ramirez Tells Reporters He “Closed” His Domestic Violence Case, Report Says, CBSNews.com (Sept. 14, 2011), http://www.cbsnews.com/news/manny-ramirez-tells-reporters-he-closed-his-domestic-violence-case-report-says/, archived at http://perma.cc/UXU4-RQAY.
 Major League Const., art. II, § 3 (2005), archived at http://perma.cc/6DAK-56JL.
 Mike Bates, MLB’s Record on Domestic Violence Worse than NFL’s, SBNation.com (July 28, 2014) http://www.sbnation.com/mlb/2014/7/28/5936835/ray-rice-chuck-knoblauch-minnesota-twins-mlb-domestic-abuse-violence, archived at http://perma.cc/C9FH-VAB8.
 Rob Manfred succeeded Bud Selig as commissioner as of January 25, 2015.
 Craig Calcaterra, Bud Selig Can’t Remember the Last Domestic Violence Incident in Major Leagues Baseball, NBCSports.com (Sept. 12, 2014), http://hardballtalk.nbcsports.com/2014/09/12/bud-selig-cant-remember-the-last-domestic-violence-incident-in-major-league-baseball/, archived at http://perma.cc/C72U-HDVU.
 Rachel Axon, Woman Files Lawsuit Saying She Was Raped by Alfredo Simon, USAToday, Apr. 25, 2014, archived at http://perma.cc/Z3DK-TB9G.
Craig Calcaterra, Pete Rose: ‘I Should Have Picked Alcohol . . . or I Should Have Picked Beating Up My Wife or Girlfriend’, NBCSports.com (Aug. 12, 2013), http://hardballtalk.nbcsports.com/2013/08/12/pete-rose-i-should-have-picked-alcohol-or-i-should-have-picked-up-beating-up-my-wife-or-girlfriend/, archived at http://perma.cc/7PW3-FLUJ.
 Jon Paul Morosi, MLB, Union to Meet This Month on Domestic Violence Policy, FoxSports.com (Jan. 4, 2015), http://www.foxsports.com/mlb/story/mlb-union-to-meet-this-month-on-domestic-violence-policy-010415, archived at http://perma.cc/Y9FA-AXDT.
Janie McCauley, A’s Begin Baseball’s Mandatory Domestic Violence Training, Salon.com (Feb. 26, 2015), http://www.salon.com/2015/02/26/as_begin_baseballs_mandatory_domestic_violence_training/, archived at http://perma.cc/6P2P-BSHN.
 NBA Constitution R. 35(d).
 NBA CBA, supra note 18, art. VI, § 8.
 Id. at §§ 8 & 15. Conviction of an NBA player, which according to the NBA Constitution includes a plea of guilty, no contest or nolo contendere, for a felony violent crime results in automatic suspension for a minimum of ten games.
Smriti Sinha, The NBA Just Showed the NFL How to Handle Domestic Violence Cases, Vice Sports (Nov. 26, 2014), https://sports.vice.com/article/the-nba-just-showed-the-nfl-how-to-handle-domestic-violence-cases, archived at https://perma.cc/2U54-4L2C.
 Jeff Taylor Suspended 24 Games, supra note 37 at 7.
Sam Amick, NBPA Chief: NBA Tried to ‘Out-Muscle’ NFL with Jeffery Taylor Suspension, USA Today, Nov. 21, 2014, archived at http://perma.cc/HE9B-EK4A.
 Jeff Taylor Suspended 24 Games, supra note 37 at 7.
 Constitution and By-Laws of the National Football League, art. VIII, § 8.13(A) [hereinafter “NFL Constitution”].
 In 1997, the NFL adopted the violent crime policy under Commissioner Paul Tagliabue’s leadership, which became the personal conduct policy in 2000, was revised in 2007 and has now evolved into the Revised NFL Policy. In 2000 alone, Corey Dillon, Rod Smith and Dana Stubblefield were fined and Mario Bates, Mustafah Muhammad and Denrad Walker were suspended for one or two games—all for domestic violence incidents. NFL Players Arrested in 2000, San Diego Union-Trib., Jan. 22, 2001, at D4.
 Brinson, supra note 13.
 Owners OK New Conduct Policy, supra note 14. Neither the Revised NFL Policy nor the earlier version implemented in 2000 was collectively bargained. They were issued pursuant to the commissioner’s authority under the NFL Constitution. NFL Constitution, supra note 143. The NFL Players Association filed a grievance challenging the Revised NFL Policy, arguing that it violates the NFL CBA. Michael O’Keeffe, Union Files Grievance over NFL’s Conduct, N.Y. Daily News, Jan. 24, 2015, at 34.
Lindsay H. Jones, Lisa Friel Addresses Challenges Developing NFL’s New Conduct Policy, USA Today, Oct. 7, 2014, archived at http://perma.cc/5SME-6NZC.
 NFL Commissioner Addresses Domestic Violence, CNN.com (Aug. 28, 2014), http://www.cnn.com/2014/08/28/sport/nfl-goodell-domestic-violence-memo/index.html, archived at http://perma.cc/AL9B-RPMG.
 Revised NFL Policy, supra note 14.
 A player on the Commissioner Exempt List cannot practice or attend games, but may be present at the club, with the club’s permission, for individual workouts, meetings or therapy, and continues to get paid.
 Revised NFL Policy, supra note 14.
 NFL Owners Endorse New Personal Conduct Policy, NFL.com (Dec. 10, 2014), http://www.nfl.com/news/story/0ap3000000441758/article/nfl-owners-endorse-new-personal-conduct-policy, archived at http://perma.cc/3J7X-FCUQ.
 Revised NFL Policy, supra note 14.
 Erik Brady, NFL’s Domestic Violence Policy Could Undergo Numerous Changes, USA Today, Oct. 9, 2014, archived at http://perma.cc/H5R7-KXKL.
 Dan Hanzus, Greg Hardy Suspended 10 Games Without Pay, NFL.com, Apr. 22, 2015, available at http://www.nfl.com/news/story/0ap3000000487503/article/greg-hardy-suspended-10-games-without-pay.
 As noted earlier, there were also nine players who plead no contest or guilty to lesser charges.
 In the NFL, Will Smith of the New Orleans Saints, Leroy Hill of the Seattle Seahawks, Jermaine Phillips of the Tampa Bay Buccaneers, Erik Walden of the Green Bay Packers, Bryan Thomas of the New York Jets, Chad Johnson of the Miami Dolphins, Amari Spievey of the Detroit Lions, Robert Sands of the Cincinnati Bengals, Quincy Enunwa of the New York Jets and Ray Rice of the Baltimore Ravens agreed to such diversion programs in exchange for dismissal of charges; Tony McDaniel of the Miami Dolphins, Brandon Underwood of the Green Bay Packers and Albert Haynesworth of the Washington Redskins pleaded no contest (Brandon Underwood pleaded no contest to two separate incidents that took place on different occasions—one for domestic violence and the other for sexual assault—and thus counts twice under this statistic); and A.J. Jefferson of the Minnesota Vikings and Daryl Washington of the Arizona Cardinals pleaded guilty to lesser charges. In the NBA, Hamed Haddadi of the Memphis Grizzlies agreed to participate in a diversion program, Jordan Hill of the Houston Rockets pleaded no contest and Jeff Taylor and Greg Oden pleaded guilty to lesser charges. In MLB, Jeremy Jeffress of the Kansas City Royals agreed to community service and counseling, while Milton Bradley of the Seattle Mariners was the lone professional athlete to be convicted of the crime with which he was charged.
 Owners OK New Conduct Policy, supra note 14.
 Withers, supra note 1.
 Despite the distinction, the Cardinals indicated that they will continue paying Dwyer while he is on the reserve/non-football injury list. Josh Alper, Cardinals Place Jonathan Dwyer on Non-Football Illness List, Cut Chris Rainey, NBCSports.com (Sep. 18, 2014), http://profootballtalk.nbcsports.com/2014/09/18/cardinals-place-jonathan-dwyer-on-non-football-illness-list-cut-chris-rainey/, archived at http://perma.cc/8F82-D2PX.
 The Tennessee Titans, Denver Broncos, Cleveland Browns and Detroit Lions are cited as having developed strong community partnerships. Ann Killion, 49ers Disappointing on Domestic Violence, S.F. Chron., Mar. 15, 2015, at A.