The NFL is going through a resetting process in sorting through the post collective bargaining agreement power of the office of the Commissioner and the internal review systems. Despite some announcements to the contrary, the wide-reaching powers of the office of the Commissioner should not be doubted. “The Power of the Commissioner” is often one of the first classes we teach in Sports Law courses at Penn and elsewhere. We start off looking at the creation of the office when the white coiffed Commissioner Judge Kenesaw Mountain Landis became a fixture to baseball fans at ballparks signifying that the games were fair and that the 1919 Black Sox scandal and any fear of games being fixed should leave their minds. This review moment of commissioner power is occurring because an appeals panel overruled NFL Commissioner Roger Goodell’s suspension of players Jonathan Vilma, Scott Fujita, Will Smith and Anthony Hargrove on the so-called “bounty case.” The ruling did not impact New Orleans coach Sean Payton, interim coach Joe Vitt or general manager Mickey Loomis. This sort of power resetting has occurred in professional American sports before.

The chestnut case in this space is from 1978, Finley v. Kuhn 569 F.2d 527. That case evolved when then owner of the Oakland Athletics baseball club, Charles Finley, began conducting what was described as a “fire sale” of his star players. Finley’s motivation was to receive a financial return on his players before they could enter the newly initiated world of free agency, where he would receive no return if they signed elsewhere. In the mid-1970s, as now, Oakland was a small market team that could not compete in the bidding for players with bigger markets such as New York and Boston. Finley closed the deals on players including the sale of star players Joe Rudi, Rolllie Fingers, and Vida Blue. Commissioner Bowie Kuhn essentially vetoed the sales, ordering that the players could not be played by their new teams. Finley brought this action in response, thus creating the landmark case measuring the power of the commissioner in sport.

Kuhn expressed that the actions by Finley were against “the best interests of baseball” because of the negative impact on the Oakland squad, the lessening of competitive balance in the league caused by the sales and "the present unsettled circumstances of baseball's reserve system." He asserted that this sale of players by Finley was "inconsistent with the best interests of baseball, the integrity of the game and the maintenance of public confidence in it." In the ruling the court held that, "The Commissioner has the authority to determine whether any act, transaction, or practice is not within the best interest of baseball, and upon such determination, to take whatever preventative or remedial action he deems appropriate...” Broadly speaking such would be the power of any Commissioner with the powers granted by the Major League Agreement and similarly to the Commissioner of the NFL.

Where that leaves us is, the power is as broad as the owners in their agreement with the Commissioner, the league constitution and bylaws and the Collective Bargaining Agreement narrow it down to be. Thus, the new issues here for the NFL are the terms agreed to in the last collective bargaining agreement. There the NFL owners successfully fought to have the jurisdictional oversight of these types of matters removed from Federal District Court Judge Doty in Minnesota to a panel of retired judges and a law professor. This was their first major test, and they have ruled, as Doty often did, largely against the NFL. This review panel is essentially the new next level of appeal post action by arbitrator Stephen Burbank. According to analyst Andrew Brandt:

The panel has, in essence, made a split decision. It recognizes that there are aspects of the behavior that are cap-related -- payments to players outside of their player contracts -- thus calling for the jurisdiction of [Arbitrator Stephen] Burbank. The panel also understands, however, that the players' actions also comprise misconduct revolving around "intent to injure," clearly Goodell's domain.

Thus, the panel divided the misconduct into two categories, non-contract payments and intent to injure. The first is Burbank's province; the latter is Goodell's. This decision overrules Burbank's decision, that Goodell had exclusive jurisdiction over this issue under the broad "conduct detrimental" language in the CBA. In that sense, the panel has slightly chipped away at the power of Goodell, a fact that may have some ramifications beyond this case.

What the arbitration panel tells us here is that the Commissioner continues to inherently have broad power. However, the power that the Commissioner has can be changed as can the oversight and review of that power. The Commissioner, according to the ruling, does have the opportunity to refocus his rulings based on the narrower area where he is deemed to have jurisdiction. With that as guidance, the penalties could well remain the same.

The court in Finley essentially tells participants in baseball, and thus all sports leagues with this structural model, you opted into this level of commissioner power when you determined to become involved in this sport in whatever capacity: “We must then conclude that anyone becoming a signatory to the Major League Agreement was put on ample notice that the action ultimately taken by the Commissioner was not only possible but probable. The action was neither an [as plaintiff had asserted]"abrupt departure" nor a "change of policy" in view of the contemporaneous developments taking place in the reserve system, over which the Commissioner had little or no control, and in any event the broad authority given to the Commissioner by the Major League Agreement placed any party to it on notice that such authority could be used.”

This process may take some time, as now Sean Payton, Joe Vitt and Mickey Loomis may choose to appeal the Commissioner issued sanctions against them as well. But rest assured that once all of the battling is done, the Commissioners in all of professional sports retain broad power to act in the best interests of their games. Although it is not always as clear as it was at one time, the key duty of that office is to protect the integrity of the game. To do so often requires the taking of quick, decisive and often controversial integrity based action. That is why the office was created.