“Held to a Higher Standard” – A Roadmap for Professional Sports

Post By: David D. Dodge

Repeating history, the major professional sports leagues in the U.S. continue to be plagued by scandals involving, among other issues, allegations of sexual and domestic abuse, opioids abuse, and racial discrimination in the hiring of football coaches. Recently, the subject of fixing the results of NFL football games hit the news in the form of an allegation by former Miami Dolphins’ head coach Brian Flores that he had been offered by the team’s owner $100,000 per game to lose games with an eye towards the Dolphins receiving higher selections in the draft. In fact, scandals and problems seem to dominate “sports” news, as evidenced by a single February 10, 2022 edition of the LA Times, where the following articles were all featured in the sports section:

• One article addressed The State of the League address  presented by NFL Commissioner Roger Goodell days before Super Bowl LVI was played in Los Angeles, and his subsequent press conference during which he answered several questions about the NFL’s dismal record of teams hiring African-American head coaches and the allegations of sexual harassment and abuse against the Washington Football Team (now, “Commanders”) and its owner, Dan Snyder. One question concerned the former Dolphins’ head coach’s allegation mentioned above.  Goodell vaguely responded, “We will look into that. If there were violations, they will not be tolerated… and when we know what those facts are and the impact on our game, we’ll deal with it very seriously.”

• A second article addressed the scandal involving allegations of sexual assault against LA Dodger pitcher, Trevor Bauer, and the Times headline blurted, “No charges, so what happens now?” While the LA County District Attorney’s office declined to charge Bauer with any crimes, MLB continues its investigation and will determine if any suspension should be invoked.

• A third article discussed the criminal trial of Eric Kay, a former LA Angels’ employee, charged with the criminal distribution of opioids to Tyler Scaggs, a former pitcher who died in 2019 in a hotel room prior to a game against the Texas Rangers. At the trial, Scaggs’s mother testified that her son had an “opioid issue” dating back to 2013.  Also at the trial, a former teammate of Scaggs testified saying, “It’s safe to say at least a few major leaguers sought opioid pain-killers outside of team doctors.”  On February 17, Kay was found guilty by a jury of distributing fentanyl to Scaggs causing his death, and Kay now faces potentially 20 years in federal prison.

Clearly, not every MLB, NFL, NBA, or NHL teams have experienced scandals on the level of those reported above.  Regardless, all league executives and team owners and their executives should be concerned about the risks they could face with just a single major scandal involving their organizations.  Over the past several years, league executives have taken steps to improve their compliance, ethics and integrity programs.  However, none that I am aware of have established formal minimum standards for their teams’ programs.  In many instances, hotlines have been established, training programs have been strengthened, and/or codes of conduct have been updated – but none of the leagues or their member teams have established truly effective or complete compliance and ethics programs consistent with industry standards and best practices.

On a number of recent occasions, NFL Commissioner Goodell has publicly stated, “The NFL should be held to a higher standard.”  Surely NBA Commissioner Adam Silver, MLB Commissioner Rob Manfred and NHL Commissioner Gary Bettman share similar sentiments.  Towards that end, the governing boards of these four professional leagues now have an opportunity to set new standards for their teams and to adopt “Minimum Standards for an Effective Compliance and Ethics Programs for Professional Sports Teams.”  To provide the needed assistance and guidance to their teams in establishing such programs, the leagues could employ staff or engage professional compliance consultants.  The goal of each league should be to encourage each of their member teams to establish effective compliance and ethics programs designed to prevent wrongdoing in the workplace that have led to the scandals seen so often in professional sports today.

Each professional league establishing its own minimum standards for its member teams would go a long way toward assuring the sports world and the public at large of its commitment to ensuring compliance, ethics and integrity in all of its operations.

The sample minimum standards as outlined below could be a fresh start for professional sports in their quest for a future free of scandals and misbehavior.

Minimum Standards for an Effective Compliance and Ethics Programs for Professional Sports Teams

• A risk assessment to determine and prioritize the primary compliance and ethics risks of the team.
• A code of conduct tailored to the individual team would be the cornerstone of any effective compliance and ethics program. This set of rules and expectations must demonstrate the team’s emphasis on compliance with all applicable laws, regulations, and the policies and standards of the team.
• A compliance and ethics officer must be designated. This officer must have adequate resources, should report to top management and have direct access to the governing authority.
• Education and training is critical to the success of any program. All employees including top management and the team’s owner(s) should be covered by the program and receive orientation and annual training.
• Reporting wrongdoing is essential. This can be accomplished through the normal chain of command, directly to the compliance and ethics officer and/or through a hotline (a third-party site) to ensure anonymous reporting.
• Unbiased investigations should be conducted promptly, usually by the compliance and ethics officer. The team must have a non-retaliation, non-retribution policy.  Confidentiality of those reporting wrongdoing should be maintained to the extent possible.
• Corrective action must be taken when appropriate to address specific incidents and to prevent future wrongdoing.
• A monitoring and evaluation system will help ensure the program is working. A report on the program should be made to the governing authority annually.

These sample minimum standards are based on and generally consistent with the U.S. Sentencing Commission Guidelines for Organizations. All sorts of business organizations adopting such standards have benefited. Professional sports organizations would benefit as well, and such programs could lead to focusing the news more on what happens on the playing field instead of the negative activity off of it.