By now, almost everyone is aware of the disturbing domestic violence incident involving former Baltimore Ravens running back Ray Rice and his wife.  Rice was seen in a hotel video dragging his wife (Janay) out of an elevator.  National Football League Commissioner Roger Goodell investigated and suspended Rice for two games.  After public outrage and a newly released  hotel video showing Rice punching Janay inside the elevator,  Commissioner Goodell changed Rice’s punishment to an indefinite suspension.

Rice is covered by a collective bargaining agreement and, despite the seriousness of the incident, it may have been against the “rules” for Goodell to have increased his penalty because of the concept of “double jeopardy.” That, among other theories, almost certainly will be raised by the NFL Players Association (NFLPA) at the hearing that will take place in connection with its appeal of the indefinite suspension, filed yesterday.

The NFLPA represents NFL players under a collective bargaining agreement (CBA) with the League.  Like most CBAs, the NFL CBA contains a provision under which employees (players) and/or the union may file a “grievance” involving a dispute about how a provision of the CBA has been interpreted or applied by the NFL.  Unresolved grievances are referred to arbitration in front of a neutral arbitrator.

Unlike almost all other grievance processes contained in CBAs, however, the NFL CBA grievance procedure does not apply to fines or suspensions (including Ray Rice’s) levied against players.    Instead, a “hearing officer,” appointed by the Commissioner after “consultation” with the Executive Director of the NFLPA, hears the case and renders a written decision which is “full, final and complete disposition of the dispute” and binding.

Enter the concept of “double jeopardy.”  In criminal cases, it prevents an individual from being tried twice for the same crime after a conviction or acquittal has occurred.  The same concept also can be applied in the workplace.    As a result, Rice very well may be successful in having his discipline reduced back to two games.

Double jeopardy as a workplace concept has more than one meaning or application.  First, once an employee has been disciplined for wrongdoing, he or she may not be subject to discipline a second time for the same infraction.  Second, and most relevant to the Rice situation, the notion also disallows increasing the penalty for a violation after the discipline has been imposed.  In fact, double jeopardy generally applies where a penalty is enlarged, even if the greater penalty is based on facts about which the employer was unaware when the original discipline was imposed.

Although the concept of double jeopardy is well-established in grievance arbitration, it is not a given that it will be recognized under the hearing officer procedure contained in the NFL CBA.  And, even if it is, the double jeopardy rules are not without exception.  For example, assuming double jeopardy is raised by the NFLPA at the hearing, the hearing officer may be sympathetic to a counter-argument by the NFL that it was unaware of what actually occurred in the elevator until after the two-game suspension had been imposed, and therefore, it was appropriate to reconsider the earlier suspension decision. (It is a certainty the NFLPA will dispute this notion.

In its press release announcing the filing of the appeal on Rice’s behalf, the NFLPA said “[u]nder governing labor law, an employee cannot be punished twice for the same action when all of the relevant facts were available to the employer at the time of the first punishment.”)