Was Benching Johnny Manziel an Act of Discrimination? - Pacific Standard

Was Benching Johnny Manziel an Act of Discrimination?

The Americans With Disabilities Act prohibits employment discrimination against alcoholics. What to make, then, of the Browns quarterback's recent demotion?
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Johnny Manziel. (Photo: Andrew Weber/Getty Images)

Johnny Manziel. (Photo: Andrew Weber/Getty Images)

Last year, Cleveland Browns quarterback Johnny Manziel signed a four-year, $8 million contract, with $4.3 million guaranteed up front. Ask most Americans, and they'll tell you they think Manziel is overpaid. Two million a year, they'll say, is too much for a guy who throws a ball for a living. Disregarding the merit of those claims—the athlete is a product of their market, so it's oddly simplistic to point a finger at one individual—the fact of the matter is: Johnny "Football" Manziel is paid to perform a task. He has an employer, whom he receives a paycheck from, much like anyone else. And because he's an employee of a company, the same workplace laws and regulations protect him as they do the rest of us.

About three weeks ago, Manziel was named starting quarterback of the Browns. This move was a pretty big deal, as Manziel, a much-hyped first round draft pick in 2014, had spent most of his first two years as a back-up. But just a few days after his promotion, a video surfaced of Manziel in a bar in Austin, Texas, singing loudly with the DJ and some friends, holding what appears to be a bottle of champagne (though not seen drinking from it). In response, the Browns demoted Manziel back to the bench.

For most players, this wouldn't have been an issue. But Manziel had gone to rehab earlier this year, after admitting to a substance abuse problem. While that was never specifically attributed to alcohol, that's the widely assumed substance, based largely on his history in college. Along the way to rehab, there were plenty of highly publicized, highly incriminating photos and videos, perhaps most notably the money phone and the inflatable swan that doubled as a party lounge. Through it all, the Browns continued to back their quarterback. (Reportedly, Manziel had also been participating in the league's addiction program.)

"There is a very good argument that the Cleveland Browns are violating the ADA by disciplining Manziel for being at a bar."

Given all that, this latest stunt in Austin didn't look good, either for the team or Manziel, even though the incident in question took place during the team's bye week, when players are granted some much-needed time off from football.

Here's where things get tricky.

Alcoholism falls under the Americans With Disabilities Act. That means a company cannot deal out punishments and work rules that single out alcoholics for worse discipline than their non-alcoholic co-workers for the same action, even if the transgression involves alcohol. That's not to say the ADA permits alcohol use as an excuse for poor job performance—employers can certainly fire anyone who shows up to work drunk. Rather, employers can't deny employment because of alcoholism, or set up job standards for alcoholics that are not equal to the other non-alcoholic employees.

So the question is this: Would the Browns have punished any other player by being in a bar in the same manner, or was the punishment influenced by Manziel's public admittance to the team and the media that he had an addiction problem?

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No one has questioned whether the team treated Manziel differently because he is an alcoholic, mainly because most people don't usually associate professional athletes with disabilities. But the fact that he was named the starter, and then demoted after being seen at a bar—all without playing a down—is raising a few eyebrows.

"There is a very good argument that the [Cleveland Browns] are violating the ADA by disciplining Manziel for being at a bar," says Samuel Bagenstos, a law professor at the University of Michigan, who was also the principal deputy attorney general for civil rights in the United States Department of Justice from 2009 to 2011. (Bagenstos was responsible for updating the ADA regulation in 2010, which was originally passed in 1991 and needed modifications on current disability standards).

"Johnny Manziel was not the only member of the team to be at a bar on that weekend, but it seems like he was the only one punished for doing so," Bagenstos continues. "This seems to be off-the-field conduct, and has nothing to do with his job performance. The only reason they disciplined him is because they deem him to have alcoholism. That is a violation of the ADA."

The Equal Employment Opportunity Commission, which interprets and enforces federal laws prohibiting discrimination, defines it quite clearly: "An alcoholic is a person with a disability and is protected by the ADA if he or she is qualified to perform the essential functions of the job."

But, as Bagenstos points out, this is not a simple case. Manziel was not fired, and in fact still receives the same pay. NFL players and other athletes also have "morals clauses" in their contracts, with the boilerplate language, "If Player has engaged in personal conduct reasonably judged by Club adversely affect or reflect on Club, then Club may terminate this contract."

The NFL Players Association has negotiated a collective bargaining agreement contract with the league that spells out various punishments for all the players. But the interpretation of such punishments and suspensions often are left to the judgment of the team or the league.

So then, let's go back and review the timeline:

The Browns named Manziel the starter for the rest of the season after an impressive performance against the Pittsburg Steelers mid-November. At the time, the promotion had local fans, media, and Browns personnel in a frenzy. "Given what he has gone through, you are just proud of the kid and happy for him ... he played his ass off," Browns coach Mike Pettine said at the time.

The Browns named Johnny Manziel the starter for the rest of the season after an impressive performance against the Pittsburg Steelers mid-November. (Photo: Gregory Shamus/Getty Images)

The Browns named Johnny Manziel the starter for the rest of the season after an impressive performance against the Pittsburg Steelers mid-November. (Photo: Gregory Shamus/Getty Images)

The Browns had the following week off. As most players do, Manziel went back to his home state of Texas to see family and friends. That's where the video of him singing (and possibly drinking) surfaced on social media. The Browns promptly demoted Manziel to third string. At the time, Pettine said the problem was "trust and accountability" with Manziel, who'd initially denied being at the bar, insisting that they must have seen old footage.

"There are legal limits to the ability to contract around the ADA with morals clauses ... and each case would come down to its own facts," says Cleveland employment law attorney Peter Pattakos, who also operates a website called Cleveland Frowns that provides commentary on the team's travails in recent years. "But in the Manziel case, I think it's significant that the Browns emphasized his dishonesty as the primary factor for their decision to demote him."

That's because in an employment discrimination case, it is sometimes easier for the employer to claim that it was the employee's dishonesty—and nothing else—that led to him being reprimanded. As an example: The Civil Rights Act of 1964 makes discrimination against persons with criminal records in the U.S. illegal. But employers can still legally fire you, if you lied about, say, your criminal background by not properly listing convictions on a job application.

"If they say the reason they demoted him because he lied, then I would ask if they apply that reasoning to all employees."

The Browns can say they did not demote Manziel for going to a bar, because he lied when he was asked about it. When pressed on his quarterback's demotion during a Sirius FM interview earlier this week, Pettine said as much: "He has had some issues off the field that are well-documented and we are sensitive to him ... getting that turned around doesn't happen overnight."

(Manziel has had one "off the field issue" since he got out of rehab last spring. He was pulled over for speeding in October after motorists saw him and his girlfriend arguing and physically fighting in the car. Manziel told police he'd had two drinks earlier in the day, and had had an argument with his girlfriend. He was not charged with any driving violation. The NFL and the league also didn't find any behavior that was punishable under the "morals clause.")

Perhaps the issue is, in part, the position Manziel plays—one that's naturally open to heightened scrutiny. "When you play the quarterback position, there are a lot of things that go into it that have nothing to do with your talent or the things you do on the field," Pettine said during the radio interview. "The trust, the accountability, the leadership part, earning the respect of the guys inside of the locker room ... are all things that are a part of it."

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Earlier this year, the Equal Opportunity Employment Commission won a case against a trucking company, after an employee who'd reported his alcohol abuse and need for treatment was told by the company he could no longer drive, and was then transferred to a part-time dock position at half pay.

There's one famous employment civil rights case that involved sports, alcoholism, and the ADA. In Maddox v. University of Tennessee, a 1994 case involving an assistant football coach who suffered from alcoholism and was terminated after a DUI arrest, the Sixth Circuit Court of Appeals ruled that alcohol can be a factor in firing an alcoholic, as long as those standards are invoked on all employees.

"The ADA specifically provides that an employer may hold an alcoholic employee to the same performance and behavior standards to which the employer holds other employees 'even if any unsatisfactory performance is related to the alcoholism of such employee,'" the court wrote, before concluding: "These provisions clearly contemplate distinguishing the issue of misconduct from one's status as an alcoholic."

So would Manziel have a case here? Probably not. First, he was not fired, and he retains the same pay. Second, there's the "morals clause" in his contract. "The Cleveland Browns would have to fire him, which they have not," says Virginia employment lawyer Brian Muse. "And even if they did, they could say the video of him in a bar was shown on ESPN over and over, and cast the team in a bad light, and they were justified for doing so."

"And they can always say it is about lying, and not about him partying," Muse continues. "Employers are not the morals police, but if you lie to your boss and they don't like it, they can fire you or demote you."

Bagenstos isn't so sure. "If they say the reason they demoted him because he lied, then I would ask if they apply that reasoning to all employees," he says. "Or are you just punishing alcoholics who lie?"

"He was not impaired or using alcohol at work," Bagenstos says. "They said his job performance was very good, and that's why they named him a starter. But then a week later they say he is not good enough to be a starter after the bar video surfaces? Sports are not exempt from employment laws, and I think this is a clear example where sometimes they think they are."

While experts may not see eye to eye on whether the Browns violated the ADA by punishing Manziel, they do agree that the ADA applies to all jobs, including ones that pay very well—say, millions of dollars each year for throwing a football. They're covered too.

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