This article is republished from the University of Buffalo Sports Law Forum. Visit and subscribe to that newsletter for cutting edge legal analysis in the world of sports.
The 2022 NFL season came to an end on a questionable holding call that secured the Kansas City Chiefs their second Super Bowl in four years. It was an unfortunate end to an otherwise thrilling matchup between two of the best in the league. The unintended consequence of the final result was the fanning of the proverbial flames of the internet’s claim that the NFL is rigged. The spark that reignited the dormant fire of conspiracy came from former Houston Texans Pro Bowl Running Back Arian Foster, just weeks before the Super Bowl. A soundbite from Foster went viral on the ‘Macrodosing’ podcast, when he admitted that all NFL players were given a script to follow for the season. Less than credible websites and blogs ran with the headline to generate clicks, although, of course Foster’s statements were rich in sarcasm. The joke, which recurred throughout the podcast, showed how truly absurd and impractical the claim was. The quote made its way through the sports world and beyond. Eventually major media brands and athletes began to reference the joke, creating clever tangential spin-offs. As Foster’s clip spread like wildfire, so too did the discussion around fixing games. Coincidentally, at the same time every office building’s watercooler talk revolved around the NFL script, an official, in the biggest game of the year, makes a call, that in effect, crowns a champion.
The field surface became a major topic of discussion after players on both teams were slipping throughout the game.
The NFL almost definitely is not fixed. But this past weekend’s Super Bowl enflamed the passions of many cynical fans. While it probably would not come from a script, fans are trying to crack the code on just how the NFL is predetermining the outcomes. Theories extend from simple referee collusion to a masterminded ‘sod-gate’ to quell the Eagles vaunted pass rush. So, how would the NFL fix games? Let’s explore some possibilities and the legal potentialities that associate with it.
First, why would the NFL rig outcomes? What are the motivations that would make predetermined results more attractive than pure competition? To begin, we’ll start with a case study in professional wrestling. The pomp and circumstances of the WWE are unrecognizable from the competition that preceded it. Professional Wrestling evolved off of the carnival circuit and prize fighting. Greco-Roman Champion Georg (George) Hackenschmidt dominated the circuit in “catch-as-catch-can” wrestling. These legitimate wrestling contests were tweaked slightly when his manager CB Cochran suggested that Hackenschmidt should “lighten up” to allow opponents to last longer. Hackenschmidt became a star, “working” crowds around the world. The success of his craft was evident in the record-setting attendance numbers that followed him. President Theodore Roosevelt once said, “If I wasn’t the President of the United States, I would like to be George Hackenschmidt.” Hackenschmidt’s fame culminated in a 1908 rematch title bout that drew 25,000 spectators and $2.3 million adjusted for today’s rate. To put it into perspective, the NBA averaged 17,184 spectators in the 2021-22 season, and between $1 million and $2.5 million in ticket revenue per game. Hackenschmidt’s shift into entertainment was clearly a money-maker, and a model for the sport into the future.
An example of the advertising for Hackenschmidt’s matches in London 1906.
Like professional wrestling, the NFL might see the benefits of producing the most entertaining product on the market. As of today, the NFL has supplanted itself as America’s game. Eight of the top ten most watched broadcasts of 2021 were NFL Playoff Games. The NFL has a billion reasons to keep producing an entertaining product as it has signed a cumulatively 11-year $105 billion contract with various television/internet broadcast companies. The money being passed around is enough to throw a network into bankruptcy if results do not match expectations. So, why would the NFL, or even the broadcast companies themselves, relinquish ultimate control on the product and how it is produced?
Now, if the NFL were to exhibit control over its product, the football game, to maximize entertainment, how would they do so?
Let’s revisit Arian Foster’s proposition of a script. The NFL fixes games by handing out a script to every player before the season, and each game, to coordinate each game. Can it be conceivably achieved? No. First, the game of football is far too chaotic to coordinate with success. There are too many people on the field. Second, the game is far too skillful to rely upon the execution of a script. Players would not be able to make the plays they are assigned with consistency. Third, there are competing motivations to follow a script. The inequality of income between scripted stars and borderline practice squad players would not be an arrangement a player would sign up for. Fourth, whistleblowers would alert the public of the scheme. An underlying problem in most conspiracy theories is that they often require a large number of people to stay quiet in their efforts to deceive the public. The thousands of players who have come through the NFL have great financial incentive to leak the script. Mass secret coordination almost can never happen because self-interest tugs apart the ultimate scheme. Fifth, and most importantly, the NFL is not a sports entertainment business, and would endure severe legal liability if it attempted to fix games on a centrally coordinated basis.
There have been, unfortunately, lies spread around the internet. How surprising? Many social media pages, UberFacts (which has been uber wrong on many occasions) being one of them, has spread the idea that the NFL is a sports entertainment business. And just like the WWE, the NFL can fix games. Flat out false, and here is why. The idea stems from an argumentative misinterpretation of the 2010 Supreme Court case Am. Needle, Inc. v. NFL. Those who want to believe the NFL is rigged thought that the NFL was positioning itself a single entity giving it central control over the unifying interests of the many owners. However, the NFL actually was positioning its spin-off creation NFLP, a corporation that holds all 32 teams’ intellectual property rights, as a single entity. The unifying interests among the owners were to sell merchandise using NFL teams’ intellectual property. Additionally, this argument was rejected by the Supreme Court. Justice Stevens countered that just because the NFL formed a separate corporation called NFLP does not erase the fact that the organizations are separate profit-maximizing entities who do not have fully aligned interests. The law currently does not view the NFL as a single entity. Continuing, from this precedent, central control of the outcomes of NFL games would be a Sherman § 1 anti-trust violation.
But the NFL has an anti-trust exemption, signed by John F. Kennedy. This is another mode of protection some have argued the NFL has, that allows for the fixing of games. Brooklyn Congressman Cellar penned the Sports Broadcasting Act of 1961 after the lobbying efforts of then commissioner Pete Rozelle. This bill allows sports leagues to sign broadcast contracts as a collective, making an exception to anti-trust law. Also included in the bill was a protection for college and high school football. If you have ever wondered why the NFL does not just have games on Fridays and Saturdays, it is because this provision is not active all year round. From the second Friday of September until the second Saturday of December a professional football league is not covered by the Sports Broadcasting Act if they were to broadcast after 6 PM on Fridays or any time on a Saturday. The Sports Broadcasting Act has had a strong influence on the current NFL schedule and on the ability for the NFL to generate revenue. The Act, however, does not extend an anti-trust exemption beyond the purpose of acquiring broadcasting rights for the league. Section four explicitly states that the bill does not change the applicability of federal anti-trust law. So, the NFL would not be able to use their anti-trust exemption to free them of liability if they were to fix games.
President John F Kennedy signing legislation.
The Supreme Court recognizes the NFL teams as separate entities. “Contract, combination or conspiracy” to predetermine outcomes, thus restricting an individual organization the ability to generate revenue, is a § 1 violation of the Sherman Act. The anti-trust exemption given by President John F. Kennedy does not extend to cover § 1. Knowing this, the NFL, legally, cannot centrally plan to fix outcomes of games. Now, can individual teams or players fix the outcomes of games?
Organizations and players are bound by the Personal Conduct Policy and the NFL Constitution. The 2022 Personal Conduct Policy lists conduct that undermines the integrity of the league as prohibited. New to the Personal Conduct Policy is the Disciplinary Officer who decides the punishment for players. In the past, the commissioner would handle all disciplinary matters. The commissioner still retains the ability to change the punishment after the Disciplinary Officer gives his/her input, however. Those employed by the organizations and the league are held to a higher standard and thus face higher discipline for such violations. The disciplinary measures are listed in the NFL Constitution. Article 8.13(C) gives the commissioner nine forms of disciplinary power to levy against those employed or connected to the NFL if they were found to have fixed games. Of the punishments is direct removal from the league. It is unlikely players or team employees would risk fixing games to have their dream forever stripped from them. The NFL must follow its own rules or risk lawsuits for violating Private Association Law. And even if it was financially beneficial to throw one’s career away to attempt to fix games, there is the Sports Bribery Act of 1964 to hold match fixers legally accountable.
Tanking is one way an organization or player can fix games. Although all leagues prohibit intentionally losing games, two NFL teams (2008 Lions and 2017 Browns) have finished the season without any wins.
The NFL cannot legally fix games and the teams and players cannot fix games, is it just not possible? Well, possible and legal are two different words. How can the NFL fix games and get away with it, is the probative question. This is certainly not advice on how to fix games, nor endorsing the behavior, but speculation on how it could be done.
As stated earlier, most conspiracies fail because they are too big, or involve too many moving parts. Knowing this, the scheme must be small or involve very few people. Additionally, those involved must have their self-interests sufficiently aligned with the scheme. Incentives must be strong enough to deter defectors and whistleblowers. Finally, the difficulty in coordinating the sport of football must be considered. It would be too tall of a task to fix a game from start to finish.
With all of the previous factors in mind, the only conceivable way the NFL could fix their games would be for the commissioner, Roger Goodell, to use certain officials to nudge the game in desirable directions. Desirable outcomes would vary based on game but would generally favor: encouraging competitive games; aiding a team making a comeback; and reinforcing the stardom of certain top players. These outcomes lead to a more entertaining and marketable product. The officials only have the power to nudge the game in a direction. Complete fixing of games is out of their control. However, that nudge can have a drastic impact down the final stretch of the game. It is twice as difficult to gain a first down (19.9% success rate) when an offensive penalty is called than when there is not (39%). There must be a carrot on the stick to incentivize an official to influence the game. Perhaps that is in the form of a high-paying position in the broadcast booth upon retirement. The broadcast network executive, in cahoots with Roger Goodell, abides by who he suggests should go into the rules expert analyst. In turn, the broadcast network executive has security in knowing the product will be as entertaining as possible.
It is Goodell who makes these decisions because there is a lack of oversight written into the Personal Conduct Policy and NFL Constitution. Goodell is beholden to the owners of each team. The owners may vote on the successor of the commissioner by a vote of 18 or two-thirds, whatever is greater. However, the owners will generally not turn on the current commissioner if he is generating profit and does not threaten punishment. Upon this criteria, all owners would be satisfied with Goodell except Dan Snyder and maybe Stephen Ross. Goodell is safe from the owners and will not punish himself for violating the rules. The only other person in a disciplinary role is the Disciplinary Officer, who only gives the suggested punishment for player infractions. Goodell’s only recourse would come from a coalition of disgruntled owners, who he can keep at bay if he keeps the profits rolling in. But, why would Goodell take the risk to fix games? Roger Goodell’s income is tied to the success of the league. With the explosion of broadcasting deals, so too has Goodell’s income. The marketability and entertainment value of the game directly correlates with his take home pay. In 2021, Goodell’s income moved from $35 million to $68 million with goal-based incentives.
Former referee, Gene Steratore, is one example of prominent referees making the shift into the broadcast booth.
So, how would the NFL fix games? Roger Goodell would incentivize certain officials with a promised high-paying job in the broadcast booth upon their retirement to nudge the games in a direction that makes them more entertaining and marketable. It is a small operation that only involves one commissioner, one network executive, and a few officials. All are sufficiently incentivized to stay quiet. Goodell has the prospect at tens of millions more per year. The network executives are guaranteed the best version of the product. And, officials have a secure, high paying retirement position. But most of all, the ambiguity of the NFL rulebook gives plausible deniability to all involved.
Is the NFL rigged? Most likely not. But on the small chance it is, that is how they would do it.
References:
Am. Needle, Inc. v. NFL, 560 U.S. 183 (2010).
Mayer v. Belichick, 605 F.3d 223 (3d 2010).
Murphy, D., & Young, B. (2021). The Wrestlers’ Wrestlers The Masters of the Craft of Professional Wrestling (pp. 25-26). ECW
