How the NFL’s ‘Celebration’ Reforms Point the Way for Congress on Regulation

Part of what makes football great is fans’ reactions after a big play and seeing the players involved celebrate the action.

But the National Football League didn’t seem to appreciate this in 2016. Rather than promoting clear, commonsense guidelines on what constitutes an “illegal” on-field celebration, the NFL started overregulating the game through broad, unclear rules and harsh penalties for violations.

Following abundant opposition from fans and players, the NFL Competition Committee is considering changing its guidelines and enforcement policies before the 2017 season. The story provides a lesson that goes well beyond the football field, and speaks to the need for the U.S. Congress to take another look at some sections of its rulebook, too.

Throughout the 2016 season, players and fans alike criticized the language of the NFL’s excessive celebration restrictions as too vague to draw a line between what celebrations would or would not be penalized.

Opening weekend brought an uptick in celebration fines so extreme that USA Today’s Tom Pelissero tweeted an NFL resolution from 2000: On-field “celebratory acts” will face “significant fines” if they are more than “natural, spontaneous expressions of exuberance.” What?

I actually ran across this passage in the NFL bylaws today. Specifically bans “sexually suggestive” celebrations. pic.twitter.com/lbMGZzwpmM

— Tom Pelissero (@TomPelissero) September 13, 2016

What Overregulation in the NFL Looks Like

The NFL rulebook (Section 3, Article 1) offers some, but not much, guidance, prohibiting any individual involvement “in prolonged or excessive celebrations” and any group involvement in “prolonged, excessive, premeditated, or choreographed celebrations.”

After the 2016 season, we know where this led: While “spiking and spinning the ball is allowed,” otherwise using it “as a prop is not.” And it’s fine for one person to dance in a nonillicit way, so long as they dance alone. The oddities go on.

Over the course of the season, vague guidelines yielded unpredictable, harsh penalties. Players and fans were often left wondering, where is the harm? Where is the fun? And what strict penalties could come next?

In December, Newsweek reported the 2016 season’s celebration penalties, including the following:

• Trai Turner (Carolina Panthers, lineman): Fined $9,115 for hopping up and down.
• Michael Bennett (Seattle Seahawks, lineman): $9,115, for hip thrusting after a sack.
• Josh Norman (Washington Redskins, cornerback): $9,115, pretending to shoot a bow and arrow.
• Gerald McCoy (Tampa Bay Buccaneers, defensive tackle): $12,154, dancing with teammates after a sack.
• Vernon Davis (Washington Redskins, tight end): $12,154, shooting the ball through the goal post.
• Owamagbe Odighizuwa (New York Giants, defensive end): $12,154, pretending to take a picture.
• Tajae Sharpe (Tennessee Titans, wide receiver): $12,154, pretending to take a nap.

Other innocuous-turned-infamous events that were flagged but not fined included the Seahawks’ Earl Thomas hugging a referee in New Orleans and other players making snow angels. One player was flagged for his snow angel, but another was not. Enforcement was inconsistent. It also significantly increased.

ESPN sports data show that in total, the number of violations has skyrocketed over recent years. 2016 saw 30 celebration penalties, only a few shy of the 34 combined penalties from the previous three seasons.

By contrast, there were only three celebration penalties in 2012.

Those who criticize the NFL’s current policies are not advocating to permit every celebration imaginable. They recognize the value in placing sensible limits on lewd or indecent celebrations.

Davis summed it up best in a MMQB interview:

We all know right from wrong … so we just have to keep that in mind. They just have to explain to guys, ‘Hey, if you know it is wrong, don’t do it.’ … That makes sense … we want to be a great example of what you are supposed to do when you are playing this game, and that carries over to life in general.

Players, coaches, and even the NFL vice president have all recognized that athletes ought to be able to celebrate their teams’ successes with at least more clarity on the rules.

On March 24, NFL Executive Vice President Troy Vincent tweeted that the NFL was “developing an educational training video” providing “clear examples of appropriate and inappropriate celebrations.”

And the NFL Competition Committee, the NFL’s rule-making body, plans to address the issues over the offseason. After its annual meeting, Commissioner Roger Goodell said to expect revised policies after he “meet[s] with a group of players to try to get more input from them.”

Goodell intends “to do a little more work on just bringing clarity to the rule while allowing players more ability to express themselves and celebrate. We want to see that,” he said, but “[w]e obviously want to put [in] any reasonable safeguards against taunting and acts that we think reflect poorly on all of us.”

Overregulation Hurts Off the Field, Too

The NFL’s apparent commitment to meeting with players to further clarify and revise penalties is a positive step—and the lesson goes well beyond the playing field, to America’s lawmakers.

Byron White, the only NFL player to twice lead the league in rushing yards (in 1938 with the Pittsburgh Pirates (now Steelers), and in 1940 with the Detroit Lions) and to later become a U.S. Supreme Court justice, put it this way in Baggett v. Bullitt (1964): “A law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.”

Congress should make note of the NFL’s proposed changes because, as White stated, vagueness concerns apply with even more force to our criminal laws. And over the past four decades, the number and vagueness of federal criminal offenses has outpaced even the NFL’s celebration penalties.

Federal criminal law traditionally focused on inherently immoral conduct such as treason, counterfeiting, or murder. But the number of federal crimes has increased “from 3,000 in the early 1980s to 4,000 by 2000 and more than 4,450 by 2008. The pace appears to be constant or even accelerating, and that is just at the federal level.”

Congress has also delegated its authority to create criminal offenses to federal agencies, which in turn, have issued hundreds of thousands of rules expanding the scope of criminal liability in previously unimaginable ways.

As reported in a 2016 Heritage Foundation publication, “Many of these regulations are vague or obscure, proving to be a trap for the unwary individuals who unwittingly end up committing acts that turn out to be crimes.”

Today, not even Congress or the U.S. Justice Department can identify all of the federal crimes that exist, much less what they mean.

If professional football players and referees cannot agree on the meaning of a few, concise rules for excessive celebrations, imagine how much harder it would be for them to identify, understand, and agree on the meaning of all of the criminal laws.

The distinction is all the more important because a violation of the criminal law, unlike the NFL’s rules, can result in not only a fine, but also incarceration, the stigma that follows a criminal conviction, and the multitude of disadvantages that come with it, such as lower job prospects and loss of the right to vote or to carry a firearm.

Congress Should Reconsider Its Rulebook, Too

Goodell, who took Tom Brady to federal court over “deflategate,” evidently has found the good sense to reconsider the NFL’s system of penalties. The U.S. Congress should reconsider its, too.

Those who doubt the need to bring measured reforms to the federal criminal code, bringing it in line with principles of federalism and common understandings of morally blameworthy conduct, should take a page out of the NFL’s playbook. It’s time to review the vague and confusing laws on our books and bring much-needed clarity to those who wish to be law-abiding citizens.