Steph Stradley

The Deshaun Watson Lawsuits: Frequently Asked Questions

March 26, 2021 by Steph Stradley 14 Comments

A plaintiff’s attorney filed numerous civil lawsuits by women against Houston Texans quarterback Deshaun Watson. The cases state Watson assaulted, sexually assaulted, and harassed women after contacting them with the pretense of seeking a traditional massage.

Watson’s lawyer has acknowledged the seriousness of the allegations, shared his view the allegations are false, an account of a “blackmail scheme” by one plaintiff, derided the tactics of the plaintiff’s lawyer, and wants to get the names of the petitioners to investigate the allegations confidentially.

The plaintiffs’ attorney has objected to that implication and said he would provide additional information about non-disclosure agreement he states Watson wanted signed.

When I get repeated questions about a topic involving sports and law, I sometimes do explainers to share my opinions about a situation.

My background is that I’ve been a lawyer for 30 years for businesses and individuals, have practical legal experience in many areas of the law, including this topic, and have written about the Houston Texans and also NFL discipline issues since 2006.

The Deshaun Watson lawsuits FAQ includes:

Thoughts on emotional and high-profile legal topics.
General questions about the lawsuits against Deshaun Watson.
Civil Lawsuit Topics.
Potential Criminal Cases.
Potential NFL Discipline.
NFL Trade Implications.

My goal is to discuss this in a clinical, practical, accurate way in a way where it can be helpful to both lawyers and non-lawyers who have questions about this case.

There are headers for different sections, and you can skip to the parts that interest you.

The Criminalization of Your Online Life

June 11, 2020 by Steph Stradley Leave a Comment

Computers, cell phones, the internet, and social media have transformed the practice of law and criminal law specifically. My legal career is now long enough that I remember what it like before these things were in wide use.

I sometimes wonder what percentage of criminal cases and other trouble would not exist but for this technology.

Life is precious, and I want everyone to live their best lives. Sometimes the best way to prevent problems to share information that everyone should know, perhaps don’t, or maybe need a reminder.

Here are some thoughts that are not legal advice but should be common sense but sometimes isn’t:

Assume nothing is anonymous.

You should always assume that what you say and do online can be discovered even if you intend for it not to be.

There are many ways this is done. Intercepted. Found by others. Found during legal discovery after a dispute. Employers discovering it. Governmental entities creating or taking over websites and monitoring those communications. You shared it with someone. They share it with someone else.

Most of what you do online leaves digital traces. The sites you visit often know a lot about you.

I once worked at a media site where we could read everything that a person said when they forwarded an article. When I helped moderate a popular website, I could see users’ IP addresses (a numerical label assigned to devices). If someone created a trolling account, we could often see who else had that same IP address.

Your physical location can be discovered when you take your cell phone places.

You might be saying, yeah, but I am cautious about my privacy and know ways to keep my computer and online life secret. Good luck with that. No matter how careful you are, motivated people and governments can usually find it.

The First Amendment speech protections do not apply to everything you say.

You should always assume though you may be able to say what you want in America, you may not be protected from the consequences of your speech. Other people can use their own speech to say something about it.

Some laws, like defamation laws, punish you for certain types of speech.

And though the government should not punish you for speech protected under the Constitution, they sometimes try to through unconstitutional laws and enforcement of them. It is not easy to fight for your rights.

And the First Amendment applies to the government trying to control speech, not usually private entities who limit speech.

The short takeaway? First Amendment law is a specialized area, and just because you have a right to do or say something, does not mean it will be consequence-free, respected, or easily defended.

The web makes it easier to get in trouble.

People establish laws to arrange how people get along in society. Computers, cell phones, the web, and social media make it easier to get in contact with others, which also makes it easier to get in trouble with others.

There are huge lists of cybercrimes that did not exist when I started practicing law, and each year more actions are turned into crimes that did not use to be crimes.

But even beyond that, pretty much every area of the law has ways where people are their own worst enemies by what they post online or where they visit.

Strangers can misinterpret what you post online and use it to punish you.

Criminal trials are a bad way to find out the full life of a person. It is an adversarial process, with rules that restrict what evidence is seen by the jury.

In an adversarial process, the prosecutor may be able to see everything in your digital life and give it the worst interpretation in retrospect even if it has an innocent explanation.

You may know who you are as a person and what is in your heart. But outsiders may just judge the entirety of you by what words and acts they can see, and sometimes that is stuff on your computer, cell phone, and what you post online.

The first impression that people have of you is often the one that sticks with people, and that can be difficult to change. The “presumption of innocence” is given lip service when “everybody knows they’re guilty” is what reflects human nature.

For example, if you post pictures of yourself with guns, and then later use lawful self-defense, a prosecutor may try to use that to tell the jury you are an aggressive gun nut.

If you post a lot of outrageous statements that you mean as a joke, others may not read it the same way.

In the Anglo-American system of justice, historically, people were only supposed to be convicted based on what they did, not who they are as a person. That said, the legislative trend is to create more criminal exceptions to that general rule, with some statutes that likely are unconstitutional. But just because I think something is unconstitutional, does not mean that it would be easy to defend or that a judge would agree with me.

Also, social media can be used as circumstantial evidence to show elements of a crime, like whether someone intended to do an action.

The web never forgets.

If you delete digital information or social media posts after you get into trouble, it can be considered destroying evidence in some legal contexts. Often it still can be found if someone is looking for it.

That said, it may not be a bad idea every once in a while to consciously consider what you have posted in the past and whether you still think it reflects who you are as a person. If not, maybe delete your post, delete that social app.

Even then, for some things, the web never forgets, and it may be difficult to leave no digital trace.

Take care where you hang out on the web.

The best and worst part of the internet is that no matter your interests, you likely can find people to share those interests. Sometimes that leads people into trouble they would have never faced if they did not hang out in those places.

Website algorithms that are trying to keep you using their site will suggest more content to you: If you like this person or content, you will like this person or content.

This can be helpful or hurtful. These algorithms can direct you to extreme and outrageous people and content, ones intended to get people’s attention for various reasons, some recommending actions that can get you into legal trouble.

I think of this like my experience with a bad cheesecake. If you store cheesecake in the fridge next to bacon, it can take the bacon’s flavor and become bacon-flavored cheesecake. Maybe you are good with that. Maybe that is not what you want.

Sometimes you should reflect on whether the people and places you give the most attention to in both real life and on the web actually benefit your life and are a net positive.

Please live your life with informed intention.

I am not suggesting censorship. Or self-censorship. I am just reminding you how the world is, both good and bad.

What I am suggesting is that when you do and say things online, you make it an intentional, informed choice, and know the potential consequences. Some times that is an obvious choice, and sometimes it is not.

The web can be a manipulative place, and it can be easy to slowly and accidentally get caught up in bad things.

Practical Tips to Win Your Property Tax Protest in Houston

April 2, 2020 by Steph Stradley 42 Comments

This post was originally published on April 26, 2014 and was updated most recently June 17, 2020.

Thinking of filing a property tax protest in Houston, Harris County? The deadline for filing your property protest appeal is May 15th, unless that day is a holiday or weekend then the next business day, or 30 days after the date your notice of appraised value was mailed, whichever is the later date. There can be circumstances where you can file your appeal later than that too.

COVID-19 Property Tax Protest Update

(UPDATE April 2, 2020: The tax appeal process discussed below does not assume a COVID-19 global pandemic. Both the informal appraisal hearing and the Appraisal Review Board are usually things that happen in person at the Harris County Appraisal District. Those offices are currently closed to the public.

I spoke to an HCAD spokesperson and as of this date, this is what they know:

1. Appeal date is still May 15th because this is set by Texas law;

2. They are strongly encouraging people to use iFile online/use iSettle versus mailing it in;

3. They have not currently determined how the informal process and ARB is going to work if people will not be meeting in person. When they know, they will let us know.

4. The valuation of your property is set by state law and is the value as of January 1. Even if the economic conditions of Houston and the globe have drastically changed. Those changes would be reflected in the next year’s property valuation.)

(UPDATE June 17, 2020: This year, I protested my taxes because they are substantially over the market value. I tried to use iSettle, and my claim could not be resolved this way. The notice I received said I should wait for meeting date for an appraiser.

Today, I received a notice showing the meeting date with an appraiser at the beginning of July. It notes if “I choose not to attend, or if the protest cannot be resolved, the Appraisal Review Board of Harris County will schedule your protest for a formal hearing.”

Remarkably, nothing in the notice mentions that we are in a global pandemic and that meeting with strangers in an indoor setting is discouraged by medical professionals and the government. Not one bit.

To know how to protect yourself and get a fair assessment of your property, you need to look at the HCAD website for further guidance. If you want a remote informal hearing and then formal ARB hearing if that is necessary, instead of an in-person hearing, you have to call them.

And most importantly know to call them. Here is the HCAD website link.

Please read that page for details.

Interestingly, the website notes, “Property owners will be able to submit evidence documents for either the remote or in person meetings no later than 3 days before the scheduled meeting, or they can bring evidence with them for an on-site meeting.”

So that means if you have a remote meeting scheduled, you have to make sure to submit the evidence to them no later than 3 days before the scheduled meeting? I don’t know. But if you are going to schedule a remote meeting, I would try to find this out for sure).

I am not a property tax protest expert. Just a homeowner who believes the computerized tax assessments on my home value are always off-base. Over the years, I’ve found the most helpful information in protesting my taxes was talking to friends about what has worked for them.

Blog posts are often used as resources, and I wanted to use this blog post as a forum to share my (non-legal advice) experiences, and ask for you to add any practical, helpful advice that you have in the comments below.

(UPDATE July 18, 2016: I do not handle tax protests as a part of my practice, so please do not email me to help you or ask my advice. I put this together because I can and to be a generally helpful person in my community).

Practical help to win your property tax protest.

First some basics.

1. File your protest.
On the list of things that you might forget, this can be an expensive one. You can use the HCAD website to file it, so you don’t even need a stamp. This is a particularly important year not to forget this given the rise in values.
It’s not enough just to file your protest. You need to remember to show up to the hearing as well unless you get a i-Settle resolution. This is obvious but is a pain to do every year to say the same thing to get the same result.
2. Should you get professional help to protest?
Personally, no. Easy for me to say because I’m a lawyer.
But many people have positive results without getting tax agent help. At least one study suggests individuals get better results than experts. For residential properties 41% better.
Why is that so?
Tax agent companies might suggest they tend to have harder cases than the people who feel like they can protest it on their own.
Perhaps it is a matter of motivation and familiarity. A homeowner is very motivated to reduce their tax valuation. They can focus their time on only one property, and knows its problems better than anyone.
I don’t want to pay anybody for things that I’m capable of doing myself and likely do better. Have that view regarding restaurant food too, which is why I often order the fish and skip things easier to cook at home.
3. Spend some time exploring the HCAD website.
The HCAD website contains the logistical procedures of what to expect, what information they consider. They go into a lot more detail than I can reasonably do here.
After you file your protest tax protest and receive an informal hearing date, the website will show you what properties their computerized models are using to compare to yours.
That information won’t be on the site until 15-20 days before your hearing date. It will give a list of comparable properties with basic information about them.
You have to log-in and click around a bit to find this information. (UPDATE July 18, 2016: Commenters/emailers have been asking where to find that info. I always end up forgetting where I found it the last time and have to look for it. HCAD currently doesn’t make it obvious that it exists or where to find it. In fairness to them, there’s a lot of stuff on their site. Fortunately, commenter “Kbum” was helpful and answered this below: “Once you log in here https://owners.hcad.org (and set up a user name/password) Navigate to the “Manage Your Property Accounts” page. You will find it at the bottom left of this page under “View HCAD Hearing Evidence.””)
You may want to actually see those properties in person and photograph the outside to distinguish them from your property. It’s been my experience that the properties that their computerized system used to compare to mine weren’t terribly similar.
4. Should you do i-Settle?
If you don’t use i-Settle, then your filing goes to an informal hearing appraiser and then if isn’t resolved then, to the entire appraisal review board. If you use HCAD i-Settle process, you may get a reduction in your home value such that you feel fine taking it without going to HCAD.
For me, though I asked to use i-Settle in the past, I’ve always received this email back after they considered it:

Thank you for signing up for our iSettle™ program. Unfortunately, after reviewing the information we have available, we cannot propose an online settlement for your 2012 protest. Since sales disclosure is not mandatory in Texas, we acknowledge that our market information may not be complete and that you may have evidence unique to your property that may support a reduction in your property’s market value. To be sure you have an adequate opportunity to have it reviewed, we will be setting you up for appointments with one of our appraisers and for a hearing with the Appraisal Review Board. The Appraisal Review Board will set a hearing for your protest and notify you of the time, date and place of the hearing by standard USPS mail.

Perhaps it works better for smaller reductions than what I requested. I ended up getting a informal appraisal hearing and approving their offer after i-Settle gave me no offer.
This detailed property tax protest Examiner blog post from a few years ago called “Appealing Houston Property Taxes 101: Taking on HCAD and winning” advises not using i-Settle at all.
5. What to expect from the informal appraisal hearing?
You show up at the HCAD building and wait for your name to be called. An appraiser brings you to his cubical.
When you go to this, bring all the documentation that supports your view of the market value of your home. Lots of quality pictures of defects with your home that adversely affect market value are crucial.
One year, the detailed info that I brought to the appraiser demonstrated that some of the information they had in their computer about my home was inaccurate, and he changed it in their system.
At one meeting I had with an appraiser, he told me that the most that they have authority to reduce with homeowners is $100,000. I do not know if it is true or not.
In my limited dealings with the informal process, they were reasonable and gave me what I thought was a fair offer worth not going the next step to the appraisal review board.
6. What to expect from the appraisal review board (ARB) hearing?
The panel is comprised of three citizens not employed by HCAD to hear your case.
There is also an HCAD employee who represents HCAD that argues against your point view.
When I did this, I put together a packet of material for me, each of the representatives, and the HCAD employee.
One section was reasons why house should have lower value than what the computerized system suggested due to problems with the property. This section had many clear color pictures of problems with the house.
Another section was details on the properties HCAD in its online materials said were the comparables, and why my property was worth substantially less. To do that, I looked both online with the information contained there, but also went to those properties and took pictures.
Then I flipped through the packet of materials, using it as a visual aid to discuss with the ARB panel. It was fancy looking packet with a cover sheet, good quality color photos to try to show I gave the proceeding some thought, respect and time.
Having everything in a packet is also helpful if you feel shy about talking in front of a group of people. You can just walk them through the packet.
The HCAD employee makes her response mostly based on the comparables. So if you give specifics of why those comparables are inaccurate and perhaps show better ones, it is hard for an HCAD employee who just picked up the file to refute you.
You just killed all her evidence and she doesn’t have any additional evidence beyond the comparables to refute your point.
They consider the information, and you get a final determination from them at the end of the hearing.
7. Be nice, be prepared. Get them to want to help you.
Remember, this process is not really about doing a “property tax protest” and more about discussing the information that justifies what the market value for your house is. Market value being what it would sell on the open market.
The informal appraiser and the appraiser review board folks are human beings. Ones who have a lot of control. So you want to politely and logically state your position, with so much support and in such a friendly way they want to help you.
Under no circumstances should you complain about the tax burden to the informal appraiser or to the ARB panel. Because it ain’t their doing. In fact, one of the first things on the HCAD site is this statement:
“If you’re concerned about tax levels, you should take those concerns to local government officials.”
I am certain they know what you think about the rising taxes. They have heard it a million times. Likely from bat-bleep crazy people who said it in bat-bleep crazy ways.
But if you want the human beings who control your tax appraisal to help you, you help them by providing good reasons supported by data.
And being the nice sort of person they feel good about helping.
(This is good advice in dealing with most service providers who have control over something you want them to do–making them feel good to want to go the extra mile for you. They just want to do their job, get paid, get off work, maybe go to Applebees, get some beers. You can try to bulldoze service providers into doing good stuff for you, but that is not a high percentage situation when they have more power and control in the situation).
If you win on the ARB level, you’ve beaten HCAD until next year, when the computer spits out the same old wrong valuation and you make many of the same arguments year after year. (So save your documents).
If you don’t get a reduction at the ARB level, then your next choice is district court, which for most homeowners won’t be worth the time and money. There is no guarantee you and the ARB panel will agree with your assessment, so sometimes it may be worth it to take the informal appraisal reduction for the certainty involved.
7. Talk to your neighbors.
You know your property. Your neighbors know your neighborhood. Sometimes they may know gossip that can help you gather helpful valuation information.
One year, one of my neighbors put a spreadsheet in local mailboxes demonstrating the rise of land values on our street relative to nearby streets, showing an improper valuation issue. That connection wouldn’t have occurred to me until I saw that flyer.
Talking to your neighbors can sometimes give you a sense of what works and doesn’t work in doing their property tax protest.

Also, I’ve found that my Realtor friends can also provide helpful information and ideas, assuming you already have a good relationship with one.

8. Storm Damage.

Hurricane Harvey damage and other storm damage can radically change the value of your property. Even a property that was fixed after the storm can have a downward assessment. The Harris County Appraisal District offered an app, email and phone line to provide damage information right after the storm. [pdf link] If you failed to report damage, you can still do so in your appeal this year, showing pictures of what the property looks like as of January 1st of the taxing year. Even if you repaired the damage, you can still provide information on what damaged houses are now selling for in your neighborhood.

9. Leave a comment here.
As I said, I am no expert in this. What I’d like to do is to start a dialogue about this topic. Where people share their ideas of what works and what they have experienced.
As a Houston homeowner who knows I will be doing this fight every year, I’d like to receive whatever help I can get.

Does Business Insurance Cover Coronavirus Losses?

March 31, 2020 by Steph Stradley Leave a Comment

People running businesses are scrambling to figure out how to deal with their financial losses and expenses from coronavirus COVID-19 business interruptions. Including me.

I like sharing explainer Q&As with people who know more about subjects than I do and am using this blog post to share with others what I learned about what types of business insurance cover coronavirus COVID-19 losses.

This is a basic explainer and not legal advice, and I tried to ask questions that would be helpful to both non-lawyers and lawyers.

The following is a Q&A with Daniel P. Barton of the Barton Law Group. Law is a very specialized field like many, and lawyers often ask each other questions. I’ve been friends with Dan for almost my entire legal career, and he is the first person I call when I have questions about insurance coverage issues and specifically, business interruption claims.

Dan Barton is Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law and Board Certified in Civil Trial Law by the National Board of Trial Advocacy. He has vast experience in understanding insurance coverage issues in unusual events, and as a part of his practice, consults with policyholders’ about their insurance coverage and rights.

Q&A with Dan Barton on Coronavirus COVID-19 Business Insurance Claims

What types of businesses may have insurance that helps pay for money lost when their businesses shut down due to coronavirus COVID-19?

Any business that carries commercial property insurance or business owner’s insurance policy coverage.

According to the American Property Casualty Insurance Association (APCIA), American small businesses may lose $220-383 billion per month during the COVID-19 outbreak, creating around 30 million coronavirus insurance loss claims.

They believe that these small business insurance claims would be ten times the number of claims that they have ever handled in one year.

Remarkably, this estimate of coronavirus business interruption losses does not take into account COVID-19 global losses, large and medium businesses, and event cancellations.

Generally, how do you determine whether a loss is covered by business insurance?

Typically, an event must occur that is a named peril that you can find in your policy, or if an “all risk” policy caused by a peril that is not excluded.

Most policies require that there has been direct physical loss caused by the peril. This is where things get very fact and policy specific. There may be a few ways to obtain coverage without a direct physical loss.

There are some situations that appear promising for coronavirus-related coverage under property policies, general liability insurance, D&O liability insurance, and event cancellation insurance

Here are some examples where direct physical loss may not be necessary. A careful analysis of the law and policies under each is required and technical beyond our Q&A scope:

1. First-Party Property/Time Element Claim Under Policy with Express Communicable Disease Coverage Grant

2. Event Cancellation Insurance Claim

3. First-Party Property/Time Element Claim

4. Ingress/Egress Claim Under First-Party Property/Time Element Insurance Policy

5. Civil Authority Claim Under First-Party Property/Time Element Insurance Policy – For example, your supply chain was interrupted when a supplier shut down plant operations due to a coronavirus-related quarantine ordered by the government.

6. Claim Under Directors and Officers Liability Insurance Policy

How do businesses know if they have the right type of insurance to pay for these coronavirus COVID-19 losses?

Normally, I would suggest consulting your agent first. A modern global pandemic is uncharted territory with few risk managers savvy enough to have purchased specific coverage for a named virus. Read your policy and contact your agent or professional with questions.

As a part of my practice, I review policies and determine whether businesses have business interruption coverage that covers their losses, including now, coronavirus COVID-19 losses.

What is an “All Risk” policy? Does that cover coronavirus COVID-19 losses?

Simply stated, an all risk policy covers all risks (perils) that are not specifically excluded.

Voila, coronavirus or COVID-19 is not specifically excluded in my all risk policy, so I have coverage. Not so fast, first, it may be excluded under an exclusion expressly naming bacteria, biological agents, or virus. Some policies exclude contaminants. Contaminants are usually defined in your policy. This definition may contain viruses.

If not, the direct physical loss requirement by a covered peril, as interpreted in some jurisdictions, may still kill your claim.

You still need a direct physical loss to your property or in some instances to an adjacent property, with some exceptions, namely, event cancellation coverage.

What is “Business Income Loss Coverage?” May that cover coronavirus COVID-19 business income losses?

Business income loss coverage covers your loss, profits, and expenses that you normally have but don’t because you are completely shut down. In some scenarios, it will cover the cost of cleanup or decontamination.

What is a “Pandemic Coverage Endorsement?” May that cover coronavirus COVID-19 losses?

This is an endorsement bundled or add on to your policy that may name the coronavirus or arguably a virus that is in the same family.

The Pandemic Coverage Endorsement is your clearest path to business interruption coverage for COVID-19 losses.

What is “Civil Authority Coverage?” May that cover coronavirus COVID-19 losses?

Civil authority is when the government causes your business to shut down completely. Depending on the specific wording of the coverage and what the governmental restrictions are will guide whether it covers losses or not.

Most policies require direct physical damage to your property or nearby property with some narrow exceptions.

So these declarations by local, state, and federal governmental authorities may affect the way that contracts and insurance works?

Yes. When the government makes these declarations, it does not just affect whether the government provides aid to areas. For insurance and other contracts, it can trigger claim events.

Your decision to voluntarily close without official government authority will not trigger coverage.

Do the insurance documents differ from business to business, state to state?

Insurance documents are different from policy to policy and can differ within the same state. So just because someone else’s business in your area has this insurance, does not mean you do.

With all insurance issues, you need to read the policy carefully.

If you have insurance where the policy looks like it will cover the losses, will the insurance company contact you to ask about your losses?

No. You must make a claim. The IRS is not going to notify you about tax deductions, and likewise, insurance companies are not going to advise you on how to take their money.

What is the best way to contact your insurance company about losses due to coronavirus COVID-19 shutdowns?

All policies state how to put them on notice to make a claim. You must follow their procedures and make a record.

IMPORTANT: The caveat, the way a claim is reported may trigger coverage or a denial.

It is critical you know all your rights and obligation under the policy and governing law before you give notice of your COVID-19 claim. To analogize, it is a bit like rubbing the bottle and saying the magic words before the genie will come out of the bottle.

How do you prove the amount of your loss for Coronavirus COVID-19 losses?

The policy will state your deductible, what is covered, and some will give examples on how to calculate damages. After that determination is made, it becomes a bookkeeping or CPA exercise.

Businesses should be keeping good records for business and IRS purposes, and the same applies for making COVID-19 business insurance claims.

How long do you have to make claims for your Coronavirus COVID-19 losses? Is it better to make an early claim, or does it matter?

In Texas, you generally have two years to make claims covered by the insurance code sections for consumers (541,542). You may have four years for breach of contract, but lose your statutory damages afforded to you in the insurance code.

There are commercial policies that require you to make a claim in one year and make it in New York (Where there is no bad faith insurance law). If your policy has this New York forum selection clause, do not sit on what rights you have left and consider changing insurance agents.

I have litigated the issue with mixed results. If you have a forum selection clause stating your disputes will be settled outside of Texas and have coverage, you may want to challenge the clause legally. For me, this made a million-dollar difference to a client.

What are the maximum losses that businesses can get these types of insurance?

The maximum losses generally are in your declarations page of your policy stated as an amount per occurrence. A deductible will be applied.

Most policies contain different deductibles for different types of losses. For example, you may have a $1,000 theft deductible and a 2% wind damage deductible. The same goes for business interruption. A careful reading of the entire policy is critical.

…..

I’d like to thank Dan for sharing knowledge on this topic. Please note, this is not something that my firm handles, so do not email me on this topic. You can contact Dan if you would like more information on the subject or believe you may have a business interruption loss claim.

In any event, please stay safe, and I am sorry we are all going through this.

Like with other blog posts here, if you have helpful information on this topic beyond what is in this blog post, you can put it in the comments below. Sometimes I update explainer blog posts based on topics discussed in the comments.

As some of you know, the comments are moderated by me when I get around to it. I am the sole judge of what is helpful and good, and zero spam comments will be published. Instead, they will be shot straight into the sun or perhaps mocked first, and then shot into the sun.

The Ezekiel Elliott Case Shows How Ruinous NFL Policy Is

September 5, 2017 by Steph Stradley 1 Comment

If you were to design and execute the worst possible domestic violence policy you could think of, it would likely look like how the NFL is handling the Ezekiel Elliott case.

I’ve read all the public legal documents on this case.

Hundreds of pages. It is difficult to convey how nauseated with anger and disgust I am with how the NFL has handled this matter.
Most of the writing on about the Ezekiel Elliott case involves the legal issues. Or the sordid details. Understandable, as the NFL decided to make this news.

Very little of it focuses on the real and sick harm the NFL is doing to many people with their everything is a hammer approach.
The only way this ends up getting changed is if the NFL and its owners decide to change it, and so I am writing this specifically for that audience first. The NFL is made up of many, many people, and I am hoping to appeal to ones that can change this.

As an attorney for many years, I have worked to craft policies for large corporations, and I know that can be hard to do well. I am also very familiar with domestic violence as a subject from the prosecution, defense, and real-world perspectives. I’ve written about NFL discipline issues since 2006, as fans have many questions about these types of cases.

The NFL is committed to holding the players to “a higher standard” than the legal process but what they are doing is ruinous to all.

Fully predictable that the Ezekiel Elliott case would be awful for all.

Before you read the following, I strongly suggest reading the previous piece I wrote for some additional context:
Ezekiel Elliott and the NFL Domestic Violence Policy, August 11, 2017
I wrote this the day the Ezekiel Elliott suspension was announced by the NFL’s “confidential letter,” which of course, wasn’t. The NFL personal conduct policy has always been problematic because how poorly the NFL churns one-sided investigations, issues punishment.
That the NFL is terrible at doing investigations makes it worse when they do them for sensitive topics like domestic violence.
In the piece, I noted that the relatively new way the NFL handles domestic violence issues is expensive, overly-long, privacy-invading, deterrent to reporting, and provides no real and fair mechanism for the player to show innocence.
I then explained why and how the Ezekiel Elliott case would end up as a disaster.
Just the description in the letter of the process was an obvious sham to me. Sounded official and legal and neutral to a non-legal person but was just a thrown together PR-focused process. With more information available now, the process is far worse than the original letter suggested.
The following is why the NFL Domestic Violence policy is counterproductive and ruinous to pretty much every stakeholder involved using the Ezekiel Elliott case as the latest example. Here is a link to Elliott’s Petition to Vacate Arbitration Award and related documents. (Update 9/6/17: All document links are updated to the excellent The Sports Esquires website)
Being able to see these details allows for a further exploration of how terrible the NFL’s handling of this has been.

Bad for Survivors of Domestic Violence.

Hostile Questioning.
If I were representing an abused person, I would not have them cooperate with the NFL. Why?
How does it help that person to cooperate? Does an NFL suspension of a player help them at all? Does offering privacy-invading details of their life help them?
Apparently, in the Ezekiel Elliott case, the woman claiming abuse was interviewed by the NFL investigator two times formally, with recording and transcript, and four times with follow-ups.
(Though her name is widely and publicly shared, including by her, I do not care to do that here because it is not necessary for my points. There are two people who know for sure what happened. Even if her account is inconsistent and not credible and threatening to Elliott, it is also possible that she was abused. Whatever is the situation, I feel bad that the NFL policy even means I am discussing this).
Usually, those of us on the outside do not see the type of questioning. This time we can.
I found the nature of the questioning of the woman to be hostile and privacy invading. I don’t think it was intended that way but people do all sorts of things in life they don’t intend to be abusive but are. It certainly wasn’t as hostile or thorough as it would be from a defense perspective, but that doesn’t mean it wasn’t awful in every respect.
The woman’s credibility in the case is an essential point to Elliott’s discipline. So the NFL questioned her.
For no benefit to her.
In previous NFL discipline cases, non-lawyers being questioned by lawyers have found the experience to be very intimidating. In both Deflategate and Bullygate, non-lawyers expressed how intimidating the questioning was, how they felt like they were being treated like liars and that the lawyers ignored important context if it didn’t fit what the NFL’s narrative.
As a lawyer, I’ve been made available for questioning in legal proceedings and even with nothing at stake, the process isn’t particularly comfortable.
Privacy Invading.
As I noted, because suspension is the punishment, Ezekiel Elliott’s case and the credibility of the witnesses is now news to teams, fans, fantasy football, betting.
The woman who is the subject of this action revealed extremely personal information about herself. More personal than I know about pretty much anybody. Ezekiel Elliott and other witnesses revealed private information about himself and her as well.
The NFL has tried to shift responsibility to the NFLPA for “victim blaming.” No, the entirety of this debacle of a policy is fully and completely on the NFL.
The NFLPA’s sole purpose is to serve its members. The ethical obligation for the NFLPA lawyers is to zealously represent their clients. They are doing that.
The NFL’s job is to football. They do have PR concerns, and the hastily put together domestic violence policy was created as part of a series of PR disasters. Unfortunately, PR-driven policies coming from crisis usually are bad. Like this is.
In the real legal cases instead of this sham procedure, there are ways where privacy-invading information can be shielded from wide view. Sometimes a resolution can be crafted that avoid tough questioning.
Takes Away Agency of Domestic Violence Accusers.
You might find it surprising that the woman accusing Ezekiel Elliott of abusing her wants him to get help, and told the NFL investigator that she did not want him suspended. Elliott at various points in his testimony suggests that he wanted the woman to get help.
In the legal system, each situation can be tailored for the specific dynamics of the people involved. Some jurisdictions do it better than others, and that legal and other experts struggle with these topics would suggest that sports leagues would likely do worse.
Punitive-focused approaches are typically not recommended for employers as they take away control of the abused and may deter reporting.
If you look at every single public discipline the NFL has got involved with relating to domestic violence, their actions have made it worse in significant ways to the person abused.
Do they not care? Do they not see this?

Bad for Players.

The NFL has spent millions of dollars and a great deal of time trying to buttress their conclusions in the Ezekiel Elliott case. The NFL argued in the Deflategate case that they are entitled by the process to do whatever the commissioner wants.
There is no way within the system to prove innocence. If the NFL lessens sentences or doesn’t invoke discipline, it is largely random and at their choice.
Some people want to put the blame and onus for fixing the discipline system on the players. To me, that is absurd. The NFL adopted the domestic violence policy unilaterally and then ignored the words of the policy. Does it matter what the specific words of the CBA and the rules are if Goodell at the end of the day claims he can do whatever?
Health. Safety. Fair process. Sensitive handling of issues like addiction and domestic violence. Following specific rules that apply to specific situations.
Why is it that the NFLPA has to fight so hard for these things that the NFL should want for themselves?
The NFL CBA had its general commissioner-strong structure for a long time. And though there were disputes over the years, there has been nothing like the strong use of power that started after the 2011 CBA. Prior to that CBA, though Goodell expanded the use of his powers, it was mostly for criminal actions with extreme cases. After it was signed, he started using his powers in far more expanded ways. Unilaterally. Making up new rule violations nobody had ever known were an issue. Suspending players indefinitely with no guidance for reinstatement.
I have suspected for a long time that the NFL has intentionally been unreasonable and unfair with their discipline as a bargaining chip to make more money in the next CBA. If you have studied their NFL’s actions over the years as it relates to labor, their general practice is to use maximum power and leverage, even if in the short term it hurts the product on the field.

Elliott Process Is Bad for Teams and Owners and Fans.

If you have a process that makes it impossible to prove innocence, then every player and team is at risk of an intentionally compromised product that fans pay for.
In a normal legal process, you do not have the thrown together procedure that the NFL has. Each time they make an ad hoc process that has its own faults. Behold my 2015 graphic I made to illustrate this:

In the Ezekiel Elliott case, the ad hoc process appears to be as follows:
One Main Investigator Taking Info Not Under Oath. Former prosecutor women who have prosecuted sex crimes are running the program so somehow that makes some sort of cover for a bad process.
Prosecutors tend to see things a prosecutors do, and also what they are being asked to do for the NFL is not typically what prosecutors do in their day-to-day work. It is a pretend legal process.
A former prosecutor, NFL employee Kia Roberts questioned the witnesses. The woman who is the subject of the abuse claim was interviewed two times formally, four times in follow-up questions.
Notably, Roberts did not find the woman claiming abuse to be a credible witness. And this isn’t even with opponent questioning. This conclusion was not in the final report. Nor was that shared in the suspension letter that was made available publicly.
In an actual legal system, more than one person hears the complainant’s testimony. If it ends up going to trial, an entire jury hears it.
In an actual legal system, more than one person cross-examines the complainant.
Kia Roberts, the only person who interacted with Elliott’s accuser recognized her significant credibility problems and would not have recommended discipline. She had in her notes an entire document with inconsistent statements. And notably, none of this was under oath testimony, like it would be in a real legal setting.
Report Manufacturing. Both Kia Roberts and another former prosecutor working for the NFL, Lisa Friel jointly wrote a report. The report left out a lot of information that favored Elliott. The report did not state Roberts’ concern with the credibility of the accuser nor did it contain her recommendation based on that for no discipline.
The NFL hired experts to opine on things that would not be persuasive testimony in a court room, despite all the discussions of metadata. That you see pictures of injuries does not say how and when and who if any caused the injuries. The NFL experts noted the limitation of their testimony.
This is typical of how the NFL puts their reports together. They put a lot of shaky information together and then decide the quantity of it makes it somehow persuasive.
Panel of Advisors. Then there was a meeting with Lisa Friel and the panel of four advisors. I’m not sure what the panel of advisors was supposed to do. How do you judge the credibility of evidence if you don’t see and hear the witnesses? They just read a report written in the attempt to withstand the inevitable litigation. Kia Roberts was not invited to this meeting despite being the person who did the actual investigation and would not have recommended discipline.
Goodell Drops the Hammer. The only direct witnesses are the parties involved. There are some manufactured claims that this or that shows something happened, but after reading all the information, it all equals zero. The threats she made to his career do not mean it didn’t happen, nor does it mean it did. There is no way with the evidence that Goodell had at his disposal that he should be able to say there was credible evidence that abuse occurred. By the nature of his own process where the only person who talked to the key witness thought she wasn’t reliable. Or in any process.
NFL Flunky Handles Arbitration Appeal. The NFL does not use a neutral arbitrator. When they have, they usually lose so they avoid that. For those who think a neutral arbitrator could fix this horrible process, they can’t. A neutral arbitrator can’t fix intrusive investigations, deterring reporting, the time and money and destructive power of the NFL process. Maybe it would overrule the worst of it but not before it hurt peoples’ lives without care.
The hearing officer, Harold Henderson rubber stamped Goodell’s decision, indicating in a relatively cursory way, “the record contains sufficient credible evidence to support whatever determinations he made.”

The Domestic Violence Policy is Bad for the NFL and Basic Decency.

The NFL is good at football. The further they get from football, the worse they tend to get. Employers are much better at directing employees to helpful resources and education. That’s not very satisfying to those looking to exact vengeance for players they don’t like, but I’m not sure how six game suspensions do that either.
I wrote this with the intention of expressing my disgust for the entire record and NFL process being used in the Ezekiel Elliott case. As that is something I think is lost when people are talking about how many games he plays and when and legal arguments between lawyers.
I loathe all the unintended messages and lessons the NFL is amplifying with how poorly they have handled this. It makes me sick.
My intended message: Fair processes that treat people like human beings matter, even if you don’t care about the people involved this time. Sometime it may matter to you.

All that said, if you have questions about this or legal questions on how this is going to be handled, please put questions or comments below. It is better for everyone if I do this here versus trying to do it on Twitter. Please, nothing abusive to anyone or I will not approve it through moderation. I like my comment section to be a resource to others and typically it is. Sometimes there is a delay in approval because I do it all manually. Thanks.

Ezekiel Elliott and the NFL Domestic Violence Policy

August 11, 2017 by Steph Stradley 5 Comments

When people on Twitter ask my opinion about sensitive situations like the Ezekiel Elliott suspension and the NFL Domestic Violence Policy, I think sometimes it is better to write a blog post to share complex thoughts.

I started writing about NFL discipline issues in 2006 after incoming NFL Commissioner Roger Goodell made player behavior and punishment a greater focus of his position. (You can find much of my NFL discipline writing in the NFL tag).

Fans would get angry at some of the decisions and wonder about issues of fairness and timing and bias. I generally have not been supportive of Goodell’s approach to discipline, as criminal justice issues are often complex and sensitive, and his typical stance is neither.

A note before reading this: Domestic violence is a raw, emotional topic. I do not like glib debates about such things as sports social media sometimes does with difficult issues that turn into tribal, team-focused thing. For what it is worth, I am not a Cowboys fan, I want nothing good to ever happen for the Cowboys ever, and if you like them, good for you. Life is better when you have things and people you love.

That should be irrelevant to the discussion, but as fan-oriented topics go, I have come to learn that some readers care about such things.

The NFL Domestic Violence Policy is relatively new and has been handled differently at different times. No matter what the NFL decides, various people will not like it because we all have our own life experiences that inform our views.

Given my background, here are my initial thoughts:

What is the Purpose of NFL Discipline?
In the modern world, laws and rules tend to be reactive to the emotion and anger of a particular event and not based on an evidence-based, fully-thought through philosophy. In the criminal justice world, this has lead to a wild expansion of acts that are now crimes on the state and federal level. Without knowing what you want to accomplish by a policy, whether it is in government or a sports league, it can lead to horrible, unintended consequences.
Most people without knowing details of the NFL Domestic Violence policy would go: “Domestic violence is bad, punitive policies by the NFL to fight it are good.” That is a natural human inclination but is the “I have a hammer, everything is a nail approach.”
If you are interested in exploring this general idea further, I would suggest reading these previous pieces of mine:
“What is sensible discipline for NFL player conduct?” via my blog, September 16, 2014
More specifically the logistics: “League Discipline and Legal Reality” via SI.com, September 19, 2014
“Presumption of Innocence or Everyone Knows They’re Guilty” via my blog, September 28, 2011
What are These Unintended Consequences?
There can be many purposes for discipline policies. Public relations. Vengeance. Anger. Deterrence. Education. Rehabilitation. I don’t think the policy as written does any of this well. Even an anger-based policy doesn’t deal with people who do not want to root for someone accused of domestic violence because what does six game suspensions do for that?
What I’m certain it does poorly is protect abused people. To me, if you have a policy that deters reporting and makes things worse for people experiencing domestic violence, then your policy is just well-intended, PR pandering.
Why?
Domestic violence is hard for the legal system to deal with for many reasons, which makes it nearly impossible for sports leagues to be any good at it. Roger Goodell may look like a stereotypical lawyer, but in fact, he is not one.
Though there are general statistics about domestic violence, at a micro level, each circumstance is different. For police officers, domestic violence calls are some of their most dangerous calls.
The police do not know anything about the people involved, their history, any substance abuse, weapons, who is abusing whom, whether the abused person will cooperate or become hostile to the officers due to the emotions involved, many things. They are forced to sort things out quickly. Often the information given is hazy, emotions are volatile, and independent witnesses limited.
Can Deter Reporting.
In the context of sports leagues, the fame, money, fan interest make muddle these complex domestic violence issues further.
I strongly recommend this Washington Post article: “For battered NFL wives, a message from the cops and the league, keep quiet.”
In key part: “If the league is serious about ending domestic violence in its ranks, it must rehabilitate instead of punish, they say. Penalties should be less draconian, so wives don’t worry about ending their husbands’ careers or threatening their families’ livelihoods. ‘They use [the NFL’s current policies] as leverage against you,’ says the ex-wife of the Saints player. ‘There’s abuse on every team. Everybody knows, but you know not to tell.’ Ultimately, she says, the case against Ray Rice has made the NFL less safe for women:
‘You will hear of a wife murdered before you hear another one come forward.’
I would also suggest reading Diana Moskovitz with her more specific Deadspin’s article, “Zero Tolerance for Domestic Violence Will Only Make it Worse.”
Very Privacy Invasive.
Making allegations against public figures is difficult in the context of sports. And no policy should deter reporting. The trend in criminal justice system is to take domestic violence reports more seriously and handle the cases more sensitively.
There is an inherent tension between listening to the wishes of the abused and making sure they have agency in the outcomes versus prosecuting cases even when they do not want to press charges or cooperate. Those issues are tough to work through in a situation by situation basis, and there is a lot of variations in jurisdictions with who does it better or worse.
With discipline issues, punishing players when the law sees them as an innocent person, can drive fanbases to their worst inclinations and extremes. They search for details of the abuse and turn it into an embrace debate topic.
If there is video or pictures of the incident leaked, it is worse because though some media outlets handle such things sensitively, in my experience, most do not.
News is reported. Video and pictures are more interesting and get reported more. If details are news, details get reported. A suspension and litigation and uncertain timing of suspensions make this bigger news.
People who have been abused typically do not want their abuse re-lived daily as a hostile sports debate topic.
The NFL doing their investigations can be extremely intrusive. Why should they cooperate with their abuser’s employer? Why should they share pictures of their worst moments that could be leaked and often are? Sometimes those who have experienced domestic violence want to remain private and create their own outcome that works in their lives if they are able.
How does this encourage the reporting of abuse or help the abused?
The NFL Policy Invites Embrace Debate: Using the Ezekiel Elliott Situation as an Example.
Ezekiel Elliott was accused of domestic violence. He has denied that it happened. In America, accused people who are not convicted of crimes are innocent.
Roger Goodell says that NFL players are held to a higher standard than that, but his standard isn’t by definition a standard. It is whatever Goodell says it is that day.
Because there are no real rules or process to what the NFL does, it invites debate of details. Those questions are justified given the shoddy investigations that have happened in the past. And the timing of when suspensions happen. Sports leagues are typically better at education and prevention than being fair adjudicators.
What are the specific immediate issues with the Ezekiel Elliott situation?
“Confidential” Letter Announcing Suspension. When the six game suspension was announced, a “CONFIDENTIAL” letter was shared on Twitter from NFL Network reporter, Ian Rapoport among others with details of the findings. It was later removed from the NFL hosting site, but the not confidential letter is still hosted elsewhere. [pdf}
Sharing those details from NFL hosted accounts is strange. Going through the details of what they found, invites fans and reporters to make the details an object for public debate.
From a league transparency perspective, I can understand why the NFL would like for people to know why they made the decision they did. From the perspective of encouraging people to report abuse, it is not helpful.
Timing. I’m not sure why the information as discussed in the letter took that long for a multi-billion dollar organization to investigate and decide. It is hard not to be suspicious of the timing of the suspension given the performance of the Cowboys in 2016. Legal processes often go slow, but others like it haven’t been this slow.
Limited Facts. Even without knowing all the details, you can tell that this has been written for purposes of future litigation. It provides a lot of details of the case in support of the suspension and few facts that would be in his defense. With limited documents that have been released in previous cases, this is typically how the NFL findings go.
From a process perspective, it can’t feel like anything other than a railroading job with the slanted way the letter is written and then released to the world.
Prosecution Focused. As a general rule, prosecutors tend to see everything from a prosecution focus. When the policy was first enacted, I thought the policy was written from more of a PR, prosecution punitive perspective with very little protections given to making sure they weren’t suspending people wrongfully.
The letter says that the Commissioner was counseled by independent advisors who reviewed the same evidence he did. To give him cover that this is somehow a fair process. Two of the four advisors listed are ex-prosecutors, who tend to see such issues as prosecutors do.
Process protections are important. If processes seem unfair, it can undermine the cause that is meant to be championed.
You can look at general statistics to try to make supportive policies for abused people but on an individual basis, false accusations happen. The suspension letter had a lot of words in it, but at its basic form, it was a who do you believe. Sometimes those assessments are wrong, and we know so because they are proven that way at a later date. Sometimes you never know.
Even when you are working on a case with confidential information, you rarely see the God’s eye truth as it happened but more how various people saw things.
Invites Player Response. This is now going to be litigated in the media because the NFL has invited the facts to be debated by using suspension as their main disciplinary tool. Elliott’s representatives have denied the NFL’s letter and have presented their own facts disputing what happened.
Treatment Requirement. Elliott has denied the actions happened. Though many people, both young and old, could benefit from counseling, requiring therapist approved by the league is a strange dynamic for someone denying an accusation.
Reducing Suspension. Sometimes Goodell reduces punishment based on the contrition of the player and his work to improve but that is impossible when the player denies something happened. It is always harder to prove a negative.
How Does This Help Anyone? Ultimately, nobody is going to be happy with this outcome. Fans will debate whether the punishment should be more or less or gone. Usually, that debate will go along the lines of 31 fanbases against one fanbase. Making things into a suspension, with often uncertain timing of when it takes place, transforms it into a debate topic, a betting topic, a fantasy football topic, which means that the debate will be mostly dumb and gross.
The next to the last paragraph of the “confidential” letter is a lie. It read in part:
“While this is a serious matter, it by no means suggests a belief that you cannot have a long and productive career in the NFL. You will have substantial resources available to you from your club, and from our office, to assist you in learning how to make better decisions and avoid problematic situations. Our goal is for you to have a successful career as possible.”
What resources? Is it their goal? He’s denied the allegations. The NFL is taking away money and job and adjudicating guilt with a made up standard so he can succeed more? With the way that the NFL typically handles suspensions, it appears more that they are interested in PR, and making the NFLPA have to fight them on discipline issues in the future.
Personally, I think all fans should care about this even if they do not care about the Cowboys and wish bad things to happen to them.
Despite all the words in the letter, the true standard wasn’t anything different than the head of WWE deciding a particular storyline or matchup. If there is no mechanism to prove one’s innocence in a particular process and few real safeguards, this could happen to any team and any player. And we should all agree that the NFL, as an institution, should not have suspension policies that make it more difficult for abused people and deter future reporting.
Next Steps. Typically, it becomes litigation. That’s what happens when the policy dictates suspensions, and large sums of money and precedent are at stake, none of which helps the person who reported the abuse.
Usually, the litigation arguments are technical and not whether it happened or not. Which keeps it in the news longer.
Have any additional questions, comments on this? Please put them below.
Please note: I moderate this blog myself, and I do not want any abusive comments about anyone or any commenter. Plenty of places on the web for abuse, but I don’t want a blog with my name on it to be a place for that. I moderate and answer questions when I have a little time. Thanks for making this place cool.

Related links:
“Roger Goodell’s Criminal Justice Role Was Doomed to Fail.” Originally published on July 1, 2009, reprinted here, September 13, 2014. (To be fair, it is a success if you enjoy lots of bad publicity and alienating fans).
“Is Roger Goodell an ‘Unthinking Moralist.” Originally published on April 1, 2008, reprinted here, September 9, 2015.