Discipline

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.

Snapshot of Deflategate Second Circuit Argument

March 3, 2016 by Steph Stradley 18 Comments

I’ve been receiving a lot of immediate questions about the Deflategate Second Circuit argument in Tom Brady NFL discipline matter. Because I can’t discuss them all on Twitter and would like to collect them in one place, I will do a quick write up. As I was not at the argument, I hate to say anything too definitively based on just tweets about the questions and not even seeing a transcript.
[Update: I’ve read more detailed descriptions of the argument from lawyers who were there (see this good court summary by Michael McCann at SI) , and I pretty much have the same first impression]
[Update 2: I’ve finally read the transcript. It isn’t as helpful as being there, but it gives you a better sense of things reading it directly and not through anyone’s filters. My additional view? I think the entire transcript doesn’t look as negative to Brady as the initial reports sounded. The judges were asking hard questions for both parties to get a sense of what the limits on the NFL were and what the NFLPA believed should be the appropriate process. The fact assumptions were a little weird but it looked like the NFLPA explained them some.]
With that in mind, and given the questions I’ve been getting, here are my immediate, snapshot thoughts:
It Doesn’t Look Good For Brady. The types of questions that the NFLPA received suggest that they didn’t get the NFLPA’s argument at all, and the underlying legal and factual arguments relating to that. Some of the discussion of the evidence and phone sounded like a mistatement of what the record said, even beyond what the NFL said the evidence was.
Sometimes judges offer devil’s advocate kinds of questions, but at least as reported, it didn’t sound like that. The record is pretty big, and it is easy to get the details wrong as I’m very familiar with it and that sometimes happens to me.
Also to be fair to the judges, I think the briefing that the NFLPA did at the Judge Berman level was more focused on how the facts related to the law than the narrow direction that it took in front of the Second Circuit.
IMPORTANT CAVEAT: Particularly at the appellate level, judges do not always reveal their real thoughts through questioning. Though sometimes they do.
Never Know What Resonates With Judges. Before an argument, it is difficult to predict what particular arguments will resonate with judges. Though the guilt-innocence facts of Deflategate weren’t directly at issue in appeal, they are relevant to part of the arguments. It was surprising to see how much focus the judges gave on the facts, and how much they seemingly revealed about their views of them.
The NFL’s side of the argument is easy to deal with the facts because in essence the facts are irrelevant. The answer to all their questions is Roger Goodell has discretion to decide these things basically any way he wants to. The NFLPA’s argument is more nuanced as it relates to the facts, and if you don’t have an in-depth familiarty with the record, they can be hard to follow.
That one judge thought that the focus on notice was “hypertechnical,” it isn’t within the context of how the NFL typically handles discipline. Or even what Goodell has said in the past about the need to give players notice of offenses (pg 18). Just generally speaking, if you have no notice of what you are being accused of, of what is important to the investigator, and what the particular punishment will be, it makes it particularly hard to defend yourself. You are defending yourself against the shifting sand.
And if a judge actually thinks that the evidence in Deflategate is “compelling,” well, then, all I have to tell you is that you don’t want to be in that judge’s court if you are claiming innocence. Personally, I think if you look at just the info that Roger Goodell had in front of him, or the larger view that you get by looking at all the information, there are compelling reasons to think nothing happened.
The General Labor View Versus the Football Focused View. If you frame Deflategate as something that has vast labor law implications, then the NFL view of things has great appeal. If you frame this in the context of just a weird process the NFL used that doesn’t have wide ranging implications, then the NFLPA viewpoint makes more sense.
It sounds like two of the judges are framing it the first way and not in the context of the whole NFL-NFLPA Collective Bargaining Agreement (CBA). That makes some sense because most judges are familiar with general labor law/arbitration and not the specifics of the NFL-NFLPA’s dealings.
So What’s Next?
Court: Given the nature of the questions, from those who were there, they are predicting a 2-1 decision for the NFL. One way or another, just as a guess, I do not see the directions of the questioning sounding like anything would be remanded back to Judge Berman for more facts or further consideration.
I don’t think there are any compelling Constitutional/split circuit reasons why the Supreme Court would take this.
Goodell: Roger Goodell said the following at his Super Bowl presser about whether he would reinstate Tom Brady’s suspension if the NFL won. Goodall responded in part, “I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
My belief is that he would reinstate the discipline if the NFL won because that would be consistent with what the NFL has done in the past.
Implications for All Fans: The attorney for the NFL basically said that though the suspension was four games, Goodell had the discretion to make it one year long suspension. Perhaps, more, who knows? If the NFL wins, it sounds like there would be nothing that would stop Goodell from deciding anything the way he wants to, even if there are specific rules that tend to govern a situation.
This will certainly be a concern in the next CBA negotiation for the NFLPA. They had concerns about this before the last CBA, but Goodell didn’t start exercising his powers in broad ways until after the last CBA was signed.
This should be a concern to fanbases who have no control over how Goodell does things but may be asked to pay for a compromised product on the field.

[Please feel free to leave legal oriented comments and questions below. Given my current schedule, I may not be able to moderate and answer them right away, but I will do my best.].

Answering Your Deflategate Legal Questions

July 30, 2015 by Steph Stradley 85 Comments

Here’s a law-focused Q&A based on the Deflategate legal questions I get from journalists and on Twitter (@StephStradley).
(Update: This was written July 30, 2015. There is a follow up post that is more focused on Tom Brady – NFL settlement issues.)
Why do you know about this stuff?
I have written about the Texans and the NFL since 2006. I’ve been a lawyer most of my adult life, clerking for large law firms, working in-house for large corporations and then on my own.
After Roger Goodell became commissioner, there was a greater reader demand for informed discussions about player discipline issues, and I’ve written on that subject many times. I’ve written extensively about Bountygate, and some of the legal filings I’ve collected relating to that will have similar arguments to the current controversy.
For those who care of such things, I am a Texans fan and definitely not a Patriots fan.
The purpose of this is to have one place I can direct people to when I get repeat questions about these things.
I also suggest reading the writing of lawyer Michael McCann at Sports Illustrated. He does a great job of quickly summarizing what is going on and trying to explain it to a broad audience. If you haven’t read it already, I suggest reading, “Deflategate: What will happen if Tom Brady, NFLPA take Deflategate suspensions to court?”
Why should fans other than Patriots fans care about this?
Legal process issues aren’t PR interesting but they are important whether you are talking about league discipline, the criminal justice system, or any other process that has a potential to harm people’s lives, jobs, reputations.
Goodell often talks about “getting this right” and the fundamental part of that should be, but isn’t, fair process.
In sum, if the league can use an unfair process in punishing both the Patriots and Tom Brady, they can do this to any team, player and fanbase. They already used a terrible process with Bountygate, but unless you were a Saints fan, you probably didn’t notice or care.
Dallas owner Jerry Jones basically concedes that possibly unfair punishments are just the cost of doing business. Because Roger Goodell has a tough job and stuff.
Doesn’t the most recent Collective Bargaining Agreement (CBA) allow Roger Goodell to be completely unfair, given his role of investigator, judge and appellate judge?
No. No. No. No. Please people stop saying that. It is a commonly held view that is often parroted by people who should know better.
The powers that the commissioner has are not new. These were in the previous CBAs. It appears as though after the CBA was finalized, Goodell has substantially increased punishments in ways that the NFLPA likely did not contemplate. The Bountygate mess is the first example of that in 2012.
That said, the NFLPA is not arguing that the CBA process is unfair but rather that the NFL failed to follow the CBA and NFL rules as they are written and understood under labor law.
Businesses and unions negotiate CBAs to have a common understanding of their business arrangements. Every single situation can’t be baked into a these agreements, so labor law fills in the blanks for when disputes happen. Labor law is a very specialized area of the law, and the labor law involving sports and the NFL is even more specialized.
To simplify, the NFLPA makes the general argument that both the fairness procedures in the CBA and NFL rules and just basic “industrial due process” weren’t followed. That is, the NFLPA didn’t have to build in a lot of detailed technical fairness procedures into the document because all union members receive these protections under CBAs. Industrial due process is that bare minimum standards of due process that are allowed all disciplined employees in arbital proceedings.
As a part of this, the NFLPA argues that the NFL failed to follow “the law of the shop.” That is, that the NFL failed to follow the custom and practice that they’ve used in the past.
Given the language in the Tom Brady final ruling, it looks like the NFL will be arguing that this is a mostly unique situation that they are entitled to judge uniquely. That courts are supposed to give final arbitration decisions great deference and should not overrule them.
This is Tom Brady’s fault. He should have just not cheated and then this wouldn’t have happened, right?
Despite all the blahblablee words in the Wells Report and the NFL rulings, two things are clear:
1. No Direct Evidence of Cheating. There is no direct evidence that Tom Brady preferred footballs deflated below the 12.5 PSI permissible levels. None.
2. Wells Report agrees with this. Even the Wells Report does not definitively say Tom Brady cheated. It concludes: “it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”
This allows for the view that the events may not have happened as the Wells Report infers.
The Wells Report contains a lot of inferences about events, and basically says three people are liars. The final NFL ruling in its essence concludes that Tom Brady lied under oath.
The Patriots’ Context Report does the lawyer’s equivalent of freaking out about the Wells Report conclusions, by putting the following in all caps: “NOT A SINGLE TEXT REFERS TO DEFLATING FOOTBALLS TO A LEVEL BELOW REGULATION, TO DEFLATING FOOTBALLS AFTER THE REFEREE’S INSPECTION, OR TO ANY DIRECTIONS FROM MR. BRADY — OR EVEN ANY BELIEF THAT TOM BRADY WOULD PREFER TO USE BELOW REGULATION FOOTBALLS.”
Assume for a second that Tom Brady and all Patriots personnel were innocent of all of this. That what happened in the game was normal ball deflation due to difference in temperatures, conditions and ball use. Assume that they did nothing wrong, and it was the initial wrong reports that encouraged the league to do an investigation.
What evidence is sufficient enough to prove that negative to the satisfaction of the NFL and Ted Wells? Testimony under oath was insufficient. Multi-hour questioning in front of many lawyers denying it was insufficient. Studies involving ball deflation and noting agreed problems with accurate ball measurements was insufficient.
I can’t fathom any type of evidence that would have been persuasive to Ted Wells and the NFL.
Did Tom Brady and Robert Kraft get bad advice from their lawyers about cooperation and sharing phone information?
I hate to second guess. When I look at these situations, I try to think of what the parties knew at the time this was going on. Not looking in retrospect.
I do this because I’ve been there. What advice should I give my client?
Often, the correct course of action is not obvious, and it is hard to anticipate what the opposition will do, particularly in unique situations.
From both the Wells Report and the Context Report, it appears as though the Patriots and Tom Brady gave ample and lengthy cooperation, and believed that they did.
And Ted Wells agreed. Mostly.
Ted Wells in his presser said that the Patriots provided him “with substantial cooperation” with one exception involving a dispute on re-interviewing a witness.
He also added that Tom Brady “answered every question I put to him. He did not refuse to answer any questions in terms of the back and forth between Mr. Brady and my team. He was totally cooperative.”
Wells added that he wanted to see the contents of Brady’s phone, and said, “Keep the phone. You and the agent, Mr. Yee, you can look at the phone. You give me documents that are responsive to this investigation and I will take your word that you have given me what’s responsive.”
You can tell from the Wells Report, there were the normal and natural disagreements about the appropriate breadth of discovery. (“Discovery” is the general term in law that refers to the information that is required or should be shared between the parties).
In civil and criminal court contexts, sometimes if these discovery disputes get heated enough, the parties go to the judge to resolve it. You don’t have that in the context of this sort of investigation. And the CBA and other documents don’t spell out what constitutes cooperation.
In my opinion, rightfully, Tom Brady declined to offer the contents of his private phone. It appears he was advised by his agent/attorney to do so, and in the union context, it is peculiar to even ask for all electronic communications from private devices.
It appears as though Brady was upholding his union rights pursuant to counsel advice, and frankly given the NFL’s track record of PR-oriented leaks, I think from a privacy perspective that is wise. In addition, the NFL had immediate access to the non-union equipment personnels’ phones, and any texts with Brady could be found on there and were. Brady’s attorney explains here about the phone and discovery dispute.
I do not think the attorneys anticipated that any part of the punishment would be for a lawyer discovery dispute, one where the law likely favors their position.
The NFLPA in its filing to vacate the ruling focuses greatly on the lack of notice of many things:
1. That the NFL was going to use a “general awareness” of alleged misconduct of others as a basis for punishment.
2. That suspensions were even possible given that the player policy only mentions fines.
3. That they were subjecting Brady to the Competitive Integrity Policy, that applies to clubs not players.
4. That they intended to suspend Brady for non-cooperation when a fine is the only penalty that has ever been upheld, even if non-cooperation were true.
In sum, the Wells Report is peculiar. Hard to anticipate what Wells was going to think were Big Fat Deals in forming his opinion.
That happens a lot in legal situations. You think the fact finder is interested in one thing, argue that, and then they rule on something completely different that you didn’t anticipate.
What isn’t common is to not know what rule you are accused of violating, what the standard of knowledge is, and what the punishment range is for that offense.
I think at the time they were trying to cooperate, Brady and the Patriots had no idea that the conclusion of the report would be a collection of random adverse inferences suspendered with a non-cooperation claim.
I don’t know. Brady destroying his phone looks really bad for him.
Perhaps from a PR perspective. Looks like more of a “bright shiny object” distraction or sort of a “skunk in the jury box” of public opinion.
It’s odd that the NFL is basing any of their disciplinary ruling on this given that at the time of the Wells Report, Ted Wells said he never was interested in the physical phone. And that he was willing to take Brady and Yee’s word about whether there were responsive documents contained in it.
As far as bright shiny object topics go, it is worth noting that Roger Goodell did not provide his private phone in the Mueller investigation. [pg 7, pg 47]
Brady would likely lose his case on the doctrine of “spoliation of evidence,” yes?
I am aware of this article claiming that getting rid of the cell phone was spoliation of evidence. I disagree with it.
First of all, Wells said he didn’t want the phone and was okay with representations that there was no relevant information on the phone. Doesn’t sound like a big deal. Doesn’t seem at that time that after all that cooperation, the content of a private phone that Wells was not legally entitled to have would have been the key to most of the case against him.
The focus of the future litigation is likely going to be on process not so much the fact details. Part of process is reasonable notice of the issues and a neutral arbitration.
Was Brady made aware that the phone contents were going to be made a big part of a significant punishment? Would he have been required to maintain his computer data? Process issues.
The NFL has a history of trying to move the goal line on why the players are being punished.
This isn’t a civil or criminal claim. It is an investigation with very few boundaries other than labor law ones.
The evidence isn’t *spoiled* anyway because they have the texts already and were offered an easy way to get texts from team sources if the NFL chose to.
How could Robert Kraft trust the system when other players and teams have got hosed by it before?
For the same reason that most people love tough-on-crime legislation until they get accused of something and find the meat grinder of a system to be unfair.
People notice things that affect themselves more than things that affect others.
Anytime that there is league discipline, one fanbase tends to see all the unfairness with the system, and the other 31 laugh and point. There were significant problems with the Bullygate and Bountygate investigations, but unless you are a part of the Dolphin or Saint fanbases, you likely didn’t notice them. Who is going to stick up for Richie Incognito on anything? Nobody is pro-bounties. Unless you have a reason to notice the problems with process, you likely have no idea.
Important thought here: You want fair process in the world. Even relating to people or causes or actions you hate. This isn’t a novel concept, but it is often kicked aside for expediency reasons.
Read this Drew Brees quote about the Bountygate process. Change the names and you could use it for Deflategate easily.
Why didn’t Robert Kraft file suit?
Part of it was his stated belief that he trusted the appeals system. I think another part of it is that the team’s legal options aren’t particularly good. The league is set up this way on purpose so that teams don’t file suit every time they disagree with the commissioner.
Brady has better legal options due to his union rights.
Kraft already fought it more than most teams. The Saints cooperated, the owner didn’t publicly criticize the process, partially with the belief that they were going to get their 2nd round pick back, but for reasons Goodell did not explain, that didn’t happen.
The Patriots cooperated, but that cooperation was deemed not enough, and they were basically punished for a minor (imo) discovery dispute.
Basically, when you are on the wrong side of the commissioner’s office, I am not sure what you are supposed to advise your client because all of the options are terrible.
Goodell claims he wants to know more information, so the Patriots put together a “Wells Report In Context” website. They didn’t call it a rebuttal but that was exactly what it was. Why did they phrase it that way?
Because history shows the commissioner doesn’t like anyone questioning his view of events despite what he says to the contrary. He is inclined not to believe any words that come out of anyone’s mouth, whether it is Sean Payton or Tom Brady or whoever.
And if teams or players do not show contrition and admit guilt, he tends to punish them more, even when they maintain their innocence.
Pretty much everything in the Wells Report in Context was ignored or explained away by the league office.
But the Patriots team punishments were a total screw job, yes?
Yep.
Wells says that there is no evidence that the team or the head coach knew anything about this. The NFL did not warn the Patriots about this because they didn’t take the complaint seriously.
The NFL had no protocols in place for measuring footballs, and never had made it a big deal.
Wells said that the Patriots cooperated fully, with the exception of Wells wanting to re-interview one part-time, non-local employee.
The alleged offense, altered footballs, is supposed to be a $25,000 fine.
That said, I wish I had a dollar for every time I had to explain to a client that their situation is completely unfair but that they have no good legal options.
So, who will win in any Deflategate legal action?
The definite answer is the lawyers.
Once things go to the court system, the parties lose a lot of control. Control over timing. Control over outcome.
Judges are not robots, and from court to court, case to case, they can rule differently.
I don’t think that this was a neutral and fair process based on the information that has been provided publicly. But I also know that courts are reluctant to overturn these types of decisions.
What’s up with the NY Federal judge asking the parties to resolve this?
Generally courts will fight hard for the parties to resolve it between themselves.
What is unusual about this case is that the judge said it emphatically and right away.
A settlement has significant challenges because it is hard to walk back Brady’s punishment without acknowledging the problems with their investigation. It is further complicated by the Patriots receiving such ample, fan-punishing penalties.
Settling with Brady but keeping the penalties for the Patriots with less culpability is hard to do.
That Robert Kraft historically was seen as having a favored status with Roger Goodell complicates this as well. Goodell either looks like he is favoring Kraft or is over-compensatingly tough to battle the perception from some that he is Kraft’s puppet-boy.
How fast will Deflategate get resolved?
Often in lawsuit situations, I’ve counseled clients, “We will grow old together.”
Generally, legal proceedings tend to go slowly. Whether that benefits or hurts a client differs from case to case.
For the NFL, they have little downside going to court. They have treasure baths full of money, and their legal strategies seem to be without regard to any monetary restrictions. (I worked as in-house counsel for large oil companies. They have treasure bath piles of money too. Unlike the NFL, they preferred not to spend their money on over-lawyered investigations and easily avoidable lawsuits. Minor example: I can’t imagine paying for four outside counsel attorneys to attend investigation interviews).
If the NFL gets a ruling against them, they will always try to distinguish it from the next case.
There is no downside to Roger Goodell if he loses. He gets paid. He doesn’t get suspended. One fanbase is mad at him. The rest either don’t care or are happy. For those who say Goodell cares about his legacy, well, you don’t pay for your Maine vacation home etc with legacy.
For the player, and more specifically, Tom Brady, the downside of going to court is mostly this timing issue. Quarterback is the most important position on the field, and being without a star quarterback has a huge effect on the team, their fans, on fantasy football, on betting. It is uncertain when Brady will retire, and a quarter of a season of games is likely a significant percentage of his remaining games.
If he gets in an injunction that allows him to play pending a court resolution, he cannot be certain when the injunction will be lifted. (To me, this has greater “integrity of the game” implications than unknown quantities of maybe ball deflation).
It would be interesting to see whether Brady’s lawyers argue that due to the unique nature of his position, any injunction should not be lifted at any time during the season. There are reports that the NFL used delaying tactics with the timing of their rulings. I don’t think this filing is likely; I’m just wondering out loud.
Will Tom Brady get an injunction that allows him to play pending court resolution?
I think so. Generally, injunctive relief in this sort of situation is not automatic. He would have to argue that he would “likely be able to prevail on the case on the merits” and be “irreparably harmed” by not being allowed to play.
I think he would be, but a judge has to agree with that. It is a fairly high standard, but courts have done that in the past.
He could choose to take the punishment early in the season and then let the court system resolve the claims, but if he wins, he will never get those games back.
Just guessing, I think that the parties may slow play this process and try to let it linger until after the season. That approach isn’t without risk, but it isn’t like there is one great solution to this.
Given the complexity of the issues involved, the public interest, and the quantity of documents involved, I think a quick resolution, even if it were desired, wouldn’t be likely.
But who knows? Once you go to court, you lose a lot of control.
What do you think about the NFLPA’s filing?
Because I likely need more hobbies, I enjoy reading both the NFL and the NFLPA filings on various matters.
Why? They are usually very well written. This is what happens when lawyers know their subject matter very well and have huge piles of money to spend on putting their documents together.
I appreciate the legal art of them.
I think the NFLPA filing is very good, and it is a vintage Jeffrey Kessler filing. I think there is a very good, succinct summary of it on the NFLPA news page.
Some more specific thoughts:
Used league personnel quotes against them. Throughout the filing, there are quotes that Kessler acquired in other recent cases that he surely knew would help him in future cases. Things that he wanted to get league officials to say for the record on issues of fairness.
For example, on page 18 of the NFLPA’s petition, they note: “Goodell testified in Rice that he could not retroactively discipline Rice under the NFL’s new Personal Conduct Policy because the NFL is ‘required to give proper notification‘ of player discipline.”
Kessler liked that quote from Goodell enough he gave it an “emphasis added” bold and italics. In this context, this is the lawyerly way of saying, “boom roasted.”
It is interesting to see the rhetorical shift from the filings in Bountygate to Deflategate. There is a much greater focus on fair notice issues. (Though that was also in issue in that case, and something former Commissioner Paul Tagliabue seemed concerned about in his final disposition of that).
One of the reasons perhaps? The findings in the Ray Rice and Adrian Peterson cases. From former U.S. District Court Judge Barbara Jones in the Ray Rice matter (NFLPA petition pg 17): “Commissioner Goodell acknowledged what the NFL has repeatedly stated in these proceedings: that the Commissioner needed to be fair and consistent in his imposition of discipline.”
Lack of independence of the Wells Report. The NFLPA filing reveals for the first time the extent of how not independent the Wells Report was despite the NFL’s public assurances that it was. That it was written from an advocacy perspective and not independence was obvious to me when reading the report initially. Almost cartoonishly so with some of the inferences it made.
We knew the Wells Report was paid for by the NFL, and that the law firm used was a regularly used one by the NFL.
What we learn in the NFLPA filing is that the NFL General Counsel had final approval of the draft. That the NFL was treating a lot of the communications related to it as privileged information. And how much of the investigative files the NFL failed to provide Tom Brady so that he had a fair chance to challenge it on appeal.
One of the people who authored the Wells Report was also the same person who cross-examined Brady at his arbitration hearing, even though his personal work with the Wells Report was one of the key issues at the hearing.
Do you think Tom Brady will file a defamation claim?
I think after the Vilma defamation claim, Roger Goodell has been a little more careful with how he discusses the nature of Deflategate publicly. That said, I’m not the legal minion that has been collecting statements that may go beyond what the Wells Report says.
Defamation is hard for public figures to prove but if you want to see a roadmap of how Saints linebacker Jonathan Vilma did it, here’s Vilma v. NFL. If you want to see how the NFL would likely defend such an action, here is the 12(B)(6) Motion to Dismiss.
The NFL filed a suit for declaratory relief in New York Federal Court. What is that about?
Judges are not robots and sometimes parties “forum shop” to try get the most advantageous ruling. This is an aggressive legal maneuver by the NFL that obviously angered Robert Kraft.
Here is a copy of the Action to Uphold Arbitration Award in the South District of New York.
How did a cheating allegations about ball inflation turn into a multi-million dollar, dragged out investigation and suspension?
Good question. In most sports, including the NFL, allegations of equipment violations lead to very minor discipline and/or fines. In the past, the NFL has warned teams against such violations and have fined teams.
Relating to Deflategate, NFL’s game operations manual states: “Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000.”
Goodell’s lawyers, in his final ruling distinguish this situation from past discipline because he claims that what they believe the Patriots’ personnel did was intentional (pg 15).
I believe the operations manual assumes intent with ball alteration, but does say, “including but not limited to” so….I got nuthin. I don’t know what the NFL is thinking, really.
The NFLPA in their filing contends that the relevant punishments for players for any type of equipment violations are fines not suspensions for actual equipment tampering. Doesn’t say anything about maybe general knowledge of team personnel’s tampering.
Perhaps. But why the multi-million dollar outside investigation given other intentional acts by other teams?
I think the answer is twofold:
1. No Consistent Procedures. The NFL does not have consistent procedures for treating allegations of cheating. Sometimes if they get a complaint, they warn the teams. Sometimes they don’t. Professional golf gives this sort of protocol a lot of attention in their rules. The NFL obviously doesn’t.
Ted Wells in his conference call with media said, “[N]o one at the league office took the complaint seriously. They took the complaint via email to the operations people so they knew about it. They told the refs. Walt Anderson thought it was just a normal complaint. You get these types of things all the time. Nobody paid that much attention to it.”
2. Reactive Investigations. As far as I can tell, whether the NFL obtains outside counsel to investigate something or not is dependent on how much outrage there is on the subject, particularly from owners, politicians, or advertisers. There was substantial outrage about Deflategate because the initial leaks about the extent of ball deflation were wrong and not immediately corrected.
Had the original reports been correct, I might not need to write this now.
I think a lot of this circles back to the criticism that the NFL and Roger Goodell received about Spygate. At that point, the Spygate penalties were the harshest sanctions against any team. The investigation was done relatively swiftly and internally, and the Spygate tapes were ultimately destroyed.
The main public figure complaining about the lack of transparency in the Spygate investigation was the late Arlen Specter. He was an Eagles fan and whose campaign got substantial financial support from Comcast. This cable company did not like the exclusive relationship that the NFL had with DirecTV about Sunday Ticket. He called for an independent investigation of Spygate for the integrity of the game. For more reading on this subject, check out this ESPN report from 2008.
Ultimately, this quick, quiet resolution made many people angry.
Non-Patriots fans were angry because they thought the Patriots’ success was based on cheating, the NFL hid this cheating by destroying the tapes, and thought Goodell did Robert Kraft a favor.
Patriots fans were angry because of the unprecedented punishment. Some reports suggested that the strategic benefit of the tapes was overblown, multiple teams did similar things, former Patriots employee Matt Walsh oversold his involvement, and that the reports of taping the Rams walk thru before the Super Bowl were later admitted to be incorrect.
Fans wanted outside investigations. What is wrong with that?
The over-reaction to the Spygate criticism resulted in the NFL randomly and based on perceived outrage creating so-called “independent investigations.”
The good news is that the process is more transparent. The bad news is that the way the investigations are structured isn’t independent and isn’t well suited to get to the actual truth.
Pretty much every investigation has resulted in the participants believing that it wasn’t balanced and was written in a prosecutorial way.
Why? Any investigation is difficult to get right even if intended to be balanced and fair. People have differing recollections. Participants are distrustful of the process. Lawyer questioning can be intimidating and isn’t the best for the full and free flow of information. The lawyers involved likely have more knowledge of the law and less of the day-to-day of football.
The way the process has evolved is that the investigation of players actions is also acting as a judge for the NFL. Given that often player discipline becomes a NFL v NFLPA fight, the paid-by-the-NFL, reviewed-by-the-NFL-general counsel investigation appears to be written in a way to try to protect it from a legal challenge versus a balanced, dispassionate recitation of known facts.
Where can we find your previous writing on Deflategate?
Should Tom Brady Sue the NFL and Roger Goodell? A Deflategate Email Exchange. May 2015, Above The Law Blog. Wide ranging discussion of Ted Wells report, the Patriots Context Report, issues with process, next steps.
No 2. Roger Goodell is the Billionaire’s Captain. July 2015, MMQB. Sports Illustrated did The MMQB 100 of the most influential people in the NFL. They asked me to say a few words about what I thought about Goodell’s performance. I think it is spot on, and it wasn’t very complimentary. To be clear, it pains me to criticize the work of others. I really like to give people the benefit of the doubt but I just can’t with him any more. I wish I didn’t feel this way.
Storify: You are guilty. Here’s your punishment. May 2015. A Twitter thought experiment of how difficult it is to prove a negative in an environment of arbitrary process.
Executive Summary of the Wed Tells Report on Deflategate 2: Are The Colts Big Cheaters? May 2015, Battle Red Blog, SBNation Fanpost. Put that there as a bit of a goof to illustrate why fair process should be a concern to all fanbases, not just the Patriots, or the Saints or whoever the busted team du jour is.
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Have any additional questions, comments? Put them below.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Deflategate legal questions of a more or less detailed nature than above, please let me know. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.
(Please note. This is my blog, it has my name on it, so I have rules. For those who don’t know, I approve each comment individually and will approve most stuff unless it is abusive or spam. Unlike some places on the web, I strongly prefer for people to attack arguments and NOT people. What that means is that I do not want any personal attacks against people you dislike or other commenters. Avoiding personal attacks make the comments helpful to others’ understanding and doesn’t derail conversation into middle school neener neener stuff. This is a forum to create reasoned commentary and questions on the legal issues and not for trash talk because there are many other places on the web for that, and I do not want to facilitate it. In addition, since the issues right now are mostly ones of process and law, I am not interested in this being a forum for discussing the detailed facts unless they have some relevance to the process issues which are the main ones relevant in the on-going court case. Think of this as fair notice. Thank you kindly for your cooperation.)

What is Sensible Discipline for NFL Player Misconduct?

September 16, 2014 by Steph Stradley Leave a Comment

Understatement to say that the NFL and its teams are struggling to fashion appropriate discipline for allegations of NFL player misconduct. As I’ve written before, these problems were completely foreseeable when sports leagues take a bigger role in extra-judicial punishments. And sell to the public that it is appropriate for them to do so.
Everybody has an opinion on this, and I will share mine. I have a unique perspective as I’ve worked for large companies as an in-house lawyer, dealing with crisis management and employment law among other issues. In addition, I’ve worked with my husband who is a former assistant district attorney and currently practices criminal defense. And I’ve written professionally about the NFL since 2006, including changes over time to the personal conduct policy.
The short answer? I can’t think of a fair, sensible way to satisfy the people angry at player misconduct. The NFL as a sports league aren’t experts at criminal justice, and even governments have a difficult time dispensing fair, just results.
So instead of pretending I have all the answers, I will float some thoughts I think are relevant to the discussion of trying to create such a policy.
Factors in looking a NFL player misconduct discipline:
1. What is the purpose of league punishment? The league and the public believes that playing in the NFL is a privilege and the standard should be higher than the law.
But what does that even mean? At what point is NFL punishment sufficient to “fix” things? I don’t think this question has been asked much.
Suspension of two games, six games, a zero-tolerance life time ban?
Is the purpose of punishment deterrence? Given that they’ve had variations of a personal conduct policy for a long time and there continues to be issues, I don’t think that the conduct policy is deterrent. Human beings often make choices that are self-destructive and not in their best interests. All it takes for this to happen once, and it is life transforming. Typically, most of the cases my husband sees are people who see themselves as law abiding citizens who have never been in trouble with the law before.
Is the purpose of punishment PR? I’ve written before that the NFL voluntarily taking on a larger role in ad hoc player discipline has actually put a greater spot light on player bad acts, by creating a CourtTV commentary industry speculating on what are fair punishments for bad acts.
Is the purpose of punishment to assuage angry people? Not sure how much punishment helps that. No matter what the league assesses, it will be too much or too little depending on who is looking at the situation.
Is the purpose of punishment helping victims? The punishment that Ray Rice received is not seen as a positive by his wife. Harsh additional league punishment of Adrian Peterson likely does not make his childrens’ lives better. If accepting a plea leads to harsh league punishment, a player may choose to go to trial versus accepting a plea, even if the trial process will be extremely painful for the victim to relive.
If the NFL comes down harsh on players, will some victims avoid seeking help because they are afraid of draconian consequences? In fact, sometimes in the criminal justice system, punishments are tailored to help the victims of crimes. For example, allowing an offender to serve jail time on weekends to preserve a job and income to pay for restitution. (Not an issue for marque players but likely an issue for some others).
For those who suggest zero-tolerance punishments, I guess my question is this:
Should all offenders be considered beyond redemption? That if someone commits a crime, should they forever be considered beyond the help of therapy or forgiveness or whatever you want to call it and forever unemployable? Maybe there are some truly evil people beyond help, but I think a blanket rejection of rehabilitation can be a counterproductive thing for our society to embrace.
I don’t have answers to this. I don’t think as a society we think of these issues very well for our criminal justice system. Ultimately, punishments keep ratcheting up despite costs because it is politically popular to be “tough on crime.”
2. NFL careers are very short and competitive. Even short suspensions can have a big affect on a player’s career path.
3. The legal process is slow. It is rare for a legal case to go away quickly. Sometimes it can happen, but the majority of cases do not come to a final disposition for a long time. This sometimes makes people angry to have to wait for that process to be over before discipline is effectuated. If you want to punish players up through the time they are found innocent, you are actually punishing them because the legal system is slow.
4. Problems with disciplining by act versus looking at other factors. In the criminal justice system, there are many factors that are looked at when assessing punishment, not just the crime itself. There is some discussion of a one-size-fits all approach to all NFL domestic violence situations. Things that are looked at in the criminal justice system often involve victim impact and statements, remorse of the defendant, exact nature of crime, whether someone is a first time offender, whether they have done positive things for the community, etc. Those are things that fair people look at for fair results but I’m not sure that fairness comes into play with sports league sanctions.
5. Competition issues. There’s some discussion that the NFL went easier on Ray Rice at first because they were trying to get him back on the field to benefit the Ravens. I don’t believe that. I believe the original media reports that the commissioner listened to the “impassioned plea” of Janay Rice and believed the couple was trying to get help.
In any event, currently the NFL commissioner is the judge, jury, appeals court in discipline issues. Fans (or maybe teams) may think that the commissioner favors one team over another based on case-by-case discipline. But if there is a one-size-fits all approach, the league runs the risk of punishing all players the same, even in very dissimilar situations.
6. The perils of disciplining based on arrests and not final disposition. As I’ve written before, there’s significant fairness issues with the NFL disciplining players based on just arrests and not convictions. These are not technically-speaking “due process” issues like what the government needs to provide, but the concept is similar. NFL teams are only constricted by the terms of their collectively bargained arrangement with players, but can cut players any time they want and take the contract and salary cap consequences.
For private employers, there can be significant problems firing employees based on just arrests which is an involved topic far beyond the scope of this.
But in terms of fairness, and specifically as it relates to the NFL, disciplining based on arrests can be problematic.
Wrongful arrests happen all the time. Scare you to your bones kind of situations. You often don’t hear about them because sometimes the lawyers are able to make those go away in a sensible way.
Police officers have a difficult job because they have to sort out strangers’ tense situations in a quick manner and from their perceptions. It is not uncommon for wrongful arrests to happen for potentially racial reasons.
In addition, any time you are dealing with high-income, high profile individuals and high stakes, there are always concerns about extortion and individuals looking to profit. That is what Dallas Cowboys owner Jerry Jones is claiming in his sexual assault civil matter.
What I know is this. Rarely do public reports of high profile legal matters have a complete reporting of the facts. Part of that is the nature of legal matters, which often have confidentiality complications.
Ethically, there are limits on what lawyers are supposed to say publicly in criminal matters. In high profile cases, there are sometimes people who are incentivized, for whatever reasons, to release one side of a situation.
I don’t know what the answers to these issues are but because of what I’ve seen, I’d be very reluctant for a league to embrace a policy that punishes players just on the basis of arrests except for very extreme circumstances.
7. The NFL has a CBA that limits (or should limit) some of their options. Employers who deal with unions have agreements that govern the terms of employment. In the NFL, the players collectively bargained these terms. There are significant antitrust questions if the NFL tries to unilaterally change the terms of the NFL conduct policy. In addition, as I understand it, there are restrictions on the use of extended deactivation of a player.
8. Be careful letting crisis dictate policy. When bad situations happen, companies and governments tend to cobble together policies to deal with that particular situation. Very reactive.
But when you make a policy, you need to think of all the future situations, and not just the ones in front of you. Being over-reactive can lead to unintended consequences and unfair results.
And once a league or a government takes what is perceived as a tough stance, it is hard for them to relax it later for fairness reasons because that can be seen as soft.
9. Shame is also punishment. Punishment happens even without criminal convictions. The process of dealing with the legal system is harsh and expensive. And for high-profile players accused of crimes, they have to go through the rest of their lives with the stigma of their accusation. Whatever the criminal justice system does or leagues do, harshly or not, that will always remain. They have to live with the worst moments of their lives and know that everyone they deal with knows about it. Not saying you need to feel sorry for that, but I am just saying that is also a significant and lasting component of punishment.
Conclusion:
So, I don’t think there are any easy answers to NFL player misconduct issues. Anyone that suggests there are easy answers likely doesn’t know what they don’t know.
Maybe they will bring in former NFL commissioner Paul Tagliabue to clean up this mess too, like he did with Bountygate.
I am not jealous of the league and teams trying to figure this out. You can already see that they feel very uncomfortable handling it, as most employers would. They are football people and not reformers of social policy.
What is lost in this discussion is that the vast majority of NFL players are a lot more disciplined in their twenties and thirties than most people are at any age. And that, demographically, they commit fewer crimes than non-players their ages and certainly do more charitable acts.
The American legal system is certainly not perfect, but I trust them to do the right thing more than league PR reactions to mob snap judgments. The league struggles enough with fairly enforcing rule violations on the playing field.

Steph Stradley