Personal Conduct Policy

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.

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.

Why the New Orleans Saints Bounty Penalties are Too Harsh

March 27, 2012 by Steph Stradley 1 Comment

I can’t say I am a fan of the NFL-enacted penalties against the New Orleans Saints for bounties and the cover-up of the bounty program. Though much has been said and written about this, nothing really captures my fan-focused thinking. Here’s some thoughts:
1. Bounties are bad. I’m not defending bounties, or that it is a good idea to lie or cover up things to the NFL Commissioner’s office. Just getting that thought out of the way.
2. What is the purpose of NFL punishment? The NFL, unlike the legal system, doesn’t have a set of penalties for different offenses. They are just making things up as they go along.
In this matter, the NFL enacted by far the harshest penalty they have done to any team (details of findings and penalties from NFL.com): Suspending Gregg Williams indefinitely (presumably a harm to the Rams if you like him as a defensive coordinator), suspending Sean Payton for the season (costing roughly a reported $5.8 to $7 million in salary), suspending GM Mickey Loomis for the first 8 games, assistant coach Joe Vitt for first 6 games, losing a 2nd rd pick this year and next, and a $500,000 fine for the team, and penalties of unknown severity to various players, some of whom may have already fined for player hits.
These harsh penalties should be a concern whether you are a Saints fan or not. If the NFL commissioner can do this to the Saints, he can do this to any team (and their fans). From the looks of it, the purpose of punishment for the NFL looks to be vengeance not deterrence: Anger about not changing the bounty program in 2009 after a warning, and covering up the extent and duration of the bounty programs.
Certainly, the aim of the NFL’s punishment isn’t just deterrence. You could do punishment that is less of half as bad as the currently enacted one along with the public shaming, and it would make sure that the “culture of bounties” and cover-ups ended once and for all. If you don’t believe me, how much of your salary taken away would deter you or others from bad actions?
3. Arbitrary, strong punishments bad for fans. The problem with vengeance instead of deterrence apparently being the model for NFL punishments is that it hurts NFL fans. Saints fans had nothing to do with the bounty program or cover-up.
I know what it is like to pay large quantities of money to watch bad football (paid to watch the David Carr Texans from day 1 of franchise), and I only pay for one ticket and a parking pass. Plenty of fans pay a ton more. Maybe the Saints can overcome these penalties, but I don’t think Goodell remembers what it is like to write a big, fat, painful check to watch bad football. It’s Saints fans that are paying to eradicate the wide spread practice of bounties, and the vengeance over the cover-up. And they aren’t at fault.
Who advocates for fan interests? It isn’t the NFL. Saints fans weren’t mentioned once in the NFL discussion of the penalties.
4. The investigation process and appeal. So what if Sean Payton thinks the punishment is too harsh or believes the NFL investigation was not as “conclusive” as the NFL says it was? The appeal goes to the Commissioner. How do you say that the punishment and investigation sucked to the guy who did the punishment and investigation?
“Delicately” isn’t delicate enough of a word.
I’ve been involved with in-house corporate investigations. I’ve tried cases. And what I’ve learned is that the result of investigations and litigation is never the God’s-eye, one-truth of a situation. It’s an approximation. Some approximations are better than others. The best version of truth you can find given the differing memories, interests of different people.
Sean Payton in his brief recent statement about the penalties says that he does not believe he lied to the NFL Commissioner in his two trips to see him. It is quite possible that Goodell thinks he did, and Payton thinks he didn’t. But given that Goodell is the judge, jury and appeals court, it’s not likely that Payton’s view matters.
It’s hard to investigate anything when people are afraid of the results of the investigation. This is especially true when punishments are just made up on the fly. Like investigations using torture, you sometimes end up hearing what people think you want to hear. Or people who have knowledge lay low and try not to get involved.
And this situation isn’t done. To approximate justice, the NFL is continuing to investigate individual player penalties and possible other team involvement in bounties. I can’t say I am a big fan of the grandstanding, league commissioner as sheriff model. Never have been. (See this old blog post from 2009).
Today the Saints, tomorrow…?

Steph Stradley