Roger Goodell

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.

FAQs: Deflategate Second Circuit Rehearing Request

May 23, 2016 by Steph Stradley 10 Comments

Want to know more about Tom Brady and the NFLPA’s request for a Deflategate Second Circuit rehearing? You can find the Deflategate Brady En Banc Petition here if you wish to see what is said versus a summarized form. It also contains an appendix that has the Brady Second Circuit opinion.
When I get a lot of questions on social media about a topic, it is best to put them in a blog post so I don’t have to repeat myself. Here are some of the repeated questions:
What do you think of the Tom Brady – NFLPA’s petition?
Well written, of course. Is what you would expect from a Ted Olson filing.
What this filing does well is to explain why Tom Brady’s position is legally right, right from a public policy perspective, and also why he is in the right.
Brady being “in the right” is also known in the law as the “equities” of the situation. In this situation, it is the question, “Did Brady do anything wrong?”
Was that supposed to be the question on appeal? No. Is it something that seemed to trouble the Second Circuit in its majority opinion? Yes.
It is an art to subtly talk about something that isn’t supposed to be of legal significance, but certainly is a part of a larger argument about why you are legally right and from a public policy perspective also right. (Read the Rule 35 (B) Statement on the first page of Olson’s filing. Effective recitation of key facts that are relevant to why the majority opinion is wrong).
From my view, the NFL didn’t do a good job of that in front of District Court Judge Berman but did a better job of that with Paul Clement’s filing to the Second Circuit.
Ultimately, the battle is now: “Is the majority opinion bad/inconsistent with labor and arbitration jurisprudence?” Clement made that argument better in the first Second Circuit argument, but I think the NFLPA’s best argument on this is better. If it gets heard in a rehearing, which it may not.
What are Tom Brady’s chances of winning?
This case is difficult to handicap. Typically, requesting a rehearing or a rehearing en banc is the longest of long shots. But looking at previous cases to determine this case’s trajectory has mostly been a futile exercise.
This case’s journey through the federal courts is weird. Rollercoaster results of whether Tom Brady will play or not play 4 games. Labor winning an arbitration case at all. District court ruling overturned. High profile litigants. Huge public interest. Superstar appellate attorneys. Limited specific case law as it relates to the NFL’s power grab uses of CBA since 2011.
The topic is likely the dumbest in federal court history: Deflation of footballs that didn’t effect the result of a game. However, now this is recast as what are the powers of arbiters, and labor arbiters specifically, even ones with great powers.
Is the NFLPA’s argument too little, too late?
When the NFL hired Paul Clement to make their argument in front of the Second Circuit, the NFLPA probably should have matched with their own specialist. I didn’t find the briefing of either party to be particularly persuasive, but the NFLPA briefing was probably the worst I’ve seen from them. And it was clear that Jeffrey Kessler was surprised by the fact-oriented tone of the Second Circuit questioning.
(To be fair, the facts of this matter are muddled and confusing to those who even have a great familiarity with them, and often the side of the case that is easier to explain can be more persuasive with limited time).
That said, I think the majority opinion is wrong, and bad for the players, game, fans, and arbitration participants, and the Olson filing explains why generally.
In some ways, I think the majority opinion misstates the factual record to justify their own interpretation of what the CBA means versus what the parties agreed to when they entered into it. The idea that if the NFLPA wanted to limit the Commissioner’s authority, they could have done it. Well yes, yes they could, but nobody could have anticipated the bizarre process and decision making the NFL used and that they would ignore the rules they already have in place and have followed for years.
This is well summarized by Twitter user @Ugarles as:
“distinction between ‘we agreed Goodell could hear appeal’ and ‘on appeal, Goodell can do anything’.”
I think the Olson filing does a nice suscinct job of factually describing how peculiar the NFL’s actions were in handling this discipline issue.
Being able to persuade judges that it is enough for a rehearing is tough however. Judges don’t want to waste judicial resources by rehearing something already heard. That said, judges also don’t want to create labor chaos by a ruling that is bad for arbiters and labor. Olson’s position is that if an arbiter can make up new reasons for punishment on appeal that would create chaos generally.
I’d like to see these positions more fully briefed and argued. Between two powerhouse appellate lawyers. Perhaps the judges will too.
(Updated questions on amicus briefs, May 25, 2016)
What is an amicus brief? Does the court have to consider them? Have the Patriots “joined” the lawsuit?
An amicus curiae brief means “friend of the court.” It comes from someone who is not a party but has relevant, hopefully useful information to give the court. They are usually offered to the court when a decision doesn’t just effect the parties involved with the dispute but may have larger implications to the law.
They are of varying helpfulness depending on what is important to a particular judge and how they are written. How much the court considers them is very individual to the judges. In cases of great interest, some typically are trash, some are good.
I’ve seen some questions based on early news reports about whether the Patriots amicus brief means that the Patriots have “joined” Brady’s appeal. Technically no. They are not becoming a technically a party to the lawsuit even though Brady is their player, and they are a part of the NFL. It is pretty weird though given their relationship to the parties.
I know some fans were disappointed that the Patriots didn’t sue the NFL. That as an option was never ideal. Even offering this amicus brief is a pretty aggressive move given what latitude Roger Goodell has in making up punishments based on how he feels about things.
What do you think of the physics professors’ amicus brief? The Patriots’ brief?
You can read the Physics Professors’ amicus brief here. You can read the Patriots’ amicus brief here.
I think it goes to the equity issue I discussed before. Judges are human beings, and humans tend to prefer not letting people getting away with bad acts under the cover of legal standards. Lawyers and scientists tend to be more disturbed by the Exponent Report being a basis for the punishment because: 1. Junk science is not admissible in courts; 2. Scientists don’t like stuff being called science that is not real science and is total BS and wrong.
Imagine that.
That said, the science hasn’t been a huge part of the appellate record because of the weird history of the litigation. Judge Berman at the District Court level focused on some more narrow, appellate issues, and ruled in the manner that ends up not sending the case back to the arbiter. How? If Brady didn’t have proper notice, that is not something that is curable after the fact.
The Patriots brief is more focused on the specific facts that the headlines in this case often got incorrect if you didn’t carefully review the record.
Usually, facts are not a big deal this far into the appellate process. However….
The most jaw-dropping moment at the Brady appeal hearing was Judge Denny Chin asking the following to NFLPA’s Jeffrey Kessler: “When you read all the evidence, the text messages, the evidence of the ball tampering was compelling if not overwhelming…So how do we as appellate judges second-guess the four-game suspension?”
Wait, what?
Anyone very familiar with the factual record would know this is bizarre. And no one anticipated the court would veer in this very fact based direction as a part of the appellate argument.
(Though notably, the NFL’s brief in front of the appeals court did a better job trying to sway the court on the facts than the NFLPA brief did as just a way of saying that they are not just legally in the right, but actually right. As the Patriots’ amicus brief notes, some of those “facts” seemed to be ~~lies~~ mistatements of the record. The majority opinion recitation of the facts contains a number of inaccuracies, though those alone aren’t enough to grant a rehearing).
There really wasn’t an opportunity for Brady to refute in writing or verbally a great deal of this evidence due to how the process worked. Or didn’t work, more accurately.
The Wells Report was not a format to do that. The appeal transcript does it to a limited degree, but there was a short time limit to deal with both factual issues and technical science issues. Then the appeal ruling brings up new issues, that are completely refutable, but when the case goes to the appellate level after an arbitration is concluded, only certain factual issues are relevant to the standard on appeal.
The majority opinion bakes in a lot of “facts” in their ruling but I think, in part, what the amicus briefs are trying to do is demonstrate why the lack of notice and the changing of grounds against Brady at different levels truly matters and isn’t just lawyer tap dancing.
The facts from the amicus brief illustrate the challenges Brady faced in trying to defend himself. That the process issues that Brady is appealing are not hypertechnical but rather basic things essential for an arbitration and are a part of the CBA. That this is not the deal that the NFL or NFLPA struck, and it is not how arbitrations appeals should happen between labor and management anywhere.
For more information specific to the CBA and the NFLPA’s position that they want the NFL to follow the CBA, rules, and the fairness baked into it under labor law, I suggest visiting this post I wrote in July 2015 called “Answering Your Deflategate Legal Questions.”
Should we expect more amicus briefs?
Perhaps. High profile matters often get them. Now the factual reasons that support the Brady position have been offered to the court, it would not be surprising to hear from labor organizations. Brady would likely welcome that sort of good filing to demonstrate that this isn’t just a specific weird NFL CBA issue but rather something that has larger implications as it would create chaos and uncertainty in arbital proceedings.
It would be interesting if there were big business amicus briefs in support of the NFL position. I’m not sure it is in their interest given the “Pigs get fed, hogs get slaughtered” theory. These days business arbitration law has been under fire of being too pro-business. And that there has been calls for more protections for workers and consumers. That legislators should make arbitration a freely chosen thing and not inherently unfair to individuals. The NFL process is so messed up who would want to claim that as something that should be the new normal? OK, some might, but I’m not sure I’d advise it.
Should I submit an amicus brief?
If you need to ask me this question, the answer is no.
Isn’t this a huge waste of money?
Yes. The millions and millions of dollars spent on this could be spent in much better ways. Burning it for heat would be more useful.
The owners have more money to spend then the players so it probably works to their interests to make the union use their money on things like this instead of saving it for a war chest for other things, like preparing for the next CBA.
Even if the NFL lost, they still win because a labor loss likely just means they need to be reasonable and act like other leagues. If they lost, it really isn’t a terrible precedent, because they can just tweak their discipline process again, and aim it at another player in the future. If they lost, they don’t miss any games or lose any salary or career opportunities.
But the NFLPA had to fight every single one of the excessive power grabs of Goodell, ones that were not fathomable when the CBA was signed in 2011. The Second Circuit ruling if it stands says Goodell can do whatever he wants basically. There is no process for a player to maintain innocence. If the player doesn’t cooperate, that is held against him. If he does cooperate, it isn’t enough.
This section of my FAQ is very cynical. Don’t try to tell me that it isn’t true though. Okay, this I’m bored with this blog post, it’s kind of a bummer so I’m going to lazily conclude it.
Let’s just all agree we wish the NFL handled things in a more normal and professional way.
More Questions?
Have any more legal questions or thoughts about the Deflategate Second Circuit rehearing request? Please put them in the comments below and I will try to answer as I can. They are all moderated by me, so please keep them civil and germane because it makes it less combative and more useful to everyone just looking for information. I reserve the right to not publish ones that are potstirring/abusive because I don’t want to contribute to that nonsense. Also, please read the comments before commenting yourself because sometimes your questions are already answered.
If you haven’t already read my posts on NFL discipline over the years, here’s more than you would likely want to know. I answer a lot of general Deflategate questions there.
Also, please note for those who care about such things. I am not a Patriots fan. I am a Texans fan. It would likely benefit my favorite team if Tom Brady did not play against the Texans this season. That said, when I analyze anything, I try to do it neutrally, while looking from all perspectives and without specific benefit to mine.

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.].

The Best Argument for Giving the Patriots Draft Picks Back

February 24, 2016 by Steph Stradley 69 Comments

Sports Illustrated writer, Peter King in his MMQB column made the case that Roger Goodell should give the Patriots draft picks back but likely won’t. I agree with his conclusion.
However, I think there is a much stronger case to be made of why the Patriots draft picks should be restored:
No Evidence of Ball Tampering. No evidence exists that Tom Brady or anyone from the Patriots wanted balls deflated outside of the ranges dictated by the rules.
None. Zero. Nothing in thousands of pages of documents or testimony or found anywhere in the known universe.
In his hearing with Judge Berman, the attorney for the NFL danced around this issue and didn’t answer it directly (pg 19):

The short, clear answer to the Court’s question is no. The Wells Report and the NFL attorneys try to manufacture a “circumstantial evidence” case of ball tampering but acknowledge they have no direct evidence of that.
No “Circumstantial Evidence” Case. Even the “circumstantial” evidence case of tampering the day of the AFC Championship Game is bizarre. This isn’t like fingerprints on a murder weapon kind of evidence.
That is, the NFL doesn’t have any evidence that anything happened at all other than the NFL didn’t realize balls deflate in cold weather. But if you did think something shady happened, um well, here are some old, random texts that do not refer to PSI out of normal limits, a guy taking a brief bathroom break before the game, things that happen in every locker room like a star QB signing lots of autographs and not knowing everyone’s full name, and a strange non-cooperation claim.
The NFL references gameday ball “protocol” being broken, but the best evidence from both the Patriots and NFL suggests that the NFL really didn’t really have a consistent protocol involving the balls pregame, and had never really cared about this issue until this was turned into a -gate.
Ultimately, the “circumstantial evidence” case appears to be an extreme, paranoid reaching for a particular result.
Ample Evidence of No Ball Tampering. Of the evidence that actually exists, there is plenty of evidence that no ball tampering occurred:
Natural causes. Footballs naturally deflate when the weather is cold. NFL officials when they first accused the Patriots of cheating had zero idea about the ideal gas law.
Direct testimony. Tom Brady, under oath testified that he didn’t know of ball tampering, direct it, or do anything wrong. That he didn’t want the footballs messed with in any way after he approved them before the game.
This viewpoint makes more football sense versus a part time locker room attendant hurriedly taking air out of footballs imprecisely after the balls were approved by the QB. Both locker room attendant Jim McNally and equipment manager John Jastremski denied doing anything wrong in repeated interviews.
Testimony is actual evidence that the NFL obviously didn’t believe for reasons I do not understand, but it is direct evidence.
Text messages that support rule following. Remember, there is no evidence from any source that Brady preferred balls outside of the 12.5-13.5 PSI as permitted by rules. There’s a series of text messages demonstrating that Brady was alarmed when someone significantly over-inflated footballs to 16 PSI during a Jets road game. The texts between McNally and Jastremski presume it was the referees.
Remarkably, the Wells Report includes a text exchange between Jastremski and his fiancée which is the only independent evidence referencing what PSI Brady preferred for his footballs. (pg 90) There is no reason why Jastremski would lie to his fiancée about the balls needing to be at 13:

“They supposed to be 13 lbs.” So, before anyone knew at all that the NFL cared about football PSI, Jastremski texted his fiancée the number that is EXACTLY in the middle of the permitted range. (The Wells Report strangely includes this text message but doesn’t acknowledge that the number included is within the rules).
It is difficult for anyone to prove a negative but this is as about as close as you can come.
The NFL’s “Scientific Evidence” is Expensive Garbage. The NFL at great expense got experts to say that tampering occurred but couldn’t “determine with absolute certainty whether there was or was not tampering.” Footnote 42 in the Wells Report acknowledges any measurements taken on game day were not done “in a laboratory setting or under ideal circumstances for forensic data collection and examination.”
Pretty much no scientist anywhere will defend the NFL’s science. I don’t even like to call it evidence because at least in a court of law, the report the NFL paid for would not be admissible.
The NFL could have wanted to find the truth by doing actual field testing of footballs in 2015. Instead, they did spot checks where they did not release the results and claimed there were no violations of protocol.
Non-Cooperation Claim is Ridiculous. In any kind of investigation, the lawyers on all sides work through logistics of who needs to be talked to and what evidence needs to be gathered.
As a legal outsider looking at the levels of cooperation, it appears to be immense by both the Patriots and the key witnesses. The Patriots provided immediate information. They gave access to all witnesses. They provided vast electronic/video information. They kept key PSI information secret despite the NFL releasing incorrect, misleading and harmful information and not correcting it publicly until it was barely mentioned in the Wells Report.
Ted Wells in his conference call said that the Patriots offered “substantial cooperation.”
NFL Executive President Troy Vincent in announcing punishment did not acknowledge the abundant cooperation but rather focused on narrow issues:
“The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
“Finally, it is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation.”
Apparently, there were a series of emails involving trying to get McNally for another interview. Because the NFL lawyers goofed up by not fully reviewing the text messages before interviewing him. This request appears to be against the original discovery agreement of the NFL-Patriots. The Patriots claim that they tried to arrange for a way to get the NFL the McNally information but that the NFL lawyers did not follow up on that offer.
As for Brady’s cooperation, Ted Wells said 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.”
The NFL claims the Patriots received a “cautionary note” relating to their level of cooperation. Brady didn’t even receive that (the “no notice” process issue Judge Berman ruled partially upon).
Brady later said he would have offered the phone had he had notice that Wells would find it so important to the discussion of ball PSI. (Remember, at the time of the investigation, none of the investigated people could have had any clue that Wells would make a federal case out of odd texts of various dates. Also worth noting that the NFL was wrong in suggesting that unreleated Brady personal information would never get released. Eventually it was).
Any Ball Deflation Did Not Effect Game Outcomes. When Troy Vincent announced punishment against the Patriots, he acknowledged, “There seems little question that the outcome of the AFC Championship Game was not affected.”
No Coaching/Management Culpability. Troy Vincent also acknowledged, “In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots’ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.”
Past Conduct. The size of the punishment referenced Spygate. That is odd because none of the offending parties are the same, nor is there any coaching/management culpability for claims of unnatural ball deflation.
Conclusion. So, in sum, the main reasoning given why the Patriots draft picks were taken away is because of a discovery dispute between lawyers that from the outside looks like the Patriots were right. And because some lawyers retained by the NFL didn’t believe the Patriots personnel for poorly-articulated reasons.
It is in my immediate personal interest to have the Patriots draft picks taken away because I root for a different AFC team. However, it is in my long term personal interest for the NFL to have logical, sensible, fair processes that do not adversely affect fans.
As a NFL fan, I shouldn’t want a results-oriented punishment created because the rest of the owners were mad at the Patriots and thought they were insufficiently punished for Spygate. Because next time it could involve my favorite team and players.
The Patriots punishment is huge. Two draft picks and a million dollars. After they “totally cooperated,” and there was no evidence of any sort that anyone wanted footballs deflated outside of the ranges prescribed by the rules.
If they get punishment like that for something that all acknowledge had no impact on the game and nobody ever cared about before, what happens when an actually important thing happens?
Theoretically, punishments should prevent wrongdoing, but I’m not sure that there is anything that the Patriots or Brady could have done differently with what they knew at the time. Given how much absurd money and time and ego has been vested in Deflategate, I can’t fathom the NFL changing their mind on the Patriots draft picks.
The NFL didn’t do that with the Saints draft pick even after the NFL offered the carrot that they might reconsider it with team cooperation and education. And back then, not Roger Goodell or anyone from the NFL ever even acknowledged why the Saints didn’t get the pick back. (This was an underreported story at the time).
I do not have any optimism that the NFL will fix their process issues. Why would they? The NFL doesn’t think they have a problem as evidenced by its continuing court quest to keep one of their best players off the field. So this likely will happen again–with maybe a different process, different facts, different angered fanbase, same results-oriented, unfair punishment.

(Please feel free to leave relevant legal questions and comments below. I like to help further polite discussion because I think reason and logic can be more persuasive than yelling at clouds. Yes, reason and logic often fails in the face of indifferent-to-malicious uses of power, but I have found sometimes it actually changes things. Note: I do know that there are other arguments that are in support of my position, but this is already way too long, and you are probably bored about this too. Sorry. Also, I prefer for you not to use profanity or rude words about any individuals involved in this matter. I know this is an angering topic but I don’t want that ish on my blog. If you don’t follow my kind request, as the sole moderator here, I reserve the right not to publish such comments. My blog, my rules. Thanks).

Key Related Content:
Roger Goodell Should Explain Reasoning For Saints 2013 Second-Round Draft Penalty. January 29, 2013
Answering Your Deflategate Legal Questions. July 30, 2015

Is Roger Goodell an 'Unthinking Moralist?'

September 9, 2015 by Steph Stradley 1 Comment

The following is a re-typed version of a NFL discipline column I wrote about Roger Goodell for the now defunct sports blog, FanHouse. Originally, when AOL sold the name, we were told that the links would remain live. That turned out to be not true.
While it was still live, I printed off quickly a few of my favorite pieces I wrote. This is one of them. I’ve re-typed the piece in its original form without the original links that explained extra context. [the text was too small for an accurate pdf conversion]
Is Roger Goodell an ‘Unthinking Moralist’
(originally written by Stephanie Stradley, April 1, 2008 for FanHouse)
Jeffrey Standen, a professor of law at Williamette University writes a blog called The Sports Law Professor. His most recent entry, entitled “Roger Goodell and the Cheating Scandal,” I think is worth a read, even if I don’t agree with all of it.
His argument is nuanced and is best read in its non-summarized form, but he’s a blogger so he knows how these things work. His contention is that the most profitable sports league in the world could have chosen someone more educated, reasoned and accomplished to be its commissioner. That so far in his job, Roger Goodell is “starting to look like an unthinking moralist.”
A moralist, as Professor Standen explains, is “the kind of person who prefers to arrive at the facile, stark ethical conclusion than to perform the heavy mental exercise of making fine distinctions that might produce a better answer.”
From this POV, Goodell has painted himself into a corner with the severity of the rhetoric and punishment he’s used to respond to the ~~Patriotgate~~ Spygate and player discipline scandals.
“A commissioner only has so much moral capital to expend,” he writes, and Goodell has spent his in awkward, to high profile ways.
I’m not sure I agree with his conclusions relating to Spygate. (I believe Goodell is responding in part to the pressure he is feeling from Senator Arlen Specter). However, I do have significant concerns about Goodell turning the commissioners office into nothing more than an arbitrary and capricious police, jury and judge.
In 2008, fans spend as much time trying to figure out punishments and their possible effects as they debate who will be draft picks or how their team will do next year. Here are some examples:
Player Discipline: Who knows how long PacMan Jones will be suspended? His suspension ended up being worse because Jones decided to go to a strip club the night before meeting with Goodell. NFL sports talk now involved how to structure a deal for a player when you have no idea when his suspension will be lifted. (Which is very different from talking about when his criminal cases are resolved.)
When you have an extremely vague standard for when someone will be suspended and how long that punishment will last, it creates media and fan debate on punishment issues. These debates in the mass media will always fall along moralistic lines.
What is going to happen to Vikings left tackle Bryant McKinnie? He pled not guilty to charges of aggravated battery, disorderly conduct, and resisting arrest. It sure would be nice for the Vikings and their fans to know what the extent of his punishment will be, if any, going into the draft.
And what is going to happen to Steeler Pro Bowl linebacker James Harrison, if anything/ He was accused of breaking down his girlfriend’s door, slapping her across the face and breaking her cell phone. (The Steelers cut ties with wide receiver Cedric Wilson immediately after he was accused of something similar, but he is a worse player than Harrison, so as FanHouser J.J. Cooper explains, the Steeler standard for his behavior is higher).
Harrison’s situation doesn’t involve repeated bad acts, but it does look a little strange when former Atlanta quarterback Michael Vick is likely going to be suspended for years no matter when he gets out of jail for the abuse of his dogs. Vick sits in limbo, but it’s possiblethat there will be no suspension for a player who hits a woman. When you throw the book at some things but not with others, it can look a little incongruous, even if you have good reasons for it.
Spygate. Goodell gave the Patriots the harshest NFL sanction ever, and some believe he did it before even having all the evidence. If former Patriot employee Matt Walsh ever gets to talking and has evidence of crimes that are worse than the punishment was originally, is Goodell going to double down?
Professor Standen believes:
“The ever-widening cheating scandal that now plagues the NFL would never have happened under Paul Tagliabue’s watch. He would have quietly fined the Patriots and moved on.”
Hard to say this with certainty, but Goodell embracing the role of grandstanding sheriff creates an expectation of additional sanctions and public pronouncements. Nothing can be handled quietly anymore.
Tampering. The 49ers get draft picks taken away for doing what most all the other teams do, and they didn’t even get the tampered player. Chicago gets to benefit from the tampering charge, even though they weren’t really harmed, by switching third round picks with the 49ers.
If this is moralism, it may be a highly ineffective strain. Who knows what the long term effects of this punishment will be other than maybe changing the way that teams handle their interoffice emails/
Strangely enough, the way that Goodell’s punishment came down, he seems to conclude that violating the rule against spying on another team is 11 times worse than tampering.
Overall. Recently, Goodell put his sheriff’s hat on again, and in a memo announced that the league wants to conduct unannounced searches of locker rooms and press boxes, and to inspect in-game communications devices. After a string of alarmingly arbitrary rulings, he’s stated that he wants to lower the standard of proof needed for him to impose penalties on a coach, executive or team.
Does that really make you feel better about the integrity of the game?
Last summer I discussed my concerns that Goodell’s player personal conduct policy had the unintended consequence of increasing the attention that fans pay to bad actions. It causes fans and media to debate what potential penalties will occur because there is no real standards, and Goodell has put himself in the spotlight as the decider of everything.
Interestingly, Michael David Smith in his work for the New York Times states that the most underreported story in the NFL is the resentment that some players feel toward the commissioner. And why not? The penalties are unprecedented, the standards for punishment vague with little due process, and the publicity from this tends to bring more attention to NFL bad acts.
Thought many fans have been generally supportive of Goodell’s crackdown, you’ll hear a different tune if you ask a fan of a team trying to navigate the draft under an utterly opaque cloud of uncertainty.
Whether or not Roger Goodell is guided by an inflated sense of morality is frankly secondary to the fact that, whatever is guiding him, it isn’t consistent. For all anyone can tell, he’s just making stuff up as he goes along.
-End-
________________________________

This blog post is a bit back to the future.
Harsh, arbitrary punishments combined with no concern for fair process means that the cycle will repeat with different topics, names, processes, teams.
We will hear the headline version of events given to us by the NFL. The people investigated often cannot defend themselves publicly due to pending litigation and fears that speaking out will anger the commissioner more and be seen as lies and obstruction. Confession and remorse are often required by Goodell, and is not an option for those who maintain actual innocence.
Unfair process means that fans often don’t hear anything close to the real truth about a controversy. And we know that the process is unfair because there is no reasoned way for a targeted player, staff member, team to maintain a claim of actual innocence.
After the Brady case is done, the NFL will likely tweak their processes without looking at their overall philosophy of punishment. And the cycle will continue.

Please note: These comments below are moderated by me. I know people are angry about this subject, but I’d prefer no personal attacks of people and a focus on NFL discipline system issue questions and answers.