What is sensible discipline for NFL player misconduct? 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.