Sunday, March 8, 2009

In the NFL, Guilty Even When Not Guilty

The National Football League requires all persons associated with the NFL to follow a personal conduct policy (relevant excerpt and link to pdf of the complete policy below). Personal conduct policies are not unusual, but the NFL policy seemingly subjects people to a kind of double jeopardy. For example, Brandon Marshall of the Denver Broncos, previously subject to league discipline for multiple encounters with law enforcement, is said to be facing further discipline by the league, possibly up to an eight-game suspension (or half of the regular NFL season). His most recent crime? Well, nothing, actually. He and his fiancée were both arrested for disorderly conduct after a public argument that got physical. Charges against both were swiftly dismissed within hours. Nothing further will come from that incident as far as the law is concerned. The trouble for Marshall, however, is that according to the NFL Personal Conduct Policy, “It is not enough simply to avoid being found guilty of a crime.”

Persons associated with the NFL are held to a higher standard. That in itself does not always seem problematic, and it is not unique to the NFL. But might the standard be too high? As it is, someone like Marshall is “guilty when accused” as far as the NFL is concerned. Such a policy seems to conflict with any normal understanding of justice. Marshall is not only required to defend himself in front of the law, but then again in front of the NFL commissioner.

Some persons, attorneys included, are beginning to take note. Attorney David Cornwell is raising some challenges to the NFL's right to discipline players (see the second link below). He refers to the NFL’s disciplinary policies as “draconian and unfair,” and argues that “The notion that a person who has a bad event is a reflection on all of us is misplaced.” He wants the NFL to be fair and also to focus on “making sure that the fan understands that the vast majority of NFL players are great community citizens.”

There are at least two relevant concerns here. First, is the policy fair? Granting that the NFL may permissibly hold persons associated with it to a higher standard, is the standard unjustifiably high? Second, even if the policy is just, is it best for the NFL? An incident like Marshall’s most recent would hardly catch much attention given how swiftly it was dropped as an issue by law enforcement. The NFL’s policy, however, gives the incident legs and focuses negative attention onto the NFL. The policy may do more harm than good to the NFL. Perhaps the NFL ought to concern itself more with offense and defense on the field, and let the legal system deal with legal offenses.

Relevant excerpt from the NFL Personal Conduct Policy: “All persons associated with the NFL are required to avoid ‘conduct detrimental to the integrity of and public confidence in the National Football League.’…While criminal activity is clearly outside the scope of permissible conduct, and persons who engage in criminal activity will be subject to discipline, the standard of conduct for persons employed in the NFL is considerably higher. It is not enough simply to avoid being found guilty of a crime. Instead, as an employee of the NFL or a member club, you are held to a higher standard and expected to conduct yourself in a way that is responsible, promotes the values upon which the League is based, and is lawful. Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime.”

The NFL Personal Conduct Policy (pdf):

Cornwell challenging NFL's policy:


Mike Austin said...

To me, the standard does seem too high, especially when we consider the issues of race that can enter into the equation. If an innocent African-American player is more likely to be accused or prosecuted for a crime because of a form of prejudice, then there is something unjust. I think players are role models, as we all are in some sense. In my town, a middle school principal was arrested and I think convicted of drunk driving, but nothing happened as far as I can tell with respect to his job. He's still the principal. Of course, this doesn't mean that the NFL is too strict, but rather that the school district is not strict enough. However, it does highlight the importance of role models that kids see in their daily lives in person, rather than the ones they see on tv screens during the fall.

Steve Weimer said...

This policy struck me as odd, too, when I first became aware of it at some point during the whole Pacman Jones saga.
I don't know precisely how it's been applied in the past, so not sure whether it's fair or not in practice, but my guess is that the substance of the policy is probably less problematic than how it is applied. That is, I'm less worried about the standard being too high in terms of which actions the league deems worthy of punishment as I am about how it goes about determining whether those actions have occurred and dealing out punishments. I take it this is what you are getting at also when you suggest that Marshall might be "guilty when accused."
If the league punishes a player simply because they are accused of behavior it has prohibited, that surely is objectionable. The question is how it goes about confirming such accusations. It clearly doesn't require legal confirmation, and the only acceptable alternative to legal confirmation I can think of would be if the player admits that he engaged in prohibited behavior. (E.g. Marshall's girlfriend doesn't press charges, but he admits he hit her.)
Do such admissions typically come out of the commissioner/player meetings that precede the suspensions?
If not, then we're left to believe that the league is either simply drawing its conclusions from the initial police accusations/reports, which would be unacceptable, or that it's somehow confirming those reports with its own investigative/trial system, which is unlikely, and would likely be unacceptable even if true.

As for whether the policy is in the league's interests, I'm again unsure, but inclined to follow you in doubting it. Fans do seem to voice a lot of indignation at the morally dubious behavior of athletes, but I'm not sure it keeps many of them from watching games, buying merchandise, etc. Nor am I sure that this policy does anything to reduce the amount of such behavior fans are aware of. Even if it deters some, it brings more publicity to other, as you say.