Domestic Violence & NFL Sanctions

As a criminal defense lawyer, I routinely see people lose their jobs due to criminal charges, even minor charges, and often before the accused has had a chance to defend himself in court. There are many situations in which this is unfair, but the unfairness is heightened when the alleged conduct has little to do with one’s work. Certainly, there are some crimes—theft or forgery, for example—that may reflect poorly on one’s truthfulness and trustworthiness and raise legitimate questions in any employment situation. But should an IT Director be fired for a DUI? Should a truck driver be fired for pushing his wife in a domestic violence case? I think the answer is clearly no for those two questions, yet it happens. The answer should be no, because there is a place—criminal courts—where mistakes of these kind are dealt with. For better or worse in individual cases, criminal courts fine, imprison, supervise and rehabilitate those convicted of crimes. If the wrongdoing doesn’t directly impact work, there shouldn’t be any need for separate sanctions, right? We don’t aspire to kick people when they’re down.

The NFL clearly disagrees. But why is the NFL so involved in disciplining players for conduct that has nothing to do with football, and which is already being dealt with in criminal courts? If a guy were truly “bad” (a repeat violent offender, say), then he’d be in jail and would be unavailable to play for the league, with or without Roger Goodell’s blessing. Yet part of the reasoning is solid: the NFL is entertainment, meant for family consumption. Appearances matter to the NFL brand. A league comprised of too many wife-beaters would be distasteful, the brand would suffer. And there are some distasteful actions that (thankfully) will not necessarily lead to imprisonment, but could still hurt the brand. So some amount of self-policing is probably appropriate, from a business point of view.

But what is strange and offensive in the latest round of NFL player conduct stories is the public bloodlust, the reflexive desire to pile on to and kick the downed player (which would be a penalty on the field, but is good sport for the public, the media, and the NFL management). Who’s an easier target than Ray Rice (domestic violence) or Adrian Peterson (child abuse)?

As the media and public get whipped up in their frenzy, they seem to forget about due process. They seem to forget that courts exist to handle these issues, they seem to forget the mistakes (and yes crimes, for most breathing adults) that they have committed in their own lives, with or without being caught.  People enjoy their moment to take an NFL star down a notch. Their highly objectionable premise is that someone who has committed a crime should not be allowed to earn a living. The companion premise, equally absurd, is that the NFL is condoning anything it doesn’t specifically punish. Why do fans need to be reassured that the NFL will provide additional punishment on top of what the criminal courts provide? Why do the fans believe that a criminal mistake should lead not just to criminal consequences, but a complete ruination of one’s career?

I’m not sure the fans really feel this way. It’s just as likely that fan attitudes are simply following the conversation between the NFL and the media, which are caught in a strange battle of politically correct one-upsmanship. But it didn’t help that Ray Rice got what appears to be an exceptionally lenient resolution in his domestic violence criminal case. (Note, future clients, do not expect diversion in Colorado if you knock your girlfriend out and drag her from an elevator like a piece of meat). In that situation, it’s a bit more understandable that the media or fans look to somebody to impose a serious sanction. It also didn’t help the situation that at the same time that Ray Rice was being coddled by the courts and the NFL (2 game suspension), Josh Gordon was being suspended an entire season for truly low levels of marijuana. The media jumped at the disparity, fans and activists voiced outrage, and the NFL wound up making their player conduct policy and suspensions harsher across the board (with only minor exceptions). There was never a public discussion about simply backing away from micromanaged sanctions for off-field conduct.

Personally, I am glad Aaron Hernandez is not playing football anymore. Of course, he likely killed people. So he’s locked up, probably for a while, and can’t play. I think Ray Rice needs probation and a chance at rehabilitation. If he doesn’t rehabilitate, if he does this again? Some jail might be appropriate then. But a man is more than his worst mistake or mistakes. And this man is (fairly) good at football. Same for Adrian Peterson. Give him his day in court before any league sanctions. Society sends mixed signals about child discipline, and people who grow up with physical discipline tend to reflexively use physical discipline with their children. It doesn’t make him evil. If he’s crossed lines and needs to stop, the criminal justice system will tell him quite clearly. But he’s not evil, let him play. Let these guys earn a living doing what they have spent their whole lives working on.

The NFL’s abandonment of these young men (whether directly, or indirectly through a culture that pressures owners to preemptively sanction players) is all the more disturbing given the way the NFL values viciousness and physicality on the field. A player gets the attention of scouts and coaches in large part by being relentlessly aggressive and tough on the field, from youth through adulthood. Who is surprised that there isn’t an easy on/off switch for men brought up through this world? That doesn’t make off-field violence OK, but it means the NFL is doing an uncomfortable dance when it creates a politically correct culture that abandons these young men the first time they (publicly) cross that line of on and off field violence. Perhaps some half-acknowledged shame is what is driving the stiffer sanctions for off-field player conduct, but I see it as more strategic than remorseful. This pandering punishment by the NFL may make the most sanctimonious among us feel better. But the criminal justice system is plenty imperfect on its own, it doesn’t need the NFL’s bumbling help.