The NFL is constantly under scrutiny. This time it is the players’ treatment of family members—rather than the league’s treatment of players—attracting unwanted attention. In the wake of separate scandals involving Ray Rice and Adrian Peterson, the NFL has had to determine the appropriate punishment for players’ actions off the field. There has been substantial commentary about whether the NFL’s disciplinary sanctions were fair, or even legal. The point of contention between those favoring more punishment and those advocating for less is at least partially tied to whether the punishment doled out by the NFL fits the crime. However, such an inquiry is misplaced; that is the purpose of the criminal justice system. The NFL should be concerned with whether disciplinary sanctions are in line with the league’s past practice for misconduct of a similar nature or magnitude. Have the court of public opinion and a lack of clearly developed disciplinary standards caused the NFL to impose inconsistent sanctions?

A major underpinning of the NFL’s Personal Conduct Policy is to require persons associated with the league to refrain from “conduct detrimental to the integrity of and public confidence in the [NFL].” The American Bar Association (ABA), which regulates lawyer conduct, has a similar concern: to discourage lawyers from behaving in a manner that would undermine public confidence in the legal system. Unlike the NFL, however, the ABA has promulgated comprehensive standards for disciplining its members. Although most lawyers are not celebrities, they are professionals. Professions such as the law have traditionally held a unique place in society because of lawyers’ ethical accountability to the public. In an era in which professional athletes are idolized and subject to public scrutiny, there is little reason to doubt that a system developed to police lawyer misconduct would not also work to discipline professional athletes.

As the legal profession is a self-regulating body, courts are often responsible for imposing sanctions. The ABA developed a model designed to promote: (1) the consideration of all relevant factors, (2) the appropriate weight of such factors, and (3) the consistency of the disciplinary sanctions for the same or similar offenses. With these interests in mind, the ABA suggests that courts should consider four factors when imposing discipline: (1) the duty violated by the lawyer, (2) the lawyer’s mental state, (3) the potential or actual injury caused by the lawyer’s misconduct, and (4) the existence of aggravating or mitigating factors. These four factors are sufficiently rigid to be consistent, but flexible enough to be useful on a case-by-case basis.

In contrast, the NFL’s disciplinary model is too vague. In Article 46 of the Collective Bargaining Agreement (CBA), there are no standards by which off-field conduct that is detrimental to the league will be disciplined. Rather, the disciplinary procedures are addressed in the Player Conduct Policy, but without sufficient detail to ensure that punishments are uniform. The NFL throws around phrases indicating that discipline will be based on factors such as “the nature of the incident” or “prior or additional misconduct.” Nevertheless, throwing around buzzwords does not make a coherent policy; there is a lack of real insight into which factors are relevant, particularly for an egregious first offense.

The Commissioner has the “full authority to impose discipline as warranted.” Yet, the Commissioner might not be the best person, or at least should not be the only person, to determine appropriate sanctions in a given circumstance. After the video of Rice punching his then-fiancée was released to the public, there was public outcry for Commissioner Roger Goodell to resign. Thus, there is a strong likelihood that punishment may become too onerous, which will impair confidence in the system, because the Commissioner is acting to protect his job. With more clearly developed standards, the risk of unfairness is lessened and the likelihood of uniform sanctions is increased.

The NFL already has the legal environment in place for an ABA-inspired model to thrive. The NFL has a hearing and appeals process and there are numerous lawyers—to whom the ABA system is familiar—to help regulate this new disciplinary regime. The only ABA factor which would need to be modified for the NFL is the first: the duty violated. Instead, the NFL could consider the conduct that was criminal, violent, or “detrimental to the integrity of, or public confidence in, the game of professional football.” In both the ABA and current NFL models, the penalties are similar, taking the form of fines, suspensions, or public reprimand. In both models, there is also a reinstatement process for those who have been suspended indefinitely (or in the case of the ABA, disbarred). Taking its cue from the ABA, the NFL should create extensive, but non-exclusive lists of aggravating factors and mitigating factors. Aggravating factors should include prior disciplinary offenses, a pattern of misconduct, vulnerability of the victim, and illegal conduct. Mitigating factors should include absence of a disciplinary record, personal or emotional problems, and remorse. With more thorough policies and procedures, the NFL could cultivate the disciplinary seeds it has already planted.

Because the NFL receives a large part of its revenue from broadcast deals and sponsorships, public perception is critical. The fear of public reprimand has caused the league to further punish players who had already been sanctioned. Even though constitutional due process concerns might not be at stake when the NFL imposes a sanction and then later increases it, the CBA has due process implications memorialized in its terms. Section 4 of Article 46 states there will be one penalty for the same act or conduct. Adopting a new model would not undermine the severity of violent behavior. In fact, the NFL, like the ABA, is also pushing for stiffer punishment against domestic abusers. However, uniform punishment should also be a concern. More high profile players should not be subject to harsher penalties because the public is more likely to express greater outrage. This is all in the name of fairness. To avoid the risk of setting bad precedent, the current controversies should be a cue to the NFL to change up its game plan.

 

Samara Shepherd

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