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Thursday, April 22, 2010

Goodell's Folly

Yesterday, NFL Commissioner Roger Goodell announced that he had suspended Pittsburgh Steelers’ quarterback Ben Roethlisberger for 6 games for violations of the NFL Personal Conduct Policy. The suspension can be reduced to 4 games (at Mr. Goodell’s discretion) if Roethisberger successfully completes behavioral counseling. It’s an almost certainty that Roethlisberger will complete his counseling, and thus, in my opinion, this is really a 4 game suspension. However, even at 4 games, the length of the suspension is unjust, and an abuse of Mr. Goodell’s discretion.

Goodell has suspended a number of NFL players for violation of the Personal Conduct Policy, however, the vast majority of these players were either found guilty or pled guilty to a criminal offense. My research indicates that no players were suspended for 4 games or more without an underlying criminal conviction. There are also a significant number of players that have been convicted of crimes (even felonies – see Michael Vick - 2 games) who received less than 4 game suspensions. So why does Roethlisberger get 4 games?

The analysis begins with Goodell’s unbridled discretion under the Personal Conduct Policy. All punishment meted out by Goodell is at Goodell’s sole discretion. Any appeals are heard by, yes, you guessed it, Roger Goodell. There is no meaningful standard by which to determine the severity of discipline under the Policy. Paula Duffy of the Huffington Post captured the essence of Goodell’s discretion quite succinctly in quoting former Supreme Court Justice Potter Stewart. Justice Stewart, in struggling to define “hard core pornography” wrote:

“I shall not today attempt further to define the kinds of material I understand to be embraced with that shorthand description [“hard core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture in this case is not that.”

Contrast the “I know it when I see it” standard with Major League Baseball’s policy, which requires “just cause” to impose discipline. Even worse, there are no meaningful appellate rights under the NFL Policy. In MLB, a player can appeal any discipline to an independent arbitrator. In the NFL, you appeal to the person who made the decision in the first place. So much for checks and balances! This is a bargaining failure by the NFLPA that must be corrected in the next round of CBA negotiations.

Let’s be clear: Ben Roethlisberger engaged in abhorrent behavior on March 5, 2010. Whatever the real story is, Roethlisberger placed himself in a situation that endangered himself, his career, and most importantly, the young women. Additionally, the situation in Georgia is eerily similar to the allegations made against him in a civil suit filed in Nevada. At the minimum, Roethlisberger has exhibited extremely poor judgment. At the most, he has engaged in aberrant sexual behavior. Regardless of where the truth lies, Roethlisberger has not been charged with a crime in either situation. Both women reported their respective matters to the authorities. The authorities, who actually have something more than an “I know it when I see it” standard, determined that no criminal conduct occurred.

While every professional sports league should have some discretion to impose discipline when a player engages in serious misconduct, there must be some meaningful standard by which to determine such discipline. Under any meaningful standard, and using prior suspensions imposed by Goodell (also rendered under the “I know it when I see it” standard), Roethlisberger should not have been suspended for 4 games. Not to be repetitive, but emphasis is necessary: there have been no criminal charges filed against him, much less any convictions. There hasn’t even been sworn testimony produced regarding these incidents. Roethlisberger’s penalty is the result of a statement to police given by an admittedly highly intoxicated individual, and a civil complaint (by a woman seeking significant monetary damages). This is not evidence that leads a reasonable person to a certain conclusion of wrongdoing that would rise to the level of a 4 game suspension.

Roethlisberger’s suspension is clearly the result of Goodell’s public relations antennae twitching uncontrollably. Goodell is concerned that any suspension of less than 4 games would result in serious public backlash (his PR concern is highlighted by the fact that it was announced as a 6 game suspension, when in reality, it is a 4 game suspension). However, while the NFL certainly has the right to be concerned with respect to public relations issues, a player’s rights, and the integrity of the disciplinary system (as flawed as it is) cannot be thrown to the wind for public relations reasons. Players have rights, even when they engage in misconduct. Roger Goodell has an obligation to respect those rights. In this case, he didn’t.

Given his position in the Roethlisberger matter, I wonder what type of suspension Mr. Goodell would have imposed upon Tiger Woods were he an NFL player?


  1. I have to disagree with a couple of points. One, the Vick comparison is false - he was essentially suspended for two seasons by the Justice Department. If anything, that suspension was an unnecessary tack on. Furthermore, criminality is not, and has never been, the standard for punishment in a non-criminal case. Roethlisberger has not lost his freedom; ergo, no rights have been violated. But regardless of whether or not the events in Midgeville were consensual, it seems clear that he took a pretty drunk girl into a bar bathroom to have sex with her while his muscle ran interference and prevented her friends from getting to her. In any other job, that would get you fired.

  2. The comparison between Roethlisberger and Tiger Woods is entirely false. Woods did nothing wrong, other than cheat on his wife. Sleazy, but hardly sexual assault. The stories coming out of Midgeville suggest that Roethlisberger may have done something wrong, if not criminally than civilly. People (besides Roethlisberger) are losing their jobs over this incident, suggesting that something bad happened there. That he was not prosecuted may be because the prosecutor adheres to the view of not pursuing a case when he does not believe he can obtain a conviction, in light of the higher standard of proof. That does not mean a future lawsuit by the young woman will not be successful.

    Now there is a good argument (to which I have subscribed in the past) that the NFL should not be concerned with *any* off-field conduct. But if Goodell has that power (assuming he does), this seems as appropriate a case as any to wield that power.

  3. Howard – I think you misinterpreted the context in which I raised the Tiger Woods matter. I agree that their conduct is dissimilar. My point was that Goodell has, in theory, the power under the Personal Conduct Policy to discipline someone in Tiger’s position. The Policy reads “All persons associated wit the NFL are required to avoid “conduct detrimental to the integrity of and public confidence in the National Football League.” While it is an extreme example, the point is that Goodell could, if so inclined, discipline someone in Tiger’s position, given that one could say that Tiger’s conduct was “detrimental to the integrity of and public confidence in . . . ” Whether he would or not is not the point. Good to hear from you and I appreciate the comment. J

  4. One of things of interest to me here is the lack of arbitration to a neutral outside arbitrator for Roethlisberger. When Dean Ferrick lowered the suspension time handed out by David Stern in the Latrell Sprewell situation, you could see the impact that an arbitrator can have on the type of authority that Commissioner Goodell has under the policy. I really felt that a lawsuit filed against Goodell and the NFL over the appeal process might be a successful one in light of other sports cases that have dealt with situations where the appeal was to the commissioner who had already determined punishment.

  5. on another note, here is Ben's much anticipated statement. If ever we needed proof that lawyers aren't hired for their writing ability. the team that has kept him out of the court room (so far) is not the team to rehab his image. unfortunately for Ben, with his ongoing legal problems and questionable character, he probably can't do what it takes to rebrand in 2010. Thoughts?

    “The Commissioner’s decision to suspend me speaks clearly that more is expected of me. I am accountable for the consequences of my actions. Though I have committed no crime, I regret that I have fallen short of the values instilled in me by my family. I will not appeal the suspension and will comply with what is asked of me and more.

    Missing games will be devastating for me. I am sorry to let down my teammates and the entire Steelers fan base. I am disappointed that I have reached this point and will not put myself in this situation again.

    I appreciate the opportunities that I have been given in my life and will make the necessary improvements.”

  6. Alec - he was limited in what he could say in his statement, given that any admission could be used against him in court. He has a pending civil matter in Nevada (as you know), and another potential civil matter in Georgia.

    The pending matters make a solid statement very difficult. The rehab of him image will come on the field, not off of it. If he wins, and shows leadership, he will slowly shed the taint. If he loses, or performs poorly, the taint will remain. Everyone forgives a winner . . .

  7. You definitely have some great insight and great stories.
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