Episode 27- The Replacement

Taylor Oldham, JD MBA, University of Kentucky

Why the NFL Must Replace and Implement an Independent Policy for Domestic Violence

INTRODUCTION

The National Football League (NFL) is one of the most successful and powerful sports entities in the world. In 2017, the NFL made $14 billion in total revenue with an ultimate goal of $25 billion dollars of revenue by 2027.[1] Even the NFL’s Commissioner, Roger Goodell, pockets over $40 million a year as of 2015.[2] But even with the success of this enterprise, it has a serious problem that it has yet to properly address, Sexual Assault and Domestic Violence. The NFL has frequently swept these issues under the rug and has not fully addressed them in ways they should. Using the Personal Conduct Policy as a catch-all for the conduct of its players, the NFL has failed to properly enforce domestic violence punishments in a consistent and fair manner.

In the beginning, the league only had 15 teams from Ohio, Illinois, Indiana, and New York and of these original teams, the only ones left today are the Arizona Cardinals and the Chicago Bears.[3] Of course, these humble beginnings are where the NFL started but are definitely not where the NFL is today. The NFL is one of the most influential sports leagues in the world. With its 32 teams across the league, the NFL has quickly become one of the powerhouse leagues in sports and is considered one of the upper-echelon professional sports leagues. It has long had monumental numbers in viewership and attendance, rivaled by other sports leagues. Their attendance for 2018 was very impressive; each week, roughly five-hundred thousand fans would attend the sixteen games in the NFL.[4] Additionally, the games would garner 15.25 million viewers across the six regular weekly windows on the big networks, such as CBS, FOX, NBC, and ESPN.[5]

This impressive viewership, coupled with an extremely high attendance rate, causes the media-spotlight to be on the NFL, especially when it involves players, coaches, or staff getting into trouble with the law. But the trend of late has been the ever-growing issue of domestic violence and violence against women. We will never truly know how many incidents there are of domestic violence/violence against women with NFL players, but from the publicly-available information, we know the problem is not trivial.

It is time the NFL properly addresses these issues and confronted them with a no-nonsense policy that requires players to have proper consequences for their actions. As this paper will reflect, the NFL has frequently been very inconsistent with the implementation of its new “domestic violence policy.” From two-game suspensions to eight-game suspensions, to even indefinite suspensions, the NFL never seems to have reasoning behind its suspensions because of the powers entrusted in Commissioner Roger Goodell. The NFL must adopt a more consistent and absolute Independent Policy for its punishment of players who engage in any form of domestic violence/violence against women/sexual assault.

This paper will dive into four different areas that will outline the issue of NFL’s enforcement and a new Independent Policy for the NFL to implement. The first part will highlight the number of incidents that have occurred in the NFL. This will include both current NFL players and players being drafted into the NFL. The second part will include a case-by-case analysis of some of the most recent NFL incidents involving domestic violence. This part will analyze what happened, what the punishment was, and any possible inconsistencies that could be identified. Part three will speculate into the reasons behind the issues with domestic violence. These will include inconsistencies in enforcement, Commissioner Powers, and sheer laziness. Additionally, Part III will dive into the cause of the actual inconsistencies in enforcement, the Personal Conduct Policy itself, and the grey areas in wording that are spread through it, or the Commissioner powers afforded to Roger Goodell through the Collective Bargaining Agreement. Lastly, Part Four will identify an Independent Policy that will help in the enforcement and implementation of punishments that are consistent and fair.

DOMESTIC VIOLENCE IN THE NFL: BY THE NUMBERS

Since 2014[6], there have been twenty-three (23) incidents of alleged domestic violence in the NFL and two (2) incidents of sexual assault.[7] These all include players that were in the NFL when the incident happened.[8] Of these incidents, there were varying results, outside the football arena, including charges being dropped by prosecutors (with one of those being because of insufficient evidence), undetermined resolutions, lesser plea deals, jail time, diversion programs, anger management, probation, acquittals, and dismissals.[9]

Not only is there a plethora of differing results in the criminal justice system, but there is also an equal amount of inconsistent results from the NFL. Across the twenty-three incidents, the NFL reactions were very schizophrenic. Many players received suspensions ranging from one game to indefinite, but in some scenarios, the NFL ultimately never reacted at all. Teams would frequently release players as soon as these allegations or arrests would occur.[10] These players became the “black sheep” of the free-agent pool. Of course, players often have issues with the law dating back to college, before they were drafted.

Over history, there have been numerous instances where NFL teams have had to weigh the value of a potential draft pick against his past criminal history and the likelihood of committing such acts again. In the 2017 draft alone, there were five players with varying allegations of domestic violence/violence against women.[11] Gareon Conley, a first-round pick to the Oakland Raiders, was involved in an active rape investigation at the time of the draft.[12] Joe Mixon, a running back from the Oklahoma Sooners, punched a woman so viciously in her face, that he broke the bones in her face.[13] He was drafted in the second round of the NFL Draft.[14] Dede Westbrook, who at the time of the incident was not at Oklahoma University where he played college ball, had two-separate incidences of domestic violence.[15] In 2012, he was reportedly accused of throwing the mother of his children to the ground.[16]In the second incident, he allegedly bit the mother of his children again and struck her with a closed fist.[17] He was drafted in the fourth round to the Jacksonville Jaguars.[18] Jourdan Lewis allegedly threw a pillow at his then-girlfriend when discussing finances.[19] The woman testified in open court saying that he threw her into the wall with how hard he threw the pillow. Before the conclusion of the trial, the Dallas Cowboy selected Lewis in the third round of the NFL draft.[20] Lewis was ultimately acquitted of the charges.[21] The fifth player, Caleb Brantley, a defensive lineman out of Michigan struck a woman in the face after she shoved him for making rude comments to her.[22] Brantley displaced a tooth and knocked her unconscious.[23] Brantley, at one point considered one of the top defensive tackles in the NFL draft, did not get drafted until the sixth round. [24] This is an example of the NFL’s willingness to disregard a range of issues in domestic violence.

HOW THE NFL HAS HANDLED DOMESTIC VIOLENCE RECENTLY

The NFL has had several high-profile athletes with domestic violence issues while playing for differing teams. Relying on differing levels of evidence and testimony, the NFL imposed several different punishments on players in a very inconsistent and illogical manner. Some of these players were never charged, some were put into diversion programs, some had videos, and some had more evidence than others. Ultimately nothing about the process was consistent, accurate, or expedient. The following scenarios will be used to show these inconsistencies.

Ray Rice:

The hallmark case that shed light on the ultimate flaws in the disciplinary process for the NFL involved Ray Rice. Rice was a featured running back in the Baltimore Ravens backfield. Coming off of his sixth season as a Baltimore Raven, Rice had accumulated 6,180 yards rushing, 3,034 yards receiving, and a total of 43 touchdowns.[25] The Ravens were set at running-back after using gap-running backs to fill the hole that the great Jamal Lewis left. Everything was all good until a video from TMZ shook all of that up.

On February 15, 2014, Ray Rice and his then-fiancée Janay Palmer, were arrested and released from jail on assault charges.[26] It was known that the two began fighting in a casino in Atlantic City, though the incident’s severity was not initially clear.[27] Rice’s attorney even described the incident as “minor.”[28] Immediately after this incident, the Ravens quickly came to Rice’s defense, speaking to his character, asserting that there is -more to him than this one incident, and allowing the NFL to take its position before the Ravens took their own.[29] The owner of the Ravens, Steve Biscotti, went as far as promising that Rice would “definitely be back.”[30]

Rice was indicted on March 27^th on aggravated assault charges and charges against Palmer were dropped.[31] One day after the indictment, Rice and Palmer were married.[32] On May 1^st, Rice rejected a plea offer sparing him jail time to apply for a pretrial intervention program, which he was accepted into.[33] Rice would have a press conference with his now-wife Janay Rice where Ray and Janay apologized for the incident and their roles in it.[34] Rice would eventually have a meeting with Goodell regarding possible discipline.[35] The NFL ultimately gave Ray Rice a two-game suspension for the events in February and caught immediate backlash because of it.[36]

After the suspension of Ray Rice, in late August 2014, Goodell stated that he “didn’t get it right,” in relation to the Rice punishment and announced a new domestic violence policy.[37] The new Policy included a six-game suspension without pay for first-time offenders and a lifetime ban for second offenders.[38] After all of this hoopla, the infamous Ray Rice video was released via TMZ on September 8^th, 2014.[39] It depicted Ray Rice in an elevator with Ms. Palmer when he suddenly struck her, rendered her unconscious, and promptly drug her seemingly-lifeless body out of the elevator.[40] The Ravens, conducting damage-control for the vicious media-fire storm coming, released Ray Rice that same day.[41] The NFL, doing damage control, then decided to suspend Rice indefinitely.[42] While all of this was happening one very important question kept coming to mind, how could the NFL suspend Ray Rice for only two games if they saw this video?

There were several conflicting reports on whether or not the NFL saw the video before the TMZ release.[43] Goodell claimed that he had not seen the video and the Ravens stated the same.[44] The issue, however, was a report published in the Associated Press stating that Goodell received the video back in April.[45] There were rumors in the Wall Street Journal from an alleged NFL-owner stating that Goodell did not want to pursue an investigation because he was worried about backlash for not believing Ms. Palmer’s story.[46]

Rice subsequently appealed the new suspension and ultimately won. There was conflicting testimony, however, regarding how forthcoming Rice was to Goodell about the nature of the incident.[47] Goodell stated that Rice was ambiguous during the meeting, not being clear about Rice punching Palmer.[48] In conflicting testimony, Ozzie Newsome, General Manager for the Baltimore Ravens, stated that Rice was completely forthcoming in the meeting and stated Rice told Goodell that he hit Palmer.[49]

So, this begs the question, what is the issue? The NFL in this example either blatantly disregarded key information that should have been considered in its initial analysis, or saw the evidence, and knowing the severity of the incident, still only gave a two-game suspension. Only when they were caught in this inadequate punishment scheme were they willing to reconsider the suspension.[50] Rather than get it right the first time, the NFL tried to act like it never happened and move forward. Many would say, “So what? The NFL changed its policy to be better for future incidents.” The next examples will show that even the new policy is nothing but a band-aid over a bullet wound that is the personal conduct policy.

Josh Brown:

Josh Brown, a very successful kicker in the NFL, was entering his 13^th year in the NFL and was on his fourth team in that time span.[51] For his career, Josh Brown was 319/380 in kicking field goals, for an impressive 84%.[52] Brown’s arrest was one of the first incidents that occurred after the Ray Rice incident and was a chance for the NFL to flex its new and improved policy.

Brown was arrested in May of 2015 on suspicion of domestic-assault but no charges were filed.[53] Brown, who had just signed a two-year $4 million deal in 2015, was released by the Giants shortly after the report.[54] The NFL suspended Brown for a measly one game.[55] This was inconsistent with the supposed domestic policy drawn up after the Ray Rice saga which would have required at least a six (6) game suspension. However, that suspension would change once the media caught wind that Brown admitted to abusing his then-wife in documents that became public in October of 2016.[56] These documents, which outlined a gruesome history of abuse by Brown, dated all the way back to 2013. The NFL did not increase Brown’s suspension until October 2017, a year after the personal documents were released regarding Brown’s extensive history of domestic abuse.[57]

In the NFL’s first chance to cast a strong hand against domestic violence, it failed to do so. One rationale for the NFL suspension of Brown is because of the mitigating factor clause in the personal conduct policy.[58] This clause allows for the NFL to change the suspension from the “mandated” six-game suspension they highlighted in the Ray Rice incident. The mitigating factor, in this case, seems to simply be that his then-wife did not want to participate in the process and was not helpful to the NFL.[59] Without the “help” of the wife, it was apparently harder for the NFL to conduct a full investigation.[60] However, had the NFL simply interviewed people who knew the family, they would have found out that in 2014, Brown said he saw his wife as a slave.[61] The NFL allegedly had knowledge of an incident at the Pro-Bowl where Brown was drunk and began pounding the door.[62] Molly, Brown’s then-wife, refused to let him in and had to call the NFL to deal with him.[63] Just another example of the NFL failing to do simple due-diligence.

Ezekiel Elliot:

Ezekiel Elliot was a star running back on the Ohio State Buckeyes national championship winning 2015 team.[64] Elliot rushed for almost four thousand yards in his career at The Ohio State University with 44 total touchdowns.[65] He was one of the most highly-touted running back prospects to come out of the college ranks in years. After winning the national title game with the Buckeyes in an unlikely run for the title in the first year of the playoff in college football, Elliot was ultimately drafted into the NFL with the fourth overall pick by the Dallas Cowboys. This was a cornerstone pick for the Cowboys who had not had a dominant running back since Emmitt Smith. But ultimately, they would end up losing arguably their best player shortly after being drafted.

One of the incidents that ultimately cost Elliot six-weeks-worth of paychecks occurred in February of 2016, way before he was ever drafted by the Dallas Cowboys.[66] Elliot, who the accuser stated was a friend-with-benefits, allegedly pushed the woman against a wall causing damage to her shoulder. [67] She told the police that Elliot was mad that she texted one of his old teammates.[68] Naturally, Elliot had a different version of the events of that evening. Elliot stated that she was visiting him during pre-draft training, and she became angry over a social media incident.[69] Elliot asked her to leave and the argument began after that. She was examined by paramedics and no visible injuries were found and no charges were ultimately filed.[70]

In April of 2016, Elliot was drafted by the Cowboys and shortly after, in July, Elliot spent time with the alleged victim again.[71] They spent roughly five days together and during those five days, there were five alleged incidences.[72] These allegations ranged from Elliot trying to strike the victim, Elliot choking the victim, throwing her against a wall, and dragging her across the floor.[73] Again, no charges were ever filed in relation to any of these incidents.

The NFL did its own investigation of the claims and stated that Elliot was abusive in three different instances.[74] They took testimony from the alleged victim, from Elliot and looked over the police records and found that although the victim had lied about some aspects of the incident, Elliot had been abusive.[75] The NFL ultimately handed down a six-game suspension to Elliot. Elliot appealed the suspension shortly thereafter. [76]

Roger Goodell, the Commissioner of the NFL, chose not to hear the appeal himself and appointed Harold Henderson to oversee the appeal.[77] Harold Henderson, was a somewhat interesting pick seeing as he has frequently been used by the NFL to preside over appeals and sits on the NFL/NFLPA Player Care Foundation.[78] Ultimately, Henderson upheld the suspension.[79] In a statement, Henderson stated that his only duty was to determine if Goodell was arbitrary and capricious and that he was not there to “second-guess” his decision.[80] Elliot would not go down quietly and began a lengthy and complicated legal battle that ultimately just delayed his suspension. The saga eventually ended with Elliot dropping his appeal and serving the full suspension mid-season in 2017.[81]

This incident exemplifies the very flawed and complicated nature of the suspension process and personal conduct policy. Lisa Friel, who is the new-decision maker regarding the initial punishments for violators of the policy, decides on a random number of games to suspend a player, Goodell then appoints someone he trusts to oversee the appeal, and his decision will never be overturned because the standard of review is just to ensure he was not “arbitrary and capricious” in his implementation of the suspension.[82] The next example of this issue is with Tyreek Hill.

Tyreek Hill:

Unlike the previous examples, Tyreek Hill’s domestic issues started way before he ever became an NFL player. Tyreek Hill had a very unorthodox road in college football. He started his career at Garden City Community College for two years in 2013.[83] From that, he garnered attention from Division-I program Oklahoma State University. His time there was short in 2014, however, due to an incident after a game on December 6^th with his pregnant girlfriend.[84] The incident included Hill punching and choking his 8-week pregnant girlfriend.[85] When interviewed at the time of the incident, Hill’s girlfriend stated they were arguing when the incident became physical.[86] Hill was ultimately dismissed from Oklahoma State and served three years for probation and had to complete a 52-week batterer intervention course.[87] Shortly after his guilty plea, he announced he was playing college ball at West Alabama. [88]

After a year playing for West Alabama, Hill did not get an invite to the NFL Scouting Combine. However, he turned heads at the West Alabama Pro-day.[89] Even with Hill’s very damning criminal past, he was drafted by the Chiefs in the fifth round of the 2016 NFL draft.[90] The Chiefs, in support of their recent selection, stated that they did not do so blindly.[91] Andy Reid, the Head Coach of the Chiefs stated, “I give the kid credit for doing that and he’s really working hard at that,” in reference to Hill trying to right the wrong.[92]

The NFL did nothing in reference to this. Hill was able to be drafted without any repercussions in the NFL, showing a glaring hole in the new Domestic Violence Policy. It allows for players with a past of criminal violence toward women to simply have no repercussions professionally. This paper is not here to suggest that no one deserves a second chance or a chance at redemption. But, per the policy, Hill should have had at least a six-game suspension before he was allowed to play in the NFL, or more, depending on the circumstances. Just another post-Rice domestic violence issue that the NFL failed to handle correctly.

Kareem Hunt:

Kareem Hunt was a superstar running-back that came from nowhere. Kareem Hunt came out of small division I program, Toledo.[93] In his career there, Hunt had 5500 career yards from scrimmage and scoring forty-five touchdowns.[94] Hunt was a small school prospect that everyone was talking about in the 2017 NFL draft. He was ultimately chosen by the Kansas City Chiefs in 2017 in the third round, and as NFL network’s Daniel Jerimiah said, he was going to be an outstanding pro.[95] He was right. In Hunt’s first game as a Chief, he racked up 246 total yards and scored three touchdowns, setting a record for most scrimmage yards in a players’ first career game.[96] Hunt would end up rushing for over 1,300 yards as a Chief in his first year in the league and eleven touchdowns.[97] From all indications, the Chiefs investment of a third-round pick in a small-school prospect struck gold. Then came the 2018 season.

Kareem Hunt’s 2018 season got started just as everyone would have hoped. In the 11 games he had in the 2018 season, he had over eight hundred yards rushing and over three hundred yards receiving.[98] Hunt had already scored a whopping 14 touchdowns in those eleven games as well.[99] He was a candidate for offensive player of the year in only his second season as a Chief, had it not been for his own quarterback Patrick Mahomes who was having a historic season himself. Then the video dropped.

In this video, released by TMZ, Hunt was seen kicking a woman in an altercation in a Cleveland hotel.[100] This incident occurred in February of 2018, although Hunt was playing for the Chiefs throughout the 2018 season until the video dropped, and the Chiefs released him immediately.[101] The Chiefs issued a prompt statement stating that the running back had lied to them when discussing the event previously.[102] The NFL also put Hunt on the Commissioner Exempt list until they decided on the adequate punishment.[103] The Commissioner Exempt List is a special designation given to players, by the Commissioner, that temporarily exempts the player from counting within the Active List limit.[104] The designation prevents the player from participating in team activities and can be with, or without, pay.[105] On March 15^th, 2019, the NFL finally came down with their punishment of Kareem Hunt.[106] Ultimately, Goodell and the NFL decided on eight games.[107] This is two games more than the supposed six-game suspension in the new domestic violence policy. Again, the wiggle-room in the provisions allowed for an arbitrary suspension.[108] There is a natural inclination to perceive this as a good effort by the NFL to get the right punishment, but on the contrary, this incident just further makes the point.

Hunt has stated that the league never interviewed him, although the Chiefs did.[109] A source inside the Chief’s franchise stated that the team did not further investigate the incident after speaking with Kareem because the NFL said they would handle it.[110] It was the protocol for the league to take over such investigations.[111] Although the NFL stated that it would handle it, as such was protocol, they did not handle it. In fact, the NFL did not punish Hunt until the TMZ video dropped.[112] Although, the NFL claimed they tried to retrieve the video from the hotel and an official from the hotel confirms such, it is not an excuse for not conducting a full investigation otherwise.[113] Rayshawn Hawkins, who was cited in the police reports, never heard a thing from anyone in the league.[114]

Kareem Hunt is the last example used to exemplify the many flaws within the Personal Conduct Policy of the NFL. There are plenty of other examples of such misconduct and inappropriate punishment, but these are the ones chosen to just highlight the issues. In Hunt’s case, the lack of another full investigation by the NFL and its wait-and-hope scenario is not adequate. The NFL seems to just sweep things under the rug hoping that videos of incidents do not become available.

WHAT ARE CAUSING INCONSISTENCIES IN THE ENFORCEMENT OF THE PERSONAL CONDUCT POLICY.
What Is the Personal Conduct Policy?

When looking at the plethora of reasons why the Personal Conduct Policy is not working, it is first important to understand what the Personal Conduct Policy is. Essentially, the Personal Conduct Policy of the NFL states that all persons associated with the NFL are to avoid, “conduct detrimental to the integrity of and public confidence in the National Football League.”[115] This clause has long been used as a catch-all to allow the NFL to implement arbitrary punishments and suspensions for pretty much anything that looks poorly on the league. Until the Ray Rice saga, the NFL had nothing in the Policy specifically detailing issues of domestic violence. The new and improved domestic violence policy was, as mentioned before, for a six-game suspension, then a lifetime ban after the second occurrence.[116] But more importantly, the initial decision was taken out of Roger Goodell’s hands,[117] and it was to be put in the hands of a “highly qualified individual with a criminal justice background.” This person was to oversee investigations and decide the necessary discipline.[118]

The NFL ultimately decided on Lisa Friel to head this position.[119] Friel had an astounding Twenty-Eight years with the district attorney’s office in Manhattan, specifically working for the Manhattan Sex Crimes Prosecution Unit. This extensive knowledge and experience attracted the NFL to her.[120] Friel took the job because she saw it as a chance “to do something that really mattered.”[121] Friel’s job included investigations of alleged violations of the league’s personal conduct code: domestic violence, sexual assault, animal cruelty and any other disorderly conduct that could be covered by the policy.[122] Friel, who is still a member of the league office, decides the preliminary decisions on suspensions while Roger Goodell retained the right to hear the appeals or to designate someone or a panel of experts to recommend a decision.[123] This is the policy currently in place in the NFL and was applied to each of the previous examples. Lisa Friel ultimately is the original decision-maker on violations of the policy with Goodell being in charge of appointments for appeals. With a basic understanding of the Personal Conduct Policy, the issues are obvious.

Issues with the Personal Conduct Policy.

The NFL has tried to put a band-aid over a bullet wound with its shaky-at-best update to the personal conduct policy. The main problem with the Personal Conduct Policy is that it is extremely broad and used as a catch-all for all issues that could arise that look poorly on the NFL. This “general” nature of the Personal Conduct Policy naturally does not allow domestic violence to receive the attention it desperately deserves. The NFL’s way of addressing Domestic Violence itself was by adding a subsection to an already broad policy.[124]

Although the NFL specified the number of games suspensions might be, and appointed Friel, it simply is not enough because the policy itself is flawed. It is not possible to tackle a societal problem such as domestic violence with such a broad policy. The policy has holes in its wording in reference to domestic violence. The policy calls for a “baseline” six-game suspension with consideration given to mitigating and aggravating factors.[125] Additionally, the policy’s supposed lifetime ban is not really a lifetime ban because the individual who is banned can petition for reinstatement within a year. These inconsistencies and vague terms allow for too much discretion in an area that should be cut and dry.

Lastly, when conducting investigations, the Personal Conduct Policy fails to determine a specific evidentiary standard. With no guide to lead even the most experienced evaluators, it is hard to say that punishments will not be arbitrary and will be consistent. The evaluator, Friel, is essentially gathering information and evidence until she decides that it is enough for her to think that the conduct of the individual was “bad” for the league. This kind of standard is not workable to real-life scenarios. In addition to the plain text of the personal conduct policy, there is a larger problem: Commissioner power.

Commissioner Powers:

Many of the problems that have been outlined above are a direct result of the power that is given to Roger Goodell, the Commissioner of the NFL. Article 46 of the most recent Collective Bargaining agreement between the NFL and the National Football League Players Union (“NFLPA”), outlines the powers of the Commissioner. The Commissioner of the NFL has the power to take action against a player for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”[126] Although the NFL has relinquished some of this power by vesting the initial decision with Friel, he still is the ultimate decision maker and controls the entire appeals process.[127]

When appealing a case, the individual that is accused of alleged wrong-doing is still in the hands of the Commissioner, as he has complete power over the appeals process.[128] This is hardly an impartial process. Although the Commissioner does not always appoint himself as the hearing officer in appeals, it has happened, as with the Saints and “Bountygate” and it raises substantial impartiality concerns.[129] In Bountygate, the Commissioner elected to recuse himself only after the players had filed suit due to impartiality.[130]

Not only does the Commissioner have ultimate power in deciding the fate of players, but the only rights given to players is the right to notice.[131] Since the NFL is a private labor organization, there is no required due process right to allow the individual to be heard, although the NFL most likely will conduct its own investigation.[132] As Renicker stated, “… the Commissioner is granted tremendous power in player punishment.”[133]

Laziness

Ultimately a lot of the mishaps by the NFL are completely and unequivocally the NFL’s own fault. The NFL has time and time again taken the lazy route. The NFL seems to be doing the least work necessary, as was evident in the Josh Brown and Kareem Hunt incidences. Additionally, the NFL seems to be constantly in a wait-and-hope type scenario regarding videotapes. In the Ray Rice scenario, the NFL denied any knowledge about Ray Rice hitting his wife, but the NFL was called out by the General Manager of the Ravens on appeal.[134] With Kareem Hunt, the NFL could not obtain the video per the hotel policy.[135] However, the NFL failed to conduct a sufficient and adequate investigation. The NFL did not even interview the player who allegedly initiated such bad behavior.[136] The NFL seems to always be in a wait-and-hope scenario praying that TMZ does not release videos.

How to Fix Issues in Enforcement with an Independent Policy

In the final part, this paper will discuss the options for the NFL in addressing its plethora of issues in its “Domestic Violence Policy.” First, it will outline the Independent Policy for the NFL. Specifically, addressing issues of separation from the old catch-all “Personal Conduct Policy.” The Independent Policy will do-away with complete Commissioner powers regarding the punishment of players. In place of the Commissioner will be an Independent Review Board that handles all punishment-related issues, which will be required to conduct thorough and proactive investigations. The Independent Policy will have an evidentiary standard that must be met before any fines, suspensions, or other punishment may be implemented. Lastly, the Independent Policy will have support for both victims and their abusers separately.

An “Independent” Domestic Violence Policy:
1. The Policy:

The NFL’s Domestic Violence Policy is not workable. It is not logical to require crimes that are so utterly different in both their impact and resulting harm that they must be treated separately from other issues players might get themselves into. Therefore, this analysis suggests that the NFL adopt a completely “Independent” Domestic Violence Policy with strict rules for enforcement and no “wiggle-room” provisions that allow for arbitrary results. I suggest the NFL adopt a policy that is not unclear about what the punishments should be and how they will be implemented. In order to do this, it is paramount that both players executives and staff know what offenses are covered under this policy and the evidentiary standard used in determining if a violation of the Independent Policy has occurred. A clear-cut definition of offenses covered under the Independent Policy, coupled with evidentiary standards as guides, will allow for players, executives, and staff to know exactly what will happen if they get involved in such incidents and will know the stakes.

In order to understand what offenses are covered under the policy, we have to know what is meant by “domestic violence.” Although domestic violence has a definition apart from sexual assault and rape, this Independent Policy is meant to cover all instances of domestic violence and sexual misconduct. This will inherently require players to be more accountable for their actions and more cautious in their dealings. But for a more specific definition of domestic violence, the policy will follow the federal definition of domestic violence as outlined in the Violence Against Women Act.[137] For violations that are sexual in nature, following the definitions outlined in the state the offense committed might be easiest. The next question is what should the evidentiary standard be? In order to decide this question, we must dive into the different types of evidentiary standards.

The first option is the “preponderance of the evidence standard.”[138] This standard requires a showing that an event was more likely to have happened than to have not happened.[139] The next option is “clear and convincing evidence” which requires the plaintiff to prove that there is a high probability that a particular fact is true.[140] The last option up for consideration is the “beyond a reasonable doubt standard,” typically used in criminal cases, this standard is the highest burden of proof that may be imposed.[141] It requires a showing that the ONLY logical explanation that can be derived from the facts is that the defendant committed the crime.[142] Ultimately, the best standard would be that of the “preponderance of the evidence standard.”[143] As the standard that requires the least amount of proof to determine a potential violation, this standard will require the investigator hired by the NFL to show that it was more likely than not that the players committed the alleged violations. Although this is the easiest standard to be met, both the investigator and appointed counsel from the NFLPA will present their cases. Thus, if the player has nothing to hide, he will be completely heard on the issues.

Finally, with a defined scope of conduct to be covered by the policy, and an evidentiary standard to guide the decision maker, a concrete punishment regime must be implemented. In a first-time violation, if the evidentiary standard is met, the individual will receive an eight-game suspension. However, in order to be reinstated into the NFL, the player must also complete a domestic violence counseling program during the eight-game suspension. If the player fails to do so, the player is not eligible to be reinstated until the program is completed. For a second violation of the Independent Policy, the individual will be banned from the sport. The same evidentiary standard will apply in the hearing of the second violation. If found having violated the Independent Policy again, the player will be banned from the sport. No reinstatements after a second offense. With clear and concrete definitions of offenses covered under the policy, an evidentiary standard, and a new punishment regime; the next issue to be addressed is the enforcement scheme.

“Bye-Bye-Bye”[144] Commissioner Powers, Hello Board

In order for this plan to work, one major domino would have to fall. The NFL and NFLPA would have to re-negotiate the CBA in order to limit the Commissioner’s role in the punishment process. As of now, Goodell has ultimate control over the process although he gave some power over to Friel. The new CBA would have to call for the formulation of a five-person Independent Domestic Violence Disciplinary Review Board (“Board”). The five-person panel will consist of one person appointed by the league office, to represent their interests, one person from the NFLPA to represent the players’ interest and three, neutral, third-party arbitrators. These arbitrators must have an extensive history dealing with domestic violence through education, work experience, and scholarship.

This Board should be welcomed by both Goodell and the NFLPA because both interests will still be represented in the board while also allowing for neutral arbitrators to be involved in the process. The Board must provide notice to players of a potential violation and a hearing to be held within 30 days of notice. The player will be allowed to present evidence as will an independent investigator hired by the Commissioner of the NFL and counsel as selected by the NFLPA for the accused. This new Board and its brand-new policy will work for three reasons, it will serve as a deterrent for wrongful conduct by the players, act as retribution for those that ignore the rules, and will allow for per se violations of the Independent Policy.

Justifications for the Independent Policy:

The Independent Policy will serve two central purposes that are core tenants to law: Deterrence and Retribution. The NFL has in the past tried to deter activity contrary to the Personal Conduct Policy by doing things such as collecting PSI data for footballs after the Deflate-gate incident.[145] Deflate-gate, involved the New England Patriots allegedly deflating footballs in the playoffs.[146] The NFL started this practice after a long legal battle with Tom Brady to try and prevent the Patriots from potentially cheating again.[147] By implementing an extensive, investigation process, hearing, and low evidentiary threshold, players, owners, and staff of the NFL will be deterred from engaging in such unlawful activity.

Additionally, this Independent Policy will ultimately act as a form of retribution. Retribution essentially is the “eye for an eye” idea, that when someone commits the crime, they are expected to give up something in return.[148] This Independent Policy would allow for just that. The players that are ultimately found in violation of the Independent Policy, would first be suspended eight games and then on a second finding of a violation of the rules, the individual would be permanently banned from playing in the NFL.

Lastly, the Independent Policy coupled with the “preponderance of the evidence standard” will allow for per se violations and expedited review. In the criminal context the standard of review is often “beyond a reasonable doubt.”[149] As noted above, the “beyond a reasonable doubt” standard is a higher and a much more difficult standard to meet than the “preponderance of the evidence” standard. Therefore, if a alleged violator of the Independent Policy is found guilty in a court of law, it will serve as a per se violation of the rules and will not require a full hearing. However, this does not mean if a alleged violator is found not guilty in a court of law, that they are therefore not guilty of any violations.

CONCLUSION

In summation, the NFL has frequently dropped the ball in its implementation of the Personal Conduct Policy. From Ray Rice to more recent incidents involving Kareem Hunt and Ezekiel Eliot, the NFL fails to implement a consistent and fair scheme for punishing those who are accused of domestic violence. These issues have ranged from the inconsistent language in the Personal Conduct Policy itself, the ultimate power of the Commissioner, and a lack of an evidentiary standard. The Independent Policy addresses all of these issues.

With a five-person Board overseeing the hearing, the Independent Policy allows for both the NFL and NFLPA to be represented while also allowing for three independent arbitrators to sit over hearings. Additionally, the Independent Policy along with the “preponderance of the evidence” standard allows the Board to have a cut-and-dry approach to deciding to implement a suspension to a first-time offender or a ban for a repeat offender. This policy will deter future unlawful conduct while also serving a retributive effect for those who chose to break the law. It is the perfect replacement.

[1] Mike Florio, NFL will reach $14 billion in 2017 revenue, profootballtalk.nbcsports.com. (Mar. 6, 2017, 11:29a.m.), https://profootballtalk.nbcsports.com/2017/03/06/nfl-will-reach-14-billion-in-2017-revenue/.

[2] Id.

[3] Jim Thorpe, britannica.com, https://www.britannica.com/biography/Jim-Thorpe-American-athlete (last visited Mar. 17, 2019).

[4]2018 NFL Attendance Data, pro-football-reference, (2019) https://www.pro-football-reference.com/years/2018/attendance.htm.

[5] Rick Porter, TV Long View: NFL Ratings Up While Broadcast Nets Bleed Viewers, Hollywoodreporter, (Nov. 16, 2018), https://www.hollywoodreporter.com/live-feed/nfl-tv-ratings-are-up-broadcast-networks-bleed-viewers-1162096.

[6] 2014 was selected as the year for analysis because this was when the Ray Rice incident occurred and the NFL changed its domestic violence policies.

[7]NFL Player Arrests, USA Today, (2019) https://www.usatoday.com/sports/nfl/arrests/.

[8] Id.

[9] Id.

[10] Id.

[11] [11]David Steele, Draft picks with domestic violence history show NFL is back where it started, sporting news (May 3, 2017), http://www.sportingnews.com/us/nfl/news/nfl-draft-picks-domestic-violence-joe-mixon-conley-westbrook-brantley/ff1hhe4ypm6g18gv2tdv6zv58.

[12] Id.

[13] Id.

[14] Id.

[15] Chase Goodbread, Report: Dede Westbrook arrested twice for domestic violence, NFL. (Last Updated, Dec 12, 2016, 2:23p.m.), http://www.nfl.com/news/story/0ap3000000755830/article/report-dede-westbrook-arrested-twice-for-domestic-violence.

[16] Id.

[17] Id.

[18] Id.

[19]Mike Persak, Cowboys rookie Jourdan Lewis acquitted of misdemeanor domestic violence charge; ‘I’m elated,’ sportsday.dallasnews, (2019) https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/07/25/follow-cowboys-rookie-jourdan-lewis-domestic-violence-trial-live.

[20] Id.

[21] Id.

[22] Nate Atkins, Florida DT draft prospect Caleb Brantley facing misdemeanor battery charge, mlive, (Updated Apr. 23, 2017), https://www.mlive.com/lions/2017/04/florida_dt_draft_prospect_cale.html.

[23] Id.

[24] Id.

[25] Ray Rice, , pro-football-reference, (2019), https://www.pro-football-reference.com/players/R/RiceRa00.htm.

[26] Louis Bien, A complete timeline of the Ray Rice assault case, sbnation, (Updated Nov. 28, 2014), https://www.sbnation.com/nfl/2014/5/23/5744964/ray-rice-arrest-assault-statement-apology-ravens.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Josh Brown, NFL, (2019) http://www.nfl.com/player/joshbrown/2505459/careerstats.

[52] Id.

[53] Scott Gleeson, Report: NFL suspends ex-Giants kicker Josh Brown six games over domestic violence case, USA Today, (Updated Sept. 8, 2017, 10:11a.m.), https://www.usatoday.com/story/sports/nfl/giants/2017/09/08/report-nfl-suspends-ex-giants-kicker-josh-brown-six-games-over-domestic-violence-case/645084001/.

[54] Id.

[55] Stanley Kay, Report: NFL Suspends Josh Brown for Six Additional Games, sports illustrated, (Sept. 8, 2018), https://www.si.com/nfl/2017/09/08/josh-brown-suspension-domestic-abuse-more-games.

[56] Id.

[57] Id.

[58] NFL & NFLPA, Personal Conduct Policy: League Polices for Players, static, (2016), https://static.nfl.com/static/content/public/photo/2017/08/11/0ap3000000828506.pdf.

[59] Why was Josh Brown suspended only one game?, ESPN, (2019) http://www.espn.com/video/clip?id=17346969.

[60] Id.

[61] Jordan Raanan, Giants kicker Josh Brown detailed domestic violence in documents, ESPN, (Oct. 20, 2016), http://www.espn.com/nfl/story/_/id/17837045/josh-brown-new-york-giants-admits-domestic-violence-documents.

[62] Id.

[63] Id.

[64] Ezekiel Elliot, sports-reference,https://www.sports-reference.com/cfb/players/ezekiel-elliott-1.html.

[65] Id.

[66] Sarah Hardy, A comprehensive timeline of Ezekiel Elliot’s domestic violence case, sbnation, (Nov. 30, 2017, 5:03 p.m.), https://www.sbnation.com/2017/8/29/16151642/ezekiel-elliott-timeline-domestic-violence-police-report-nfl-suspension-appeal.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Timothy Rapp, Roger Goodell Names Harold Henderson to Hear Ezekiel Elliot’s Suspension Appeal, bleacherreport, (Aug. 16, 2017), https://bleacherreport.com/articles/2727806-roger-goodell-names-harold-henderson-to-hear-ezekiel-elliotts-suspension-appeal.

[78] Id.

[79] Id.

[80] [80] Sarah Hardy, A comprehensive timeline of Ezekiel Elliot’s domestic violence case, sbnation, (Nov. 30, 2017, 5:03 p.m.), https://www.sbnation.com/2017/8/29/16151642/ezekiel-elliott-timeline-domestic-violence-police-report-nfl-suspension-appeal.

[81] Id.

[82] Id.

[83] Jeff Smith, Tyreek Hill College Career: Chiefs WR Had Multiple Stops Prior to NFL, heavy, (Updated Jan 12, 2019), https://heavy.com/sports/2019/01/tyreek-hill-college-stats-chiefs-oklahoma-state-nfl/.

[84] Id.

[85] Jeffri Chadiha, Chiefs giving Tyreek Hill opportunity to atone for heinous crime, NFL, (Updated May 10, 2016, 5:17p.m.), http://www.nfl.com/news/story/0ap3000000661084/article/chiefs-giving-tyreek-hill-opportunity-to-atone-for-heinous-crime.

[86] SI Wire, Tyreek Hill pleads guilty to domestic abuse, receives three years probation, Sports Illustrated, (Aug. 21, 2015), https://www.si.com/college-football/2015/08/21/tyreek-hill-oklahoma-state-football-domestic-violence-battery-plea-agreement.

[87] Id.

[88] Jeff Smith, Tyreek Hill College Career: Chiefs WR Had Multiple Stops Prior to NFL, heavy, (Updated Jan 12, 2019), https://heavy.com/sports/2019/01/tyreek-hill-college-stats-chiefs-oklahoma-state-nfl/.

[89] Id.

[90] Jeffri Chadiha, Chiefs giving Tyreek Hill opportunity to atone for heinous crime, NFL, (Updated May 10, 2016, 5:17p.m.), http://www.nfl.com/news/story/0ap3000000661084/article/chiefs-giving-tyreek-hill-opportunity-to-atone-for-heinous-crime.

[91] Id.

[92] Id.

[93] Kareem Hunt, sports-reference, (2019), https://www.sports-reference.com/cfb/players/kareem-hunt-1.html.

Id.

[95] Joel, Thorman, Chiefs trade up in draft again, select RB Kareem Hunt in Third Round, arrowhead pride, (Updated, Apr, 28, 2017), https://www.arrowheadpride.com/2017/4/28/15481560/chiefs-trade-up-in-draft-again-select-rb-kareem-hunt-in-third-round.

[96] Tim Rohan, Kareem Hunt’s Career Night Comes in First Game, Sports Illustrated, (Sept. 8, 2017), https://www.si.com/nfl/2017/09/08/kareem-hunt-kansas-city-chiefs-nfl-record-rookie-debut.

[97] Kareem Hunt, Cleveland Browns, NFL, (2019) http://www.nfl.com/player/kareemhunt/2557917/careerstats.

[98] Id.

[99] Id.

[100] Associated Press, Chiefs releasee All-pro RB Kareem Hunt hours after domestic violence video surfaces, nbc sports, (Nov. 30, 2018), https://www.nbcsports.com/washington/redskins/chiefs-release-all-pro-rb-kareem-hunt-hours-after-domestic-violence-video-surfaces.

[101] Id.

[102] Id.

[103] Tom Schad, Kareem Hunt suspended 8 games by NFL for violating personal conduct policy, USA Today, (Updated Mar. 15, 2019, 11:20a.m.), https://www.usatoday.com/story/sports/nfl/browns/2019/03/15/kareem-hunt-suspended-cleveland-browns-nfl/3172956002/.

[104] Louis Bien, What is the NFL exempt/commissioner’s permission list, and what does it mean for Adrian Peterson? sbnation, (Sep. 17, 2014) https://www.sbnation.com/nfl/2014/9/17/6333759/nfl-exempt-commissioners-permission-list-explanation-adrian-peterson-greg-hardy

[105] Id.

[106] Tom Schad, Kareem Hunt suspended 8 games by NFL for violating personal conduct policy, USA Today, (Updated Mar. 15, 2019, 11:20a.m.), https://www.usatoday.com/story/sports/nfl/browns/2019/03/15/kareem-hunt-suspended-cleveland-browns-nfl/3172956002/.

[107] Id.

[108] NFL & NFLPA, National Football League: Personal Conduct Policy, NFL Labor, (2019), https://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf.

[109] Valkenburg & Rothstein, A night on the town, and the end of Kareem Hunt’s Chiefs Career, ESPN, (Dec 7, 2018), http://www.espn.com/espn/otl/story/_/id/25471824/how-kareem-hunt-nfl-career-was-put-hold-night-town.

[110] Id.

[111] Id.

[112] Id.

[113] Id.

[114] Id.

[115]NFL & NFLPA, National Football League: Personal Conduct Policy, NFL Labor, (2019), https://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf.

[116] Id.

[117] Tom Pelissero, NFL owners pass new personal conduct policy, USA Today, (Updated Dec, 10, 2014, 4:12p.m.), https://www.usatoday.com/story/sports/nfl/2014/12/10/roger-goodell-nfl-owners-personal-conduct-policy/20199033/.

[118]Id.

[119] Dan Barry, Ex-Prosecutor’s Job: Flag N.F.L. Players, New York Times, (Feb, 4, 2016), https://www.nytimes.com/2016/02/05/sports/football/lisa-friel-ex-prosecutor-finds-plenty-to-do-as-the-nfls-top-investigator.html

[120] Id.

[121] Id.

[122] Id.

[123] Tom Pelissero, NFL owners pass new personal conduct policy, USA Today, (Updated Dec, 10, 2014, 4:12p.m.), https://www.usatoday.com/story/sports/nfl/2014/12/10/roger-goodell-nfl-owners-personal-conduct-policy/20199033/.

[124] NFL & NFLPA, Personal Conduct Policy: League Polices for Players, static, (2016), https://static.nfl.com/static/content/public/photo/2017/08/11/0ap3000000828506.pdf.

[125] Id.

[126] Id.

[127] Tom Pelissero, NFL owners pass new personal conduct policy, USA Today, (Updated Dec, 10, 2014, 4:12p.m.), https://www.usatoday.com/story/sports/nfl/2014/12/10/roger-goodell-nfl-owners-personal-conduct-policy/20199033/.

[128] Cole Renicker, A Comparative analysis of the NFL’s Disciplinary Structure: The Commissioner’s Power and Players’ Rights, 26 Ford. L. Rev. 4, 1072-1078 (2016), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1636&context=iplj.

[129] Id.

[130] Id.

[131] Id.

[132] Id.

[133] Id.

[134] Louis Bien, A complete timeline of the Ray Rice assault case, sbnation, (Updated Nov. 28, 2014), https://www.sbnation.com/nfl/2014/5/23/5744964/ray-rice-arrest-assault-statement-apology-ravens.

[135] Valkenburg & Rothstein, A night on the town, and the end of Kareem Hunt’s Chiefs Career, ESPN, (Dec 7, 2018), http://www.espn.com/espn/otl/story/_/id/25471824/how-kareem-hunt-nfl-career-was-put-hold-night-town.

[136] Id.

[137] Violence Against Women Act, 34 U.S.C § 12291 (2017).

[138] Evidentiary Standards and Burdens of Proof, Justia, (2019), https://www.justia.com/trials-litigation/evidentiary-standards-burdens-proof/.

[139] Id.

[140] Id.