Five key questions about the NFL's new domestic violence policy
The NFL's new domestic violence policy sends an important societal message and goes a long way towards rectifying the absurd manner in which the Ray Rice situation was handled, but it also raises a host of complicated issues without easy answers.
We'll get to those in a moment, in the meantime it's important to point out that the most important aspect of the NFL's revised position is the message it sends — domestic violence won't be tolerated by the league.
A first offense will lead to a six-game suspension, a second offense will lead to "banishment from the NFL." (Although, interestingly enough, the "banishment from the NFL" is subject to appeal after a year, so despite the fact that many media have used the term, calling this a lifetime ban is inaccurate.) The NFL is setting a more stringent standard for player behavior than has ever existed in any professional sports league.
For that, it should be commended. It's also important to note that the actual implementation of the policy is fraught with perilous details and uncertain precedents. You can read the entire letter Roger Goodell sent to team owners today, but the most important part of that letter comes near the end when the actual policy is explained (bold added): "We will address these issues fairly and thoughtfully, respecting the rights of all involved and giving proper deference to law enforcement and the courts. If someone is charged with domestic violence or sexual assault, there will be a mandatory evaluation and, where professionally indicated, counseling or other specialized services. Effective immediately, violations of the Personal Conduct Policy regarding assault, battery, domestic violence or sexual assault that involve physical force will be subject to a suspension without pay of six games for a first offense, with consideration given to mitigating factors, as well as a longer suspension when circumstances warrant. Among the circumstances that would merit a more severe penalty would be a prior incident before joining the NFL, or violence involving a weapon, choking, repeated striking, or when the act is committed against a pregnant woman or in the presence of a child."
Okay, let's break this down via five important questions.
1. What's an offense of this policy?
That's the most integral question of all, and this announcement gives us no indication of what an offense actually is.
“Is being charged an offense? Is going to trial an offense? Is the NFL's 'mandatory evaluation' going to involve an independent investigation into the incident? ”
Is being charged an offense? Is going to trial an offense? Is the NFL's "mandatory evaluation" going to involve an independent investigation into the incident? Is a plea down to a lesser charge an offense? What if the victim refuses to cooperate and charges are dropped because the player pays off the alleged victim?
Basically, the devil is in the details here. While it's great that the NFL has announced this new policy, we have no idea how it's going to be implemented or how rapid any NFL action might come under the policy.
Let's put this in concrete terms — the NBA allowed Kobe Bryant to play basketball while he was charged with rape. Before the case went to trial Bryant settled with his accuser and the case was dropped.
Would an incident such as this be subject to an NFL penalty? Is that an offense of the personal conduct policy? Given how slowly the wheels of justice move in a criminal case, would Kobe have been allowed to play in the NFL after he was charged? Also, because there was no conviction or plea agreement would the case even fall under the NFL's policy?
We don't know the answer to any of these questions.
Remember, every NFL player is going to have stellar legal representation. Often these cases are pleaded down to misdemeanors or settled before any charges are ever filed. Is any plea to any domestic violence-related case a violation or does this policy only apply to felonies? Basically, how do you determine what's an actual offense? We don't know.
2. What does "giving proper deference to law enforcement" actually mean?
Does this mean that the NFL will wait until the entire case is resolved before acting? Or does it mean that once charges are filed it will act? Do charges have to be filed or is an embarrassing-enough fact pattern sufficient grounds for a suspension?
Remember, the league suspended Pittsburgh Steelers QB Ben Roethlisberger under the personal conduct policy even though he wasn't charged with sexual assault. But it waited until the full criminal investigation was made public to make a decision.
“If a player's found innocent by the courts, how does the league reach a different determination if it's giving proper deference to law enforcement?”
You want a more difficult question? What if O.J. Simpson had been 26 when he was charged with murder and he was found not guilty of murdering his ex-wife by the courts? Would an NFL team have signed him? Would the NFL have suspended O.J. under the personal conduct policy? If a player's found innocent by the courts, how does the league reach a different determination if it's giving proper deference to law enforcement?
Again, there are more questions than answers about this new policy.
3. Will the NFLPA challenge this in court?
The NFL initially implemented the personal conduct policy without the approval of the player's union. Yet, the NFLPA never challenged the penalties levied by the commissioner. Here the union is painted into a difficult corner.
If it opposes the NFL's power grab, then it gets crushed in the public arena for defending alleged perpetrators of domestic assault. But if it does nothing the the NFLPA is faced with a complicated reality -- you're agreeing to allow members of your union to miss six games -- and potentially see their careers end -- without a clearly proscribed policy in place.
The right move for a union would be to fight the NFL's power grab here. But can the NFLPA take the political hits that would come if it challenges this policy? I doubt it.
4. Will other leagues follow?
While the NFL has come under criticism for being too lenient in regards to violence against women, what about the NBA — see the Kobe Bryant example above — Major League Baseball, the NHL and college sports?
The NFL's policy is much more stringent than the policy of any of these entities. It seems to me that every other league will have to follow the NFL's lead. But will those leagues face pressure or is the NFL unique due to its popularity?
5. Finally, what about violent acts directed toward men?
Why should player violence against men be tolerated by the league either? What if Aaron Hernandez beats the murder charges facing him? Hernandez allegedly murdered several men. Are his alleged crimes any less heinous because his supposed victims were men? Why should the NFL be in the business of rating violent acts against others? Shouldn't all of them be unacceptable to the league?
If Aaron Hernandez beats the murder charges against him would he be able to play in the NFL again?
. . .
As you can clearly see from all these questions, the NFL's decision went a long way toward remedying a public relations disaster — the new policy has been universally praised — but many details still have to be determined before we know whether the league's implementation of this policy will actually change player behavior or have a substantitive impact.
Hopefully, this is more than just a public relations stunt.