The world is watching, Commissioner Goodell. How will you respond?
San Francisco 49ers defensive lineman Ray McDonald was arrested early Sunday morning on charges of felony domestic violence, according to Sal Castaneda of KTVU San Francisco. The incident allegedly took place at McDonald's home in San Jose, and there were other 49ers players present to celebrate his upcoming birthday.
As facts continue to come to light in this case, the eyes of the entire NFL universe turn to Commissioner Roger Goodell and his new mandated policy on domestic violence.
The public outcry against the league's two-game suspension of Baltimore Ravens running back Ray Rice in response to his acts in this video from TMZ, which showed Rice dragging his unconscious wife out of an elevator, forced the NFL to come up with a more uniform and strict response to domestic violence, as Mark Maske of The Washington Post first reported.
That response came together this past week in the form of a memo sent to NFL owners, seen here via CNN.com. The commissioner laid out very strict penalties in response to acts of domestic violence—far more severe than what Rice was penalized with. First offenses would require a baseline of a six-game suspension, and second offenses could equate to a lifetime ban from the NFL.
From Goodell's memo:
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.
A second offense will result in banishment from the NFL; while an individual may petition for reinstatement after one year, there will be no presumption or assurance that the petition will be granted. These disciplinary standards will apply to all NFL personnel.
Read those two paragraphs again—perhaps more slowly on the second or third time through. Realize that it does not say every single first offense will result in six games. Nor does it say that every single subsequent offense will result in a lifetime banishment from the NFL. The new policy sets up pretty clear language, but then follows up by couching simple penalties with weasel words and qualifications.
What sort of mitigating factors make it somehow less abhorrent that one of the biggest, strongest, fastest men on earth would find it necessary to hit someone off the football field? What is supposed to make it more OK? Who decides?
Compare those equivocations to the very next paragraph in Goodell's memo:
With very few exceptions, NFL personnel conduct themselves in an exemplary way. But even one case of domestic violence or sexual assault is unacceptable. The reality is that domestic violence and sexual assault are often hidden crimes, ones that are under-reported and under-acknowledged. The steps we are taking will reinforce our commitment to address this issue constructively.
The NFL has talked the talk, but McDonald's arrest means it has to now walk the walk.
We can laud the NFL for taking a stronger stance against domestic abuse than it has in the past, but we should pause and make sure it actually follows through on its stated intentions. According to a report from Allison McCann of FiveThirtyEight.com, the league has been far more consistent and far more strict (historically speaking) in dealing with drug and PED offenses than other forms of personal misconduct.
A big piece of this puzzle has been how drug and PED offenses are adjudicated—with a clear set of policies written out and collectively bargained—and how the NFL treats matters of personal conduct. When a player "tarnishes the shield" with actions off the field, Goodell is given broad powers as a singular defender of the NFL's honor.
From the NFL's personal conduct policy (emphasis mine):
On matters involving NFL players, the League will timely advise the NFLPA of the investigation and outcome. As appropriate, the employee will also have the opportunity, represented by counsel and/or a union official, to address the conduct at issue. Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted.
If you read the full policy, there is a section on hearings, which allows players to appeal the commissioner's ruling within three business days. The policy then refers one to the collective bargaining agreement for what that appeal looks like (emphasis mine):
The Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.
This means the commissioner not only gets to hand out discipline, he also gets to serve on the appeal board or at least handpick someone to do so. There are no checks, no balances. Goodell has the power to do whatever he wants when it comes to conduct matters, and one look at McCann's chart from FiveThirtyEight shows that he's often had wide swings in how he's responded to issues like domestic violence.
Nothing has essentially changed in this process.
Because the commissioner is solely responsible for each and every disciplinary process when it comes to NFL players, he's also solely responsible for when he gets it wrong. In fact, Goodell was very forthright in response to just how wrong he got the penalty for Rice in his memo to owners:
My disciplinary decision led the public to question our sincerity, our commitment, and whether we understood the toll that domestic violence inflicts on so many families. I take responsibility both for the decision and for ensuring that our actions in the future properly reflect our values. I didn't get it right. Simply put, we have to do better. And we will.
That is why this situation with McDonald is so important: Will Goodell suspend McDonald the six games and leave it at that with little to no public comment, or will he allow mitigating factors to lessen or increase the blow and explain what those factors were?
How does Goodell define "violation" for NFL's new domestic violence policy? Conviction or plea? Arrest? Accusation? Crucial Qs, no answers.— Michael McCann (@McCannSportsLaw) August 31, 2014
In terms of timing: Will Goodell wait until the legal system plays out and take that ruling into account, as he has been wiling to do in the past, or will he rule more immediately, as the personal conduct policy gives him latitude to do and as he once did regarding Pittsburgh Steelers quarterback Ben Roethlisberger?
Goodell suspended Roethlisberger with no arrest, just accusations. To show he's tough on domestic violence, will he suspend Ray McDonald?— Michael David Smith (@MichaelDavSmith) August 31, 2014
Just days after creating the policy, the NFL can hardly reverse course on domestic violence and hand down what the public would consider a light penalty following so many trumpeted headlines about the NFL's "new" policy.
In a similar way, it does the league no good to bring the full hammer of its brand of justice down on McDonald prematurely and then have nowhere to go from a public relations perspective if the facts of the case create more "mitigating factors" than there might be for the next case or the case after that.
Honestly speaking, the league and Goodell are between the proverbial rock and a hard place, as they've painted themselves into a course of action upon the hypothetical next instance of domestic violence when they could not have possibly foreseen it happening so soon.
Goodell must find a way to both tread lightly in this matter so as not to create precedent in a knee-jerk fashion that he might later regret or look foolish in light of. Yet he must also remain firm, communicating by his action to players and public alike that this behavior is as unacceptable as his memo stated.
Here, the legal maxim has great potential to hold true: "Hard cases make bad law."
It isn't, necessarily, that McDonald's arrest will lead to being that "hard" of a case at all. We will certainly know more about his specific situation in the days and weeks ahead—CSN's Matt Maiocco reported on Twitter that McDonald is scheduled to appear in court on Sept. 15.
#49ers DL Ray McDonald is scheduled to appear in court on Sept. 15, 1:30 p.m.— Matt Maiocco (@MaioccoCSN) August 31, 2014
However, the series of events from the past few months and the increasing number of very public disciplinary procedures Goodell has had to preside over (and which were subsequently compared to the handling of the Rice case) are setting this up to be a very important litmus test of his new policy.
Ultimately, these are important questions that cannot be answered simply by a memo, but only by how the NFL responds to acts of domestic violence right now and how it continues to in the future.