This weekend, Commissioner Goodell has requested that Brett Favre meet with him this Tuesday according to ESPN reporter Ed Werder.
Many Minnesota Vikings fans are holding their collective breath. Many fans fear losing Favre to a suspension would be the final curtain call on the season as they see no way Minnesota can make the playoffs without Favre in the lineup.
If the allegations concerning Favre and New York Jets reporter Jennifer Sterger are true, he is an idiot. If the allegations concerning Favre and massage therapists employed by the Jets are true, Favre is a moron that will likely have a tough time trying to make things right with his wife Deanna.
However, Favre should not be suspended by Commissioner Goodell if the above allegations are true.
Favre is accused of sending text messages and an intimate photo of his anatomy to Sterger with the hope of enticing her into a sexual tryst. While the accusations surrounding the massage therapists have not been as widely discussed in the media as the allegations surrounding Sterger, the gist of the allegations is that Favre was hitting on the massage therapists with the hope of sleeping with them.
Some initial reports suggested that Favre could be suspended because he engaged in criminal behavior.
The activity that Favre is alleged to have engaged in however does not amount to criminal conduct. New York law does not prohibit an adult from sending sexually explicit photographs to another adult.
Some pundits suggested that Favre could face suspension because his conduct amounted to sexual harassment.
The problem for suspending Favre for sexual harassment is that there is nothing to indicate that a complaint of sexual harassment was filed by Sterger or the massage therapists.
Further, all of the allegations of inappropriate behavior by Favre occurred nearly two years ago or stated another way—well after the statute of limitations period for filing claims of sexual harassment has run.
The lack of a complaint being filed by Favre’s accusers and the fact the statute of limitations has run on Favre’s alleged conduct is significant because it really nullifies the ability of the Commissioner to suspend Favre on basis of engaging in sexual harassment.
The Commissioner is thus left in a very nebulous area in attempting to punish Favre for violating the personal conduct policy of the NFL in absence of conduct that could create criminal or civil liability.
Why is this significant? Historically, the Commissioner has not suspended players unless the conduct by the player had the potential to expose the player to criminal or civil liability.
This clear line, criminal or civil liability, is one that many employers have used to determine when to suspend or prohibit an individual from gainful employment.
Unions also like this clear line and generally vigorously object to employers suspending union members who have not gone beyond this bright line.
For example, many workers in the financial services industry and or health care field are periodically subject to a background check. Those workers are subject to being prohibited from working in their career of choice if they have committed a crime, been charged with a crime, or have had some type of civil judgment levied against them.
Employers like this clear line because the judicial system has made a determination that the employee did or that there was at least some basis to believe that the employee had engaged in the behavior.
This doesn’t mean that employees subject to good conduct clauses or background checks are only subject to punishment if there has been a judicial determination of criminal or civil liability.
An arrest or complaint could trigger discipline by the employer.
In such situations, employers generally take a wait and see approach to see if there is some merit to the arrest or complaint even if ultimately there is no conviction of finding of inappropriate conduct.
In the Favre situation however there has been no arrest or civil complaint.
Commissioner Goodell is therefore in a difficult position to suspend Favre because there is no bright line to justify suspending Favre.
Some will point out that the Commissioner or teams have within the league imposed fines upon players and coaches for off-field inappropriate behavior.
The most recent off-field example was when New York Jets Head Coach Rex Ryan was fined $50,000 by the Jets organization for giving a one finger salute at a mixed martial arts event.
Issuing a fine upon Favre is also a tricky proposition because the alleged inappropriate conduct was not directed to the public at large such as the salute offered by Coach Ryan.
However, Favre would likely welcome paying a fine to avoid seeing his Iron Man streak of 290 consecutive games come to an end as a result of a suspension.
Commissioner Goodell will likely get grief from some members of the media if he does not suspend Favre.
Commissioner Goodell will undoubtedly be accused of applying a double standard and giving more favorable treatment to Favre because he is white if Favre is not suspended.
Race however has nothing to do with why Favre should not be suspended.
Lack of criminal and civil liability is why Favre should not be suspended by the Commissioner.