NFL commissioner Roger Goodell has adopted a preemptive punishment strategy for the NFL, America's most lucrative monopoly. In announcing his year-long suspension of Pacman Jones, Commandante Goodell went so far as to state, "It is not enough to simply avoid being found guilty of a crime," and "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime."
These chilling statements of the NFL's new personal conduct policy sound like something straight out of a George Orwell novel and, amazingly, just about everyone seems perfectly fine with them. Including, shockingly, the NFL players themselves and the union designed to stand up for them. In one fell swoop Goodell has remade himself as the ultimate arbiter of NFL justice, with absolute power.
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| Pacman Jones -- by now, you know all of his off-field adventures. (Getty Images) |
Not content to simply rely on my own understanding, as a lawyer, of this new policy, I telephoned one of the most knowledgeable men I know in the field of sports law, my former professor at Vanderbilt Law School, Robert Covington. Prof. Covington holds the distinction of being capable of making obtuse and cantankerous elements of the law extremely transparent and also of still being willing to talk with me, even three years after graduation, on a moment's notice.
Prof. Covington says that Goodell's actions are most striking because they expand the traditional parameters of discipline exercised by a commissioner or league. "Usually these league suspensions for off-the-field conduct boil down to two main areas. First, drugs or second, gambling. Domestic violence would be the third most common area of discipline, but generally that is handled by the teams themselves. What's important is that this is opening a door to examine areas of conduct that haven't been examined by the league before. Where could that go from here?"
Aside from explaining just how sweeping this detour into the private lives of the league's players is relative to prior actions, Covington also made it clear why commissioner Goodell's rulings are likely to be upheld -- "He hears the appeals of his own rulings." Orwellian indeed. Ergo it seems very unlikely that having handed down a punishment on one day, Goodell is going to change that ruling on the next day.
Unlike the American judicial system where each level of court appeals goes before a new judge or panel of judges, commissioner Goodell is both ruler and enforcer, prosecutor and defense attorney, an entity of absolute power wholly unto himself. Somewhere in Cuba, Fidel Castro is jealous.
If Goodell upholds his original rulings on appeal (as he likely will), suspended players in the league find themselves in an extremely unfavorable legal position. Appeal to the civil courts and, Covington says, "the commissioner will be considered an arbitrator and that's a very deferential standard of judicial review. So absent gross misconduct no punishment would be likely to be overturned by the civil courts."
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| Cincinnati's Chris Henry -- multiple arrests in a four-month span. (Getty Images) |
Reread these words, "it is not enough to simply avoid being found guilty of a crime," and just think about how chilling they are if you are charged with a crime you didn't commit. Not only must you handle the tribulations of a public trial, but you must also win the public relations war so that Goodell doesn't suspend you for merely being charged with a crime.
But I guess that's fine. After all, Orwell's horse, Boxer, in Animal Farm has a constant refrain, "Napoleon is always right." Now the NFL union neighs in tandem alongside him, "Goodell is always right."
This entire sentence of the personal conduct policy is predicated upon the NFL commissioner, his lawyers and his investigators (who will all be conducting a confidential investigation cloaked with the imprimatur of attorney-client privilege) flawlessly implementing their new policy and always reaching the correct conclusions regarding guilt or innocence of the accused.
Put plainly, this is not going to happen. The U.S. justice system is rife with errors. Every prison in every state has wrongfully convicted defendants. Eyewitnesses, regardless of motive, routinely make mistakes. So why does the NFL have the temerity to believe that its system is going to be flawless? If American justice is still flawed after 200-plus years, why is NFL justice not going to be flawed after only a single month?
