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The NFL Should Be Just As Worried About How It Personally Conducts Itself Under Its Personal Conduct Policy… E-mail
Written by Cotter   
April 20, 2010 08:30

[So I helped found this law blog for school, and recently, I decided to write about this whole suspending Ben thing since I've been following the situation pretty closely. Obviously most of you will know the background material rather well, but the rest are just my thoughts on some of the implications that come with suspending Ben. As with my opinion last week, I understand that since some of you have been led to believe that the accusations of a grossly inebriated (and underaged) college sorority girl are tantamount to guilt, you may not wholly agree with my commentary. So be it. All I ask is that if you're going to read it, you at least consider it with an open mind. Oh, and if you only read one thing today that isn't this post, make sure it's this. That said, let's do this...]

In early March, a 20-year-old Georgia college student accused Pittsburgh Steelers QB, Ben Roethlisberger of sexually assaulting her at a bar in Milledgeville, GA. And after a month-long investigation, Georgia district attorney Fred Bright announced on April 12 that he would not charge Roethlisberger with rape. But while Roethlisberger has managed to evade criminal charges like he does tacklers, he will still likely face discipline from the NFL or the Steelers. And because the NFL has never suspended one of its players who was not charged with a crime first, it will be breaking new ground if/when it suspends Roethlisberger.


Under the NFL’s latest iteration of its personal conduct policy implemented in 2007, the league can discipline a player for any “conduct detrimental to the integrity of and public confidence in the National Football League.” According to the policy, this includes “illegal or irresponsible conduct,” and discipline may be imposed for “conduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players.” The policy states that any punishment the league metes out will be “based on the nature of the incident, the actual or threatened risk to the participant and others, any prior or additional misconduct (whether or not criminal charges were filed), and other relevant factors.” But unfortunately, the League has no set benchmarks by which it measures the length of any suspension it might impose against the conduct from which it resulted. So, if I’m advising NFL Commissioner Roger Goodell, there are a few things I’m telling him to consider.


Number one; regardless of what those carrying torches and pitchforks may believe, we are still talking about accusations. Because the Georgia DA did not charge Roethlisberger, we may never know what really happened between the QB and the co-ed. And even though this is the second time a woman has accused Roethlisberger of rape in less than a year (the first was a civil suit filed by a Nevada woman in 2009), in neither case have any criminal allegations been proven. So, at best, if the league suspends Roethlisberger, it will in effect be saying that any player can be suspended under the personal conduct policy based on another person’s allegations, rather than facts proven beyond a reasonable doubt (or at least provable beyond a reasonable doubt) in a court of law.


Number two; the commissioner must compare the length of any suspension he seeks to impose on Roethlisberger to those of others who were actually charged with crimes. While some players have received significant suspensions of eight games or more, to refresh your memory, a sampling of players charged with crimes and subsequently suspended includes – Minnesota Vikings offensive lineman Bryant McKinnie, who was suspended for four games after he was charged with one felony and three misdemeanors stemming from a bar brawl; then Denver Broncos wide receiver Brandon Marshall, who was suspended for three games after he was charged with misdemeanor battery (his suspension was ultimately reduced to just one game); Buffalo Bills running back Marshawn Lynch, who was suspended for three games after he was charged with misdemeanor weapons possession; then Kansas City Chiefs running back Larry Johnson, who was suspended for one game after he was charged with simple assault; and New York Giants linebacker Michael Boley, who was also suspended for one game after he was charged with domestic battery. Based on these past cases, were the commissioner to suspend Roethlisberger for even more than one game, he will be setting a precedent that even if a player is not charged with a crime, he may still be punished just as or more severely than those who have been.


Furthermore, should the commissioner suspend Roethlisberger for more than four games, he will be likening Roethlisberger’s alleged conduct to that of guys like Pac-Man Jones, who was suspended for all 16 games of the 2007 season based on his conduct that caused a melee at a Las Vegas strip club, which led to one man being paralyzed; Chris Henry, who was suspended for eight games after being arrested five times in the span of 14 months; Tank Johnson, who was suspended for eight games after multiple weapons charges; Plaxico Burress, who was “suspended” until the end of his 20 month prison sentence after he shot himself in the leg at a New York nightclub; Donte Stallworth, who was suspended for the 2009 season after pleading guilty to DUI manslaughter; and Michael Vick, who was suspended until the expiration of his 21 month prison sentence after he pled guilty to federal dogfighting and other charges, as those are the only six players who the league has ever suspended for more than four games.


Number three; it may be better for the Steelers to suspend Roethlisberger than for the commissioner to do so. While the commissioner may suspend players under the personal conduct policy, teams may also suspend their players citing “conduct detrimental to the team.” Of course, under the league’s collective bargaining agreement, teams may only suspend their players for up to four games for this type of conduct, and the commissioner may suspend players for as long as he sees fit under the personal conduct policy. Nevertheless, he might prefer to let the Steelers suspend Roethlisberger because doing so would not set a league-wide precedent for punishing players who haven’t been charged with a crime. At the same time, this may be amenable to the Steelers, who are looking to repair the damage done to their image in the wake of the allegations against Roethlisberger as well as incidents involving Santonio Holmes and Jeff Reed.


On the other hand, while if a player appeals a team’s suspension, an independent arbitrator hears the appeal, if a player appeals the commissioner’s suspension, it comes right back for the commissioner to hear. If he is truly concerned with any punishment sticking, his best option may be to indeed impose the suspension himself. Moreover, this might allow him to appease the angry mob with a significant suspension in the short term, while potentially leaving room to reduce the suspension’s length later, once the clamoring has died down a bit (though a “source” allegedly told the Washington Post’s Mark Maske that Roethlisberger will not appeal any suspension levied by either the league or the Steelers unless it’s “too harsh”…whatever that means). Not to mention, there's been plenty of public pressure on him to act himself since he met with Roethlisberger last week in New York.


Finally, the commissioner must be wary of what suspending Roethlisberger may mean to future potential violations of the league’s personal conduct policy based on so-called “moral” (and not criminal) conduct. If he suspends Roethlisberger, the commissioner will be opening the door to punishing others who have similarly not been charged with crimes. Indeed, he may be opening the door to punishing others for conduct that may not have any legal implications at all (or may not have even occurred the way someone alleges it did – see Number One above). If the league can suspend Roethlisberger for conduct that was never deemed illegal, where will it draw the line? It seems that it would be equally unclear to players in the future as it is to me now. Furthermore, how much influence should the league really have on players off the field conduct?


And so, the commissioner, just like Roethlisberger, now finds himself in somewhat of an unenviable position. Certainly there is “a first time for everything” as the colloquialism goes, but the commissioner must be mindful of the implications any suspension would carry with it given that Roethlisberger would be the first player suspended without even ever being charged with a crime. While he ultimately may impose just about any suspension he likes under the personal conduct policy, he should really tread lightly and consider how far he is willing to go to preserve the league’s image.


Either way, Godspeed and good luck, Rog.

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