Thursday, November 20, 2014

This Isn't the Soviet Union, Is It?

With Minnesota Vikings' running back Adrian Peterson still awaiting a hearing on his appeal of his full-season suspension, debates over whether the NFL's punishment of Peterson was too severe or not severe enough continue.  Were this merely a matter of a punishment for a player, those debates could be relegated to the circular file.

Peterson's situation is about more than Peterson, however.  It is, more substantially, about whether a major sports league,  afforded significant anti-trust exemptions by Congress, should have the authority to levy penalties against players without meaningful due process.

Those who believe that the NFL has acted justly in Peterson's case are willing to accept the NFL's one-year banishment of Peterson as within the bounds of the NFL's discretion under the current CBA.  Given that the NFL's self-stated, non-negotiated policy on first-offense domestic abuse conduct subjects a player to a six-game suspension, with the possibility of upward revision given aggravating circumstances, it is difficult to accept that a minimum fifteen week suspension, some without pay, is not excessive--unless one believes that aggravating circumstances were present in this case and that those circumstances merited a near tripling, if not more, of the league's baseline punishment.

Those in this latter group, a group that persists in reminding everyone that Peterson was paid for the eight games that he missed prior to the league's decision to ban him for the year, appear willing to turn a blind eye to meaningful due process.  One suspects that these same people would hope for due process in all of their own affairs, but, for whatever reason, in Peterson's case, it's not only fair but obligatory that the Peterson not be accorded such rights.

What those who celebrate the NFL's purported tough stance against child abuse and even call for stronger sanctions against Peterson do not offer is a rationale for their position.  It is not enough to argue that what Peterson did was a bad thing.  Most agree it was.  The question is what the appropriate league punishment should be, given that he did a bad thing.  To argue that Peterson rested at home and received a paycheck while on the NFL Commissioner's special exemption list is not a thoughtful response to the the suggestion that the NFL could simply retroactively fine Peterson.  Moreover, if suspending Peterson with pay was not a punishment and retroactively fining him is not punishment, it does not follow that suspending him for the remainder of the season could constitute punishment.

Punishment is defined with respect to the means that the relevant arbiter wields.  In the criminal court system, there are many means for imposing punishment--fine, jail time, prison time, community service, restitution, counseling, etc.  The Texas court system imposed on Peterson a fine, community service, and counseling requirements.

The NFL has only two meaningful means at its avail for punishing players--suspending and taking pay from the player.  For those looking for the NFL to do more, that's not possible.  As such, for those who argue that retroactive fines for games which Peterson already sat out are meaningless because Peterson was not previously suspended without pay, the argument is unintelligible.

Nearly everyone agrees that the NFL could have handled this situation much more deftly from the very beginning.  What few agree on is how that could have been done.  Here is one suggestion that might work as a template in the future:

At the outset, notify the player that they are suspended immediately, without pay, for a minimum of six games, subject to additional games should aggravating circumstances come to light at any time.  Offer a definition of aggravating circumstances.  Commit one-half of the pay taken from the player to a credible non-profit that deals with the abuse that occurred.  Put the remainder of the pay in a trust fund for the victim.  Then, hire an outside arbitrator to hear any appeal.  Finally, work out a mutually agreeable code of conduct with the NFLPA, before the present CBA expires, and take advantage of the NFLPA's current exposure and the  need for the NFL to repair its due process neglecting fence.

Had the NFL given anywhere near as much initial thought to how to handle either the Ray Rice or Adrian Peterson situations, it could have avoided the circus that it has now created by making decisions from the seat of its proverbial pants without respect to normal notions of due process and with an eye squarely and exclusively on the league's image.  Rather than rebuild its tarnished image, the NFL's current course has only generated greater animosity toward the league from virtually every corner.

Wednesday, November 19, 2014

Vikings Add Ben Tate to Roster

Earlier today, the Minnesota Vikings added recently released ex-Cleveland Brown, ex-Houston Texan running back, Ben Tate, to the roster.  The addition is significant for several reasons.  First, it suggests that the Vikingsare not comfortable with the play of their current running backs, are concerned about recent injuries to each, or both.  Second, it underscores the Vikings' sense that Adrian Peterson will not prevail on his appeal of his league suspension.  Finally, and perhaps most significantly, it suggests the Vikings are preparing to part with Peterson after this season.

Not particularly productive in a Browns' backfield begging for production, Tate's addition should probably be viewed as one that will give the Vikings a player capable of staying on the field in third-down situations, while also contributing, less modestly than Matt Asiata, on first and second downs.  That's particularly important for disguising play calls and giving quarterback Teddy Bridgewater every possibility to demonstrate that, with a semblance of a running game, he can deliver.

If nothing else, Tate's addition suggests that the Vikings are still interested in competing this year.  Given the team's remaining schedule, that will be a challenge, but it should be slightly less of a challenge than it had been before Tate's arrival. 

Monday, November 17, 2014

Bad Signs for Vikings' Starting Quarterback

The Minnesota Vikings have spent the bulk of this season making excuses for the generally underwhelming play of their rookie quarterback, Teddy Bridgewater. Among the leading weekly excuses are that Bridgewater has nobody to throw to, no time to throw the ball, and no running game to take pressure off of the passing game.  The decibel level on these excuses has only been further amped up in the wake of yet another woefully awful offensive performance against the previously moribund Chicago defense.

In his weekly, day-after press conference, Minnesota Vikings' head coach Mike Zimmer upped the ante, however, on making excuses for the quarterback.  In response to questions regarding the malfunctioning field clock, Zimmer stated that the time clock only really made a difference on the Vikings' final drive.

Zimmer contended that, with the clocks inoperable, Bridgewater did not know how much time was left in the game.  Unquestionably, that matters, and Zimmer could have left it at that.  But he could not help following with one of the more improbable statements of the year, contending that Bridgewater put up a desperation pass on the game-ending pick, because "he thought he was short on time."

Asked to clarify his statement, Zimmer said that "Teddy said he thought he was running out of time."  The implication, seemingly supported by Zimmer, was that Bridgewater would have made a better decision and pass, but for the malfunctioning game clock.

For the record, when Bridgewater made his ill-fated pass, there were approximately 45 seconds remaining in the game.  Bridgewater would have known this, as an official was reporting the time remaining before each play.  And even if Bridgewater did not know precisely how much time was remaining at the snap of the ball, he ought to have had a sufficient internal clock at least to know that he was not in the position--on second down--to have to heave a hail mary pass into double-coverage.

It is bad enough that the Vikings have resorted to the same antics that they employed when defending the dismal play of Tarvaris Jackson and Christian Ponder, when defending Bridgewater.  It is worse when the coach offers an excuse that cannot be true.  It is far worse when the excuse offered initially came from the player who made a poor decision and showed, yet again, difficulty with a pass down field.  And it is exponentially worse when the excuse suggests either Bridgewater's unwillingness to take responsibility for a bad decision or an utter lack of awareness that would have been required for Bridgewater to believe what the coach claims Bridgewater said about the play.

Thursday, November 13, 2014

Peterson Has Law on His Side, But Does He Have the Arbitrator?

The appointment of Shyam Das as arbitrator in Adrian Peterson's grievance filing with the NFL comes with mixed news for Peterson and those who hope for Peterson to return to the field this season.  Das, a former Major League Arbitrator, is regarded as a defender of individual rights and stickler for procedure.  That could be good or bad for Peterson.

As MLB arbitrator in 2012, Das overturned MLB's suspension of Milwaukee Brewer outfielder, Ryan Braun, as a result of MLB's failure to abide by the league's collectively bargained chain-of-custody protocol for handling urine samples designated for drug testing.  Das ruled that MLB's failure strictly to abide by its chain-of-custody protocol required negation of Braun's suspension.  Braun was delighted. MLB was furious.  Das was dismissed from his post.

Das has also handled arbitration for the NFL, recently upholding NFL Commissioner Roger Goodell's punishment of the New Orleans Saints players involved in Bountygate.  Das' Bountygate decision can be read one of two ways.  The first is that Das felt compelled by the evidence to support Goodell's suspension.  Given the mostly circumstantial evidence, this is probably not the full story--particularly for someone who undoubtedly found himself needing to get back into the good graces of at least one golden goose.  The second possibility is that Das considered the evidence and weighed that along with the interests of players purportedly hurt by those accused of Bountygate and erred on the side of protection.

Neither rationale is a particularly good omen for Peterson.  The first suggests Das has decided that his interests are now best met by acquiescing to the league for whom he works.  He did not do that at the end of his run with MLB and that cost him.  The second suggests that Das will punish those who do harm to others.  That might suggest that Das will defer to the NFL's request that it deliberate longer on Peterson's return.

What weighs most strongly in favor of Das ruling for a quicker return for Peterson, however, is the fact that Das has shown a penchant for upholding law.  Of particular interest in the Peterson case is Das' concern that MLB failed to follow protocol in the Braun case and that that technicality was sufficient justification to overturn Braun's suspension.

Though different in kind, Peterson's argument is similar in form to that raised by Braun.  Like Braun, Peterson is arguing that his league is not adhering to clear commitments that it made under the CBA.  Peterson has additional ammunition in that the NFL appears to want all of the benefits of a face-saving deal to which Peterson acquiesced, without having to live up to its apparent deal to return Peterson to active status upon conclusion of his legal case in Texas.

Given his track record--and failing the revelation of prior offenses in Peterson's substance-abuse history with the league, it appears likely that Das will rule in favor of Peterson's immediate reinstatement, likely leaving the door open for the league to assess a fine, without the right further to suspend for his offense.

Monday, November 10, 2014

Why the NFLPA is Right on Peterson

The NFL Players' Association (NFLPA) has sent written demand to the NFL requesting the immediate reinstatement of Minnesota Vikings' running back Adrian Peterson.  Although the NFLPA has a mixed history when it comes to defending the rights of players--at times, as during the Gene Upshaw years, turning a blind eye toward players and at other times, as with recent CBA negotiations pertaining to drug testing and personal conduct, rallying against NFL sanctions that appear warranted--the NFLPA is spot on in its demand for Peterson's immediate reinstatement.

Through week 10 of the NFL season, Adrian Peterson has been on the NFL's exempt list, a status that the NFL conferred upon Peterson to save face for the league and the Vikings and to permit Peterson to collect pay, during his absence from all league events.  Peterson and his counsel agreed to this arrangement, with the stipulation--also in writing--that Peterson be reinstated upon completion of his legal case.

When Peterson's legal affair for the whipping of his son began, the NFL's arrangement looked to provide the league and the Vikings cover for at least one year, with Peterson's attorney contending that Peterson planned to plead not guilty and a trial unlikely until at least the Spring of 2015.   That would have saved the NFL and the Vikings' much PR headache.

Two weeks ago, however, the NFL and the Vikings received an unwelcome surprise from Peterson's counsel, when they were informed that Peterson intended to plead no contest to a lesser misdemeanor charge.  The resulting plea, approved by the judge, required Peterson to pay $4,000, perform 80 hours of community service, and take parenting classes.  Should he fail to perform these obligations, the penalty may be revisited.

In the modern era of U.S. criminal law, the focus has shifted dramatically away from penalties for the sake of punishment and toward penalties that rehabilitate.  This is particularly true where it appears that rehabilitation might be successful.  There is also a growing belief in criminal jurisprudence that criminal penalties represent the sum of what society should expect criminals to pay for their offenses.

Few people who have seen the images of the child that Peterson struck believe anything other than that Peterson should be disciplined for his conduct and that his relationship with his children should be monitored.  Were Peterson not the perpetrator--were the perpetrator of the offense a random individual in our society--most people probably would also agree that the Texas penalty fit the crime, while aiming to correct the issue.

Of the penalties that Peterson must pay, the most significant in terms of moving forward and ensuring that this does not happen with Peterson again is most assuredly the parenting class requirement.  After being booked for his offense, Peterson acknowledged his conduct but seemed dismayed that anyone found it unlawful.  Peterson came off as a naive parent who needed guidance, rather than as a malicious, testosterone driven warrior with an inner, uncontrollable rage.

Peterson's personal composition is important under criminal law,  even in cases in which there is no intent requirement for finding guilt.  In sentencing, criminal courts routinely weigh all factors of a criminal's conduct.  Such considerations should also be important to the NFL and to the Vikings, as they weigh how to deal with Peterson's return.

PR issues notwithstanding, the NFL has legal obligations under its code of conduct and, with specific respect to Peterson, pursuant to the terms of the deal that it reached with Peterson prior to his paid suspension nine weeks ago.  Under the NFL's code of conduct, sanctions for Peterson's offense may not exceed a six-game, unpaid suspension.  The league could quibble that the eight-game paid suspension permits it to enforce a six-game, unpaid suspension starting next week.  That would be disingenuous in its own right.  It is even more disingenuous given that the league reached an understanding with Peterson that permits him to return to the Vikings when his case is resolved. And, it is utterly without rationale with respect to penalizing Peterson, aiming, as it does, entirely at relieving the league and the Vikings of a PR headache.   Given that Peterson's reinstatement would be consistent with both NFL policy and the progressive, rehabilitative nature of our criminal justice system, it is, thus, unfortunate and unjust for the NFL to act otherwise.

As the NFL incredibly broaches on making Peterson a martyr, executives within the Vikings' organization are debating the PR fall-out of Peterson's return to the team.  That's not surprising for a team that seems not to understand that side of the equation.

For the NFL, the answer is simple.  Peterson must be immediately reinstated.  For the Vikings, the only issue is whether to activate or cut Peterson.  If the Vikings are truly committed to justice, they will either activate Peterson, acknowledge his faults, and otherwise respect his right to move on with his life and pay what penance he must for his conduct or they will release him and let other teams decide whether Peterson's transgression requires barring from the NFL.  Hiding behind PR concerns, however, is both amateurish and cowardly.

As long the United States has a criminal justice system, there will be debates between those who favor stiffer penalties and those who favor more focus on rehabilitation.  There will also always be a court of public opinion--a portion of which will forever lobby for a return to the adornment of scarlet letters.  If the NFL and the Vikings want to be on the side of justice on the Peterson matter, they need to eschew this sentiment.  That means not only abiding by league policy, but also having the conviction and principles not cave to the whim of those for whom no penalty is stern enough.  That's not good governance and, in this case, not consistent with league policy.

Tuesday, November 04, 2014

Peterson Poised for Return to Vikings?

Reports are indicating that Adrian Peterson has submitted a plea offer to resolve his criminal case in Texas.  The offer would have Peterson submit a plea of "no contest."  In exchange, prosecutors would recommend a $4,000 fine, a two-year stay, and community service and would remove from any final order any language related to abuse of a child.

As it would pertain strictly to Peterson's eligibility to return to the NFL, the deal, if recommended by prosecutors and accepted by the judge, would permit Peterson to play as soon as the Vikings' next game.  There are other considerations, of course.

From the NFL's perspective, Peterson would be pleading to an offense that is different in form, if not in kind, and, perhaps, substantially enough so to give the NFL PR cover.  The NFL will also recognize that Peterson has sat out eight games already and may view Peterson's transgression of harming a child in the process of attempting to discipline as a less egregious offense than Ray Rice's knocking out of his girlfriend.

If the NFL considers Peterson's transgression to be less malicious than Rice's, it is conceivable that the league will permit Peterson to return to play, subject to the terms of his plea deal in Texas.  The league almost certainly would retroactively suspend Peterson without pay, however, thereby assessing an additional one-half year of pay as penalty for Peterson's conduct.

In addition to the PR issue that the league and the Vikings must weigh in determining whether to permit Peterson to return to the team, Peterson has given the league an additional issue to consider.  After being charged in Texas, Peterson acknowledged to authorities that he had recently "smoked a bit of weed."  That was honest.  It might also have created another problem for Peterson.  If Peterson has already been booked by the league for drug use, he will already have been on probation.  If so, he might face an additional mandatory ban by the league.

If the NFL views Peterson's behavior, on the whole, as detrimental to the image of the league--beyond what his mistreatment of a child does to the league's image--Peterson might be facing not only league suspension for the eight games that he has already missed, but an additional suspension through the end of the season.  If the NFL believes that Peterson has served an appropriate penalty, outside of what he must also serve by way of community service in Texas, the league might consider the matter closed, recover one-half year of pay from Peterson, and permit Peterson to move on with his career.

Answers to all questions likely will be revealed by the end of this week.