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.

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