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.