The NFL’s Nonsensical Approach To Punishment
The following article first appeared on May 16, 2016, in Cognoscenti, the blog of National Public Radio affiliate, WBUR, and has been updated in light of recent events.
The NFL’s four-game suspension of Tom Brady morphed from an incident about deflated footballs to a lawsuit that had the potential to reach the Supreme Court. Before dismissing that potential result as preposterous as, well, a prediction that Donald Trump could win the Republican Party’s nomination, consider that the lawsuit addressed several fundamental inequities, including how punishment is administered within the National Football League.
When a federal district court judge vacated Brady’s four-game suspension last September, the star quarterback then spent the season demonstrating that his field performance is unrelated to the pounds per square inch (PSI) of the footballs used. Brady’s 2016 start date, however, was cast into doubt by a divided three judge panel of the Second Circuit Court of Appeals ruling that the commissioner’s punishment was within his broad authority under the league’s collective bargaining agreement. When Brady was then denied a request for a re-hearing before the full appellate bench, he gave up his pursuit of legal vindication and accepted the suspension.
As the Patriots report for training and the process of breaking-in a replacement quarterback for the first 4 games, the NFL should be taking a hard look at the resources wasted on their pursuit of Deflate-gate, and question how to better spend its time and money to address far more significant disciplinary challenges.
The lawsuit helped shine a light on the NFL discipline process where Commissioner Roger Goodell administers punishment like a father who tries to compel obedience by grounding his kids. In 2015, by my count, the NFL issued approximately 42 other suspensions of four games or less. A comparison of the infractions that warranted a similar punishment to allegedly deflated footballs reveals a system of discipline in need of change.
Approximately half of these suspensions seem to arise from drug allegations; in some cases marijuana, in others the use of performance-enhancing drugs. In several instances, the NFL did not disclose the reason for the suspension, but media reports suggested violations of the league’s substance abuse policies, sometimes insinuating that the player’s history with drugs or alcohol could be traced back to college.
Notwithstanding the commissioner’s 2014 edict toughening the NFL’s response to allegations of domestic violence, the four games or less suspension category also included episodes involving: an assault on a woman in a hotel, throwing a mug at a bartender, road rage, assault on a spouse resulting in a broken nose and, in the same incident, throwing a shoe at her toddler, revenge porn, and child endangerment by putting a plastic bag over a toddler’s face. In too many cases, the female victims refused to press charges, allowing the alleged abuser to escape the criminal justice system and, therefore, avoid the harsher penalties the NFL imposes on players found guilty of a crime.
In light of the troubling details that accompany still other suspensions issued in 2015, including DWIs, motor vehicle hit-and-run incidents and on- and off-field violence against other players, it is confounding that the commissioner has devoted so much time and money to ensure that Brady sits out four games for slightly deflated footballs. Goodell argues that Brady’s conduct was similar to that of steroid users, who seek to gain a systematic competitive advantage. Accordingly, he argues, if first-time steroid users typically receive four-game suspensions, so should Brady.
Like Inspector Javert’s relentless pursuit of Jean Valjean in “Les Misérables,” Goodell’s pursuit of Brady hides behind a mantra of integrity of the game. But the game is in grave need of rehabilitation before it can invoke integrity as its operative principle.
Speaking at an NFL Symposium last August, NFL Hall of Famer Chris Carter advised rookie NFL players to be sure they have a “fall guy” in their crew in case they get into legal trouble. The notion of a fall guy suggests that players getting into trouble is part of the culture of football. If the commissioner really cares about the integrity of the game, he should provide less leniency to abusers who escape the legal system because their victims are too frightened to pursue their rights and more support to victims who are unable to stand up to a wall of money and power. He should also offer greater assistance to troubled young players ill-equipped to handle fame, wealth and sometimes unrelenting physical pain, without drugs or alcohol.
The NFL Players Association is not blameless in the debacle that is the NFL disciplinary system. The association, after all, agreed to a collective bargaining agreement that empowers the commissioner to be both the investigator and the arbitrator. Perhaps this was the price it felt it had to pay in exchange for higher player salaries. But like too many other business contracts where those subject to its terms lack the opportunity to participate in the underlying negotiation, the NFL players are stuck with a system of discipline that anoints Goodell.
Suspensions generally fail to change behavior. The NFL has the resources to find a better way to help young athletes who are ill-prepared to manage the pressures of professional sports without significant support mechanisms. The commissioner should focus less on game days missed and more on changing its brute culture. And the Players Association should be seeking alternatives to quasi-judicial arbitration procedures that block access to the rules of fundamental fairness available in the court system.
Both the NFL and Tom Brady have better ways to spend their money. The game will be far better off when the league focuses less on empty discipline policies and more on developing positive role models who do not need fall guys.
