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ClayNation: Goodell's no lawyer ... so why take law in his own hands?
May 28, 2007
By Clay Travis
The NFL's clownish personal conduct policy implemented by Emperor Roger Goodell is an absolute joke. Not to mention a travesty of football justice.
Here's the deal -- one of the first things you learn in law school is that tough cases make bad law. That's because the facts of bad cases are difficult, if not impossible, to apply to future cases and facts. No matter how hard we try, we can't see all the implications of a tough case that will arrive in the future.
For instance, there is no doubt that the drumbeat of bad news surrounding Pacman Jones was a tough case. Even if, oh by the way, none of this bad news surrounding Pacman has resulted in a single conviction for him since he started receiving paychecks from the Tennessee Titans.
Pacman (and others) created a series of tough cases for a new commissioner, Roger Goodell, who cloaked himself in the garments of an emperor and had the power to be judge, jury and executioner for NFL justice thanks to a compliant union that has been asleep at the scales of justice. As if that weren't enough power, he also had the right to sit as his own appellate judge to rule upon the legitimacy of his own previous rulings.
Unfortunately, Emperor Goodell didn't go to law school and has never practiced law. If he had he would recognize how misguided his newly announced personal conduct policy is. It's significant that former commissioner Paul Tagliabue (an NYU Law School grad and by all accounts an amazing lawyer) did not feel the need to make the NFL an arbiter of off-field justice. Nor have other lawyer commissioners like David Stern of the NBA (Columbia Law School) or Gary Bettman of the NHL (NYU Law School) in their own league conduct policies.
While Stern has been criticized for his draconian control of the NBA's image, none of his off-court directives have come anywhere near the sweeping power of Goodell's personal conduct policy. To a large degree I think that's because these men are lawyers and recognize how difficult consistently meting out justice is. All of these men have seen in their life, in their schooling, or in their professional dealings that tough cases make bad law.
Emperor Goodell thumbed his nose at such legal nonsense, "It is not enough to avoid merely being found guilty of a crime," and "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime," Goodell said. I keep repeating this language because its very sweep is so astounding.
And just 35 days ago I warned that Goodell's decision on league suspensions created far more legal headaches for the NFL than it actually solved. Emperor Goodell took a tough case and made bad NFL law. You didn't have to be a genius to see that applying this law to future NFL facts was going to be difficult, inconsistent, and arbitrary.
In fact, Pacman and his lawyers pointed this out in their appeal to the league by documenting hundreds of off-field legal issues involving hundreds of different NFL players that have not resulted in league suspensions or any particularized brand of NFL "justice."
Read through this list and tell me why each of these off-field actions since the year 2000 did not merit preemptive league punishment and these current situations do.
We can't see, none of us can, the tortured reasoning that applying one legal precedent can cause when that same precedent is applied to an entirely new set of facts. Particularly when these facts have to be applied, as here, before the actual judicial system has even rendered its verdict.
Even now, I would implore Emperor Goodell to clarify his new personal conduct policy and announce that the NFL simply will take no action against players, coaches, or employees until the American judicial system has rendered judgment on these cases.
If the NFL feels the need to have a precise legal framework upon which to consistently base its punishments, bang, there is one. It's easily understood and easily applied. More importantly, it leaves the initial application of justice and the determination of guilt or innocence where it should be, within our country's judicial system.
NFL players were citizens long before they were football players and they will be citizens long after their football careers are over. It's incredibly arrogant to suggest that these players' punishments should come first, not from a society of 300 million of which we are all members, but from a league with a membership of less than 2,000.
But, unfortunately, Emperor Goodell has chosen to impugn the American judicial process (and its results) for the cold comfort of preemptive punishment under the NFL's flawed personal conduct policy.
Now, the moment has come for Emperor Goodell to apply his own bad law to a new tough case, Michael Vick and his association with dog-fighting. ESPN reported this weekend that a reliable police informant can place Vick not only at the scene of dog fights but wagering large sums of money on these fights.
While Vick is certainly entitled to the presumption of innocence and will no doubt be represented by a team of skilled lawyers, Emperor Goodell's announced policy has nothing to do with guilt or innocence. He has said it himself -- "It's not enough to avoid simply being found guilty of a crime." And, "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime."
Is attending a dog-fight per se "conduct detrimental?" What about a cockfight? Setting up an offshore tax ring to avoid autograph royalties? How many games should you get for employing an illegal nanny from Guatemala? You might even find yourself wondering why in the world should the NFL be in the business of policing its players' off-field conduct and meting out preemptive punishment before the justice system? But that's a silly question. After all, Emperor Goodell is a modern day Solomon, right?
Ultimately in seeking to make poster children of NFL "bad boys" Pacman and Chris Henry, Emperor Goodell used a tank to shoot a butterfly. Instead of solving a problem, the NFL created a mess.
And now whenever player misconduct is alleged the question becomes, when is the NFL going to act? What's going to be even worse is when individual fans start to get upset over perceived unfair punishments doled out by the league because of the drastic impact these punishments can have upon the quality of their own teams. Yep, the greatest threat to NFL parity is NFL punishment.
You thought the NFL Draft was an inexact science, good God, you ain't seen nothing until you've seen the inexact science of legal justice. Already fans and interest groups have come to believe that the NFL itself is a disciplinary arm.
On Friday the NFL received an angry letter from the People for the Ethical Treatment of Animals stating, "...there is no record of NFL players ever receiving education from the league on the importance of treating animals humanely." Why should there be a record of the NFL doing this? Has anyone else whose job doesn't involve working with animals been trained on the importance of treating animals humanely? Have pilots, have janitors, have undertakers, have (insert thousands of professions here)? Of course not. Because these professions haven't interjected themselves into the judicial process and become arbiters of right and wrong. But the NFL has. And things are going to get much worse for the league until the NFL alters its disastrous new personal conduct policy.
You know what the real irony of all of this is? The NFL set about implementing a personal conduct policy to preemptively punish players for not living up to an amorphous code of conduct. The idea was that by enacting preemptive punishment the NFL would avoid being tarred by the actions of their individual players.
Instead of freeing itself from the stain of those players' actions, however, the NFL has now more fully associated itself with the players and their actions. Before Emperor Goodell decided that he was going to fashion his own justice system for players, the NFL wasn't dragged into every allegation of player misconduct and asked to justify its response. Now, guess what, they are.
And now every time an NFL player is alleged to have done something wrong, the emperor has to rule. Basing all of his rulings on a flawed and overly expansive preemptive punishment. Emperor Goodell is about to find out, if he hasn't already, that old legal maxim: Tough cases make bad law.
ClayNation: Goodell's no lawyer ... so why take law in his own hands?
May 28, 2007
By Clay Travis
The NFL's clownish personal conduct policy implemented by Emperor Roger Goodell is an absolute joke. Not to mention a travesty of football justice.
Here's the deal -- one of the first things you learn in law school is that tough cases make bad law. That's because the facts of bad cases are difficult, if not impossible, to apply to future cases and facts. No matter how hard we try, we can't see all the implications of a tough case that will arrive in the future.
For instance, there is no doubt that the drumbeat of bad news surrounding Pacman Jones was a tough case. Even if, oh by the way, none of this bad news surrounding Pacman has resulted in a single conviction for him since he started receiving paychecks from the Tennessee Titans.
Pacman (and others) created a series of tough cases for a new commissioner, Roger Goodell, who cloaked himself in the garments of an emperor and had the power to be judge, jury and executioner for NFL justice thanks to a compliant union that has been asleep at the scales of justice. As if that weren't enough power, he also had the right to sit as his own appellate judge to rule upon the legitimacy of his own previous rulings.
Unfortunately, Emperor Goodell didn't go to law school and has never practiced law. If he had he would recognize how misguided his newly announced personal conduct policy is. It's significant that former commissioner Paul Tagliabue (an NYU Law School grad and by all accounts an amazing lawyer) did not feel the need to make the NFL an arbiter of off-field justice. Nor have other lawyer commissioners like David Stern of the NBA (Columbia Law School) or Gary Bettman of the NHL (NYU Law School) in their own league conduct policies.
While Stern has been criticized for his draconian control of the NBA's image, none of his off-court directives have come anywhere near the sweeping power of Goodell's personal conduct policy. To a large degree I think that's because these men are lawyers and recognize how difficult consistently meting out justice is. All of these men have seen in their life, in their schooling, or in their professional dealings that tough cases make bad law.
Emperor Goodell thumbed his nose at such legal nonsense, "It is not enough to avoid merely being found guilty of a crime," and "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime," Goodell said. I keep repeating this language because its very sweep is so astounding.
And just 35 days ago I warned that Goodell's decision on league suspensions created far more legal headaches for the NFL than it actually solved. Emperor Goodell took a tough case and made bad NFL law. You didn't have to be a genius to see that applying this law to future NFL facts was going to be difficult, inconsistent, and arbitrary.
In fact, Pacman and his lawyers pointed this out in their appeal to the league by documenting hundreds of off-field legal issues involving hundreds of different NFL players that have not resulted in league suspensions or any particularized brand of NFL "justice."
Read through this list and tell me why each of these off-field actions since the year 2000 did not merit preemptive league punishment and these current situations do.
We can't see, none of us can, the tortured reasoning that applying one legal precedent can cause when that same precedent is applied to an entirely new set of facts. Particularly when these facts have to be applied, as here, before the actual judicial system has even rendered its verdict.
Even now, I would implore Emperor Goodell to clarify his new personal conduct policy and announce that the NFL simply will take no action against players, coaches, or employees until the American judicial system has rendered judgment on these cases.
If the NFL feels the need to have a precise legal framework upon which to consistently base its punishments, bang, there is one. It's easily understood and easily applied. More importantly, it leaves the initial application of justice and the determination of guilt or innocence where it should be, within our country's judicial system.
NFL players were citizens long before they were football players and they will be citizens long after their football careers are over. It's incredibly arrogant to suggest that these players' punishments should come first, not from a society of 300 million of which we are all members, but from a league with a membership of less than 2,000.
But, unfortunately, Emperor Goodell has chosen to impugn the American judicial process (and its results) for the cold comfort of preemptive punishment under the NFL's flawed personal conduct policy.
Now, the moment has come for Emperor Goodell to apply his own bad law to a new tough case, Michael Vick and his association with dog-fighting. ESPN reported this weekend that a reliable police informant can place Vick not only at the scene of dog fights but wagering large sums of money on these fights.
While Vick is certainly entitled to the presumption of innocence and will no doubt be represented by a team of skilled lawyers, Emperor Goodell's announced policy has nothing to do with guilt or innocence. He has said it himself -- "It's not enough to avoid simply being found guilty of a crime." And, "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime."
Is attending a dog-fight per se "conduct detrimental?" What about a cockfight? Setting up an offshore tax ring to avoid autograph royalties? How many games should you get for employing an illegal nanny from Guatemala? You might even find yourself wondering why in the world should the NFL be in the business of policing its players' off-field conduct and meting out preemptive punishment before the justice system? But that's a silly question. After all, Emperor Goodell is a modern day Solomon, right?
Ultimately in seeking to make poster children of NFL "bad boys" Pacman and Chris Henry, Emperor Goodell used a tank to shoot a butterfly. Instead of solving a problem, the NFL created a mess.
And now whenever player misconduct is alleged the question becomes, when is the NFL going to act? What's going to be even worse is when individual fans start to get upset over perceived unfair punishments doled out by the league because of the drastic impact these punishments can have upon the quality of their own teams. Yep, the greatest threat to NFL parity is NFL punishment.
You thought the NFL Draft was an inexact science, good God, you ain't seen nothing until you've seen the inexact science of legal justice. Already fans and interest groups have come to believe that the NFL itself is a disciplinary arm.
On Friday the NFL received an angry letter from the People for the Ethical Treatment of Animals stating, "...there is no record of NFL players ever receiving education from the league on the importance of treating animals humanely." Why should there be a record of the NFL doing this? Has anyone else whose job doesn't involve working with animals been trained on the importance of treating animals humanely? Have pilots, have janitors, have undertakers, have (insert thousands of professions here)? Of course not. Because these professions haven't interjected themselves into the judicial process and become arbiters of right and wrong. But the NFL has. And things are going to get much worse for the league until the NFL alters its disastrous new personal conduct policy.
You know what the real irony of all of this is? The NFL set about implementing a personal conduct policy to preemptively punish players for not living up to an amorphous code of conduct. The idea was that by enacting preemptive punishment the NFL would avoid being tarred by the actions of their individual players.
Instead of freeing itself from the stain of those players' actions, however, the NFL has now more fully associated itself with the players and their actions. Before Emperor Goodell decided that he was going to fashion his own justice system for players, the NFL wasn't dragged into every allegation of player misconduct and asked to justify its response. Now, guess what, they are.
And now every time an NFL player is alleged to have done something wrong, the emperor has to rule. Basing all of his rulings on a flawed and overly expansive preemptive punishment. Emperor Goodell is about to find out, if he hasn't already, that old legal maxim: Tough cases make bad law.
