We’ve previously pointed out the presence of ambiguous language in the Personal Conduct Policy that makes the potential suspension of players who have never been arrested or charged uncertain. The Personal Conduct Policy never has been applied to a player who has not faced criminal charges, and doing so in the case of Steelers quarterback Ben Roethlisberger would set a new — and potentially dangerous — precedent.
But the notion that players will be subject to discipline only if arrested or charged speaks to one of the major concerns we long have had regarding the Personal Conduct Policy. If it will be invoked only if a police officer sees fit to apply handcuffs or a prosecutor sees fit to obtain an indictment, the authorities will have too much power over the process — specifically in cities where there could be an inclination to look the other way out of deference to the local team.
Here’s the key language that has caused us to question whether Roethlisberger or any other player could be suspended under the Personal Conduct Policy without an arrest or charges: “Unless the case involves significant bodily harm, a first offense will generally not result in discipline until there
has been a disposition of the proceeding.”
Without an arrest or charges, there is no “proceeding.” Thus, without a disposition of the “proceeding,” there can be no discipline under the Personal Conduct Policy for a first offense.
An April 7, 2010 memo obtained by the New York Times reiterates the portions of the Personal Conduct Policy that contemplate a higher standard of behavior than mere compliance with the law. “The Policy makes clear that NFL and club personnel must do more than
simply avoid criminal behavior,” the memo states. “We must conduct ourselves in a way that ‘is responsible, that promotes the values upon which the league is
based, and is lawful.'”
The memo also contains what could be a hint regarding the manner in which the league will deal with the “until there has been a disposition of the proceeding” clause. Apart from the wiggle room supplied by the term “generally,” the league could argue that, in Roethlisberger’s case, the month-long investigation was the “proceeding.” We base that conclusion on this sentence from the memo: “Whether it involves your team or another, these incidents affect us all –
every investigation, arrest, or other allegation of improper conduct
undermines the respect for our league by our fans, lessens the
confidence of our business partners and threatens the continued success
of our brand.”
Given that any imposition of discipline under the Personal Conduct Policy is appealed by the Commissioner and that Roethlisberger seems to be ready to accept whatever punishment he gets, it’s unlikely that the league’s potential decision that an investigation without charges constitutes a “proceeding” sufficient to permit discipline would be successfully challenged. Though this could force the NFL in the future to fully explore every “investigation” and “other allegation of improper conduct” short of an arrest or indictment, the league appears to be willing to continue to deal with these situations on a case-by-case basis, and in this case the league could conclude that the evidence is crying out for something substantial.
Frankly, the more we think about the contents of those witness statements, the less surprised we’d be by a suspension of eight games, or more.