When the NFL beefed up the personal-conduct policy more than seven years ago, contemporaneously with the suspensions imposed on Pacman Jones and the late Chris Henry, a fairly clear loophole emerged.
If a player finds trouble, or vice-versa, the police officer who responds to the situation can keep the player out of trouble with the NFL by finding a way to not arrest or charge the player. In some of the cities where the local NFL team serves as an overwhelming point of pride, it happens. And so if an arrest doesn’t happen, the league never knows that anything happened, and there’s never any reason to review the situation under the personal-conduct policy.
The decision of Pilot Flying J to fork over $92 million (on top of more than $56 million paid in restitution to customers) to resolve a massive case of fraud has, as a practical matter, pulled the plug on any effort to prosecute Browns owner Jimmy Haslam. Which means that, with no claim of criminal wrongdoing ever being made against Haslam, Haslam will face no scrutiny under the conduct policy.
“There have been no allegations of any personal conduct that is in violation of NFL policy,” the league in the aftermath of the announcement that Pilot Flying J would pay nearly nine figures to avoid criminal prosecution.
The loophole in this case comes not from a police officer’s decision to look the other way but from the wide range of discretion possessed by prosecutors. Clearly the most powerful law-enforcement officer in every jurisdiction, the prosecutor decides who gets charged, who doesn’t get charged, and what they get charged with. In this case, after spending months methodically harvesting guilty pleas and rock-climbing the organizational chart, the prosecutor ultimately had to decide whether to make a run at Haslam or to strike a deal that kicks a very large pile of cash into the federal coffers.
It’s not hard to justify the outcome. Haslam would have spared no expense to defend himself, knowing that the mere creation of if-it-doesn’t-fit-you-must-acquit-style reasonable doubt would have resulted in no conviction and no jail time. Instead, the prosecutor has secured a massive payment from the company, along with a commitment that the company will cooperate fully with any and all efforts to prosecute specific individuals.
One of those individuals could be Haslam himself, in theory. But with lawyer Aubrey Harwell representing both Haslam and Pilot Flying J, a decision to prosecute Haslam would land somewhere on the range of expectations far beyond shocking; if the feds intended to pursue Haslam, a deal wouldn’t have been struck with Pilot Flying J.
And if, as it appears, the $92 million payment from the family-owned company Haslam runs ultimately insulates him from prosecution, the prosecutorial discretion that resulted in the deal has helped Haslam avoid any scrutiny from the league office — and it has allowed the NFL to dance around the otherwise obvious impression that owners do indeed get treated differently than players.
Still, the no-arrest and no-prosecution loopholes to the personal-conduct policy are equally available to players and owners. For one of those loopholes, however, having access to an extra $92 million helps.