Much will be posted in this space over the next two days as the first — and arguably most important — hearing in the Ezekiel Elliott lawsuit approaches. For now, here’s a leftover nugget that underscores the tone and tenor of the P.R. battle that will emerge from a process that ultimately is rooted in P.R. considerations.
During last week’s appeal hearing, attorney Jeffrey Kessler’s challenge to the six-game suspension included a point about the failure of Commissioner Roger Goodell to mention in any way the possibility of mitigating circumstances that would reduce the baseline punishment, in the same way that Goodell reduced the baseline punishment of Giants kicker Josh Brown last year from six games to one.
“[W]hile it’s our position that you must reverse this discipline in its entirety, I can’t help but note that the Commissioner did not explain in his letter why he did not find any mitigating circumstances in this case,” Kessler argued to arbitrator Harold Henderson, via Mark Maske of the Washington Post. “He didn’t find any aggravating [circumstances (which would increase the punishment beyond six games)], but he doesn’t explain why there are no mitigating circumstances. Even if one were to conclude improperly that there were credible evidence that some act occurred that would violate the [Personal Conduct] Policy, it is clear, given the extortionate threats given by [Elliott’s accuser], her harassing nature, her violative nature, her drug and alcohol abuse, her penchant for rough sex, there certainly would have been provocation involved that would be a mitigating factor for two young people like this.
“Now, we’re not asking you to do that. We’re asking you to overturn it all because there’s no credible evidence, but it’s hard to see how the full six games would be warranted even if you believed everything said, which you can’t possibly do.”
It’s a reasonable point for Kessler to make, given the broader realities of the case. While Goodell may not believe any of those circumstances justify a reduction, his failure to address the possibility of suspending Elliott less than six games makes the decision arguably seem arbitrary and capricious — which supposedly is the standard that applied on appeal.
NFL spokesman Joe Lockhart responded to Kessler’s argument regarding Goodell’s failure to address the issue of mitigation circumstances with this, via Maske: “The union has single-handedly turned back the clock and trampled on the rights of victims by saying it’s okay to commit violence against women as long as you’re provoked.”
But that’s not what Kessler was doing. He was merely pointing out that the rules allow for the six-game suspension to increase with evidence of aggravating circumstances and to decrease with evidence of mitigating circumstances, and that Goodell’s decision doesn’t address the issue of mitigation at all, despite the existence of evidence that would suggest possible mitigation.
The rhetoric from Lockhart, who served as White House Press Secretary in the Clinton Administration, isn’t surprising. As one league source explained it, that’s one of the practical realities of hiring political operatives to handle P.R. in a public-facing business. The notion of win-win goes about the window when it comes to politics, where it’s always about a winner and a loser and about twisting every situation to make your adversary look like a loser.
If nothing else, Lockhart’s effort to spin Kessler’s point about one of the potential flaws in the Elliott decision underscores the fact that the NFL’s in-house system of player justice is fueled primarily by P.R. considerations, and not by ensuring the existence of processes and procedures that give players a full and fair opportunity to present their cases when accused by the league of misconduct for which they have not been arrested, charged, or sued.
When lawyers makes arguments on behalf of clients who are facing formal accusations, there’s no P.R. department at the courthouse that chides the lawyer for having the audacity to zealously represent his or her client. At a minimum, the quasi-courthouse the NFL has created as a supplement to the justice system should operate the same way.