NFL’s standard of proof for Personal Conduct Policy violations is very, very low

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When the NFL suspended Patriots quarterback Tom Brady in connection with #DeflateGate, the football-following world became familiar with the “more probable than not” standard of proof. Synonymous with the phrase “preponderance of the evidence,” it’s the lowest-level, 51-49 measurement that applies during the trials of most civil lawsuits.

But it’s not the lowest legal standard. In criminal proceedings, the existence of “probable cause” determines whether an arrest occurs, and eventually whether a suspect officially becomes a defendant, either through a grand-jury indictment or the assessment of a judge at a preliminary hearing. A review of the reasoning articulated by arbitrator Harold Henderson in the eight-page ruling upholding the six-game suspension imposed on Cowboys running back Ezekiel Elliott suggests that the league’s standard in Personal Conduct Policy cases is akin to “probable cause.”

The league’s phrase of choice for these cases is “credible evidence.” It apparently doesn’t mean that all evidence must be credible. It apparently doesn’t mean that most evidence must be credible. It apparently means only that some evidence must be credible.

How much? That’s for the Commissioner to decide. And as long as some of the evidence is credible — even if the rest of it isn’t credible — the league can discipline the player, and the player has no real options, either via internal appeal or external legal proceedings.

“What has gotten lost in the last couple weeks with the legal action is the fact that the NFL believes that one of its players engaged in physical violence against a woman,” NFL spokesman Brian McCarthy told PFT on Thursday. “This is not acceptable behavior for anyone associated with the NFL. The NFL takes these issues very seriously and holds people accountable for their actions.”

Clearly, the league believes strongly in its case. Accurate or inaccurate, the league believes Elliott assaulted Tiffany Thompson, and the league believes it conducted a fair, thoughtful, and deliberate investigation and followed the disciplinary process that appears in the labor deal.

The broader question is whether it’s truly fair or proper for the league to impose discipline based on a very low, probable cause-style standard of proof. Fair or not, it fits the league’s P.R.-driven philosophy that it’s better to punish a player who many be innocent than to fail to sufficiently punish a player who definitely is guilty.

Which brings the Elliott case and similar cases back to the Ray Rice debacle. The league was under siege for multiple weeks due to its mishandling of the Rice case. The league will never be under siege for erroneously imposing discipline on a player who is accused of misconduct. As long as the league has the power to impose discipline based on the very lowest legal standard of proof, any player who finds himself under scrutiny had better be able to show that there is no credible evidence of any kind that could be viewed in any way as suggesting that he has any responsibility for anything that happened.

29 responses to “NFL’s standard of proof for Personal Conduct Policy violations is very, very low

  1. The problem isn’t a low standard of proof. The problem is that the league has demonstrated that it has no issue faking the facts in order to reach even that low standard of proof. As long as it can change to do this fairly and impartially, that low standard would be just fine.

  2. The players need a real union. Next CBA they need to get a fair discipline process. Like it or not they agreed to this kangaroo court headed by Goodell.

  3. This is beyond ridiculous. Why can’t the NFL just say: “We are a sports league. We don’t involve ourselves with being an extra-judicial body. There are other organizations and people better suited to address this issue”.

  4. People have been fired with less proof or cause. Heck, players are fired for less, just never players with any talent.

    I don’t approve of the League’s abuse of power. But it’s hard to say that what they are doing is really that unusual. Bosses do what bosses want to do.

  5. cardinealsfan20 says:
    September 8, 2017 at 2:17 pm
    This is beyond ridiculous. Why can’t the NFL just say: “We are a sports league. We don’t involve ourselves with being an extra-judicial body. There are other organizations and people better suited to address this issue”.

    They’re called sponsors and or endorsements that give boatloads of money to be assoiated to the NFL Brand if you didn’t know……I would think that would be clear to anyone with a working brain!!

  6. The NFL is mistaken if it thinks there is some lingering PR problem from the Rice/Brown situations, and that the alleged problem can be fixed by suspending Elliott.

    Outside of the immediate families, no one actually cares about what happened in these situations. People will say that they are outraged by the Rice video, but that’s really fake outrage. It gives those people some level of self-worth to proclaim their outrage, however, they really don’t care about it. Thus, the NFL is trying to fix a problem that doesn’t exist.

  7. The NFL has demonstrated, in these high profile cases, that they have no standard of proof. They even admitted it in the Brady case. There was no proof in the Elliott case either.

    As long as Goodell and the league office refuse to be impartial in these proceedings, things will remain as they are now.

  8. “Fair or not, it fits the league’s P.R.-driven philosophy that it’s better to punish a player who many be innocent than to fail to sufficiently punish a player who definitely is guilty.”

    Now you’re getting it.

    It doesn’t matter if he’s guilty or not. What matters is whether he created or had a hand in creating a situation where the league looks bad.

    It’s the same for most every employer and as former labor/employment counsel you know that. You may not agree with it, but you shouldn’t be surprised or confused.

  9. Quite simply, the probable cause standard of proof is unfair. Which is why it’s never used. Which is why equating this to a common workplace incident is laughable (at best). Even if it was, it wouldn’t change the fact that it’s categorically unfair. It doesn’t make it any less egregious just because multiple companies have their heads up their backsides.

  10. Basically, slapping someone could get a player suspended. Although, it doesn’t explain the Josh Brown case where there was overwhelming evidence of his guilt, but got a 1 game suspension. Only today did, after a year, did they add more games to the suspension of Josh Brown. The NFL picks and choose how they dole out punishment. The biggest fear the NFL has is the existence of video of the incident just like the Ray Rice case. If there was no video of Ray hitting her, we probably wouldn’t be talking about all of this.

  11. The NFL has mishandled just about everything this decade. They only have themselves to blame for the declining viewership. That trend is only going to continue.

  12. Players are apparently guilty until proven innocent. Personally, I’ve always subscribed to Blackstone’s old formulation: It is better that ten guilty persons go free than that one innocent be made to suffer.

  13. I kind of laugh about it because pretty soon the NFL will form a 11 person jury and duplicate the judicial system, and it’s all because of public opinion. It’s a slippery slope and the NFL is well down it already.

  14. cowboyfan45 – Are you really naive enough to think sponsors will pull out if the NFL drops this stupid brand of vigilante justice? No one person or group cares enough to launch some meaningful boycott of sponsors over the “NFL’s treatment of domestic violence”. A few fringe people who don’t watch football anyway will populate twitter for a few hours, then it will all be over.

  15. Most standards of the NFL are very low.
    When the Commissioner is a schmuck, thats what you get.
    Goodell should be fired, as on a daily basis he shows what a crappy job he does.
    He’s the whipping boy, although a well paid one, for the owners.

  16. harrietknutczak says:
    September 8, 2017 at 2:49 pm
    The NFL is not a court of law, and the NFLPA agreed to the deal.
    ===============================
    The NFLPA never agreed to an unfair discipline policy. Anybody who argues otherwise is just plain being lazy.

  17. cardinealsfan20 says:
    September 8, 2017 at 2:56 pm
    cowboyfan45 – Are you really naive enough to think sponsors will pull out if the NFL drops this stupid brand of vigilante justice? No one person or group cares enough to launch some meaningful boycott of sponsors over the “NFL’s treatment of domestic violence”. A few fringe people who don’t watch football anyway will populate twitter for a few hours, then it will all be over.
    =========================
    How about sponsors dealing with declining ratings?

  18. Players are apparently guilty until proven innocent. Personally, I’ve always subscribed to Blackstone’s old formulation: It is better that ten guilty persons go free than that one innocent be made to suffer.

    That was written well before the social media mob & pitchfork nation…Now the motto is “I would rather throw 10 innocent sacrifices to the mob then to suffer in the court of public opinion…

  19. All this stems from the vague and generic terms of article 46: “conduct detrimental to the integrity of, or public confidence in, the game of professional football”. Again, it is not about the NFL proving that Elliott is guilty but rather about the NFL finding just enough proof to believe that he may be guilty. More exactly, this is about the NFL believing that there is enough evidence to affect public’s confidence. Think of it as being suspended because you tweeted something that your boss thinks people will find offensive. It doesn’t matter how many people (if any) do so. If your boss has that power and he “genuinely” believes this may be the case, he can suspend you without pay, free speech be damned.

    That’s why the League claimed that a text message, a bathroom stop, and a controversial scientific analysis were enough to penalize the Patriots. None of them proved anything but the League had the right to penalize them and it did so because there was enough to affect the public confidence on the integrity of the game. Why do you think the League played such a dirty game of misinformation?

    Same thing applies to Elliott. If the Commissioner claims that after reviewing everything, he believes that it is likely that Elliott is guilty then the court cannot tell him to believe otherwise. The only way for Elliott to win is to prove beyond doubt that every single shred of evidence against him is false. Otherwise, a single text message from months ago that mentions “violence”, a trip to the bathroom outside the camera range and some shady expert analysis will easily be enough for the League to suspend him and the court will have no choice but to defer to that conclusion.

  20. Headline says it all. The NFL standards in most things are low, therefore ratings are down. From suspending your innocent players on a whim, to covering up a real psycho’s abuse of his wife, to actually charging the military to display patriotic symbols at the games, to the networks insistence to scan the sidelines during the national anthem looking for players who disrespect our country, it’s no wonder the ratings are down.

    Unfortunately Zeke’s ex girlfriend’s threat of “I’m white, your black…who do you think they are going to believe” has come to fruition. Josh Brown beat the hell out of his wife for years, even wrote about it in his journal. And he gets one game?? What’s even funnier is that the league comes back now to suspend him for 6 after he’s been out of the league for over a year.

    Low standards indeed.

  21. “How about sponsors dealing with declining ratings?”

    To the extent that there is ratings decline, it certainly isn’t or won’t be the result of whether personal conduct suspensions are levied.

    The whole declining ratings thing is blown way out of proportion by the anti-Kaepernick and anti-Goodell/ groups. There are numerous reasons for any slight ratings drop, especially including streaming options. Slight declines are not indicative of decreased interest.

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