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.