Our pal Brooks of SportsByBrooks.com has dissected various flaws arising from ESPN’s rush to report that Ocmulgee (Ga.) Judicial Circuit District Attorney Fred Bright will announce Monday that Steelers quarterback Ben Roethlisberger won’t be charged with sexual assault. But Brooks ultimately concludes, and we agree, that ESPN wouldn’t go with this story if the reporters had the tiniest sliver of doubt regarding its accuracy.
If that’s what Bright announces on Monday -- that Roethlisberger won’t be charged -- the matter won’t be completely closed. Roethlisberger still could be sued, pursuant to the much lower standard of proof applicable to civil suits.
More importantly (as it relates to his NFL career), Roethlisberger could face discipline from the league or from the team.
The NFL could impose a penalty under the Personal Conduct Policy, even without a criminal prosecution. “While criminal activity is clearly outside the scope of permissible conduct,” the Personal Conduct Policy reads, “and persons who engage in criminal activity will be subject to discipline, the standard of conduct for persons employed in the NFL is considerably higher. It is not simply enough to avoid being found guilty of a crime. Instead, as an employee of the NFL or a member club, you are held to a higher standard and expected to conduct yourself in a way that is responsible, promotes the values upon which the League is based, and is lawful.” (Emphasis in original.)
The Personal Conduct Policy then lists the various circumstances in which discipline may be imposed. The first two items specifically mention “criminal offenses.” Later, the list includes "[c]onduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players.” An easy case can be made that, even without charges, Roethlisberger’s reportedly admitted conduct -- sexual contact with a 20-year-old girl in the bathroom stall of a nightclub -- “undermines or puts at risk the integrity and reputation” of the league, its teams, and its players.
That said, the Personal Conduct Policy contains some potentially conflicting language regarding the issue of discipline. “Unless the case involves significant bodily harm,” the document states, “a first offense will generally not result in discipline until there has been a disposition of the proceeding.” This sentence strongly implies that, for a first offense, the player won’t be disciplined absent the filing of criminal charges.
It’s possible that, in Roethlisberger’s case, the league will regard the Nevada incident as a first offense, and thus treat the Georgia incident as a second offense. The problem, of course, is that it’s impossible for the league to conclude whether either incident constitutes an “offense” unless the league has conducted its own investigation.
As a result, we tend to think that, despite language suggesting that punishment can be imposed without criminal charges or an arrest, the league will be reluctant to go down that path, unless Roethlisberger would ultimately lose the civil case in Nevada and then lose the separate civil case (if one filed) in Georgia.
Of course, that won’t stop the team from taking action. In an effort to commence the process of reclaiming a reputation of good behavior, the Steelers could choose to impose a short suspension (one or two games) for conduct detrimental to the team. Roethlisberger could fight the suspension with the assistance of the union, and unlike league-imposed suspensions Roethlisberger would be entitled to have the matter reviewed by an independent arbitrator. That said, Roethlisberger’s long-term interests likely would be best served by taking whatever punishment the Rooneys mete out, to be glad that he avoided an outcome that could have been much worse, and to avoid moving forward any circumstances that could give rise to similar allegations.
Again, all of this assumes that he won’t be charged. If the ESPN report is indeed accurate, we expect others to be “confirming” it over the weekend.