New personal conduct policy disregards Fifth Amendment protections

After 49ers defensive lineman Ray McDonald was arrested for domestic assault in August, coach Jim Harbaugh defended the team’s decision not to take action by wrapping himself in the nation’s founding documents.

“[T]his is America, you’re innocent until you’re proven guilty,” Harbaugh said at the time.  “I don’t know what more I can say about that and I have great respect for that principle. . . .  It’s in the Constitution.  It’s in the Constitution. It’s well defined.  The Fifth Amendment.”

Harbaugh’s respect for the Fifth Amendment (which may not have been quite as strong if the player in question had been a bottom-of-the-roster slappy) doesn’t match the NFL’s attitude toward the Fifth Amendment.  Under the new personal conduct policy, the player has no right to remain silent.

“Because the Fifth Amendment’s protection against self-incrimination does not apply in a workplace investigation, the league will reserve the right to compel an employee to cooperate in its investigations even when the employee is the target of a pending law enforcement investigation or proceeding,” the new policy states.  “An employee’s refusal to speak to a league investigator under such circumstances will not preclude an investigation from proceeding or discipline from being imposed.”

Similarly, a criminal defendant’s refusal to speak in a court of law won’t preclude a prosecution from proceeding and discipline from being imposed.  However, because the NFL won’t be honoring the various other Constitutional protections that apply when liberty is on the line (like proof beyond a reasonable doubt), it’s much easier for an employee who remains silent to end up being deemed guilty in circumstances where breaking the silence may have exonerated him.

If the player speaks, however, anything he tells investigators may be used against him in his criminal case.  Under the rules of evidence applicable in every American jurisdiction and all federal courts, anything a criminal defendant says — in any setting — can be introduced against him at trial.

For the NFL, that could create awkward moments, transforming league investigators into witnesses, with subpoenas issued for testimony and any notes or other record of what the player said.  So the NFL probably would prefer that the player refuse to cooperate; if the player talks, the NFL eventually will be cooperating in the criminal case, whether the NFL wants to or not.

81 responses to “New personal conduct policy disregards Fifth Amendment protections

  1. I am pro business conservative however that doesn’t mean pro business you get to ignore the 5th . . . At times I do support unions when they have a real legitimate grievance. This is one of them . . . Walk out now!!!!

  2. the 5th amendment is protection against the government…. not against your employer… if you want to be employed, you’ve got to behave as your employer wishes (outside of Federal workplace protections)

    the idea that players can hold up the bill of rights and say they are being violated is ridiculous…. the NFL and Teams are running a business that relies on the goodwill of their fans to generate income… if a player messes with that, they do so at their own peril and the bill of rights doesn’t apply.

  3. This is the NFL, not the government. Freedom of Speech, the 5th Amendment, and all that other stuff does not apply here. The Miranda warning does not apply here. The NFL is going to do what’s best for them, government be damned. I seriously doubt the thought of them being dragged into court to testify for or against a particular player is their concern in trying to implement their new conduct policy.

  4. This was inevitable. The NFL has been sorely embarrassed over the past few months by how the code of conduct has ill-served them in some pretty dramatic instances (although it could be argued that it wasn’t the code, it was the man interpreting it that failed the NFL), so you know that they were going to do something to try and get on top of the media whirlwind.

    Now watch as the NFL’s media lapdogs start crowing how Goodell is finally showing leadership and that it looks like the NFL has weathered this crisis.

    Nothing to see here, move along…

  5. The whole thing is too bizarre for words. It is incomprehensible with all the legal talent at NFL HQ he would come out with this. It still pretty much leaves him as judge and high executioner. I would have loved to be in the room when they decided “hey, this will go over well”. The players CAN NOT allow this to stand. It is absurd.

  6. This is a dramatic change.

    Under the old policy, the player was simply given “the opportunity” to “address the conduct at issue” but was not compelled to cooperate. The change is even more dramatic because the new policy provides that “failure to cooperate with an investigation or to be truthful in responding to inquiries will be separate grounds for disciplinary action.” Thus, a player can now be disciplined for doing something he had the right to do under the old policy.

    This new policy is directly contrary to the rule that governs in major-league baseball. In 1980, Commissioner Bowie Kuhn disciplined pitcher Ferguson Jenkins because, on advice of counsel, he refused to cooperate in the commissioner’s investigation while criminal charges were pending. An arbitrator later overruled Kuhn, holding:

    “As a practical matter, the commissioner was compelling Jenkins to jeopardize his defense in court. While this may not actually violate any principles of constitutional or criminal law, it offends the moral values of our society on which the legal privilege against self-incrimination is based.”

    Stay tuned. This could get very interesting.

  7. So the bottom line is not to get into trouble.

    Keep your nose clean, do your job and go home at night.

    I can’t see the problem with this. The NFL is basically telling the players, coaches, owners that they don’t need to worry unless they get into trouble.

  8. I agree with this part of the policy change, the NFL is not the federal government. Plus all the players, owners, GPS etc… know it now so they know they act a fool they will have to explain why.

  9. Goodell gets paid by the owners who unanimously approved his plan. This is a classic management/worker issue. The only way for this to get resolved is for the union to de-certify and/or strike to get the attention of the NFL. At that point real negotiations can take place. Right now it’s the NFL that is holding all the cards and all the power. The NFLPA should elect new leadership. Equality and getting both sides to feel like a good deal was agreed upon is the only way this is going to turn out positively. What a mess!

  10. We all know this is the NFL and not a court of law. And we all know your 5th amendment right is to protect you from the government. Just like your 1st amendment protections. We get it. But, the problem with this situation is that the player can not effectively defend himself in his work place without potentially incriminating himself in the court. Whatever the player says to the league during the NFL’s investigation is not privileged speech like what would be conducted between the player and the players lawyer. So, the problem this new rule in the NFL creates is a catch-22 the player can not defend himself to the league without potentially harming himself in the courts. That is why this is dangerous and that is why there should be an issue.

  11. What is to stop a team or crazed fan from Team A of falsely accusing a star player of Team B before a huge game? The player would immediately be placed on the exempt list Team B would increase their chances of winning. In a league with Spy Gate, performance enhancing drugs and Bounty Gate etc. it’s just a matter of time.

    The NFL must stop over reacting in fear of losing sponsors.

  12. Why are Americans accepting this? The NFL does not recognize the 5th Amendment, yet does recognize it’s a non profit and doesn’t pay any taxes. It’s preposterous.

  13. The new policy is going to create more problems than it solves. They should just wait until the legal system is done, and either follow their lead on punishment or not. But to run parallel to the legal system, or ahead of it, is the height of arrogance, and it will lead to a fall.

  14. I should also point out a very significant difference with the Jenkins case.

    The Jenkins case was decided by an independent arbitrator. The new NFL policy does not provide for an independent arbitrator. The initial decision will be made by a disciplinary officer who will be a member of the league office. The appeal will be heard by Goodell, or a designee chosen by Goodell. Nothing independent about that.

  15. So, does this apply to the commisioner as well. We have seen him not wanting to cooperate with third party arbitrators in the past. What are the commisioners consequences for messing everything up the last 4 months?

  16. The Constitution is a document which measures limited power to the government. People mistakenly believe that rights are granted and ensured by the document, rather than recognize that all that it is government itself which is being legitimized.

    Private enterprise is a whole nutha ballgame, particularly when two parties enter contract.

  17. Boy, I bet Mike never thought he would spend so much time putting his lawyer hat back on when he started PFT.

  18. Welcome to Mother Russia… er.. I mean NFL.
    But seriously, businesses especially big, seem to do what ever they want and deal or fight with the consequences later. They have more money and better lawyers than you do. But make those same business’s look bad publicly and they’ll do anything to clean up and look like a saint, just til the heat is off, then back to business.

  19. cashindubz says:
    Dec 10, 2014 4:51 PM

    So, does this apply to the commisioner as well. We have seen him not wanting to cooperate with third party arbitrators in the past. What are the commisioners consequences for messing everything up the last 4 months?

    What did he mess up so bad, a few punishments for actual criminals? Wow what a terrible guy. Have you given the actual victims one thought or in your delusional world the players are the victims right?

  20. Again, just don’t commit a violent crime and you will never have to participate in this conversation…..

  21. I think hrs when Harbaugh lost the team. He came out firmly and said a player involved in domestic violence had no place on his team and then he totally changed tune a week later.

  22. Good article Florio

    For all of you citing the 5th amendment, you’re overlooking the point here. The question isn’t whether the 5th amendment applies to private businesses, the question is whether your employer can force you to wave your constitutional rights.

    I’m not a lawyer but this seems dubious to me. Imagine a business forcing an employee to waive his 5th amendment right because the government is pressuring the business with repercussions if they don’t play ball.

    Or, if a business can force to waive constitutional rights can they force you to waive other legal protections like health safety standards or other labor protections.

    Just food for thought…

  23. An employer should not be able to impose a penalty on an employee…without 100% absolute proof (like drug testing) or without a prosecution via a Court. I am a huge supporter of business, almost 99% of the time against unions, but this issue is one the NFLPA should walk out on.

  24. I don’t think many people read the post. Yes, the 5th Amendment doesn’t apply to a private business. The point is, the NFL is going to be investigating the case in parallel with, or ahead of, the legal system, so anything you say to the NFL can and will be used against you in a court of law. So if you want to have your 5th Amendment rights in court, you can’t cooperate with the NFL. Therefore, you get punished just because you want to exercise your rights.

  25. Compelled statements can never be used against a criminal defendant. A players statement to the NFL is a non-voluntary compelled statement. No court would allow it in.

  26. The first thing any good attorney will say to a client is, don’t say anything. Let me do your talking, that’s what you are paying me for.
    Now this becomes a legal matter whether the NFL likes it or not. So a player can be disciplined by the NFL and found innocent in a court of law. Then take civil action against the NFL. Even in the work place you have rights.

  27. The NFL can overrule the US Constitution because it is controlled by 31 billionaires and believe it or not, Commissioner Goodell has a lot more real power (that he actually wields) than President Obama – he also made over $44M last year (a lot more than Obama).

  28. mnvikingsfan says:Dec 10, 2014 4:40 PM

    So the bottom line is not to get into trouble.

    Keep your nose clean, do your job and go home at night.

    I can’t see the problem with this. The NFL is basically telling the players, coaches, owners that they don’t need to worry unless they get into trouble.

    ————————————-

    One doesn’t have to “get into trouble.” Accusations bear the weight of proof (except in the media and your world).

  29. bbbmf says:
    Dec 10, 2014 5:20 PM

    One doesn’t have to “get into trouble.” Accusations bear the weight of proof (except in the media and your world).

    ——————————————–

    Not with the new policy. It spells out that charges have to be formally filed, simply being arrested is not enough for the policy to apply.

  30. However, because the NFL won’t be honoring the various other Constitutional protections that apply when liberty is on the line (like proof beyond a reasonable doubt), it’s much easier for an employee who remains silent to end up being deemed guilty in circumstances where breaking the silence may have exonerated him.
    ~~~~~~~~~~~~~
    Wow. Constitutional protections are from government, not from an employer disciplinary process. Liberty is not at stake as the NFL does not have the authority to restrict free movement (the NFL cannot put a player in jail). When it comes to the 5th Amendment, people refuse to testify due to fear of self-incrimination. Your last thought in that paragraph makes no sense. Nobody with evidence that would exonerate them would fail to speak up…unless doing so would incriminate them for a more serious offense. The rules of evidence statement is inaccurate as well although it works for league interactions. Attorney-client conversations are not admissible. Please don’t generalize when you are trying to make a specific point as it impacts your credibility.

    I believe the league’s position here is simply a way to wait until the legal disposition before they start their investigation. The union can’t argue it without advising their clients to subject themselves to that danger. It basically legitimizes extending the administrative action (exempt list) while the investigation happens after the legal case. This is what they did with Peterson. They want the union to complain about it so the Peterson procedure becomes the negotiated fix.

  31. The accused isn’t compelled to do anything. They can refuse to answer the NFL or the Law enforcement agency. That comes with the cost of a loss of income though.

  32. “If the player speaks, however, anything he tells investigators may be used against him in his criminal case. Under the rules of evidence applicable in every American jurisdiction and all federal courts, anything a criminal defendant says — in any setting — can be introduced against him at trial.”

    Give me a break Florio. The legal system is the last thing players have to worry about. New Jersey had incontrovertible video of Ray Rice committing a felony punishable by five years in real state prison, and he didn’t even so much as receive probation. These players literally have to kill someone before the law enforcement treats them like everyday criminals. See OJ Simpson, Rae Carruth, Stallworth, Brent.

    The players have zero to fear about confessing to the League because it might hurt them in criminal court in 99.99998% of the cases because any punishment the league gives them will vastly outweigh the slap on the wrist they get from our inequitable justice system. See Ray Rice, Aldon Smith (who had something like 4 felonies pending and ended up being told to go to his room without dinner by the justice system.)

  33. The NFLPA needs to drop the equivalent of a nuclear bomb… mandatory playoff boycott!
    ———————
    In the CBA, the NFLPA agreed to a no-strike provision for the duration of the CBA.

  34. guitarfreak21 says:
    Dec 10, 2014 5:36 PM
    The NFL is power drunk. The NFLPA needs to drop the equivalent of a nuclear bomb… mandatory playoff boycott!

    The NFL would just delay the season a couple weeks and hire replacement players.

    How great would it be to see a replacement players Super Bowl?

  35. While the obvious needs to be stated, yes, the Constitutional protections only apply against Gov’t actions and not private industry – Florio, as a former lawyer, you completed missed the point/scope of what Harbaugh was saying. Harbaugh was referring to due process when it comes to a presumption of innocence, not the right to avoid self-incrimination. The 5th amendment contains a due process clause – a concept that the NFLPA has constantly touched on, the lack of consistency and due process in these matters.

  36. Apples and Oranges….however bad the NFL may seem to be in this specific case, the 5th amendment does not apply to employer relationships.

  37. Someone has had a few too many concussions, and I don’t think it is the players this time. I believe the union has a legitimate beef here.

  38. What I am interested in seeing is that if the NFL investigation “encourages” a player to testify in the NFL security counsel investigation, can then an attorney subopena those records, thereby nullifying an NFL player’s 5th amendment right. The NFL can’t make a promise that they won’t release those documents to any government agency – if the government wants those documents then they will get them.

  39. Get into hot water at work and try pleading the 5th and see how long it is before they escort you out the door.

  40. denverscott says:
    Dec 10, 2014 4:39 PM
    This is America. You are innocent WHEN proven rich.

    —————————————————
    I fixed it. Now it is correct.

  41. I bet Mike never thought he would spend so much time putting his lawyer hat back on

    I’m sure he can’t help himself but to. Too much litigation in society in general and now its stench is permeating the NFL as well.

    We’ll all need a new hobby soon after they destroy this thing.

  42. So if someone falsely accusing me and I lose my job or some income because my employee doesn’t wait for due process to clear me some of you clowns actually think that’s okay.
    Please think things through before you comment.
    NO THIS IS NOT OK – Especially with the money grubbing people and lawyers rampant in this country.

  43. I think it’s time the player walk, Not only our government is screw up , NFL IS GETTING WORSE. PAYERS SMARTEN UP. STICK TOGETHER AND WALK BEFORE THE PLAY OFFS

  44. The Constitution of the USA was written to protect the people from and overbearing or tyrannical government. Nothing more, nothing less. It does not carry over or pertain to private citizens relationship to their non-government employers.

    Anyway, no one can make anyone else talk. If you don’t want to say anything, don’t. Just don’t be surprised if that silence is determined to be an admission of wrongdoing.

  45. Florio…you are an attorney…please review Garrity. This case related to a law enforcement officers requirement to give statements relating to an internal investigation. 5th amendment rights do not apply. However, no statements can be used in a criminal case against the person making the statement because it was compelled in order to maintain employment. I don’t know if that case will apply, but it sounds very similar. For everyone else…google “Garrity Warnings”

  46. It’s time to get rid of football, regardless or pro-football or college. Get rid of them all. Stupid, what’s the point of winning. Whether you win or lose, doesn’t make you better people.

  47. Not seeing the issue, here. Having a multi-million dollar job is a privilege, not a right.

    If you want to keep your job, you’ll tell your employer what happened. If not, they’ll investigate you and fire you if they see fit.

    Not a single one of you can say if you ran, for example, a financial firm and one of your top employees was indicted for theft or money-laundering that you’d sit around and lose clients and millions of dollars before you’d fire a guy before due process had been completed.

    Lots of talk, but none of you would back that up if it were your livelihood on the line.

  48. Cameron Poe: the problem with your thought process is the NFL routinely allows the criminal justice system to play out before compelling a player to talk. As such, it cannot affect the player’s criminal case because by the time of the interview the case will have concluded. No doubt Florio knows this but he insisted on pretending this was a logical point to make. Continues to be fascinating

  49. Desperate attempt by Goodell and the league to deflect attention from the abysmal way they’ve handled the Rice and Peterson cases (just to name the most recent). Embarrassing and would be laughable, except it’s very serious for the players – and the structure of the sport we all enjoy.

    Brick by brick this commissioner is destroying this game. 20 years from now he will be looked upon as the man most to blame for the major fall in popularity of the NFL.

  50. So, what you’re saying is that on the Saturday before Seattle plays GB in the NFC Championship a woman in Wisconsin could accuse Marshawn Lynch of raping her in his hotel room and a prosecutor could file dubious charges and have Marshawn arrested Saturday morning and he is suspended effective immediately for that game? Or that a prosecutor who is on the take from the mob could charge ARod with the same offense in AZ 3 days before the SB? Maybe they get investigated for prosecutorial misconduct, maybe they don’t… Doesn’t matter because that is after the fact. NFL – do you even think, bro? As for the 5th Amendment argument, I smell a player strike starting Feb 3 over this.

  51. This notion of “Innocent until proven guilty” is also misunderstood by too many.
    Just because you get away with something, does not mean you are innocent.
    Just because a jury has not issued a verdict because the proceedings are not complete does not mean you are innocent.
    Actually, even if a jury brings a guilty verdict it does not mean you are not innocent.

    You want proof? Ask Brian Banks.

    Everyone too easily leaves out the part “In the eyes of the law.”

    The reality is, the moment you commit the crime, you are guilty of that crime.

    The NFL or anyone else does not have to hold to the same level of proof as the court of law. Heck we all know this is true with civil courts.
    A civil court found OJ guilty. Many hope a civil court finds the Ferguson cop guilty. But in the eyes of the law, they are both innocent because they were not (or will not be) found guilty.
    The NFL, or any corporation or actually any individual can render judgment based on a lower level of proof then the eyes of the law.
    Again, back to Ferguson, In the eyes of many the cop is guilty.
    (there are of course limits on what discipline or punishment one can impose)

    So it is wrong for Harbaugh to say the team can’t do anything until the courts decide he is guilty. It’s wrong for the NFL to wait on the court case for AP to decide what to do based on “innocent until proven guilty.”
    He admitted he whipped the kid. The fact that the charge was reduced, does not change what occurred.
    In most cases they know what the players did. In the eyes of the NFL are they guilty of something that deserves discipline from the league or not?

  52. Phil says: Dec 10, 2014 4:58 PM

    Good article Florio

    For all of you citing the 5th amendment, you’re overlooking the point here. The question isn’t whether the 5th amendment applies to private businesses, the question is whether your employer can force you to wave your constitutional rights.

    I’m not a lawyer but this seems dubious to me. Imagine a business forcing an employee to waive his 5th amendment right because the government is pressuring the business with repercussions if they don’t play ball.

    Or, if a business can force to waive constitutional rights can they force you to waive other legal protections like health safety standards or other labor protections.

    Just food for thought…
    —————————————————————–
    Congratulations, you get it! If I’m a player and this policy requires me to give up my 5th amendment rights, causing me to be found guilty of a crime I otherwise would not have (effectively forcing me to testify against myself) I’m suing the NFL for Hundreds of Millions of dollars.

  53. Well the players aren’t giving up there fifth amendment rights, because well they don’t apply to private businesses or people. In fact until recently the Bill of Rights did not apply to State governments not to mention companies or Citizens.

    In United States v. Cruikshank the Supreme Court ruled that the first amendment did not apply to the State government, and that the Second amendment did not apply to private individuals. Unlike may other decisions from the reconstruction era, this decision still applies.

  54. The 5th Amendment protects you from self incrimination, when your freedom is an issue. It is illegal to use information gained against someone in a job related hearing , against them in a criminal proceeding. Cops have worked under this rule forever making 30 grand a year. Doesnt seem unreasonable for millionaires. Like someone said, do your job and go to your mansion and swim in your swimming pool and everything will be just fine.

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