As Patriots owner Robert Kraft moves toward the potential dismissal of pending solicitation of prostitution charges or (if the case actually goes to trial with most if not all of the key evidence against him suppressed) an acquittal, an important question looms.
What will the NFL do to Kraft?
It will be a delicate issue, given the league’s aggressive treatment of players who were never arrested or charged and the refrain that owners are held to a higher standard than players. But an examination of the plain language of the Personal Conduct Policy makes it difficult to find the basis for a violation, absent sufficient evidence under the league’s reduced standard that solicitation of prostitution occurred.
Without sufficient evidence of solicitation, Kraft at most engaged in consensual sexual activity in a private place that became not private because police were conducting an overly broad “sneak and peek” surveillance operation. Thus, without sufficient evidence of solicitation, what would the violation be? Although the policy speaks broadly in terms of integrity and character and values, consensual sexual activity is not prohibited.
Even if there were sufficient evidence of solicitation, it would be difficult to match the behavior to one of the 13 specific examples of prohibited conduct contained in the Personal Conduct Policy. The closest bullet point from the policy would be this one: “Assault and/or battery, including sexual assault or other sex offenses.”
Even then, the phrase “other sex offenses” appears as an example in the category of “assault and/or battery,” which arguably indicates that the bullet point in question encompasses only those “sex offenses” that would relate to an assault and/or battery.
The best argument for discipline, if there is sufficient evidence of solicitation, comes from the final bullet point contained in the policy, a catch-all that prohibits “[c]onduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel.” There, the question becomes whether solicitation of prostitution “undermines or puts at risk the integrity” of the league, its teams, and league personnel.
Even if solicitation of prostitution amounts to a violation of the Personal Conduct Policy, the league would have to prove that solicitation happened. How would the league do that? If Kraft denies that he solicited sexual favors (in other words, that he promised specific payment of money for sex in advance of sex being provided), how would the league show that he did it? The video — which may never be available at all to the league — proves that sexual activity happened; it doesn’t prove the sex was solicited. Absent cooperation from the person who performed the sexual favors, the league could have a very difficult time finding that solicitation happened.
Think of it this way. If a player were exonerated of solicitation under these same facts, he’d most likely face no discipline at all. But that important point would quickly become lost in the cacophony of players, fans, and media calling for discipline given that players have been disciplined without ever being arrested or charged. However, those players (e.g., Ezekiel Elliott and Kareem Hunt) were accused of engaging in misconduct involving violence. Kraft faces no such allegations.
Then again, he’s an owner and the league likes to say that owners are held to a higher standard. Still, what is the higher standard for an owner when the standard for a player in an identical situation would result in no discipline?
That eventually will be the biggest challenge for the Commissioner, whose past zeal when it comes to disciplining players who never faced criminal jeopardy will make it very difficult to sell to the players and to the public a literal interpretation and application of the relevant rules when it comes to an owner who technically may not have done enough to violate the policy, but who as a practical matter may not be able to escape the P.R. underpinnings of the Personal Conduct Policy.
And that’s typically how it works. Regardless of what the policy provides, the league does what it wants in order to accomplish that which it thinks it needs in order to advance the league’s P.R. interests. So even if Kraft could make a persuasive and compelling argument that the Personal Conduct Policy does not apply in cases of this nature, the league will try to find a way to discipline him, if the league believes that discipline is necessary to avoid an inevitable storm of bad press.