A DISCUSSION OF LAW AND JOURNALISM

Roger and Me: An Open Letter to NFL Commissioner Roger Goodell

By Chris Cotter

In early March, a 20-year-old Georgia college student accused Pittsburgh Steelers QB, Ben Roethlisberger of sexually assaulting her at a bar in Milledgeville, GA. After a month-long investigation, Georgia district attorney Fred Bright announced on April 12 that he would not charge Roethlisberger with rape. But while Roethlisberger has managed to avoid criminal charges, he will likely face discipline from either his team or from the NFL.

Under the NFL’s latest iteration of its personal conduct policy implemented in 2007, the league can discipline a player for any “conduct detrimental to the integrity of and public confidence in the National Football League.” According to the policy, this includes “illegal or irresponsible conduct,” and discipline may be imposed for “conduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players.” But the League has no set benchmarks by which it measures the length of any suspension it might impose against the conduct from which it resulted.

So, if I’m advising NFL Commissioner Roger Goodell, there are a few things I’m telling him to consider, and thus begins, my open letter…

Dear Rog,

Ever since Ben Roethlisberger was not charged with rape last week, everyone and his brother has speculated on what type of discipline the NFL will rain down on him (Sports Illustrated’s Peter King says two games, ProFootballTalk’s Mike Florio says four, and Roethlisberger’s former teammate, now CBS football analyst Jerome Bettis also says two). I’m sure this hasn’t made your decision any easier. But here are a few things to think about before making a landmark decision in personal conduct policy jurisprudence.

1.  Regardless of what the folks carrying torches and pitchforks believe, we are talking about accusations. Because the Georgia DA did not charge Roethlisberger, we may never know what really happened between the QB and the co-ed. And even though this is the second time a woman has accused Roethlisberger of rape in less than a year (the first was a civil suit filed by a Nevada woman in 2009), if you suspend Roethlisberger, you’ll in effect be saying that any player can be suspended under the personal conduct policy based on allegations, unproven and possibly baseless, legally speaking.

2.  Compare the length of any suspension you seek to impose on Roethlisberger to those of others who were actually charged with crimes.

Some pundits think that you may buckle under pressure and throw the suspension book at Roethlisberger (“the book” being six games or more). If you go this route, you will be likening Roethlisberger’s alleged conduct to that of these guys, who you suspended for the following reasons:

But most players who you’ve suspended — all of them after being charged with a crime –were benched for four games or fewer. To refresh your memory, you have suspended the following players, for the following reasons:

  • Minnesota Vikings offensive lineman Bryant McKinnie for four games after he was charged with one felony and three misdemeanors stemming from a bar brawl.
  • Denver Broncos wide receiver Brandon Marshall for three games after he was charged with misdemeanor battery (his suspension was ultimately reduced to just one game).
  • Buffalo Bills running back Marshawn Lynch for three games after he was charged with misdemeanor weapons possession.
  • Kansas City Chiefs running back Larry Johnson for one game after he was charged with simple assault.
  • And New York Giants linebacker Michael Boley for one game after he was charged with domestic battery.

If you suspend Roethlisberger for even just one game, you will be punishing him just as or more severely than those who, unlike him, were charged with a crime.

3. Consider letting the Steelers deal with their QB. As you well know teams can suspend their players citing “conduct detrimental to the team.” Of course, under the league’s collective bargaining agreement, teams may only suspend their players for detrimental conduct for a maximum of four games. But you might prefer to let the Steelers suspend Roethlisberger because you would avoid setting a league-wide precedent for punishing players who haven’t been charged with a crime. At the same time, this may be amenable to the Steelers, who are looking to repair the damage done to their image in the wake of the allegations against Roethlisberger as well as incidents involving Santonio Holmes (multiple marijuana arrests as well as allegations that he assaulted a woman in a Florida bar) and Jeff Reed (public urination and allegations that he was prepared to fight a police officer).

4.   On the other hand, if you are truly concerned with any punishment sticking, your best option may be to impose the suspension yourself. If a player appeals a team’s suspension, the case goes to an independent arbitrator. And as you know, if a League suspension is appealed, the case comes right back to you. Moreover, this might allow you to appease the angry mob with a significant suspension in the short term, while potentially leaving room to reduce the suspension’s length on appeal, once the clamoring has died down a bit (though a “source” allegedly told the Washington Post’s Mark Maske that Roethlisberger will not appeal any suspension levied by either you or the Steelers unless it’s “too harsh”…whatever that means). Not to mention, there’s been plenty of public pressure on you to act yourself since you met with Roethlisberger last week in New York.

5.  Finally, if you can suspend Roethlisberger for conduct that was never deemed illegal, where will you draw the line? It seems that it would be equally unclear to players in the future as it is to me now. Furthermore, how much influence should you really have on players off the field conduct?

So I guess the bottom line is – I don’t envy you right now, Rog.

Godspeed and good luck, my friend.

Sincerely,

– C

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