Ham: NFL and Undue Process

By Eldon Ham-

(CBS) The NFL can elect to keep wife beaters, child abusers and other miscreants on the field. Fans might still come, just as fans of culpable movie stars might still see their movies. But be careful of the movie analogy — be sure to use the right one.

Major studios have brands. They are like the NFL, IBM and Starbucks. They have every right to dump O.J. Simpson, Michael Jackson, Mel Gibson, Charlie Sheen and legions of others. If a studio doesn’t want these people as the face of its brand, it doesn’t have to keep hiring and featuring them. Likewise, the NFL has a right to not identify with domestic abusers, whether they happen to be found guilty or innocent by an entirely different criminal law system of due process. What are the odds that Disney was going to feature Michael Jackson or O.J. Simpson in its next Lion King feature? And Simpson was even found not guilty — so to speak.

Now Anheuser-Busch has expressed concern about what the NFL is doing to its beer brand, while Radisson Hotels distanced its brand from the Vikings. Why? The NFL is largely a family brand. Just look at its products, image and community outreach programs. A full 45 percent of NFL fans are women — and many are moms. Many others are dads. These people don’t want to see the glorification of molesters, abusers and criminals on a TV screen in their homes. Neither do the sponsors.

As for due process, there’s no requirement for teams or the NFL to sit idly back while the wheels of criminal justice crawl all over their brand and image. Criminal standards are unique, strict, far different and not always applicable. Moreover, a criminal “not guilty” finding doesn’t even resolve the issue. Being found not guilty isn’t the same as being innocent.

“Not guilty” could come from an evidentiary mistake, failure to meet the “beyond a reasonable doubt” burden or even jury nullification. Take the Ray Rice example. If a vice president of IBM is videotaped beating his wife unconscious and it turns up on the national news, IBM will likely be able to take action: put him on leave, fire him or the like. Same with the NFL, so long as it follows the limitations of private sector due process (a loose standard of fundamental fairness), follows its own rules and isn’t arbitrary and unreasonable.

So what should the NFL do? Perform its own investigation.

If the player denies that the incident happened, maybe the player is actually innocent. So investigate. Ask the player. Get evidence, talk to people. Ask the player to deliver medical records. Get the elevator tape or at least ask for it. In fact, the NFL did have the Rice tape, as it turns out. If the player appears to be guilty, take action. If the player seems innocent, don’t.

If it is unclear, either do nothing or place the player on paid leave until the courts work it out. This is how Ray Rice might win an appeal and a reduction of his suspension, for the NFL has made much of this up as it goes: two games for Rice, then six, now indefinite. Six games is a fair result, especially if there is mandatory treatment. But unilaterally changing the number depending on public polling after the fact is fundamentally unfair.

Still, the NFL doesn’t have to keep murderers, wife beaters, rapists and child abusers as the face of these teams under the guise of due process in the criminal courts. Further, it shouldn’t hide behind it, trying to play these guys to win games, using “due process” as pretext to keep winning. Nor should the NFL embark on a ridiculous series of cover-ups. It seems like the NFL may have burned this cover-up candle at both ends and is, in fact, getting burned by all this “undue process.”

Yes, players are talent. They are talented entertainers like movie stars. Studios or the NFL could still feature them, fans might still go, but they don’t have to hire or keep these people as the face of their brand, either. Moreover, the players and stars both need the infrastructure of the organization. Perhaps a select few movies stars could produce and distribute their own movies, but most couldn’t. Ray Rice and Adrian Peterson could run down the street with a football on their own, but no on would care. They need the brand, too.

Eldon Ham is the WSCR sports legal analyst, a professor of Sports, Law & Society at IIT/Chicago-Kent College of Law and the author of numerous sports books, including All the Babe’s Men, the 2014 bronze medal winner in the national IPPY book awards for sports.

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