“Investigating the Investigators” in the Ray Rice Case – and What the NFL Should Have Done

Several things seem to be lost in the NFL Ray Rice brouhaha. One is that the NFL is under no obligation to punish its players for illegal behavior they engage in as members of society. We have a legal system for that. Additionally, most employers often don’t add in additional employment related punishment, as the NFL does.

The NFL may want there to be serious NFL ramifications for its players for illegal off the field behavior, for various reasons; including the integrity and process of games, as well as the image of the league. And since the NFL exists because of its fans (and also indirectly gets support from multiple municipalities for some of its individual teams’ stadiums, and has become a semi iconic sports/cultural feature of American society for many), it has chosen to do so as a standard part of its policy, and its agreement with the National Football League Players Association. (“NFLPA”)

But if the NFL “botches” a suspension of Ray Rice for a one time incident of domestic violence – aside from any separate issues (which always apply in business and life) of contractual breach (here, for example, with the NFL players association, or NFLPA), or legal impropriety – it has engaged in no “wrong doing.” Just, perhaps – via opinion – “mistake,” or egregious mistake.

Mistake – even awfully handled ones such as here – and wrong doing are two very different things. The only accountability for the NFL for “mistakes” in judgment and handling is to its fans of the league, and to the NFL owners (or, if any owners are involved in said mistake, those NFL owners not involved, as the case may be.)  Not to an independent counsel, or other body.

But the NFL, and the owners of each team, who the NFL organization employees work for (this includes commissioner Roger Goodell, even though he has the power to actually fine and suspend his “bosses, as he just did in the case of Colts owner Jim Irsay), might want to know what the mistakes made were, and why they were made – and even how Goodell handled it on the inside. They might particularly want to know when there is such a large public outcry over the issue.

For this reason the NFL owners have initiated an “investigation into the Ray Rice domestic violence investigation”; to find out what was known, and by whom, and when, and what happened to a video recording of inside the elevator footage allegedly sent to NFL’ headquarters, and which apparently produced a confirmed voice mail of receipt and viewing by an unnamed NFL employee.

The NFL didn’t have to initiate any such investigation. And the fact that it did doesn’t mean the NFL did anything “wrong.” Rice did something wrong here. He knows that. And most of us have now seen it. On Camera.

But the NFL, in general, also doesn’t have to suspend someone (or worse) for off the field and non team related behavior. However, given the NFL’s policy of requiring its players to engage in conduct that does not give the league a public “black eye,” and the tricky argument by many that sports figures have disproportionate role model influence, as a practical matter the league probably should have something along the lines of the policy they do; which would involve a suspension of some games even for a first time incident of domestic violence, as part of a no tolerance policy toward it.

And because of the integrity of the brand, and the hot button sensitivity on this issue of domestic violence (particularly, as it seems, when it is viewed), the league was probably well served to initiate an investigation by someone outside of the NFL, to look at how this particular situation was handled – and also provide guidance to the owners on this matter, including perhaps how their commissioner handled it.

But the fact that said independent investigation is being led by none other than a former FBI Director likely creates an inadvertent, and even perhaps sub conscious yet erroneous impression that the NFL or even Goodell did something “wrong” here. The term FBI and investigation over the NFL in the same sentence can’t help but impart this impression, even if largely unrecognized.

The NFL is not our legal system. And while Goodell in theory could have dissembled (or another employee could have engaged in actions regarding the videotape that the owners would not condone, and that the public, in response to such an image conscious league, would be upset with), the NFL can not have engaged in wrong doing in terms of arriving at a subjective length of game suspension for a player for off the field and non team related behavior:

That is, the relevant parties at the NFL, including the commissioner, could have viewed the video, and said “that looks horrible, Ray,” Ray responded, “I was silly drunk and I acted like an animal and I am sick to my stomach over this, I have never hit her before, never will again,” Janay Palmer (now Janay Rice) could have piped in “I really pushed him, saying nasty things and spit in his face, I am sick he did this, but I forgive him, he deserves another chance,” and the NFL responded “Ray, you have an exemplary record and contingent upon you staying in counseling for X period of time and (some sort of community service) we are only going to suspend you for two games. Don’t let us down – another even very minor such incident will likely bring a year long ban or more.”

The public might have been annoyed or even, in some cases, disgusted with the NFL, but the NFL’s policy towards its players off the field and non team related behavior, ultimately, is voluntary.

The County Prosecutor in the original case against Rice, along with the police involved saw the entire inside the elevator video that the rest of the country and the NFL apparently had not seen until a few days ago.

The NFL’s recent claims aside, this is a video that didn’t really change the underlying facts as known by the public (Rice hit fiance hard enough for her to fall and get knocked out briefly) but may have changed them as “known” by the NFL (Rice and Janay exchanged blows, he slapped her she was tipsy anyway and easily fell, and her head hit and she got knocked out), despite the fact that the original police complaint was more in line with the public’s knowledge.

Yet despite this fact that the video showed what was largely perceived (apparently, outside of the NFL) in the matter – i.e., Rice hitting her once quickly, her falling and hitting her head – the publication of the video caused a large increase in the public’s outcry. An outcry that was in turn likely heightened further by Commissioner Roger Goodell’s excuse making type statement in response, that “we didn’t see the video.” Rather than something like: “we know the prosecutor, judge and police all saw the video; in hindsight we probably should have insisted on it anyway to give us a clearer picture of what Rice, and his then fiance Janay, who were both very drunk at the time of the incident, later described to us, and despite the fact that we wanted to respect the victim Janay’s wishes, and that Ray has had an exemplary record up until this point, and that since the police, the prosecutor, and the Judge involved all saw the video, and we rely upon them in such matters, we initially if prematurely and in this case mistakenly elected to do so here.”

Jim McClain, the actual prosecutor in the case, and perhaps referring to what also seems to be somewhat lost in all of this, had this key piece of insight on the matter:

I’m very glad that people are repulsed by the video, because this type of violence is an ugly, ugly thing. But the fact that this assault was on video makes it no more nor any less ugly than those hundreds of domestic violence situations where similar violence was inflicted on a victim and it’s not captured on videotape. Reality is reality whether it’s captured on videotape or not. And the reality of violence is that it is always ugly.”

But it has, unfortunately.

The NFL maintains that Rice, with Janay Rice (then Janay Palmer) by his side, peddled a softer story than is shown by the inside elevator footage publicly released several days ago – yet since they were both heavily drunk Ray’s story is not all that far from what most people with a foggy memory after an awful incident would likely remember and relate. (Though on the other hand it is possible that Ray was shown the video, and if so that would have “crystallized” his memory.) And there was some outcry after the initial two game suspension was handed out, based on the facts that were perceived by the public – Rice hit his then fiance hard enough to cause her to fall and get temporarily knocked out.

Yet it seems that the video has played a far larger role in the case than the actual facts; and perhaps highlights the idea that what we know of in theory, rather than can “feel,” or see in a way that allows us to “feel” – as did a fairly graphic elevator video that was spun to replay the critical scene multiple times over in repeated succession – doesn’t seem to have nearly the same sense of connection and effect, and that we too quickly dismiss what we can’t see, but otherwise “know,” and perhaps overly focus, as we have obsessively over this video, on what we can.

Having a “former FBI Director” direct the “investigation,” is likely only furthering this, and adding to the national soap opera that is very likely quite different from a measured attempt to stem actual, often unseen, or non videotaped domestic violence; and what prosecutor Jim McClain, was referring to, when he all but stated that the video didn’t make any real difference.

Whether McClain is right or wrong on these points – although he probably knows Atlantic County criminal courts as well as anybody – is a matter of opinion:

“‘People need to understand, the choice was not PTI [Pre-Trial Intervention] versus five years’ state prison….The parameters as they existed were: Is this a PTI case or a probation case?” McClain said the video would have been enough evidence against Rice to get a conviction at trial, even without Palmer’s cooperation. But all that would have come after the headlines and the daily coverage would be a probationary sentence, ‘and it’s not fair to the victim to put her through that for [something no better than the current outcome].‘”

But McClain was almost assuredly not wrong on the bigger issue of domestic violence that goes largely hidden, and unseen. Bringing attention to the issue of domestic violence is fine; mocking the NFL a little is probably fine too; but the zeal against the NFL, as if the NFL is the bad player in all of this, is probably misplaced. As is very likely the current outcome.

The NFL recently changed its domestic violence offense guidelines to a six game suspension for a first time offense, and a ban for a second.  Whether inflexible doctrine that doesn’t allow for individual circumstances, response of the victim, and commitment to and likely chance of success in ongoing counseling is a good idea or not, the release of the video tape was a perfect opportunity to “get it right.”

To wit:

We initially dropped the ball in this matter. We relied upon the fact that the investigating county police department and prosecutor, if not presiding judge, had viewed the video, the statements by an extremely contrite Ray and his fiance saying (wrongly, but relevantly) that she was “partly” to blame, and Ray’s exemplary record prior to, and response since, this drunken event. However, the video shows the blow to be more direct and severe than we had realized, and any initial physical touching by Janay to be much milder than we had realized, and we consider it sufficient new information to correct this under the newer domestic violence policy guidelines, and correctly suspend Ray for a total of the six games now called for. We have spoken with Ray regarding this new, more clear information and he fully understands, and agrees it is fair.”

(Not that Rice would have a choice; but it sounds good, and helps head off the issue – already present now anyway, and in a bigger way – of altering his league punishment after the fact.)

The NFL and the issue probably would have been better served by some sort of statement along those lines. Instead of the super swift “Drop Ray like a hot potato” response of the NFL and the Ravens – which in turn only furthered the impression that this video was wildly new, rather than a confirmation, clarification on, and perhaps amplification of what was already known. And which also implicitly made it seem like the fact that the NFL had not seen this video or insisted upon it earlier was some sort of major scandal, when it was not.

There would likely still have been plenty of outcry, sure; but it would have been a fraction of the present focus on and bad feelings over the issue; the league likely wouldn’t have nearly the black eye that it does; and Goodell wouldn’t look nearly as bad. And if the NFL owners still wanted to know why that video wasn’t looked at initially, or why it was handled the way it was, they still could have conducted an investigation into it.

All would be (much) better, and Rice wouldn’t have had what probably would have been a six game suspension originally (and despite what the NFL and the Ravens, joining in at breakneck speed with the overly kinesthetic response of the public to a video that really didn’t alter the likely facts very relevantly at all, by their actions now weakly imply) turn into this debacle of indefinite suspension and release from his team, and even partial pariah-ship, with commenters all over the Internet often referring to him as if he is a serial drunken wife beater.

There are plenty of those out there, and perhaps, though the NFL’s seemingly repeated botching of this matter didn’t help, the focus should be more on them, and less on Ray.

4 thoughts on ““Investigating the Investigators” in the Ray Rice Case – and What the NFL Should Have Done

  1. Pingback: The Tale of an NFL Domestic Violence and PR Fiasco | NFL Football Strategy

  2. Pingback: Two Very Key Things Being Missed in all of this Ray Rice NFL Roger Goodell Brouhaha | NFL Football Strategy

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  4. Pingback: In Interview With USA Todays FTW, CNN Anchor Rachel Nichols Misses One Key Thing | NFL Football Strategy

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