The day NFL Commissioner Roger Goodell immediately suspended Ray Rice indefinitely in response to the infamous leaked TMZ video, I said it was a huge mistake, for two big reasons.
First, it was arbitrary – whether under the initial two game suspension and older league player conduct policy, or under the new tougher domestic violence policy just instituted a few weeks before the video surfaced, there was simply no basis for it. (A federal Judge later ruled the exact same thing.) And second, it looked like a panicked knee jerk reaction that instead of showing the NFL being “tough” on domestic violence among its players, showed an NFL that looked like it had something to hide, and was now trying weakly to over compensate.
The hyper different and immediate Commissioner response to the video made it seem as if the NFL should have known something very different that its assessment, and the video just showed it. Yet all the video did was show what was already known: Ray Rice and his then fiance, now wife, had both been drinking very heavily; Rice hit his fiance and she fell, banging her head and being knocked out.
What the video did arguably add was that Rice’s blow was definitely with closed fist, sudden and with seeming full force, and she didn’t just possibly slip and fall from a slightly lesser blow.
So while it didn’t change the basics, it at least arguably added new clarifying information that hadn’t been clear or available from Rice’s own non misleading recollection of what had been a very drunken off season Atlantic City evening.
And more importantly, as a result, it was now reasonable to suspend Rice under the new tougher NFL domestic violence policy just instituted weeks after the original discipline was handed down in the case; and be able to do so without likely violating any expectation under the collective bargaining agreement that a player couldn’t simply be re-disciplined later for the same act that a discipline had already been handed down for.
Under that new league domestic violence policy a first time offense gets an automatic six game suspension. The Rice incident fit the bill perfectly.
There were also substantial mitigating circumstances: 1) Rice was a model citizen and player who gave a great deal of time and money to charitable causes. 2) His fiance – the victim, and the person whose views matter most – practically begged the league to go easy on him, as he was reportedly consistently contrite and mortified by this action. 3) There was no evidence of any prior violence or mistreatment. 4) Rice immediately sought counseling, remained fully cooperative; and an overburdened Atlantic County court system – which had already viewed that exact video – had seen fit to put Rice, privileged or not, into a pre trial intervention program. (Here, the prosecutor explains why.)
On the other hand, the blow was direct and clearly a full punch with hand closed. So despite the strong mitigating circumstances, there was no reason to make what should only be a rare exception, and go less than the full six game suspension under the new policy. Nor, obviously, more, for the same mitigating reasons.
Most importantly of all, the commissioner would have acted consistently with the new policy. And by doing so after the video surfaced, there was likely no basis for the imposition of the new six game suspension to be over turned: That is, a court would be hard pressed to overrule the commissioner’s wide discretion and his reasonable view that, while the video didn’t provide new structural facts, it did sufficiently add “new information” in that the blow was in the form of a direct and unambiguously hard and closed fist hit – and that given this new information that hadn’t been known prior to the implementation of the original discipline, a suspension under the new policy was warranted. (The NFLPA might have appealed it anyway; but there would be no public support on their side, and they would likely lose in court anyway.)
This would have accomplished two important things. First it would have stemmed this false idea that the video was some sort of shocking revelation, and wholly disparate from what the NFL had been led to believe. (It was not, and in fact a Federal Judge later found that the commissioner’s subsequent backpedaling claim that Ray Rice had misled him was simply unsupportable.) It would have stemmed the huge national outcry and at least much of the subsequent confusion over the matter.
At the same time, it would have correctly shown Goodell – who a few weeks earlier had acknowledged handling the matter wrong – now getting the matter right: That is, handling it correctly under the new domestic violence policy, and paying homage to the wishes of the victim but still upholding the seriousness of domestic violence by not going easy under the new policy regardless; and most of all, being consistent, and fair.
I argued all of this the day the video was released. It seemed obvious. Apparently it wasn’t to Goodell or those advising him. And as a resulf ot their handling, instead, a huge public storm, and weeks if not months of chaotic misinterpretations arose. And then a Federal Judge, in ruling against the NFL and overturning the suspension, essentially ruled the same thing I said the day of Goodell’s knee jerk indefinite suspension reaction: His action was “arbitrary” and an “abuse of discretion.”
Now we come to the Tom Brady “deflategate” mess. It seemed once again the NFL was similarly missing several things. First, the Judge in the case ,Judge Berman, had strongly hinted he wanted to vacate the order when he called Goodell’s jump from a (possibly suspect) Well’s Report finding of “likely awarenes,” to his own conclusion that Brady was specifically involved, a “quantum leap.”
There was another issue that was rarely talked about it – but Judge Berman clearly hinted it as well when he continually hammered the NFL regarding what portion of the four game suspension was for Brady’s alleged lack of cooperation regarding his private cell phone.
The NFL simply assumed its broad investigative powers gave it the implicit right to demand Tom Brady’s private cell phone, and thus have access to every single solitary text and message – to everybody – on there, and so Brady’s failure to turn it over (and have it be put under a microscope), grounds for additional discipline than Goodell otherwise would have implemented.
But this was an on field equipment rule transgression issue, not a scene from “Crime Scene Investigations: Miami.” There was no language, and no real historical or legal precedent creating the expectation that even the CBA’s broad language for investigation, into what is ultimately a simple on field equipment rule transgression, gave the NFL the right to directly intrude upon personal off field privacy – and possibly regarding very intimate matters.
But the Commissioner has wide latitude, and it wasn’t clear the Court was going to vacate the order. A few days ago I predicted it would, but it seemed close.
One of the reasons the Judge kept pushing settlement is because the law didn’t seem to support the league, but to rule against an NFL that had such wide latitude under the CBA was a fairly big step. Yesterday I responded that I thought Judge Berman wanted to vacate the suspension (and, in hindsight, clearly he did), but it was unclear. And, as I had been constantly urging for days; again concluded, “so settle.”
Also, critically, Ian Rapoport’s new assertion yesterday that Tom Brady was willing to sit one game, opened up a large opportunity for the NFL to come out of this affair with a lot more upside than if they rolled the dice on Berman’s ruling (and Brady’s subsequent appeal, etc.); and also more upside for Brady, if less so, to do the same. And certaintly for the Patriots as a team.
Brady had been publicly (and, reportedly, privately) insistent he wasn’t willing to sit any games. But Ian Rapoport is usually a credible source. One game was a huge step. And it was even more key because Goodell had clearly indicated a few weeks prio that the NFL had been willing to go only 2 games. One thing a good negotiator knows: If a party was willing to do something, they still will be unless circumstances had changed.
The circumstances had changed. But they had changed in a way that was highly unfavorable to the NFL, as the Federal Judge had absolutely hammered them in conferences. And consistently pushed settlement -which also again hints that the ruling or action being challenged had legitimate issues.
The burden here was on Tom Brady, and again, given the wide latitude of the NFL, he has a fairly big threshold to overcome; so the fact the Judge was clearly indicating that by a long shot this was no slam dunk for the NFL was a major piece of information. And change for the worse in the NFL’s outlook means the NFL should have been willing to give up more, not less. And well before this turn for the worse the NFL had essentially already been willing to go only two games
Yes Goodell had also originally wanted a “confession” from Brady. But a coerced confession is meaningless, and Brady can also only confess to what he actually knows or did, or is willing to do. Goodell’s pride may have still had him stuck on this somewhat meaningless point, but that’s what advisers and league attorneys are for.
So, in essence we had a federal judge practically screaming out to settle the case. And the parties, essentially a mere game apart.
With the judge today issuing a ruling vacating the four game suspension, and issuing Goodell yet another legal black eye, it worked out well for Brady that he didn’t settle. But before today that could not have been known: Brady very easily could have been looking at an appeal instead; and barring a lucky “stay” of the initial suspension, doing so while serving out the four games which, once gone, could never be gotten back.
It was in Brady’s interests to settle – and certainly it was in the Patriots interests. And it was even more in the interests of the NFL to settle. And the parties were, again, in essence, now suddenly a mere single game apart – or close enough to it.
So; how to get that now miniscule gap closed?
Easy: As part of his discipline action Goodell had also fined the Patriots a million dollars, and taken away a first and a fourth round draft pick. Those draft picks have become somewhat lost in all of this, but draft picks represent considerable value, and are how you build a team – even for the Patriots.
Brady’s no dope. Sure he didn’t want to sit two games. (He doesn’t even want to sit one, of course.) But if he was willing to sit one – before the judge issued his ruling and he was looking at possibly losing all four and a quarter of the season, he would sit another, if he was able to get something of value in return.
What’s of value?
Draft picks. And one could reasonably argue, undervalued though draft picks tend to be (they are where teams almost always realize the most upside in terms of player performance relative to salary cap numbers), that either draft pick was in the long turn worth more to the Patriots than one extra single game with a now strong looking Jimmy Garoppolo filling in at QB.
So the Patriots and Brady could easily use the two picks as a bargaining and negotiating chip: That is, make their case and show a willingness to go two games if the higher of the two picks was given back, and then worse case settle for the lower of the two picks returned. If the NFL initiated the agreement, the NFL could have followed the same strategy in reverse. Or simply pushed for one more game (that is, two total games out), then to “make it work” given the Patriots their fourth round draft pick back in return for that second game.
It was practically meaningless at that point to the NFL. Almost no one was talking about the draft picks. And if they threw in the fourth rounder, the Patriots would still be losing a first round draft pick – which is big; Brady would still be forced to sit out at least some games; and most importantly the NFL would avoid the chance of losing big in court again, and startintg to create a fairly problematic recent track record of such rulings under Goodell’s handling of these matters – or face an appeal and possible stay of the suspension anyway.
It was a no brainer. Yesterday I went through some of the recent history, particularly with respect to the Rice case, and wrote “this case is practically screaming out to be settled.”
No one was listening. Or at least the NFL wasn’t.