Due Diligence Means You Must Actually DO Something

This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.

So let me get this straight: Tom Brady is suspended for four games for allegedly requesting some footballs to be deflated, while another National Football League (NFL) player, New York Giants kicker Josh Brown, who had admitted he abused his wife, was given a one-game suspension? Not that the NFL would ever have a double standard, but it would seem that there is a slight discrepancy between the evils of tampering with equipment and the battering of spouses.  And the NFL wonders why its ratings are down 15 percent.

As for the NFL and the Giants, their problem is clearly that they did not apply any diligence to what they were doing. The NFL first. The league levied its one-game suspension based on information available in the public record but that somehow it was not able to get its hands on. Ken Belson and Bill Pennington, writing in a New York Times (NYT) article entitled “NFL Abuse Case: Familiar Ground,” said the information about Brown’s assault was in the files of police investigators in King County, Washington, where the alleged assault took place.

As you might expect, the NFL claimed it was the fault of the local police for not running to the NFL with its investigation file and screaming “HERE IT IS!” but in another NYT article, entitled “On Domestic Violence, NFL Still Sees No Evil,” Juliet Macur reported that the King County Sheriff in charge of Brown’s case, “John Urquhart, even rebuked the NFL on Thursday for its feeble attempt at getting the facts in the case. He told KIRO, a Seattle radio station, that the NFL never officially asked for documents. He said that two people he considered random — but who he subsequently learned worked at the league — had made document requests, which were denied. But had Urquhart known it was the NFL asking, things would have turned out differently.”

Macur even more succinctly stated, “Brown was arrested in 2015 and was charged with assaulting his wife at the time, Molly. Police and court records documented that Brown had assaulted her nearly two dozen times, including at least once, Molly Brown said, when she was pregnant. The league investigated the matter for 10 months, sending in its crack investigative team, whose stated goal is to dig and dig for the truth. In the end, Brown was suspended for one game. One. A mere hiccup in the season. Apparently the NFL’s investigators didn’t find much, and after the fact, the league blamed the victim. Brown’s wife had failed to cooperate, the league said, and that’s why its investigators couldn’t get to the bottom of what he had done.”

So much for the vaunted and crack NFL investigative function.

Yet the Giants are even more culpable here, because they not only hired Brown in the first place, but actually gave him a two-year $4 million contract extension this past August. According to the Macur piece, Giants co-owner John Mara said, “He’s admitted to us that he’s abused his wife in the past.” I guess the NFL did not consider that admission enough evidence in its diligence. Then again, maybe the NFL never thought to ask one of its member-teams, the Giants, what they knew.

It turns out that the Giants were aware of even more problems. According to Ian O’Connor, writing an espn.com piece entitled “John Mara’s mistake should scare NFL owners straight,” wrote, “They knew not only of Brown’s 2015 arrest on domestic violence, but also of a confrontation at the Pro Bowl that unfolded less than three months before the Giants signed their kicker to the new deal. Molly Brown alleged that her husband was drunk and pounding on her hotel room door before NFL security helped clear him from the area and moved her and her children to a new room.” Note that in addition to this actual knowledge of the Giants about his second incident, “NFL security” helped clear Brown from the room and then moved his wife and children to another room. Do you think that the NFL investigative function might have gone down to review the security logs of the NFL security function?

While the NFL is pondering that last question, does anyone see any red flags present for a propensity to commit spousal abuse?

Another espn.com piece, entitled “Officials, players concerned with NFL’s treatment of Josh Brown case,” reported that others in the league had skewered the NFL for its shoddy handling of the matter. The article said, “an NFL owner, sources said, questioned how the situation reached this point, considering the league implemented a domestic violence initiative under its personal conduct policy in 2014 and hired three female advisers to assist on these issues. Two league officials believe the NFL was disinterested in Brown’s case when compared to the fervor with which it pursued the New England Patriots over Deflategate.” (Every New England homer, and you know who you, are is nodding on that comment.)

So there you have it. The NFL was so concerned with sticking it to Tom Brady and the New England Patriots that it could not even bother to adequately investigate or discipline Brown. Once again, according to Macur, “The league’s new and so-called improved domestic violence policy calls for a six-game suspension without pay for a first-time offender, and for a more severe penalty if ‘the act was committed against a pregnant woman or in the presence of a child.'”

Did the NFL follow its own disciplinary policy regarding Brown (or alleged equipment tamperer Brady for that matter)?

One of my favorite Howard Sklar sayings is “water is wet;” his sublime articulation of grasping the obvious. So when the phrase due diligence is uttered or written, I think it is safe to assume that everyone, at least in the compliance arena, has a grasp on what due diligence means. However, in any best practices compliance program, the phrase should actually be doing diligence, because you have to actually do something with it.

The NFL cannot seem to do anything but trip over itself when it comes to this issue. They did not engage in the most basic investigative due diligence in obtaining and reviewing publicly available documents. It appears they did not even talk to their own security function about what it might have known about Brown. Yet, as bad as the NFL was, the Giants hired and then re-signed Brown with actual knowledge of at least two incidents of domestic abuse.

He must have been a heck of a kicker. 

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