This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.
Just a short while ago, I wrote about how thrilled I was that the National Football League’s (NFL) 95th season was upon us and pro football was about to begin. But in the intervening 10 days, it was as if the very football gods from Mount Olympus arose and unleashed their furies on the NFL. In that time, we saw the release of a video of Ray Rice knocking out his then fiancée (and now wife) and the arrest of Adrian Peterson for spanking (or ‘whoopin’ in Peterson’s Texan parlance) a four year-old child so severely that the doctors who treated the disciplined child were instrumental in having charges brought against Peterson. This is in addition to two other players, one convicted of domestic abuse and one arrested for domestic abuse, being allowed by their respective teams to continue to play football. To say that the NFL’s response to all of these events was pathetic would be to insult all of the pathetic people and things in the world and raise the word pathetic to a paragon of performance.
For those who might not know, late last year, Baltimore Raven running back Ray Rice hit his then fiancée so hard in an elevator that he knocked her unconscious with one punch. When the elevator reached its floor, he proceeded to drag the unconscious woman out of the elevator out by her arms, shoulder and hair. How do we know all of this? It was filmed by the cameras both inside the elevator and outside it, all in the Revel Casino in Atlantic City. Since at least February, tapes of the events outside the elevator were available publicly, largely through TMZ. But the tape of the actual assault inside the elevator was provided to local police and AP has reported that it was also provided to the NFL.
In August, the NFL Commissioner Roger Goodell gave Rice a two-game suspension. This is in contrast to a league that levied a four-game suspension on one player who took recreational drugs back at the Kentucky Derby and a full season suspension to another player for a second offense of smoking marijuana. The public howling was so vociferous that Goodell had to admit that he made a mistake in under-penalizing Rice and announced a new league-wide policy regarding players who engage in domestic violence. But all of this was before TMZ managed to get its hands on the video recording from inside the elevator, which showed the punch Rice threw. If you have seen it, you know how horrific it was and if you have not seen, do not take my word on it, but go to YouTube and watch it.
The same day that TMZ released the video, Rice’s team, the Baltimore Ravens, released him and later that day, the NFL indefinitely suspended him. Both the Ravens and the NFL claim that they had not previously been provided with nor seen the video, which many people, including myself, found disingenuous at best, or an outright lie at worst.
As noted above, AP reported that the video had been provided to the NFL. However, Bill Simmons spoke for many when he severely chastised the NFL for failing to obtain the video when TMZ was able to do so. In his Goodell-Must-Go Mailbag Column, Simmons gave three reasons why TMZ is doing a better investigation into the Rice domestic matter than the NFL: “First, they actually cared about finding the secret elevator tape … unlike the NFL, which clearly didn’t care even though every inch of a casino is being filmed by a camera at all times… Second, TMZ probably realized that Revel Casino was going out of business over Labor Day weekend, which meant its about-to-be-unemployed workers had nothing to lose by selling the tape. Why didn’t the NFL anticipate the same thing? Because it’s obviously Jackass Central over there… Which leads me to my third reason why TMZ outdid Goodell’s league: Either the NFL is run by an over-matched commish who orders around a slew of lackeys and buffoons and never saw that day coming, they saw the tape but never expected it to come out, they watched the tape and then buried it (the most nefarious of all the scenarios, by far), they underestimated the impact of the tape (and then some) and/or they were outwitted by the one and only Harvey Levin.”
To attempt to gain some credibility, the league hired former FBI Director Robert Mueller to lead an investigation into the question of when the league received the video of events inside the elevator. However, the investigation was going to be overseen by two league owners, and the law firm at which Mueller works is regular counsel to the NFL. Simmons summed up the obvious conflicts of interest, saying, “So you don’t have a ton of confidence in an “independent” investigation led by owners from two of the team’s oldest-run families (the Maras and Rooneys) and conducted by someone who works for a law firm (WilmerHale) that just helped the NFL negotiate a 10-figure deal with DirecTV? And you think maybe it doesn’t look great that the current Ravens president (Dick Cass) spent 30 years working for that same law firm? Hold on, what’s that smell?” Here you might want to consider the General Motors (GM) investigation into its handling of the ignition switch issue, performed by its regular counsel, which only managed to find nefarious conduct by lower-level GM employees. Anything beginning to sound familiar?
So at this point, it is not clear if the NFL is incompetent or something worse. But whatever it is, it is certainly a public relations nightmare of the highest order. Cindy Boren, writing in the Washington Post, in an article entitled “NFL has a credibility crisis in wake of Adrian Peterson child-abuse case, Ray Rice domestic-violence incident,” said “It’s a nasty image for the NFL and the problem is that the guy who is skilled at PR, the guy who has explained away Spygate, Bountygate, the lockout of the referees and the Rice matter (initially) is now the Invisible Man. Goodell, he of the $44-million paycheck in 2013, is nowhere to be seen. No one is putting out the NFL’s side of the story as anger grows. Owners, like Daniel Snyder of the Washington Redskins, may be in Goodell’s corner, but fans increasingly may not be, according to an ESPN poll. There’s a big disconnect and one that owners are not addressing, even as more horrific images come out.”
As to the Peterson indictment, I grew up in a very different era where corporal punishment was administered as a regular part of growing up, both at home and at school. As a parent, I certainly think a parent has the responsibility to discipline their children. But times have changed and what was acceptable when I grew up, or even when Adrian Peterson was a child, is no longer acceptable and those times are long gone. Moreover, even if you still believe that spanking is a legitimate form of discipline, it is NEVER, NEVER acceptable to strike a child so hard that they require professional medical care.
This week I am attending the SCCE’s 2014 National Compliance and Ethics Institute. I am sure that many of aspects will be discussed in the context of a best practices compliance program. But sometimes it does not take a compliance program, protocol and procedures to know what the right thing to do is. For the NFL to stand behind the excuse of an incomplete investigation, whether done so negligently or intentionally, misses the entire point. Even if the league is now corporate and all about the almighty power, prestige and profit of the NFL, it is still made up of humans and sometimes even corporations have to show some humanity.
Just how bad is it for the NFL these days? I cannot think of a better way to end this piece than to cite Boren’s article for the following quote from ESPN commentator Tom Jackson: “‘We started the week with players beating up women and we ended it with players beating up children. We are in a very serious state here in the National Football League.'”
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