49’ers McDonald, Roger Goodell and Domestic Violence Due Process: How Duke Lax Lesson Solves Goodell’s Dilemma

Now Roger Goodell is going to have to decide whether to apply the Duke Lax Lesson to his recently-announced player domestic violence policy. After having done a face-plant in his handling of the Ray Rice domestic violence matter, Goodell announced, to much fanfare last week, his plan to impose a six-game suspension for player domestic violence first offenses, and then a one-year-to lifetime ban for repeat offenders.


What Goodell’s new policy failed to spell out was the precise circumstances under which those penalties would apply. On one extreme, would they be imposed only after criminal convictions for domestic violence-related offenses? Or, on the other extreme, would they be applied as soon as any charge is raised by a female, or by criminal authorities?

These charges can be extremely difficult to prove. Frequently, even the female involved chooses to back off, and/or refuse even to testify. Unequivocal evidence can be hard to come by. Stories can “evolve” as alcohol or drug-effect clear, publicity looms, and pressures are applied to witnesses or principals.

Which is why Goodell needs to call Duke President Dick Brodhead, to ask him how it worked out for him when everyone at Duke rushed to judgment after allegations were made that three Duke lax players had raped a stripper. It did not work out well, at all, for Brodhead, who mangled his duty by trampling on the players’ right to a presumption of innocence until proven guilty. Goodell is facing the very same dilemma now with the domestic violence charges on Sunday morning against San Francisco 49’ers defensive tackle Ray McDonald.

If Goodell’s plans to apply his new policy by immediately suspending McDonald, he runs a big risk that McDonald is later completely cleared, either quickly or through protracted investigation and trial, making McDonald’s suspension not just unnecessary, but also wrongful, and the subject of some later legal action McDonald or the NFLPA might take to seek redress.  In addition, the “lifetime” ban which all players now see looming out there for repeat offenders makes it even more likely that players like McDonald will immediately retain lawyers to insure not only that the player is generally protected, but also that the player does not tell anything to anyone — including Goodell or the NFL — which would have any potential for violating the player’s 5th amendment right to avoid self-incrimination. Goodell’s policy probably increases the likelihood that the NFL is going to have great difficulty, in these early days and weeks after a charge surfaces, getting any good information at all about what exactly happened.

Goodell’s in a tight spot. If he suspends immediately, my guess is the NFLPA becomes more vocal on the issue, and initiates efforts to grieve any such action, but also to put this issue on the list of ones which will be bargained at the time of the next contract negotiations. If he doesn’t suspend immediately, he’s going to hear an outcry from an already restive fan base which overwhelmingly objected to his toothless 2-game Ray Rice suspension.

Goodell made his own bed here, based upon two factors:

1) The peculiar, if not unique nature of the Rice case, in which nearly unequivocal video evidence was available to Goodell (and the public) about the nature and extent of Rice’s apparently violent act against his then-fiance: the video was so clear that almost no rational observer could either imagine any scenario in which Rice’s violent act was not the cause of his wife being knocked out as he dragged her out of the casino elevator, or one in which Rice’s wispy-framed wife could have sufficiently threatened Rice to warrant violent self-defensive action by Rice.

2) Goodell played it PR-cute when he announced his new policy last week, by failing to define that policy so that the public would know whether his penalties would be imposed only after criminal adjudication. The policy is full of decision-making wiggle-room for Goodell, even though he likely didn’t want it to appear that way. Now, because of the eruption of the McDonald situation, Goodell is going to be forced to define what he wanted to leave undefined as the post-Rice uproar cooled.

Goodell’s chances of getting similar clean, obvious video evidence in post-Rice cases of claimed player assaults on women are low, so we can expect (absent some confession by McDonald, which is very unlikely) that Goodell will be faced with a pile of conflicting and probably very incomplete evidence.

Goodell whiffed on the easy Rice case. Now come the harder ones, and Goodell needs to call Duke’s Brodhead this weekend to hear the Duke Lax Principle (which Brodhead learned the hard way): good decisions by leaders rarely involve depriving those under their authority of their rights to criminal (and other) due process. The public will squawk, but Goodell needs to wait, let the McDonald criminal process play out to conclusion, and then make his decision about applying NFL suspension policies to Ray McDonald.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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