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Hardy’s suspension raises questions about disciplinary process

CHARLOTTE, NC - SEPTEMBER 18: An NFL logo on the field at Bank of America Stadium before Green Bay Packers play against the Carolina Panthers September 18, 2011 in Charlotte, North Carolina. The Packers won 30 - 23. (Photo by Al Messerschmidt/Getty Images)

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From the perspective of the criminal justice system, it never will be known whether Cowboys defensive end Greg Hardy committed domestic violence, because the alleged victim didn’t show up for the jury trial that could have determined his guilt. That happened because Hardy reportedly negotiated a settlement with Nicole Holder, which resulted in him paying an amount of money that she decided was sufficient to end any effort to put him in jail.

Even though Hardy was convicted by a judge last year, the conviction wouldn’t become final until Hardy was found to be guilty beyond a reasonable doubt by a jury of his peers. He wasn’t, and so in the eyes of the law he didn’t do it.

In the eyes of his employer, that doesn’t matter. And his employer has decided that he should miss a total of 25 games for his conduct, even though his conduct ultimately resulted in no criminal sanction of any kind.

The handling of Hardy’s case gives rise to several important questions, which easily can be overlooked when considering the specific allegations that were made against him. It’s important to set aside the underlying facts and consider big-picture protections that extend to all players, innocent or guilty. Otherwise, the NFL could steamroll players without regard to innocence or guilt, all in the name of protecting the shield.

Which is a fancy way of saying protecting the brand. Which is a fancy way of saying stemming the tide of negative publicity.

Given the current temptation at 345 Park Avenue to choose P.R. over principle, Hardy’s case gives rise to three important questions.

1. What standard of proof applies?

Apart from the heinous nature of Hardy’s conduct (if he truly did what he was accused of doing) is the process the NFL has used to determine his guilt and to punish him. The government uses the very high reasonable-doubt, if-it-doesn’t-fit-you-must-acquit standard when determining whether a citizen will lose his or her liberty, but the NFL has no such limitation when deciding whether a player will lose money and/or the ability to play football.

The primary standards in the legal system are the high bar of proof beyond a reasonable doubt in criminal prosecutions, the lower test of clear and convincing evidence in certain civil cases, and the minimal, 51-49 barrier known as preponderance of the evidence, which applies in most lawsuits.

In the statement announcing Hardy’s 10-game suspension, the NFL simply said that the “decision is based on findings that are supported by credible corroborating evidence independent of Ms. Holder’s statements and testimony, such as testimony of other witnesses, medical and police reports, expert analyses, and photographs.” But under what standard is the evidence deemed to be credible, especially with Nicole Holder not cooperating due to the settlement she received?

The idea that the NFL can simply decide what happened without any clear test of the evidence is a potential problem for other players -- especially for players who didn’t do what they’re accused of doing. A subjective belief by a prosecutor-turned-league-employee that “credible corroborating evidence” exists isn’t enough. Every prosecutor who brings charges against a defendant believes that “credible corroborating evidence” exists; the challenge becomes finding a fair and objective way to determine whether the evidence really is credible.

Complicating matters in this specific context is the league’s P.R.-driven desire to be perceived as tough against domestic violence, in the aftermath of a scandal that nearly brought down a Commissioner. When the person deciding whether “credible corroborating evidence” exists is working for a man who will never again be anything but “The Enforcer” regarding allegations of domestic violence, it’s safe to assume that the assessment of the evidence may err on the side of finding that it’s both credible and corroborating.

2. Does Hardy’s punishment mesh with the league’s pre-Ray Rice policies?

Unable to apply the new domestic violence policy and penalties retroactively to conduct happening before the rules changed, the NFL contends Hardy’s 10-game penalty would have applied even under the prior approach. And that’s hard to believe.

Under the prior approach, the NFL waited for the legal process to end. Under the prior approach, a first-time offender who ultimately was not found legally responsible possibly would have received no punishment at all. Under the prior approach, a first-time offender deemed to be legally responsible for domestic violence typically received a two-game suspension without pay.

The prior approach disappeared for good not after the Ray Rice elevator video emerged, but after the backlash against the league for the initial Ray Rice suspension of only two games. At that point, the league changed the standard penalty to six games.

But Hardy’s behavior happened before any of those changes were made. Setting aside what he did (assuming that he is indeed guilty), Hardy is entitled to be treated the way he would have been treated under the NFL’s existing approach to domestic violence at the time the behavior occurred. That’s a basic notion of fairness that applies in many settings, to the benefit of everyone.

Rules can’t be changed after the fact to apply looking backward to things that already have happened. Otherwise, folks can get away with making up the rules as they go. Which is what many have repeatedly accused the NFL of doing over the past several months.

3. Why don’t players get credit for time served?

The Rice video created a separate problem for Hardy, along with Adrian Peterson. In the aftermath of the release of the video, the NFL decided that neither Hardy nor Peterson could suit up and play. So the league and the union clumsily negotiated an arrangement pursuant to which the players didn’t play, but that they would be paid their usual salaries.

That seat-of-the-pants/get-the-heat-out-of-the-kitchen approach has since become the law of the land, with players accused of violent crimes now subject to paid leave until the cases are resolved, and then subject to unpaid leave thereafter.

It didn’t make sense during the chaos of September, and it makes even less sense now. Players who miss games with pay and then miss games without pay face a double punishment. Though paid for the games that happened before the charges are resolved, players primarily want to play football -- a reality NFL executive V.P. of football operations Troy Vincent conceded in a conversation last year with Peterson.

“You were away from the game,” Vincent told Peterson. “You were not participating, even though it was a paid leave. You were not participating. And ballplayers know their shelf life.”

Why not give the player credit for the games missed during paid leave, and then impose a fine reflecting the number of games he ultimately was suspended after the case was resolved? Hardy, for example, missed 15 games in 2014 with pay. If the final punishment is 10 games, the NFL should fine him the equivalent of 10 of the game checks he received.

Instead, the league believes Hardy should miss 25 games for behavior that previously would have resulted in a two-game suspension. And even though the NFL has since realized that a two-game suspension isn’t enough in situations of this nature, the standard penalty at the time of Hardy’s incident was two games.

It’s possible to raise questions like this without endorsing the behavior in which a player has engaged. If Hardy did what he’s accused of doing, he should face serious scrutiny; indeed, he should be in jail.

But all players have rights, and it’s important to remember this at a time when the NFL may feel compelled to disregard those rights in the name of avoiding another P.R. nightmare that, next time around, might not end until the Commissioner’s tenure does.