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NFL’s new disciplinary process, player rights make for delicate balance

Even without the benefit of an opportunity to interview Nicole Holder, plenty of evidence exists to believe that Cowboys defensive end Greg Hardy did something he shouldn’t have done. The NFL has concluded that Hardy did several things he shouldn’t have done, even though Hardy in the eyes of the State of North Carolina officially did nothing wrong.

The unique posture of the case -- with Holder choosing not to testify at a jury trial and not to file a civil lawsuit but to accept a settlement and to agree to no longer cooperate in the criminal case -- placed the NFL in a potentially awkward spot. How does the league determine what occurred, and what standard will used to assess guilt or innocence?

Those issues apply in every case, creating a push and pull between league and union over the proper penalty to apply, if any. That balance between NFL and NFL Players Association takes on greater importance because, as NFL executive V.P. and general counsel Jeff Pash emphasized during an appearance on ESPN’s Outside The Lines, the league used a new process in investigating and resolving the Hardy case.

“Everyone’s focused on Greg Hardy getting a 10-game suspension, but really the more important point is the process that was followed here,” Pash said. “This suspension was imposed after a lengthy and detailed independent investigation of the kind that we really haven’t done before. We said last September, and throughout the fall, and in the new personal conduct policy that we were not going to simply defer to the criminal justice system and rely on law enforcement. And that’s exactly what happened here. We did an independent investigation. We didn’t rely simply on the records here. Greg Hardy had a tremendous amount of due process and procedural safeguards after the charges were dropped. We undertook to find out what the facts were, and it was on the basis of a voluminous record that the suspension was imposed. And I think the process that went into the decision that the Commissioner made is really what’s important and really what’s meaningful and new in terms of how we’re going to approach these issues going forward.”

While Pash also made clear the league’s position that a new standard didn’t apply to Hardy (because a new standard can’t be applied to conduct that occurred before the standard changed), the new process still must yield at some point to player rights. As noted on Wednesday, the NFL has not identified a specific legal standard that applies to the yes-or-no question of whether the player did what he’s accused of doing -- a question that becomes more complicated at a time when the player is no longer officially being accused of anything. And this requires, both in Hardy’s case and every other investigation regarding possible player misconduct, the process to be carefully balanced against the rights provided to players under the labor deal.

That balance becomes even more important where the NFL could be tempted to over-punish a player in order to avoid another P.R. nightmare resulting from the perception that the league didn’t go far enough, especially since fan and media reaction is minimal when the league goes to far. The league has had three high-profile legal failures in connection with the discipline of players since 2012 (i.e., the bounty case, the Ray Rice appeal, and the Adrian Peterson lawsuit), and those losses collectively did little or no damage to “The Shield.” In contrast, the perceived bungling of the Ray Rice investigation and disciplinary process did significant short-term harm to the league, and nearly fatal damage to the Commissioner’s employment. That contrast easily could cause the NFL to err on the side of finding a player guilty and imposing significant punishment when assessing future cases of domestic violence.

Thursday’s PFT Live on NBC Sports Radio included a visit from Jay Feely, a long-time NFL kicker and member of the NFL Players Association’s Executive Committee. Feely addressed the balance that the league and union face in these cases.

“I don’t like the actions,” Feely said. “And when you take a look at Hardy and you look at Adrian Peterson and you look at Ray Rice, you have to, which you’ve done, talk about what they did and say that it’s not OK and say that it’s not acceptable but also be able to separate that from the argument of whether the way the NFL has handled the case is the appropriate way.”

Feely called the league’s process arbitrary, expressing concern that proper safeguards aren’t in place for those who are truly innocent, especially with the NFL now willing to put a player on paid leave based simply on allegations.

“When you look at players who are taken off the field and not allowed to perform and have a short window, that is a penalty,” Feely said. “Whether they pay them or not, you’re penalizing them. You’re not allowing them to be on the field, you’re not allowing them to accumulate numbers for their career and the longevity of their career and they’re not taking that into account simply because they’re paying them.”

Feely said he has discussed these issued directly with the NFL during labor negotiations, in a meeting with Commissioner Roger Goodell, Giants co-owner John Mara, and the league’s lawyers.

“They basically said, we don’t care, we don’t want them on the field,” Feely said. “Not because it’s the right thing to do, but because of the look that it provides. Because of the way that their fans could react. And I don’t think that’s the right way to govern. You have to find an appropriate measure that protects innocent players and protects the game at the same time. I understand it’s a very hard line to walk and it’s not an easy fix and not an easy solution. But the way that they’re doing it right now haphazardly is not the right way to approach it, in my opinion.”

That sense of arbitrary and results-oriented decisions quite possibly comes from a preference to get it wrong by going too far than to get it wrong by not going far enough.

“They would be candid about that behind closed doors,” Feely said, “and they would be willing to take somebody who is innocent but accused of something off the field because they want to protect themselves and go too far, and I think that’s one of the reasons why they refuse to have neutral arbitration when it comes to these cases, because they want somebody like Roger Goodell to be the final arbiter who has their financial wherewithal at the heart of the decision that they’re making. . . . You have to find a way, you have to find a balance to protect the innocent while also saying we’re not going to accept this kind of behavior.”

Currently, that balance comes on a case-by-case basis, with the league overshooting and the NFLPA fighting back, whether in arbitration or in court. It would be better for that balance to manifest itself in the initial decision, which would keep the NFL and the union from constantly fighting over each and every case. As long as that initial decision is made exclusively by the league, that most likely won’t be happening.