It’s Better to Be Right Than First: Why the Commissioner’s Exemption List is a Bad Idea

I do not condone child abuse.

It’s frustrating that I have to even make such an obvious statement, but it appears necessary to preemptively defend myself in a hyper-sensitive world in the wake of the following unpopular opinion: the Minnesota Vikings were wrong for placing Adrian Peterson on the NFL’s Exemption List.

In case you’ve been living under a rock the last few days, Peterson was indicted last week in Montgomery County, Texas on a felony count of negligent injury to a child, a charge stemming from a whipping incident that left bruises and wounds on much of his 4-year-old son. When the news of Peterson’s indictment and subsequent arrest broke last week, the Vikings acted swiftly in deactivating their superstar running back for their Week 2 matchup against New England. As a private organization, the Vikings had every right to choose not to play Peterson. On Monday, the Vikings exercised their right to reactivate Peterson in advance of their Week 3 tilt in New Orleans. Late Tuesday night however, the Vikings reversed course again, asking for and receiving a rarely-granted exemption from NFL commissioner Roger Goodell, allowing Peterson to remain under the Vikings’ control and earn his regular salary while he is away from the team until his legal situation is resolved. Essentially, Peterson was told to take a nice, paid vacation for an indefinite period of time. [i]

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So what changed between Monday and Wednesday? Well, nothing as it concerns Peterson’s abuse case or the allegations levied against him. What did change, however, was the media fire storm, which rained disdain on the Vikings organization following Peterson’s reactivation. First, the Radisson hotel chain, one of the Vikings’ most visible sponsors, suspended its sponsorship with Minnesota.[ii] Anheuser-Busch, a mammoth sponsor of the NFL, also issued a strongly-worded statement insinuating the beer giant was reevaluating its relationship with the league, as it had become “disappointed and increasingly concerned by the recent incidents that have overshadowed this NFL season.” Finally, even the governor of Minnesota took it upon himself to denounce the Vikings’ decision and call for Peterson’s suspension,[iii] a bizarre turn of events given that public officials rarely comment on ongoing criminal matters. Amidst this pressure, in a press release on Wednesday, Vikings owner Zygi Wilf admitted the team “made a mistake” in reactivating Peterson and simultaneously announced the team was placing Peterson on the NFL’s Exemption List until his legal issues were resolved.[iv]

I’m not here to argue whether the Vikings’ decision was legal. By all accounts, Minnesota acted within its rights to place him on the Commissioner’s Exemption List.[v] The real issue with the Vikings’ decision, however, isn’t regarding the legality of their actions. Rather, it’s an issue concerning whether the decision was a pragmatic one. Unquestionably, the allegations of abuse are appalling. Whether it’s a product of the culture in which he grew up, or otherwise, there’s little reason to ever strike a child.

But here’s the thing about the Peterson situation: the only place he’s been convicted is in the Court of Public Opinion. In its rush to serve up its own form of vigilante pseudo-justice in the wake of intense media and public scrutiny, the Vikings and the NFL seem to have forgotten one of the basic tenets of the legal system: it’s better to be right, than first.

In the United States, one of the most basic of human rights is that individuals are “innocent until proven guilty.” The recent actions by the Vikings and the NFL, however, appear to promote the opposite notion: NFL players are “guilty until proven innocent.” In placing Peterson on the Exemption List in the absence of a ruling on the legal issues by a court or even a plea deal by Peterson, the Vikings are playing the role of judge, jury and executioner.[vi] Yes, Peterson’s due process rights are not being deprived because the Vikings are not a State actor, and NFL teams have a (limited) ability to do as they please with their roster decisions, and Peterson is still receiving a hefty paycheck while remaining away from the team. But, there’s an intangible aspect unique to NFL players’ careers. They are exceedingly finite in length -even the seemingly indestructible Peterson. Players only have a certain amount of time to pursue the career they love and to achieve certain non-monetary accolades, such as Super Bowl and Pro Bowl appearances. When your career is over, it’s over, and a decision to take away any amount of time from that career should not be taken lightly.[vii]

Greg-Hardy

This may seem as though I’m taking pity on Peterson because he’s been deprived of the privilege to play a game meant for kids, for which he’s being compensated handsomely. This is not the case. If Peterson did indeed commit the crime of which he’s been accused, he deserves every second of any suspension handed his way. The issue arises, however, if he’s acquitted, or determined to be guilty of a lesser crime.[viii] Peterson can never get back the time he’s missed. While Peterson has enjoyed a long and satisfying career, this issue is heightened in the case of your Average Joe, whose career is likely to only last a couple years, at the most. It’s not hard to envision a scenario in which a player is falsely accused of committing a crime, placed on an exemption list, only to be acquitted in a court of law. The irreparable harm caused because of the league’s rush to “judgment” would be incalculable.Greg Hardy was also placed on the Commissioner’s Exemption List this week.

Further issues arise in terms of consistent enforcement by the NFL. When does the league determine when an alleged crime is so heinous than the player should be placed on the Exemption List? For example, under the new Anti-Drug Policy agreed to by the NFL and the Players’ Association,[ix] a player accused of Driving Under the Influence or another alcohol-related crime is eligible to play until the courts make a ruling. In a nation where almost 30 people die per day in motor vehicle crashes that involve an alcohol-impaired driver,[x] where’s the outrage when Arizona’s Pro Bowl linebacker John Abraham – who was arrested and charged with DUI in June after allegedly being found passed out behind the wheel of his car at an intersection in an Atlanta suburb after he had left the strip club in the middle of the afternoon[xi] – continues to play? Why are abuse cases different? Where do we draw the line between what’s worthy of immediate “discipline” and what requires due process to play itself out first? There’s no clear-cut line of demarcation. If the actions of the league over this last week have taught us anything, apparently an alleged crime is serious enough to warrant swift punishment only when sponsors cry foul and a player begins to trend on Twitter. That type of reactive, mob mentality has proven to be a very slippery slope.[xii]

Unfortunately, there’s not necessarily a right answer. The League is driven by appearances and it behooves it and its teams to crack down on players who may cast a negative light on the league’s image. But, there’s a fine line. Acting rashly without a finding of guilt, or at the very least allowing the legal process to sort itself out before action, opens a new can of worms – a dangerous suspension of the typical procedures in place to protect players’ rights. In my opinion, if players are specifically willing to agree through collective bargaining to subject themselves to suspensions or exemption lists in the face of mere allegations,[xiii] that’s one thing, but absent that specific language, even placing a player on paid leave seems to be a broad, unchecked overreach. In truth, the NFL is making it up as it goes, and having NFL executives “getting tough” on random players is not a substitute for fixing a fundamentally broken criminal-justice system.

Due process is a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.  In the private sense, providing due process to ensure that the right, not first, decision is achieved is just as valuable.  It is important for businesses and employers, particularly those as large and impactful as the NFL, to make important decisions that affect the lives of its employees only after careful thought and consideration, rather than on a whim or in an emotional state. When there’s a rush to judgment, mistakes can and will be made. It is a dangerous precedent indeed when the media, and the public, are given the power to deprive a player of his limited career and livelihood before a full investigation, hearing and judgment can be made by those with knowledge and experience.[xiv]

 

[i] The exemption list is a way around indefinitely deactivating or suspending Peterson, both of which would have been vehemently opposed by the NFL Players’ Association. Under the Collective Bargaining Agreement, there’s a four-game limit to any deactivation, even if a player is being paid, a clause that was incorporated into the Agreement following Terrell Owens’ ultimately unsuccessful challenge of an indefinite deactivation in 2005 by the Philadelphia Eagles. A more detailed explanation of the Exemption List can be found here.

[ii] http://sports.yahoo.com/blogs/nfl-shutdown-corner/radisson-suspends-its-sponsorship-from-vikings-due-to-adrian-peterson-015111110.html

[iii] http://www.chicagotribune.com/sports/breaking/chi-adrian-peterson-minnesota-governor-20140916-story.html

[iv] http://www.twincities.com/sports/ci_26551439/adrian-peterson-zygi-wilf-says-vikings-made-mistake. Also asked whether the decision to essentially suspend Peterson was a financial one, Wilf responded, “Absolutely not.” If you believe that, I’ve got some magic beans I’d love to sell you.

[v] Peterson will continue to be paid his regular salary, $11 million annually, to take a “voluntary” leave of absence from the team. Further, it appears through reports that Peterson and the Players’ Association were complicit in the decision, a wise move by the Vikings and the NFL to avoid the filing of another reputation-damaging grievance. Whether Peterson is truly amenable to remaining away from the team while his legal situation resolved is something only he knows however.

[vi] It seems hypocritical that the same people clamoring for commissioner Goodell’s head due to the NFL’s bungling of the Ray Rice fiasco are now lauding him for acting swiftly in punishing accused players. If Goodell and the NFL executives are truly unfit, what makes people think they can now serve as a fair and capable arbiter of complex legal matters?

[vii] Even past his game checks, there’s also an incalculable monetary aspect in what Peterson could make via sponsorship dollars. While still being paid a salary, there’s an argument to be made that placement on the Exemption List will cost him undetermined amounts of income. Though mere allegations may not be enough to trigger the typical “morals clause” contained within many sponsorship contracts, a player’s placement on the Exemption List may trigger a voiding of the contract under such provisions. It should come as no surprise that shortly after the Vikings placed Peterson on the Exemption List, both Nike and Castrol (motor oil) suspended their sponsorship contracts with Peterson, with Nike going as far as removing all Peterson jerseys from its store in the Twin City area.

[viii] It’s important to note that in Texas, where Peterson has been indicted, there exists a unique law known as parental justification, which permits a parent’s use of force believed to be reasonably necessary to discipline a child. As such, it’s no guarantee that Peterson will be convicted of the alleged crime, even if he’s admitted to the pertinent fact of hitting his kid. There certainly exists precedent in the NFL to suspend a player under the personal conduct policy absent a conviction, but it’s presumptuous to assume that the NFL would do so if Peterson’s found not guilty, or that such a suspension wouldn’t be overturned on appeal.

[ix] Policy and Program for Substances of Abuse (2010), Article III, http://images.nflplayers.com/mediaResources/files/PDFs/PlayerDevelopment/2010%20Drug%20Policy.pdf

[x] http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html

[xi] http://espn.go.com/nfl/story/_/id/11281208/john-abraham-arizona-cardinals-passed-wheel-according-police-report

[xii] A number of other issues remain unanswered in the wake of this unprecedented situation, including what will happen if Peterson is ultimately found guilty? Will his time on the Exemption List count as time served and he’ll be fined any amount he was paid while on list?

[xiii] For example, the players and league could negotiate a procedure governing the use of the Exemption List or suspension prior to a conviction or plea of guilt for things such as felony arrests or misdemeanors of moral turpitude (i.e. gambling/embezzlement). While such a provision still may not solve the “due process” issue – or potential issues regarding false accusations or extortion – at least by having it collectively bargained for, in theory, the players could negotiate some concessions by the league in exchange for the players for sacrificing those rights.

[xiv] The aptly-named Captain Munnerlyn may have summed it up best when he said, “I don’t think it’s fair at all. I really don’t. That’s my personal opinion on it. I don’t think it’s fair at all. I think he should be able to play. He hasn’t been convicted of anything. All these allegations or this and that, pictures out, but he hasn’t been convicted of nothing. Munnerlyn continued, “With crimes and stuff, you’re innocent until you’re convicted guilty and I don’t think he’s guilty of nothing yet. I think he should be able to play football. I really don’t get it. At the end of the day I know they came up with the decision, but I really don’t get it.”

 

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