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NFL's Big Mess: Suspend Big Ben or Not

Apr 18, 2010 – 8:03 PM
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Clay Travis

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When Ben Roethlisberger stepped into a tiny bathroom with a 20-year-old woman in Milledgeville, Ga., in March, he unleashed a tidal wave of complex issues for the NFL.

Suddenly issues of race, justice, the scope of off-field conduct, and the complexity of guilt or innocence combined in a unique and troubling incident.

And ironically enough for the league, the state of Georgia's decision not to prosecute Roethlisberger for sexual assault actually makes the NFL's response to this issue much more difficult than it otherwise would have been. Charge him with a crime and the NFL could either take action or wait for the courts to act.

As is, without any criminal charges pending against Roethisberger, now America's attention swivels to the league and the personal conduct policy. There's an expectation that the league will mete out justice even in the absence of a criminal charge being levied against Big Ben.


Because in April 2007 Roger Goodell announced the NFL's radical personal conduct policy that is distinct from drug or steroid issues and punishes players entirely for off-field actions. Indeed, in a system unique to all of professional sports, the expansive personal conduct policy thrust the NFL firmly into the private lives of its players.

As Goodell memorably stated at that time: "It is not enough simply to avoid being found guilty of a crime." What's more, "Persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime."

So what does that mean in regards to Big Ben's case? Read on for the complexities.

There are four primary issues that the NFL has to finesse as it determines how to respond to Ben Roethlisberger's situation. Let's analyze them:

1. What's the scope of the league's personal conduct policy?

A league suspension of Roethlisberger would represent a drastic expansion in the personal conduct policy.


Because in the absence of any criminal charges against him, the NFL would be acting in a purely moralistic sense. Even though, the league would say, you aren't guilty of any crime, you have acted so improperly and tarnished our brand to such an extent that we are going to suspend you.

Why is that problematic?

Effectively the league would be punishing a player for the violation of an amorphous and arbitrary morals element to the personal conduct policy. And while you or I can agree or disagree on whether the allegations against Roethlisberger -- given that he was never arrested or charged -- are serious enough to merit a suspension, hardly anyone would be able to determine where the league draws the line on what is moral under the personal conduct policy and what isn't.

What about players falling behind in child support?

That's a moral flaw that reflects badly upon the league, right?

What about fathering children by six or more different women?

Same, right?

What about losing $10 million gambling in a casino and filing for bankruptcy after being sued by six different casinos?

Ultimately, what moral failing is actionable under the personal conduct policy and what isn't?

The point is, there is no standard for these suspensions. Allowing a player to be suspended despite no charges being filed against him in a criminal court makes the personal conduct policy even more arbitrary than it already is.

2. Race:

The NFL has never suspended a white player under the league's personal conduct policy. Again, the personal conduct policy is distinct from suspensions that arise for failed drug tests or the use of a banned substance. In conversations with several retired and current NFL players who are minorities, this is a subject that flies just beneath the media's radar, but is very much talked about in locker rooms.

Indeed, of the six suspensions levied under the personal conduct policy, all have been suspensions of African-Americans. Those six suspensions represent a total of five players -- Pacman Jones was suspended twice -- and have collectively added up to a loss of 56 regular season games.

If Roger Goodell chooses not to suspend Ben Roethlisberger, then this fact will become even more paramount in the eyes of players in a majority minority league, the perception that a popular white player is above the personal conduct policy. There are many reasons that the commissioner could choose not to suspend Big Ben, including a legitimate concern about acting in the absence of criminal charges or arrest, but Goodell may want to send a clear message that no one, regardless of race or star status, is above punishment.

So, ironically enough, being white might make it more likely than not that Goodell suspends Roethlisberger. Because even if Goodell doesn't want to suspend Big Ben, he might feel compelled to by the perception that his inaction means the NFL treats white players and black players differently.

3. The NFL stands alone among sports leagues with its expansive personal conduct policy:

I've been writing about this since the NFL announced its policy, but there's a reason that the NBA, MLB, and the NHL do not have personal conduct policies that govern off-the-field actions. It's because these situations are actually a recipe for disaster. Instead of looking to the courts for justice, fans look to the league.

Recall that Kobe Bryant was charged with sexual assault and never missed a basketball game. Bryant's status, unlike Big Ben's, was actually deemed criminal by a district attorney and led to charges being filed. Whereas Roethlisberger's was not. Bryant is every bit, if not more, the sports star that Big Ben is. Yet, the NBA was immune from criticism because the league simply said they were going to wait and see what happened with the courts before taking any punitive action against a player.

Eventually Bryant's case was dropped.

Kobe faced no suspension from the league and the NBA emerged relatively unscathed.


Because the NBA doesn't have a personal conduct policy that subjects players to on-court discipline for entirely off-court actions. So fans never had any expectation that the league would act.

Compare that with the NFL's status now in Roethlisberger's situation.
Fans and media are clamoring for the NFL to act, and the league finds itself enmeshed in the details of an alleged incident. That's why I said the league would have been in a better position if the state of Georgia brought charges.
Fans and media are clamoring for the NFL to act, and the league finds itself enmeshed in the details of an alleged incident. That's why I said the league would have been in a better position if the state of Georgia brought charges. Suddenly, the American public expects the NFL to mete out justice for a player's off-field actions.

The NFL finds itself as a morals arbiter in a way that no league has ever found itself before.

4. Is the NFL's personal conduct policy even legal?

This is the elephant in the NFL room.

Neither an individual player nor the collective NFL Players' Association has challenged the legality of the league's personal conduct policy in a court of law. Partly, this is because Goodell has been smart in who he has suspended, picking off those players with the worst public relations profiles. What union wants to go to court to defend Pacman Jones, Chris Henry, Tank Johnson, Michael Vick or Donte' Stallworth? Even if you win, you lose the public relations battle. Especially when those players, members of your union, have all accepted the commissioner's ruling rather than raise a legal challenge.

The policy also hasn't been challenged because, from an individual player perspective, taking the punishment without running to court probably makes sense.


Because the legal system might well take longer to render a verdict in your favor than it will take to simply serve your suspension. If you run to court there's an appearance that you're avoiding taking responsibility for your own actions. So you aren't incentivized to challenge the system and anger the man, Goodell, and the league, the NFL, who controls your ability to reenter gainful employment.

But, trust me, the legality of the personal conduct policy is tenuous at best. Especially because the NFL unilaterally adopted the personal conduct policy without the NFLPA's approval and outside the protective sphere of the collective bargaining agreement.

That makes the NFLPA's failure to attack the personal conduct policy a complete failure of the league's union and a reflection of the fear the player's union feels in allying itself with the weakest, and most easily condemned, members of its union. But, remember, a union is only as strong as its weakest link. In systematically failing to defend its weakest members, the NFL player's union has proven yet again that they are the weakest player's collection in all of professional sports.

All of these issues arise because the NFL has created a misguided and arbitrary personal conduct policy. Whatever happens in Ben Roethlisberger's case, every player should take note. Because next time, it might be their head on the chopping block.
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