Nedlin: Does the NFL owe due process to players?
October 19, 2014
Recently, the NFL has been the talk of the town for what has happened not only on the field but off, as well. It is the off-field hits by its players that have brought this multibillion-dollar industry into a spotlight it assuredly would not rather have. Two perfect examples are the Ray Rice domestic-violence assault and the Adrian Peterson child-abuse allegations. If you have been living in the proverbial cave, there was a video of the former closed-fist punching his then-fiancee (now wife) and aftermath photos of the latter taking a switch and lashing his 4-year-old son. These cases, especially the domestic-violence incident, are rare only in the sense that there is video proof of the act being committed. A prosecutors dream!
However, what I want to discuss is the notion of "due process." This is the term that is consistently used when discussions are brought up in terms of how the NFL and individual teams are going handle players who have been charged with a crime. Due process appears to be a convenient clause used to allow those in charge to take a non-stance and become completely reliant on the criminal justice system. This term allows commentators, players, owners, CEOs and the NFL commissioner to defer and distract. Without hesitation, the words echoed when asked what stance is going to be taken on these individuals are, "We are not going to jump to any conclusions and let due process run its course."
What is this thing called due process? In a nutshell, the government may not deprive citizens of "life, liberty, or property" without due process of law. This means that the government has to follow rules and established procedures in everything it does. It cannot, for example, skip parts of trials or deny citizens their rights as protected by the Bill of Rights and by law. This protection helps to ensure justice. Due-process protection has its roots in the Magna Carta, when King John promised that "no free man shall be taken or imprisoned … or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."
As an attorney and citizen, I am all for due process. It is a fundamental constitutional right instituted to protect against an overzealous government. However, is due process something that multibillion-dollar businesses should be reliant upon when instituting their own policies and procedures? Are they, in a sense, hiding behind these words without having to take their own internal stance based on behavior and conduct? Should corporations and businesses act based upon undeniable video and photo evidence immediately rather than wait on the often-lengthy course of due process?
The NFL recently instituted an internal conduct policy regarding domestic violence and sexual assault. However, it appears their perception of domestic violence is that it is only physical and violent. What about instances of mental, emotional and financial abuse, among other forms, which often tend to leave deeper and more damaging scars than just the physical? In these cases, there will be no videos or photos, and it is a must for internal investigations to take place rather than relying solely on due process. A good lawyer can often use due process in their favor and have a domestic-violence charge disappear, leaving solely the predicate offense. Should the NFL rely solely on a decision made by some prosecutor to dismiss a charge or the ineptitude of law enforcement to obtain evidence or a statement within the constitutional framework? Either due to good lawyering or mistakes on part of the government, cases are dismissed or juries find defendants not guilty every day. It is part of the process. It is due process.
If the NFL is going to take the stance that the determinative factor of whether internal punishment will be sought is completely reliant on how it plays out in the criminal justice system. Is that not a way of deflecting in order to take the pressure off itself and be wholly reliant on the criminal justice system? The bottom line is money. Rice was offered a pretrial intervention, which is similar to Colorado's pretrial diversion program. Essentially, the offender complies with whatever terms are agreed upon with the prosecution and so long as they are complied with charges are never filed or the case is dismissed. In this situation, due process was followed, the criminal justice system played its role, and Rice was unscathed within the system. Peterson has his case set for trial in December. It will be interesting to see how the NFL reacts in the disposition to that case. One thing we do know: The game will go on!
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Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and email@example.com.