Here we go again

A few weeks ago, amidst the tumult if the Ray Rice scandal, I posted a blog about how the narrative of the Ray Rice situation, as well as the Donald Sterling situation, had been driven by the fact that people sometimes have trouble processing too much evidence. Ask someone what the penalty for abusing a dog should be and they’d say a week in jail, or maybe a month; show them a video of a man beating up a puppy and they’d say life without parole would be too lenient.

Guess what? It’s happened again.  And it happened to Roger Goddell, so it couldn’t happen to a nicer guy. When Goodell imposed a two game suspension on Ray Rice, all we had to go on was the video footage of Ray Rice dragging his then-fiancée’s limp, unconscious body out of a hotel elevator. Roger Goodell spoke with Ray Rice, who apparently assured him that it was a slight misunderstanding, and Goodell decided a two game suspension was adequate.

Now the footage of what actually happened inside the elevator has come to light, and Roger Goodell’s immediate reaction is to suspend Ray Rice indefinitely. First of all, let’s go over the reasons why this reaction is incredibly stupid.

First of all, it is a classic example of double jeopardy. Ray Rice was tried for the crime of beating his girlfriend and sentenced to a two game suspension. There were howls of protest that the penalty was inadequate, and Goodell later admitted he had screwed up. But still, Ray Rice was convicted and sentenced, and so now it seems unfair to convict him again for the same act.

Okay, let’s say you are one of those people who think that the Founding Fathers put that “double jeopardy” nonsense in the Constitution to help out trial attorneys (those guys were all lawyers). Roger Goodell initially said that the appropriate policy called for a two game suspension, but he subsequently said it would now be 6 games for a first offense and a lifetime ban for the second. But applying this new policy to Ray Rice is like overturning the outcome of a football game in 2013 because the rules were changed in the off-season. This is another thing the Founding Fathers put in the Constitution, no “ex post facto” laws.

But that’s just another lawyerly trick. Let’s say that Rice can be tried under the new policy. In that case, his indefinite suspension only makes sense if this was a second offense, and this is his first, so he should be suspended only six games. Somehow we must live in a universe where if I don’t see Ray Rice hit his girlfriend, but I know he does, that’s one count; but if I then SEE him hit his girlfriend, that’s a second violation. If the incident happened in public, and multiple people took pictures on their cell phones, would each photo be a separate instance of domestic abuse?

Roger Goodell may try and argue that the reason he gave Ray Rice a light suspension is he hadn’t seen the footage from inside the elevator of Rice landing the blows. That’s nonsense. What did Goodell think happened, Ray Rice kissed her really well and she swooned? When you see footage of a man dragging his girlfriend’s unconscious body out of an elevator, you have to assume the worst. You have to assume he hit her as hard as a man can hit a woman, and then tell Rice to prove something else happened, and with hard evidence not just his wife’s say-so (either she loves a man who beats her senseless, or she thinks being the wife of an NFL star is worth an occasional left hook). So even if Goodell didn’t see what had happened, he should have had it is his mind before passing judgment.

This happens on the day when the other shoe dropped in the Donald Sterling saga; another NBA owner announced he was selling his interest in the Atlanta Hawks because of an allegedly racist e-mail he sent several years ago. This is what Sterling hoped to bring out in a trial—how many owners have made statements that in retrospect could be considered offensive to some of their clientele? If Sterling had used his billions to hire detectives to unearth these facts, half the teams in the NBA would probably change owners.

Maybe you think Ray Rice got what he deserved, especially after seeing the video inside the elevator. Maybe you are glad the paltry two game suspension now teeters on becoming a lifetime ban. Fair enough.

But process matters, people. I remember on my first day of law school my civil procedure professor stressing that the Code of Civil Procedure didn’t promise a just outcome, only a fair one. Donald Sterling was railroaded out of the league, so the league never defined exactly what was unacceptable behavior and what wasn’t. Did the comments by the Hawk’s owner rise to the same level? We’ll never know, so he has to sell his share of the team. What if Marc Cuban makes some provocative yet thoughtful comments on race? That might force a sale of the Mavericks.

At some point in the future there will be another domestic violence instance. When that happens, will Goodell (or a future commissioner) follow the process he set down and suspend the player for 6 games? Or will they use Goodell’s power to make ad hoc judgments and reduce the penalty to four games? Or two? Will the case depend on whether there is film or not? Women who get hit where there is a camera will be protected; all others, you’re on your own.

Roger Goodell’s two game suspension of Ray Rice was completely inadequate and morally repugnant, and the man now making that claim is Roger Goodell.