Hardly to anyone’s surprise, the NFL has chosen not to punish Matt Patricia or the Detroit Lions for violating the Personal Conduct Policy. Patricia, now 43, was accused of sexual assault during a spring break trip while still in college in 1996. Although he was indicted, the case was dismissed over thirty years ago. According to ESPN, the indictment does not fall within the NFL’s Personal Conduct Policy because it occurred long before the Policy was enacted. The Policy provides, in part:
It is not enough simply to avoid being found guilty of a crime. We are all held to a higher standard
and must conduct ourselves in a way that is responsible, promotes the values of the NFL, and is lawful.
* * *
Failure to report an incident will be grounds for disciplinary action. This obligation to report is broader than simply reporting an arrest; it requires reporting to the league any incident that comes to the club’s or player’s attention which, if the allegations were true, would constitute a violation of the Personal Conduct Policy.
It is important to remember that the obligation to report is a continuing one, and is not satisfied simply by making an initial report of an incident. (Emphasis supplied.)
So, technically, the NFL is incorrect in asserting that the fact that the incident at issue occurred before the Personal Conduct Policy was promulgated means that the Policy does not apply. The emphasized language clearly requires any club to report to the NFL ANY allegation, whatsoever, that would, if true, constitute a violation of the Policy. Of course, the NFL has been burned previously for attempts to apply rules – and a prior version of this Policy in particular – ex post facto. (See, e.g. the saga of Ray Rice.) Moreover, what is NOT clear is the extent to which clubs are required to conduct background checks upon their employees.
A simple Google search of Matt Patricia’s name revealed the indictment. Therefore, even the most cursory of investigations would have identified the issue when he was hired by the Patriots in 2004. So, the question becomes: is there/should there be a requirement that prospective administrative and coaching employees be vetted before hiring, much as prospective draftees are subjected to a similar background check?
The conflict is obvious. Our judicial system is based upon the theory of innocent until proven guilty. That principle is not reflected in the Personal Conduct Policy. Yet – there is no denying the endemic nature of sexual harassment and discrimination in employment generally, and particularly in the sports industry. The pervasiveness and the impact of that scourge is illustrated by far too many individual stories of physical, mental and emotional abuse, most notably recently by the horrendous events at MSU. How to balance those competing values? Innocent until proven guilty, but an empathetic environment in which powerless victims have the capacity to address legitimate grievances without suffering economic and personal injustice? Should a thirty year old alleged offense be a permanent bar to employment?
The questions are not easy. The answers require soul-searching and reflection. While the intent as reflected in the Personal Conduct Policy — zero tolerance for domestic violence — is laudable, in practice additional consideration will be needed. It is to be hoped that the NFL and other professional sports leagues will strive to find that balance between protecting the innocent, both accused and accusing, as well as disciplining or even banning those who violate the Personal Conduct Policy. Unfortunately, the continuing lack of clarity in the Policy ensures that justice and equity remain elusive.
Photo Courtesy: Sports Illustrated
Helen A. “Nellie” Drew is an expert in sports law, including professional and amateur sports issues ranging from NCAA compliance and Title IX matters to facility construction, discipline of professional athletes, collective bargaining and franchise issues. Drew formerly served as an officer and in-house counsel to the Buffalo Sabres of the National Hockey League, after previously working as outside counsel to the Sabres and the NHL. Among her more interesting experiences were assisting former USSR superstar Alexander Mogilny in obtaining asylum status in the U.S. and working on multiple NHL expansions, including San Jose, Ottawa, Florida and Tampa Bay.
Drew teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. She is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.