LeSean McCoy’s current predicament presents a unique challenge to the NFL’s much-maligned efforts to combat domestic violence under its Personal Conduct Policy. What may have seemed fairly straightforward – the concept that anyone associated with the NFL should be held to a standard of model behavior – has become murky at best over the course of the last several years. The NFL has struggled to apply its code uniformly even in seemingly clear cut cases, as evidenced by the Ray Rice and Adrian Peterson matters, which found the NFL embroiled in long standing legal disputes arising from its application of the Personal Conduct Policy. Just last year, the Ezekiel Elliott domestic violence case threatened to undermine the renewal of Commissioner Roger Goodell’s contract after Dallas Cowboys owner Jerry Jones responded angrily to the suspension of his star running back. Now, the NFL faces yet another, even more complex situation involving a star player who was accused on Instagram of violence against his former girlfriend, his child and even his dog – and also of using illegal performance enhancing substances.
Much of the NFL’s conundrum is created by the underlying principles of the Personal Conduct Policy: the concept that it is “a privilege to be part of the National Football League” is used to justify discipline for infractions that need not be criminal – or even substantiated by any institution external to the League. The traditional American judicial tenet of “innocent until proven guilty” is blunted and even sacrificed at times in the effort to protect the NFL shield. Of course, the NFL is not a state actor. As a private association, it is not required to provide due process when enforcing its rules. The authority for the adoption of the revised Personal Conduct Policy stems from the Commissioner’s power to protect conduct “detrimental to the League”.
There can be no doubt that yesterday’s social media post accusing LeSean McCoy of horrific domestic violence is anything but extremely detrimental to the NFL’s image. The NFL’s Personal Conduct Policy clearly applies. This time around, however, the unique circumstances will create additional challenges for the NFL’s often-criticized internal investigative protocol. It is difficult enough for any private entity to thoroughly and efficiently investigate and establish credible facts in dispute, particularly when the person(s) at issue are the subject of a criminal investigation or, as in one recent situation, choose not to cooperate.
In this instance, it is implied that LeSean McCoy may have conspired with another individual to harm his ex-girlfriend, Delicia Cordon. Clearly, unraveling the truth will be problematic at best, even for the authorities. Without the capacity to issue subpoenas, compel testimony or obtain a warrant, well . . . the NFL’s investigation will be seriously handicapped. And therein lies the rub: the very urgency which compels the NFL to take action pending formal criminal disposition of allegations that give rise to Personal Conduct Policy issues creates the conundrum. As a practical matter, the NFL will always be the focus of scrutiny whenever allegations of inappropriate conduct by employees – especially star players – arise, creating pressure to respond quickly in order to appease fans and sponsors. Doing so requires the NFL to dent or ignore traditional notions of due process, which in turn results in highly charged criticisms that its disciplinary processes are inconsistent, arbitrary and capricious and/or biased. A more deliberate approach would help alleviate this problem, but would subject the NFL to a potentially even stronger outcry for insensitivity to recurring problems like domestic violence. See, i.e., Ray Rice.
It remains to be seen what the facts actually are – and whether the NFL is able to determine them. There is no doubt, however, that regardless of the outcome, the NFL’s Personal Conduct Policy has once again put the League between the proverbial rock and a hard place.
Photo Credit: Instagram, Getty Images.
Helen A. “Nellie” Drew is an expert in sports law. She can comment on 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 teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. Drew is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.
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