Will the Kraft Plea Deal Impact NFL Discipline?

The Palm Beach State Attorney’s Office confirmed today that 77-year-old Robert Kraft, the owner of the New England Patriots, has been offered a plea deal following his indictment on charges of soliciting prostitution.  Kraft, who was caught on videotape visiting the Orchids of Asia Day Spa twice, faces misdemeanor charges and possible jail time if convicted.  The deal would drop the charges, but at a cost: Kraft would be fined $5,000 per incident, for a total fine of $10,000, complete 100 hours of community service, receive education on the dangers of prostitution – and admit that he would have been found guilty at trial.

The last aspect of the plea deal is arguably the most problematic for Kraft, who, as an NFL owner, is subject to the NFL’s Personal Conduct Policy, as further described in a prior post.  The question is whether and to what extent the agreement to admit guilt would result in more significant penalties under the Policy.

As a baseline matter, the Policy states: “Players convicted of a crime or subject to a disposition of a criminal proceeding (as defined in this Policy) are subject to discipline.”

The definition of  the “Disposition of a Criminal Proceeding”  specifically “includes an adjudication of guilt or admission to a criminal violation.”  Moreover, pursuant to the Policy, owners are held to an even higher standard than players in refraining from conduct “detrimental to the League”.

Clearly, if Robert Kraft were to accept the plea deal offered, he would be in violation of this provision of the Policy since he would have to agree that he would have been found guilty if he had been tried on the solicitation charges.  The Policy further states:

“With regard to violations of the Personal Conduct Policy that involve:  . . . (iii)
sexual assault involving physical force or committed against someone incapable of giving consent, a first offense will subject the offender to a baseline suspension without pay of six games, with consideration given to any aggravating or mitigating factors.”

It remains unclear whether this provision would be interpreted to include the current situation, in which Kraft is alleged to have patronized a spa that was a front for prostitution linked to human trafficking.  Since the charges were first filed, additional information has been released indicating that the women at the spa were being held against their will in deplorable conditions.  Under the circumstances, it would seem appropriate to find that Mr. Kraft was engaged in sexual assault against a person who was not capable of consent.  That in and of itself would require a six game suspension for a player.

The analysis does not end there, however.  One of the aggravating factors identified in the Personal Conduct Policy is the occurrence of more than one offense.  While typically this would be interpreted to mean multiple disciplinary events, it remains open to question whether that might be construed to apply here, where the video evidence allegedly shows Mr. Kraft engaging in criminal behavior on two separate occasions.  If that were to be the case, the following provision comes into play:

“. . . A second offense will result in permanent banishment from the NFL.”

With all due respect to Commissioner Goodell, Spygate, Bountygate and even Deflategate aren’t on the same gridiron as the conduct Robert Kraft is accused of.  It is to be hoped that the NFL quickly and efficiently completes its investigation and acts swiftly, as the Policy also provides that conduct need not be the subject of a criminal proceeding to be the basis for discipline.  Whereas the NFL has occasionally in the past had difficulty accessing videotaped evidence, this time it is out there for the world to see.  It is hard to imagine any conduct that would be more significantly detrimental to the NFL than that currently under review.   The NFL has the opportunity to make a strong, decisive statement in the continuing international effort to combat oppression of and sexual violence toward women.  It is to be hoped that the Commissioner uses the Personal Conduct Policy as a sword to that end, as well as to protect the NFL shield.

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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.

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