I just finished reading all the public documents, and it absolutely makes me sick what an awful process the NFL cobbled together to handle such things. I think I'm going to write a blog post about how I wish to take a flamethrower to the policy because it would be hard to design a policy any worse for all involved. Credibility assessments by one/two people is an evil joke, plus keeping her out of the final process makes it worse. I can't tell you how angry I am about how bad this process is for people making allegations of abuse, people accused of them, people roped into this sham process, people thinking of reporting abuse, fans, and the basic integrity of the league. I was nauseated at how poor the process was put together.

This is a tough question because it goes to what the point of discipline is, which I discuss further in some of the links in the above piece. Society expecting sports leagues to be extra-judicial disciplinarians is a recent phenomenon, and one that they are ill-suited to do.

At some point after Deflategate on Mike and MIke, Roger Goodell said, "Fines don't work." For what? Is what is going on now "working?" Is spending millions of dollars on investigations and inevitable mutual litigation to harm the NFLPA working? Think of how much good could have been spent with that money elsewhere.

Perhaps it is working as a bargaining chip. By all reasonable standards, the NFL's discipline policy is a massive failure that every reasonable person sees that way except the NFL.

In Bountygate and Bullygate, the people involved in those controversies didn't even know what they were doing was in violation of league rules (and if you dig into the details, rule violations likely didn't actually happen). In Deflategate, most people didn't know that the NFL cared at all about ball deflation in cold temperatures. (and if you dig into the details, it likely didn't happen, and even if it did, general knowledge isn't a rule violation). Or that the NFL wanted Brady to preserve his cell phone because they specifically said they weren't interested in it.

The NFL does specific warnings and points of emphasis and education the best. When they care about something, they can make a difference but only if in an environment of trust and all the stakeholders feeling safe.

I think this was understood the best in Paul Tagliabue's decision in the Bountygate appeal: "But when an effort to change a culture rests heavily on prohibitions, and discipline and sanctions that are seen as selective, ad hoc or inconsistent, then people in all industries are prone to react negatively -- whether they be construction workers, police officers or football players. They will push back and challenge the discipline as unwarranted. As reflected in the record in the present appeals, they will deny, hide behind a code of silence, destroy evidence and obstruct. In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change." http://www.nfl.com/news/story/0ap1000000109668/ar...

As it relates to sensitive issues like domestic violence and addiction and mental illness issues, I think the NFL needs to have more collaborative approaches with the NFLPA to look for evidence-driven approaches to get people help and not just PR punishment to say that they've dealt with it and take it seriously. Like with the criminal justice system, it is easy and simple to get votes by building more jails than dealing with tough sensitive problems using evidence-based approaches.

Ultimately, creating culture change is tough when these are tough issues from a societal basis too. I'm not sure that I answered your question other than I think suspensions as discipline should be very rare in a sport where there are few games.

The NFL is the fully responsible party for taking actions that cause worse results and undermine the public's trust in the integrity of their system. Blaming the NFLPA is misguided and lets the NFL off the hook completely. The CBA discipline system has been the way it has been for a long, long time, pre-dating the 2011 CBA. And it wasn't a huge problem when most team discipline was handled by teams. And it wasn't a huge problem when Article 46 good of the game powers were used rarely. And it wasn't a huge problem before Roger Goodell decided that he needed to exercise those powers more frequently and arbitrarily.

It wasn't until after the 2011 CBA was signed that Goodell used his authority in mostly unanticipated ways. At the time, Goodell had expanded the use of his power but only for criminal allegation. It was going to be a hard ask to get the players to not agree to a deal for something they thought would only apply to a few players. After Bountygate, the NFL started arguing (in court) that they could do whatever they want, even if it was totally wrong. To the public, they still maintain that they are fair.

Now from a negotiation standpoint, it is going to be really difficult to negotiate around Article 46 because Goodell won't want to give up good of game powers and the NFLPA has tons of evidence that Goodell cannot be trusted with them, and uses them in ways that hurt players, hurt fans trust in league offices, and in the case of their misguided domestic violence policy, hurts people who say they were abused and could have a further chilling effect on reporting abuse.

It's a mess. I don't know how the parties are going to get around that. The NFL is going to use Roger Goodell's unreasonableness as a disciplinarian as a bargaining chip in negotiations. It's difficult to negotiate against someone who has a lot of leverage and isn't afraid to work against their own self interest to use that leverage.

I don't see them at all interested in walking it back. They have their ill-designed, counterproductive domestic violence policy that may have had more actual process protections built into it if the NFLPA was able to bargain it.

Yes, they framed their decision in the way prosecutors frame things: in overly certain ways because if they acknowledge their evidence isn't certain, they don't win. For example, there are references in the "confidential" letter to two "medical experts" saying that the pictures appear consistent with her story. That is clearly trying to make it sound more scientific that it could possibly be based on just pictures. Such garbage.

And then if you stack a bunch of uncertain stuff on top of each other, somehow it makes it certain. That is how the NFL does things with discipline issues. Decide what you want to do, and then gather what you think supports that one certain point of view. It's a joke.

Because of the long-odds against Elliott, that's why I think trying to roll all the accusations to date into one thing, eating the 6 games, and trying to do a do-over with counseling etc is the best approach. Further complicated by if he admits or acknowledges any of this stuff, that can have some civil implications with lawsuits.

Civil versus criminal implications of actions can always be hard to negotiate though. That happens all the time. Adding employer discipline and larger labor law concerns to just accusations further complicates it.

Next step is appeal to....umm Goodell. There may be some technical labor law issues as it relates to the implementation of the domestic violence policy outside the structure of collective bargaining. I haven't really thought about that in depth, but just off the top of my head, I don't think that is a winner. May be able to raise some process issues. Anyone can take anything to federal court. But because one judge out of three decided one way versus another way in Brady, it makes it what is a tough road even tougher to take to federal court.

What I think a lot of the posturing may be about is rolling any punishments into one thing. Theoretically, Goodell on appeal could consider more things than what he considered before and increase the punishment upon appeal. (Sort of like appealing a criminal conviction, retrying the case, getting a bigger sentence after you "won" your appeal).

As you recall, the NFL argued in the Deflategate case that the punishment could have been one year long under Goodell's discretion, and there were arguments made that Goodell could change the nature of what he was considering on appeal and factor those in as part of his punishment. Lots of catchall language in the underlying "confidential" letter.

The parade issue and the bar fight issue were explicitly not a part of this punishment. Maybe they decide to call this thing a day if they could come to a mutual consideration that everything was going to be wrapped into the 6 game suspension, and then have his career be a do-over. The only thing that is completely undisputed is what happened at the parade.

I want the default response for the abused to be heard, believed, supported. The legal system isn't ideal for getting the God's-eye truth for situations like that because of the nature of the crime.

I also think that in America, our default really should be not to put people in cages unless we are certain a bad act happened and there isn't a better alternative.

I think in general, we ask the legal system and punitive laws to do too much--issues like domestic violence, addiction, mental illness are often treated like criminal issues versus giving people resources to deal with these things because jailing and example making is easier than dealing with peoples' complex issues and traumas that often are hard to heal or may be unfixable or that evidence hasn't really determined the best way to fix it.

Like think of how hard it is for people to overcome alcohol and opioid addiction. How is it in 2017 we do not have more science and evidence-based treatments to help people with these issues? (I will tell you nothing is better than hearing someone who was in crisis get their lives back together. It can happen and it is wonderful when it does).

Being a human is hard. If you put an actual functioning lie detector on people, you would find most sane people are against domestic violence. Duh. You would also find that a huge number of people have abused verbally/physically/sexually children or partners at least a few times over the course of their lives. I've seen various percentages on this, but even the non-lie detector self-reporting percentages of this are startling, grossly high. And self-reporting tends to skew low because people do not like to admit their darkest moments.

This paradox makes these issues more perpetuating. Punitive approaches and example making make people feel better that Something Is Being Done but doesn't help a more restorative conversation of how do we break cycles of trauma and abuse?

Punitive approaches deter painful honesty because truth is sometimes more severely punished than deception and self-deception. Self-deception in that some of the same people who argue against abuse likely have abused people in some respect but could barely admit that to themselves. It may be a matter of degree but not that it happened at all.

But there's also the default view that if you are accused of something, you did it. And I've been practicing long enough to know that this is not true and it is scary. There is nothing scarier than someone being accused of something really bad and you go, wow, if I didn't have this piece of evidence right here, this person would lose their job and go to jail a long time. And with a lot of accusations, that sort of evidence can't exist. Proving a negative is really hard if nobody is inclined to believe you, especially because the accusation is terrible.

And if, for example, people think policies do not have sufficient safeguards against wrongful accusations, they can resent those policies in general. That they worry that it could happen to them.

It is much easier framing some of these issues than fixing them. It hurts my heart hearing some of the dialogue because it is so facile and posturing and destructive.

But at our core, we should be honest, kind and respectful about these topics because I think so many people are damaged. That when these things are discussed, it reminds people of their own experiences and traumas. Human. I like looking for areas of common agreement, and I think that should be one of them.

Thanks for emphasizing that point because it is often lost, and gets particularly muddled when fanbases start arguing over facts.

I think these are some the issues that happen when sports leagues take on more of the role of being an extra-judicial arbiter. Goodell expanded that role but it has become a problem that he has brought on to himself. And it becomes an integrity of the game issue when he puts himself and the league in the position of being totally arbitrary when suspensions are lifted or enacted.

I'm afraid the genie has been already let out of the bottle and I'm not sure it is possible to go back to the pre-2006 days of letting the court system do court system things, while focusing on prevention and education on the NFL side. Certain fans expect the league to have that role because they don't remember anything different or would want it to be different. As I said in some of my old pieces, people don't care about the process rights of accused unless it is them or their's accused. Some people like punitive results, fairness be damned, for the greater good.

Thanks for sharing these sensible thoughts.

I don't think of it as a criminal defense focus. My background is primarily in helping create and implement sensible and legal policies that help companies with their goals. I happen to also know about the details of criminal cases (too much, I'm afraid) so I know some of the real world perils of good intention policies.

I think you bring up some apt points that go to the general question of how do you manage these issues when your product is entertainment? I think that goes to my point on what is the purpose of your policy?

Is it actually for the benefit of people who have been abused? Or is it a show of DV is bad (duh), let's drop the hammer on this guy? Something more fake PR focused versus actually helping those who have endured domestic violence. It would not be good to make examples of people if it later turns out that you are wrong. It happens all the time.

It is legit to protect the brand but do you do it with a DV Policy that requires NFL investigators to be a shadow force that investigates abused people's details? If you are involved in these cases and look in case files, the details are generally not something that 1. Accusers would want public or leaked or debated; 2. Sometimes are complicated and have details that may reflect poorly on accusers; 3. Often result in you as an outsider observer not being completely 100% sure what happened.

Deterrence is a possible goal of punishment, and this is beyond the scope of this blog post but two points: 1. I do not think the literature supports harsh punishments being an extra deterrent; 2. I do not think that deterrence as a theoretical policy aim outweighs issues of deterring reporting; 3. The best way of preventing DV is not throwing out any safeguards against wrongful accusations for the greater good or protecting your brand; 4. Do we as a society want employers to do adverse employment actions based on just accusations, to have your boss just decide whatever way he wants?

As for rehabilitation, I think that paragraph looks like a tack on given the context of what is happening and the nature of the letter. "We just told the world we think you are guilty based on mostly a one-sided account, we used this released letter to trash your reputation further, we think you are a liar, but good luck with your career. We care about you, but not enough to give you any real process. Here's this arbitrary punishment that is a harsh punishment but at least it isn't an indefinite suspension because you enjoy smoking dope."

Finally, it is still not good for the integrity of the game for Roger Goodell to have so much control on the timing and outcome of punishments as it is a competition issue when it is suspension based.

I do not like to be cynical but here we are.

Thanks for your thoughtful words. These are hard issues for sure. I always appreciate hearing from you.

Figured this would be a common question, so I updated it in the post. Scroll back up to the update highlighted with a red header.

What I think, though I am not an expert: It's all about market value. If you sold your home in an arms length transaction, what would be the market value of your home? One way to know that is to look at recent, nearby sales of similar houses. That is what HCAD says they do when they come up with the appraised value. But sometimes when you look at their comparable houses aka comps, those houses may be better than yours sometimes.

I hope that helps.