Featured Commentary: Half a Man
Written By: J. Robert Flores, Esq.
On any given Sunday in the fall, it seems as if half of America is watching football. Unfortunately, these past few weeks it seems as if all of America is watching every single day and not to check who won or who lost. The problems of domestic violence and violence against women have been brought, front and center, to America’s consciousness because of the actions stemming from two highly publicized cases involving NFL athletes and now others that were previously ignored.
The scramble to lay blame, demand change, and punish wrongdoers is well underway. But if all that happens is individuals are punished and the NFL creates a more transparent and acceptable system of what it will do when future cases arise, we will all have lost an important opportunity to make meaningful change.
As a former prosecutor in the same office from where the recently hired NFL advisor to Commissioner Goodell, Lisa Friel, worked, I also prosecuted many cases of domestic violence. Unfortunately, man’s inhumanity to man filled that office with many types of crime, and each case was important to the victims and their families. This point cannot be ignored or overemphasized and I am confident Ms. Friel will not allow that to occur.
But why is this point so critical? Because if the NFL or any other professional league or college wants real progress on the issues of domestic violence or violence against women, it can’t succeed if all of its efforts continue to be focused on its response or reaction to only those crimes and acts. Like every other major business, the NFL and its member teams must make the issue of character a critical part of what it looks for before signing a player and becomes part of the team’s roster. The NFL must look at the whole man—his physicality and his character and not sign just half a man.
Can you imagine any reputable company hiring an employee with known allegations that they may have sexually abused someone in their past without performing a thorough investigation? Can you imagine what a plaintiff’s attorney would do if that employee was proved to have abused a co-worker after being hired? I can, and it’s not pretty. That due diligence effort better have been a scorched earth review, because if there was any doubt, it will likely be resolved against the company by the public, press, and ultimately a jury. As a prosecutor with access to a defendant’s prior record and time to learn about the defendant, it was a rare occurrence that I would find a defendant that acted differently than his history of prior bad acts revealed. There may not have been a robbery, but there was usually a trespass, turn-style jumping, or shoplifting arrest, even if there was no conviction.
So what is a league to do? First it should invest in the three P’s—Prevention, Protection, and Prosecution.
As to prevention, this is certainly challenging, but fairly straightforward. First, work with the colleges and universities from which they get their employees (aka, players), to make sure their pool of potential hires are receiving an intensive character development education and not just a one-off presentation at the beginning of the season. This is simply common sense. Every coach knows, repetition of a behavior becomes, over time, a habit and an instinctual response. Building strong ethical character that demonstrates integrity is accomplished the same way—by ongoing training and education, repeated over time. We know that most athletes don’t struggle with problem behavior, having received this instruction from friends, family, or coaches. But more and more, integrity and ethics are under attack today in a way they haven’t been before and what the NFL and other leagues have counted on in the past, that the vast percentage of athletes are not just good people, but great people, will provide little protection in an era of 24 hour news cycles. Today, professional sports leagues are easy targets and the public have a less forgiving attitude towards people paid millions of dollars and whose organizations benefit from public financing for their stadiums, tax benefits from being a tax-exempt organization, and enjoy the benefits of celebrity.
Protection. The NFL and NCAA must invest in protecting their athletes, not only from those that seek to exploit them such as runners, disreputable agents, criminals, and others, but also from themselves. I once asked an NFL owner just how it was that he allowed a franchise player to engage in outrageous behavior. He responded that the athlete’s agent wouldn’t let the owner rein him in. My guess is that the owner recognized his answer as foolish even as it was leaving his lips. Every player is an employee and every employer has the right to safeguard his business and his investment, even if it means limiting what a player can and can’t do. For those who are still confused, the vehicle of control is a contract, and the League can play a role by making sure that when a team has identified a behavioral issue to protect against, that issue will be shared with the other teams that may seek to put him on their roster. This removes the competitive advantage some teams may seek by signing a player without addressing his behavioral issues.
As a professional athlete, that employee/player is a key asset in a multi-billion dollar company. If the asset were a valuable recipe, key executive, key scientist or invention, access to it/them would be restricted and what could be done with it/them controlled. To some degree the NFLPA already recognizes this when they limit player representation to only NFLPA certified agents. Likewise, NFL owners must acknowledge that they owe a similar duty to the player to ensure they are able to compete and their brand is protected. How can they do this? Hire professionals, not only to look backwards into their background and behavioral problems, but to safeguard them going forward.
I’ve had the honor of working for several U.S. Attorney’s General and I can tell you that even though they were the boss, they all had security details and the details, not the boss, made the security decisions in all but the most sensitive cases. Some places were simply off-limits to the Attorney General as being too dangerous or likely to create the appearance of impropriety. The person in that position was simply too important to the organization to allow them to jeopardize the organization simply because they didn’t want or lacked the ability to gauge the risk to themselves. This is the same way with CEOs and Presidents of major businesses that are truly committed to their business. I know of many CEOs, both male and female, that will not travel or be alone with a person of the opposite sex because they don’t want to create compromising situations for themselves or their subordinates. Is it legal to do so? Yes. Does it cost more? Yes. Is there usually any danger to either party of going off the rails? No. But, it guarantees that there will not be a scandal involving the boss and an employee. Likewise, controlling where athletes go, what they do, and what protective efforts exist should be a joint effort between the agent and owner because they share the same interest in protecting their major assets.
Prosecution. This is the issue about which I am most pleased to know that my former colleague is working with the NFL. One of the realities in domestic violence cases is that, unlike burglary or homicide, prosecutors who understand and work with victims in domestic violence, sexual abuse, and exploitation cases, take the victim’s wishes of whether or not to proceed with a case seriously. Prosecutors make difficult decisions every day either to take cases where the public wishes they would not or to decline prosecutions even when the general public is going to be outraged. In a good office those decisions can be defended and explained even if the outcome remains opposed. In the best cases, those decisions are transparent and consistent. Right now the NFL is making decisions on the fly, with little transparency, and little or nothing available to the public that they can look to in determining whether the League was fair. This puts the NFL in jeopardy and undermines their decisions, even when they do the right thing.
A critical part of prosecuting violations of League rules, however, must be assuring that all of the parties view the process as fair. This means that the NFL must be willing to risk criticism by being quiet and when ready, to speak with a clear and unified voice. The most recent case is characterized by really bad facts. The information was not controlled, public statements were made without information, and almost everyone came to feel that they needed to protect themselves or apportion blame. Because bad facts often lead to bad law or rulemaking, this is something that I hope will be considered. Major businesses have clear rules about commenting on personnel matters, regardless of the matter. Likewise, it is the rare institution that can wash its hands by simply ridding itself of a problem employee. The terminated employee is likely to have left behind friends who will carry their friend’s water. The team may still have the same conditions in place that created the problem, and the league may have a new opponent that may no longer have any interest in a fair resolution—only vengeance.
I have great expectations that good can come out of these past weeks. I pray for those directly involved as they may face much more than immediate penalties but also challenges that they are poorly equipped to handle under the glare of spotlights. I also hope that Major League Baseball, the National Basketball Association, the National Hockey League, Major League Soccer, and NCAA Division I teams take action to prevent and protect themselves, making prosecution a rare occurrence. This is not something they can do alone and programs like Winning Integrity are worthy of a good hard look as people search for ways to prevent weeks of detracting distractions and return to the enjoyment of watching the best among us perform in incredible ways. On Monday morning it would be great to hear not just about the on-field exploits of half a man, but about the life of a full man as well.