The NFL Has A Serious Due Process Problem, And Why Due Process Is Important To Everyone

All of us have at least one personality quirk that turns us from nice, polite, productive members of society into monsters in the eyes of others. For me, it's that I am a non-sports enthusiast who lives in Boston, the biggest sports town in probably the entire country. At best, it means I can't participate in idle chit chat. At worst, people dismiss or ignore me because what good is a guy who can't quote stats? But even though I don’t watch football or have much opinion on the goings-on in the sport, even I know that Roger Goodell’s ruling on the #DeflateGate hearing is, in official legal parlance, total fucking garbage.

Look I have no dog in this fight, so don’t write in with your stringent accusations about how the Patriots are cheaters and Brady destroyed his phone. I also don’t want to hear your fevered support about how Brady provided 10,000 texts or how Brady's knowledge of the deflated balls was “more probable than not” is not an appropriate standard for accusation. I don’t care about the Patriots or Tom Brady or DeflateGate. There is only one battlefield I care to wage my war on, and that is whether the NFL provided Brady with a fair hearing. I do not believe it did.

This Washington Post article discusses the issue and ultimately concludes that the entire process was mishandled. Attorney John Dowd (who conducted MLB’s investigation into Pete Rose’s gambling way back when) states that “the entire NFL disciplinary process lacks integrity and fairness,” referring to the ruling against Brady as “an ambush." In other words, there was inadequate due process. 

The concept of due process is very important within American jurisprudence, enshrined in both the 5th and 14th Amendments and hundreds upon hundreds of cases. I could give you the lawyerly definition, but in its most basic form, it promises each and every American the right to a fair and impartial hearing. In 1975 Judge Henry Friendly wrote an influential article called “Some Kind of Hearing” where he generated a 10-point list of factors that are necessary to have [procedural] due process:

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

In this case, Goodell failed to offer Brady an unbiased tribunal because he was in charge of handing down the punishment, but then appointed himself as the hearing officer for Brady’s appeal, a choice that removes impartiality from the proceeding. There’s a reason why superior court judges don’t hear the same case when it goes up on appeal… it would completely ruin the objectivity needed to determine whether there was judicial error in the lower court. In addition to the lack of impartiality, Goodell also failed to give Brady "the fundamental right to a notice of charge and the right to defend against it.”

While due process chiefly applies to government intervention, many private and semi-private organizations have adopted internal administrative or due process procedures so that everyone gets a fair shake. So even if the NFL doesn’t legally have to have a due process procedure, it has one anyway, which means it has to follow it.

So why does any of this matter? Well it’s an issue of basic fairness really. If you were an employee of a company, wouldn't you want to be treated the same as other employees? Wouldn't you want to know that everyone is treated equitably and has the same opportunities for advancement? And if something were to happen, wouldn’t you want to know that your grievances were taken as seriously as everyone else’s? Not to be treated differently because of your race, gender, parental status, criminal history, or what the general public thinks of you? But when the rules keep changing arbitrarily, due process is destroyed. That’s why Goodell has taken such flack for his handling of this, the Ray Rice, and Adrian Peterson fiascos. Because the punishments aren’t based on a pre-determined set of guidelines and followed each time… they changed based on Goodell’s whims and the unpredictable mood of the public. There's no consistency, and that’s crucial for due process to succeed. 

It’s easy to look at Brady and feel no sympathy for him. In fact, there’s a great Someecard that perfectly encapsulates why a large swath of the general public is okay with Goodell essentially denying fundamental rights to his players:

But due process isn't simply about having a process. It's ensuring that everyone gets the SAME process. Every. Single. Time. Even if you hate the guy and think he deserves to hang. That’s the only way justice is served. And the NFL has repeatedly failed to do that. 

Greg Kanaan

The [Legal] Artist, Boston, MA, USA