The Mueller Report: No Smoking Gun, No Satisfying Resolution

Friday January 9th, 2015

An embattled Roger Goodell faces the press, Sept. 19. (Erick W. Rasco) An embattled Roger Goodell faces the press, Sept. 19. (Erick W. Rasco)

The much-anticipated Mueller Report is out, almost exactly four months to the day from the September 10th announcement of its implementation. Having read through its 96 pages, here are some impressions.

Comprehensive

The thoroughness of the report, emphasized in good measure by the NFL, cannot be disputed. There were hundreds of interviews, millions of documents examined, and extensive forensic review of computers and cell phones.

Faced with a major crisis in credibility and integrity, the NFL certainly did not put a budget nor a deadline on Mueller and his team of lawyers and investigators; we can only imagine the cost of four months of services from an army of lawyers from one of the country’s most prestigious law firms. When added to the cost of the new hires in domestic violence precipitated by the Rice matter, it is safe to say that expense and head count were not issues for the NFL's owners in dealing with this crisis.

The Tape

The report supports the NFL’s explanation that there is no evidence—after more than 200 interviews—that anyone in the NFL’s headquarters in New York received or viewed the elevator video before it was shown on TMZ on Sept. 8. While acknowledging that, it must be noted that there are inherent flaws in investigations such as these. Like Major League Baseball’s Mitchell Report on steroid use years ago or the recent Wells Report regarding the Dolphins’ toxic locker room, these investigations are limited in their scope. While they do uncover crucial and important information, they do not necessarily uncover all the crucial and important information.

Without subpoena power in these investigations, witnesses cannot be compelled to submit to interviews and be fully open and honest. Employees can be anxious and concerned about job security in the tense environment; it is fair to wonder whether all the information shared was all of the information that could have been shared.

The Associated Press, which reported on Sept. 10 that a law enforcement official had sent the in-elevator video to an NFL executive and received confirmation of its arrival, declined to be interviewed, as did the Atlantic City police department and Atlantic County prosecutor’s office. Their lack of testimony does not mean that the NFL did anything wrong regarding the tape. However, it points to the fundamental problem with an independent investigation without any ability to compel testimony.

Insufficient NFL Response

Robert Mueller. (Susan Walsh/AP) Robert Mueller. (Susan Walsh/AP)

The report is critical of the NFL’s investigation into the Rice incident, although not critical enough to warrant any sanction. It faults the league’s deference to law enforcement in lieu of a more complete and thorough internal investigative process. This jibes with statements made by NFL vice president Adolpho Birch on the Mike and Mike radio show this summer, justifying the two-game suspension in noting the NFL punishment’s of Rice was more substantive than the criminal justice system’s.

Interestingly, this deference to the legal system has not been past practice under Roger Goodell’s commisionership. Having worked in the NFL under both former commissioner Paul Tagliabue and Goodell, I noticed quite a change when Goodell took office. He was not going to let delays and creative lawyering affect his disciplinary powers; he would rely on police reports and not sway toward the way the legal process played out. As examples, Goodell suspended Ben Roethlisberger for six games (reduced to four) despite no criminal charges being filed against the Steelers quarterback over an accusation of sexual impropriety, and he suspended Adam “Pacman” Jones for the 2007 season although the incident that sparked the punishment, a melee in a Las Vegas nightclub that resulted in a shooting, had yet to be adjudicated. (Jones ultimately pled no contest to a misdemeanor.)

This reprimand from the report on the lack of thoroughness of the investigation echoes the rebuke from Judge Barbara Jones in her opinion reversing Goodell’s indefinite suspension of Rice. Judge Jones harshly criticized Goodell and his associates for the lack of import given the Rice disciplinary hearing done without transcription or recording (one of Mueller’s recommendations, certain to be adopted, is that future proceedings will be recorded) and with shoddy note-taking. The incredulous tone from Judge Jones throughout that opinion all but said, “What were you guys doing? You didn’t take this seriously until the video came out?”

The continued criticism of the investigatory process into the Rice matter gives rise to the “willful ignorance” theory about Goodell and the NFL towards Rice. Despite strong denials from the NFL, and from team owners John Mara and Art Rooney in their statement today, there is a sense from this whole matter that the league really wanted to give Ray Rice every benefit of the doubt, especially with the political investment the Ravens made into his defense.

Speaking of the Ravens….

No Skating Here

As readers of this space know, I have thought from the beginning of this saga that, compared to the NFL, the Ravens have skated in the court of public opinion. Not so here, as Mueller faults the team for having received a detailed description of the elevator video from the police and failing to share that information with the league. The report further states: “Members of the Ravens indicated in our interviews that they would have shared the information they had learned with the League had the team been asked directly." Oh.

The Mueller Report fuels the sense that the Ravens—with a vested interest in Rice’s being on the field for them in 2014—worked hard to mitigate potential punishment of their star running back. They supported him throughout the summer and made a huge investment of political capital when team president Dick Cass and general manager Ozzie Newsome attended his disciplinary hearing with Goodell.

Owner Steve Bisciotti admitted in his public remarks that he could have obtained the video and did not. And if he could have obtained it, the NFL could have obtained it as well.

Although the report’s intent was to investigate the NFL and not the Ravens, the team does not come off well.

Guidelines

I sensed from the beginning that part of their mission of the report was not only to identify any deficiencies in the past, but also to offer constructive suggestions for the future. And the guidelines are there, including:

(1) more training and better supervision for NFL investigators;

(2) creation of a specialized investigative team for domestic violence and sexual abuse cases;

(3) standards to encourage more thorough investigation; and

(4) in large part due to the Ravens issues above, policies requiring more information-sharing between clubs and the league office.

The NFL has started to implement some of these guidelines in its new and revised domestic violence policies. However, it should not have taken an expensive independent investigation to realize the need for these. My sense is that some in the NFL are reading these recommendations and saying, in effect, “OK, we’re already down the road of doing this with our new policies. We’re good.” That is probably not the message we will hear, but privately the NFL feels it has already taken steps in this area.

Where We Are

In the end, the status quo is maintained. While there are admonitions and criticisms concerning process and depth of investigation, the report recommends neither sanction nor discipline for Goodell or anyone else involved in the Ray Rice disciplinary matter. As Mara and Rooney stated, Goodell has unequivocal support of ownership, and the owners have recently unilaterally imposed a revised Personal Conduct Policy featuring Goodell’s continued appeal power over player discipline. As the season moves towards an exciting conclusion, the NFL can check the box of having been thoroughly reviewed, at substantial cost, with no truly damaging revelations.

One idea that I thought, perhaps naively, might come out of the report was the imposition of a league ombudsman. He or she would be a full-time Robert Mueller, taking independent reviews of the NFL’s internal disciplinary operations. That person would not have appeal power to overturn or alter discipline, but would offer fresh, reasoned and, yes, independent review and counsel for the commissioner and his associates in areas where there may be preconceived notions. Alas, that idea was not in Mueller’s report, and perhaps even if it had been, might not have been adopted.

For reasons still unclear, the NFL let its guard down in this matter. While the report is now behind us and Rice is now reinstated (though he has yet to be signed to a team), the Ray Rice episode will linger as an investigation that belies the NFL’s usual meticulous attention to detail in so many areas.


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