The Hardy Conundrum

Thursday February 19th, 2015

Five months after that fateful week in September when domestic violence issues propelled the NFL into the national discourse, the third in a troika of high-profile cases is now reaching the disciplinary stage. After watching the missteps involving Ray Rice and ongoing litigation from Adrian Peterson against the NFL, we now await the league’s decision regarding Greg Hardy. The complicating circumstances surrounding this case make it the hardest of the three to forecast discipline, and they illustrate the league’s difficult task of “normalizing” discipline when every case and every jurisdiction is different.

 

Settle in for another round of NFL justice, likely with little regard for the court’s resolution. Let’s examine:

 

Guilty, then innocent

 

Many following the Hardy case, including attorneys such as myself, have learned about an oddity of the criminal justice system in North Carolina. Hardy was found guilty of domestic violence charges in a bench (judge) trial but was able to appeal his conviction and have a trial by jury. But as that trial was set to begin last week, prosecutors were unable to locate the alleged victim who, we have learned, received a civil settlement. The case was dismissed, and Hardy’s earlier conviction was vacated. As the NFL evaluates discipline, it does so with the legal case having been dismissed.

 

The dismissal of charges, however, may not mean much to the NFL. For that, Hardy can thank the failings of the Ray Rice investigation, which led to both Judge Barbara Jones in the Rice appeal and Robert Mueller in his report chastising the league for too much deference to the judicial outcome. (Rice received only pre-trial intervention from prosecutors.) In response, the NFL has pledged to step up its internal investigations and to be less reliant on the legal system. Thus, the dismissal of charges may not have the impact that Hardy was hoping for.

As for the NFL’s investigators interviewing Hardy’s alleged victim, well, good luck with that. If prosecutors couldn’t locate her for months, the NFL’s investigators—with no subpoena power or official authority—are certainly not going to gain her cooperation. Thus, the NFL will rely on police reports, 911 calls, media accounts and any other information it can gather.

 

Furthermore, the Adrian Peterson precedent doesn’t bode well for Hardy. The NFL paid little regard to Peterson’s no contest plea to a misdemeanor (with no reference to family violence or violence against a minor) and instead focused on the disturbing facts of the case: that Peterson used a switch to discipline his child, and Peterson’s apparent “lack of remorse.” Despite the light penalty under Texas law, Peterson received an indefinite suspension under NFL law. That has since been appealed, arbitrated and is now awaiting decision in federal court. After the missteps of handling Rice’s punishment, the NFL disciplined Peterson with little regard to judicial outcome.

 

Paid leave

 

There is one certainty in the pending penalty of Hardy, which is also true with the Adrian Peterson case: His four months on the commissioner’s exempt list will not be seen as discipline or “time served.”

Within a crazy eight-hour span one day in September, the NFL, along with the Vikings and Panthers, created an inventive use of that list—it’s traditionally used for players coming off a suspension to acclimate with their team—to remove the radioactive Peterson and Hardy as expediently as possible. In Hardy’s case, his placement on this list was the product of negotiation between the NFL, the Panthers, the NFLPA, and Hardy’s agent, Drew Rosenhaus. The deal was for the toxic Hardy to take a leave of absence yet still receive his franchise tag salary of $13.1 million.

 

As the NFL considers disciplining Hardy, it will clearly not view the time on the commissioner’s exempt list as anything but a negotiated settlement for 2014.

 

New policy

 

The Hardy case will be the first test of the NFL’s new personal conduct policy (one imposed without NFLPA input) that was unveiled in December. And, although it has been underreported, the new policy does not call for Roger Goodell to apply initial discipline on a player for misconduct (although he retains appeal power). In a marked change from the old policy, that initial discipline now comes from a Chief Disciplinary Officer. He or she now has the power to impose discipline on cases such as Hardy’s.

 

There is one minor detail missing here, however: that person has not yet been hired. While the NFL has hired a search firm and is conducting a national search, we still await the appointment of the new disciplinary officer. Thus, we are back to where we have always been: Goodell will likely levy Hardy’s discipline, with any appeal headed right back to him. Meet the new boss; same as the old boss.

 

Teams wait

 

Since I have had teams calling me to ask what I think Hardy’s discipline will be, there is certainly interest in signing him once his contract expires with the Panthers. As to the Panthers retaining Hardy with another franchise tag—they paid him $13.1 million to play in one game last season—I sense that ship has sailed.

 

Hardy presents as a premium player at a premium position, which is the recipe for a lucrative, long-term contract absent his off-field circumstances. Some teams will steer clear of Hardy no matter the punishment, yet as I always say: it doesn’t take 32 teams, it only takes one. There will be a team for Hardy.

Signing Hardy requires a C-level decision, with all facets of the organization aware and prepared for the potential backlash: from ownership to corporate sponsorships to marketing to public relations, etc. I remember a similar decision situation when I was consulting for the Eagles in 2009, when they signed Michael Vick following his release from federal prison.

 

The team has to expect that the unseemly details of Hardy’s domestic violence incident will be in heavy rotation when he signs (the same will be true for the team that signs Rice). However, despite heightened tension for a short while, eventually those emotions will fade and the focus will turn back to football. They always do.

 

As for Hardy’s discipline, I expect it will be strong, perhaps up to six games. Once that happens, of course, the NFLPA will have its grievance ready and make the argument that Hardy’s misconduct occurred before the new guidelines were implemented. Get ready for Law & Order: NFL, Part 3: The Hardy File. The disciplinary drama continues.

 


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