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Examining Roger Goodell's options following Adrian Peterson's plea deal

Minnesota Vikings running back Adrian Peterson has negotiated a plea deal that ends the felony case against him for injury to his four-year-old son. Peterson, who was facing up to two years in prison if convicted, has pleaded no contest to one count of misdemeanor reckless assault. A no contest plea has the same effect for Peterson as a guilty plea, although technically it means that while Peterson concedes the charge and accompanying punishment he neither admits guilt nor offers a defense. Peterson’s plea, which carries no jail time, has been accepted by Montgomery County (Texas) District Judge Kelly Case. The most significant penalty for Peterson will be placement on probation, which will impose modest restrictions on his livelihood. Peterson will also be required to perform 80 hours of community service and pay a $4,000 fine, an amount consistent with Texas law. Peterson’s wealth is not a factor in assessing an appropriate fine.

Peterson’s plea deal sets the table for him to petition NFL commissioner Roger Goodell for a swift return, perhaps as soon as the Vikings' next game on Sunday, November 16 in Chicago. As explained below, the commissioner may have other ideas for Peterson.

Peterson’s rationale for pleading out

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Peterson and his attorney, Rusty Hardin, have insisted that Peterson did nothing wrong by hitting his son with a switch. In Peterson’s view, he lawfully exercised his discretion as a parent to punish his son for an argument over a video game. Peterson stressed that his own father used this style of tough parenting. Peterson’s conduct also occurred in Texas, a state with relatively permissive laws and attitudes toward parents inflicting physical force against their children. It is also revealing that grand jurors reviewing the evidence against Peterson may have hesitated to charge him, as some reports suggest. The threshold for a grand jury charge is merely a reasonable belief (probable cause) that the defendant committed a crime. It appears that the case against Peterson was far from airtight.

Despite Peterson having good reason to believe he would have beaten the charge, there was still serious risk of a conviction and accompanying jail time. A jury would have found Peterson guilty if he should have been aware that using a switch posed a substantial and unreasonable risk of harm to his son. In other words, prosecutors didn’t have to prove that Peterson intended to unreasonably hurt his child in order to secure a conviction. They only needed to show that Peterson should have known better. This was a low bar and a risky one for Peterson, especially given the graphic injuries suffered by his son. The police report, along with photographic evidence, indicated that Peterson son’s suffered visible cuts and bruises to his legs, hands and, most troublingly, scrotum. Alleged text messages from Peterson also signal he was aware, if not concerned, about the amount of harm he inflicted on his son, including that the “whooping … got him in [the] nuts.” This evidence may not have led to Peterson being convicted, but it likely would have disturbed jurors.

Even if Peterson had gone to trial and been found not guilty, the trial itself might have damaged his reputation. Consider the kind of trial Peterson faced: He probably would have chosen to testify on his behalf, as Peterson clearly believes he was in the right. Plus, Hardin would have advised Peterson that even if the judge instructs jurors not to infer guilt by a defendant declining to testify (as is the defendant’s right under the Fifth Amendment), jurors often raise suspensions when a defendant won’t take the stand.

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Assuming he took the stand, Peterson would have answered questions about hitting a four-year-old in the scrotum, and having that four-year old pull his pants down and bite on tree leaves while being “whooped.” It’s hard to see any answers that would have avoided public scorn. This scorn is relevant because Peterson reportedly earns about a $1 million a year from endorsements, including a deal with Nike. Pursuant to a morals clause, Nike has suspended its contract with Peterson pending the outcome of this controversy. Peterson eliminating the trial eliminates the risk of additional disdain from the public and that works in his favor with endorsed companies.

Lastly, a trial would have taken time to occur and made it unlikely that Peterson returned this season. A trial date had been set for December 1, but efforts by prosecutors for a change in the judge may have pushed the December 1 date back by weeks if not longer. The Vikings regular season will end on December 28 when they host the Bears, meaning the clock is running out for Peterson to return this season.

Peterson’s probation will impact his freedom

As part of his plea deal, Peterson faces probation, which will impose restrictions on his life. While the terms of Peterson’s probation have not been revealed, he will likely be required to meet regularly with a probation officer. His probation officer might obligate Peterson to appear in Texas every week for the duration of his probation. Peterson will likely also be required to avoid any use of drugs and submit to frequent drug tests. The issue of drugs is significant given that Peterson allegedly admitted to smoking a “little weed” while undergoing a drug test as part of his bond conditions. Should Peterson violate the terms of his probation, he would likely be sentenced to jail.

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Peterson was placed on the league’s “exempt list” while facing the criminal charge. This list, which is controlled exclusively by the commissioner, is effectively a paid suspension for players implicated in a controversy. Carolina Panthers defensive end Greg Hardy, who is seeking a jury trial after a judge found him guilty of assaulting a woman, is also on the exempt list. Although Peterson only played in the Vikings' opening game against the St. Louis Rams, he has been paid his entire $11.75 million salary this season. Each week he has received around $700,000, totaling about $6 million to date. 

Goodell will now decide when to allow Peterson back into the NFL. It is possible that Goodell and Peterson will meet in person soon to discuss his situation. Goodell is likely to impose a suspension given that Peterson has pleaded no contest to a crime. The personal conduct policy clearly authorizes Goodell to impose a penalty in this scenario. Goodell has also used this authority in an arguably similar situation. In 2011, Goodell suspended Cincinnati Bengals running back Cedric Benson for three games (later reduced to one game) after Benson negotiated a plea deal to resolve two misdemeanor assault cases. Like Peterson, Benson’s legal woes occurred in Texas. Benson’s cases, however, concerned him allegedly assaulting adults, not children, and Benson, unlike Peterson, received a jail sentence (20 days). Still, Goodell may find Benson’s matter instructive.

Peterson’s situation presents a new type of personal misconduct for Goodell to assess: injury to a child. To date, Goodell has punished players for misconduct relating to crimes against other adults, animals (Michael Vick) or even one's self (Plaxico Burress accidentally shooting himself). Peterson and the NFLPA will stress that his plea deal makes no mention of a matter involving a child or any family member. Goodell, however, is authorized to consider other evidence -- most obviously, Peterson and Hardin’s own public statements about Peterson facing a charge for injuring a child -- to conclude that Peterson has pleaded guilty to criminal conduct related to disciplining his son. Goodell, in other words, need not pretend that Peterson’s no contest plea is about something other than Peterson disciplining his son.

Goodell also has a difficult task in determining whether Peterson’s time on the exempt list is akin to a suspension under the personal conduct policy. Peterson clearly hopes Goodell equates paid leave with a suspension, as he’s missed eight games while on the exempt list. But Goodell may be skeptical of the logic of equating a stay on the exempt list with suspended status, mainly because exempted players are paid in full whereas players suspended forfeit their pay.

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One plausible resolution would be for Goodell to impose suspension of eight or fewer games, and give Peterson “time served” -- so long as Peterson forfeits the salary he’s received for those suspended games. This would allow Peterson to play immediately while ensuring he face financial consequences for misconduct. Goodell might be especially tempted by such an easy resolution in light of the continuing controversy he faces over Ray Rice (a hearing for which will begin tomorrow) and the investigation by former FBI director Robert Mueller into league decision-making on personal conduct matters. The last thing Goodell needs right now is another controversy relating to the personal conduct policy.

It is also possible the Vikings could discipline Peterson, although there is no indication that will occur. 

League’s new domestic violence policy unlikely to apply

Peterson pleading no contest in a case involving discipline of his son would at first glance raise the possibility that Goodell could punish Peterson under the NFL’s new domestic violence policy. The policy, which Goodell announced in a memo to NFL owners back in August, calls for a six-game suspension for a first-time offense.

In law, the phrase “domestic violence” is sometimes defined broadly to include physical or emotional abuse committed by a family member against any family member, including a child. This expansive definition of “domestic violence” would include Peterson disciplining his son. Other legal characterizations of domestic violence are more narrowly limited to acts of violence against an intimate partner, but not against children.

Goodell is unlikely to impose the domestic violence policy to Peterson’s situation. The policy, as worded by Goodell, does not appear inclusive of violent acts against children and instead seems limited to acts against intimate partners. In his memo, Goodell detailed the circumstances of applying the policy to “a prior incident before joining the NFL, or violence involving a weapon, choking, repeated striking, or when the act is committed against a pregnant woman or in the presence of a child.” Goodell’s only reference to a “child” is a child being near a violent act by an NFL player, presumably against a spouse or partner.

If Goodell nonetheless cites the domestic violence policy to punish Peterson, Peterson and the NFLPA might seek a grievance proceeding against the league and Goodell. They would argue that Goodell has misinterpreted his own policy. Then again, if Goodell adopts the “time served” approach to a suspension as discussed above, it is possible there would be no such fight.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertain