On Tuesday morning, the NFL announced that it had suspended Minnesota Vikings running back Adrian Peterson for the rest of the season without pay. Peterson had already missed nine games with pay after the league put him on the Commissioner's Exempt List following Peterson's indictment on a felony charge of injury to a child on Sept. 12. Peterson, who was indicted based on the injuries suffered by his 4-year-old son in May when he whipped the child with a tree branch, pled the charge down to a misdemeanor reckless assault on Nov. 4. Peterson received probation, and with that case closed, the league could set up a hearing to determine where Peterson was in his process.
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That hearing happened on Monday by conference call, and it apparently didn't go well, because the suspension took place before any arbitrator's ruling was announced. In a letter to Peterson, NFL Commissioner Roger Goodell said that the timing of Peterson's potential reinstatement, which may not happen until April 15, 2015 at the earliest, "will be based on the results of the counseling and treatment program set forth in this decision. Under this two-step approach, the precise length of the suspension will depend on your actions. We are prepared to put in place a program that can help you to succeed, but no program can succeed without your genuine and continuing engagement. You must commit yourself to your counseling and rehabilitative effort, properly care for your children, and have no further violations of law or league policy.”
Goodell also pointed to three "aggravating circumstances" that led to the harsher punishment.
“First, the injury was inflicted on a child who was only 4 years old. The difference in size and strength between you and the child is significant, and your actions clearly caused physical injury to the child. While an adult may have a number of options when confronted with abuse -- to flee, to fight back, or to seek help from law enforcement -- none of those options is realistically available to a 4-year-old child. Further, the injury inflicted on your son includes the emotional and psychological trauma to a young child who suffers criminal physical abuse at the hands of his father.
“Second, the repetitive use of a switch in this instance is the functional equivalent of a weapon, particularly in the hands of someone with the strength of an accomplished professional athlete.
“Third, you have shown no meaningful remorse for your conduct. When indicted, you acknowledged what you did but said that you would not ‘eliminate whooping my kids’ and defended your conduct in numerous published text messages to the child’s mother. You also said that you felt ‘very confident with my actions because I know my intent.’ These comments raise the serious concern that you do not fully appreciate the seriousness of your conduct, or even worse, that you may feel free to engage in similar conduct in the future.”
Per the league's Collective Bargaining Agreement, Peterson has three days after the ruling to appeal. Peterson refused to attend a previously scheduled hearing on the matter, believing that the process was outside the CBA, and he was unwilling to receive due process.
"The report that I backed out of a meeting with the NFL is just not true," Peterson said in a statement released Sunday morning. "When Roger Goodell's office asked that I attend the 'hearing' on Friday, I consulted with my union and learned that this 'hearing' was something new and inconsistent with the CBA.
"On Tuesday, Wednesday, and Thursday of this past week, my union sent emails, letters, and had conversations with [Goodell's] office on my behalf asking about the nature of the hearing, how it was to occur, who would participate, and its purpose," Peterson said. "We repeatedly asked them to respond quickly to my questions because I want to cooperate and get back on the field, but they didn't respond until late Wednesday evening, and even then they didn't answer important questions about their proposed 'hearing.'
"After consulting with the union, I told the NFL that I will attend the standard meeting with the commissioner prior to possible imposition of discipline, as has been the long-term practice under the CBA, but I wouldn't participate in a newly created and non-collectively bargained pre-discipline 'hearing' that would include outside people I don't know and who would have roles in the process that the NFL wouldn't disclose."
At the time of the Peterson exempt list action, the league -- and more specifically, Goodell -- was taking an enormous amount of heat for the ways in which it botched Ray Rice's discipline, following his assault on his then-fiancée and now wife Janay in an Atlantic City casino elevator in February. The league's first action was to suspend Rice for two games, which seemed totally out of proportion with what Rice did. Then, after public outcry, a TMZ release of the full video, and the league claiming that it had seen more of the video in which Rice struck his then-fiancée and now wife, Rice was suspended indefinitely.
In a mid-September press conference, Goodell tried to control the room regarding the NFL's faults in the Rice case, but kept looking worse and worse. His answers were rote at best and ridiculous at worst. Goodell kept talking about "making a difference" and "doing the right thing," but was unable to point to any specific steps the league was taking in this area. The NFL has put together a new domestic violence panel, and Goodell set forth a new policy in which players who commit a first act of domestic violence will be suspended six games, and a second act could lead to their permanent expulsion from the league.
These new guidelines, like the Peterson suspension itself, were not collectively bargained, which the NFLPA made clear in its response to Peterson's ban:
"The decision by the NFL to suspend Adrian Peterson is another example of the credibility gap that exists between the agreements they make and the actions they take. Since Adrian’s legal matter was adjudicated, the NFL has ignored their obligations and attempted to impose a new and arbitrary disciplinary proceeding.
"The facts are that Adrian has asked for a meeting with Roger Goodell, the discipline imposed is inconsistent and an NFL executive told Adrian that his time on the Commissioner’s list would be considered as time served.
"The NFLPA will appeal this suspension and will demand that a neutral arbitrator oversee the appeal.
"We call on the NFL Management Council to show our players and our sponsors leadership by committing to collective bargaining so a fair personal conduct policy can be implemented as quickly as possible.
The word "arbitrary" would have a great deal of import in Peterson's appeal hearing, except that Goodell will, per the CBA, also hear the appeal on the punishment he doled out.
What could Peterson have done to stem this tide? He could have shown more obvious remorse in a way that would have appeased Goodell, whether he felt it or not. He could have made whatever materials the NFL wanted available, whether he believed or not that he was going to get a fair hearing. He could have avoided saying in a public statement that the league was operating a kangaroo court, which certainly expanded the adversarial nature of this process. But there is no collectively bargained policy in place here, which gives Goodell and the league the ability to essentially make it up as they go along. Make no mistake -- what Peterson did to his son is horrific, and that should be the larger issue. In that regard, the league is standing on fairly solid, if crushingly obvious, ground.
In the end, though, Peterson never had a leg to stand on unless he played this Goodell's way, which is what happens when a players' union cedes unusual power to a commissioner in a disciplinary sense. It is hard for some to reconcile the notion of due process with a crime that involves the severe bruising of a small child, but from a purely league perspective, it's embarrassing to hand down a suspension before an arbiter's ruling is given, and it's entirely possible that Peterson could put pressure on the league to reinstate him based on that ruling.
This part of Goodell's letter to Peterson perfectly reflects the schism between the league's desire to appear tough on the topic of domestic violence, and the need for a fair process in any disciplinary matter.
“Based on public reports of your statements and photographs that were made public at the time of the indictment, you used a ‘switch’ -- a flexible tree branch -- to punish your son, striking him in the ankles, limbs, back, buttocks, and genitals, leaving visible swelling, marks, and cuts on his body and risking severe and long-term damage. The visible injuries were such that a local pediatrician in Minnesota, upon examining your son, felt obligated to make a child abuse report to the police. According to contemporaneous media reports, police and medical examiners termed the cuts as ‘extensive’ and as ‘clinically diagnostic of child physical abuse.’
"Based on the severity of those injuries, a grand jury made up of citizens of Montgomery County, Texas, voted to indict you on a felony charge, reflecting their belief that there was reasonable cause to conclude that you had overstepped the bounds of acceptable corporal punishment and engaged in physical abuse of your child. Moreover, it appears that this is not the first time that you have punished children in this way. Public statements attributed to you indicate that you believe that this kind of discipline is appropriate and that you do not intend to stop disciplining your children this way.”
Where the league strays from due process is in naming the indictment as a primary reason for its own punishment. Peterson had every right to a fair and due process through the Texas court system, and whether we like the results or not, that's what he received. It appears that Goodell is cherry-picking in this case, bringing out the most beneficial aspects to his own decision -- a decision that now appears to have been made before any hearing took place.
On Tuesday morning, NFLPA Executive Director DeMaurice Smith told ESPN radio that this is par for the course.
“Our initial reaction is that the process that the NFL has employed since the beginning of the season has been arbitrary, inconsistent, and uneven,” Smith said. “You get the feeling that the NFL, over the past few months, has been simply making it up as they go along. That is something that is not in the best interest of the game, the players, or the sponsors.
“You can’t have it both ways. You can’t sit on the sidelines and try to bully your way into something and then call it fair. You can’t make it up as you go along. I do think that, most importantly, the growing lack of confidence that our players have in our Commissioner is something that the league office needs to address quickly and responsibly.”
Whether the NFL is interested in addressing these issues is open to debate, and the vagaries of time. In the short term, it does indeed appear as if the league is making it up as it goes along, and Goodell's power is absolute. The pure and simple cure to this particular loophole is for the league and the NFLPA to collectively bargain all disciplinary issues, so that the league can't go rogue whenever it feels the need to engage in PR redemption, or head out on a power trip because a player didn't jump through all the hoops in its own judiciary process.