The Appeal of Greg Hardy
Courtroom Football returns today for the last appeal hearing involving a troika of high-profile players who were involved in domestic violence incidents in 2014. Following the appeals of Ray Rice and Adrian Peterson, it is now Greg Hardy’s day in the NFL’s version of court. The case will proceed in the offices of Akin, Gump (home to NFL labor counsel Dan Nash) in Washington, D.C.
Hardy’s appeal has similar elements to the Rice and Peterson cases, including the same person advocating on his behalf: prominent sports labor lawyer Jeffrey Kessler, who will soon represent Tom Brady. As he did for Rice and Peterson, Kessler will argue that precedent doesn’t support Hardy’s 10-game suspension. And he will argue before longtime NFL vice president Harold Henderson, who also heard Peterson’s appeal. (That dispute still lingers; the reversal of Henderson’s decision on Peterson, sent back for re-arbitration by a judge, has sat dormant with the NFL, drawing a contempt of court motion from the NFLPA last week.)
Dealing with misconduct that occurred before the NFL enhanced its policies and penalties, Hardy’s appeal will likely be the last “bubble” case regarding domestic violence. As he did in the other cases, Kessler will point out that discipline for domestic violence incidents at the time of Hardy’s transgression ranged from none at all to a two-game suspension. The 10-game suspension, he’ll say, is simply part of a knee-jerk reaction to public opinion since we saw the video of Ray Rice knocking out his fiancée (now wife).
Anticipating this, the NFL telegraphed its argument by using the catchall phrase “conduct detrimental” when it announced Hardy’s discipline, stating that this punishment would have applied even before the new policies went into effect (good luck explaining that). Further, the league detailed the egregious acts by Hardy, and stressed the physical imbalance between Hardy and his former girlfriend.
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The fact that Hardy’s jury trial was dismissed, thus overturning his bench-trial conviction, won’t carry weight with the NFL. Since the botched Rice investigation the league has vowed to not rely on legal outcomes. (Rice entered into a pre-trial intervention program to avoid prosecution; charges against him were dismissed last week after he completed the program.) Also, Hardy’s time on the commissioner’s exempt list wasn’t a de facto suspension; it was the result of a multi-party negotiation between the NFL, the Panthers, the NFLPA, Hardy and his agent, Drew Rosenhaus. While some have made the argument that Hardy’s 10-game suspension actually brings the total to 25 games, the NFLPA and Kessler are wisely not making this argument.
It is hard to see the 10-game suspension being upheld, even by the NFL-friendly Henderson. Despite his chilling behavior, Hardy’s misconduct occurred when domestic violence wasn’t punished as aggressively—even the NFL’s proprietary system of justice has to recognize that. My best guess is that Hardy’s suspension will be reduced to six games, with both sides quietly finding that result favorable.
As the last “bridge” case in NFL domestic violence discipline begins, Hardy’s case represents both the end of one era and the beginning of a new one.
Moving from the league’s view to the teams’ view on domestic violence…
League vs. Team Discipline
The NFL has moved into a new era regarding domestic violence. It hired domestic violence counselors, a former sex crimes prosecutor, a drafter of the Violence Against Women Act, and the former director of the Bureau of Alcohol, Tobacco and Firearms. It has enhanced policies and investigatory resources as well as enacted tougher penalties.
Everything, however, is at the league level, with only education but no controls at the team level. One recent example is the Bears’ signing of former 49er Ray McDonald despite his previous issues regarding domestic violence allegations. McDonald was signed by the Bears for a low-risk deal, able to convince ownership of his reformed behavior (what else was he going to say?). McDonald was summarily released after being arrested on Monday on domestic violence and child endangerment charges, but the stain on the organization remains as the Bears appear to have been conned by McDonald and his supporters. The bottom line, though, is that despite all the league investment, there is nothing preventing or deterring teams from bringing any players they choose onto their rosters, no matter their troubled backgrounds.
Another recent example is the Seahawks’ using their top draft selection (a second-rounder) to take Frank Clark, a defensive end out of Michigan. Clark’s disturbing domestic dispute last November—laid out in this police report—caused the University of Michigan to sever ties with him. It did not, however, deter the Seahawks.
Seattle general manager John Schneider is a longtime colleague and friend of mine. Knowing the grinder that he is, I certainly believe and trust that the Seahawks did extensive research on Clark. However, a comment Schneider made to ESPN 710 Seattle radio resonated even though it was made as an aside. Schneider stated he “knew that there weren't going to be any pass rushers left and we needed to grab one as soon as we could.” While refreshingly honest, it was telling about the business of football, as was a comment made this offseason by Cardinals general manager John Keim: “If Hannibal Lecter ran a 4.3, we'd probably diagnose [him with] an eating disorder.”
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Every player has a talent/character evaluation, and every team has its own tolerance level for character, with some willing to allow for more questionable character if the talent justifies it. Despite the chilling incident, Clark’s talent (combined with scarcity at his position on the draft board) justified the acquisition in the minds of Seahawks officials. While some teams may have taken Clark off their boards or wouldn’t have considered adding Hardy or McDonald, other teams take the risk and jump in.
Were Clark already an NFL player at the time of his incident, he would have been taken off the field and likely received a suspension of several games. However, as an incoming player, the NFL told me that there would be no discipline, only that his past would be a factor in any future discipline. If the league wanted to deter teams from drafting players with a history of domestic violence, a suspension coming into the league would do that. It is doubtful the Seahawks would have used their top pick on a player coming in with, say, a four-game suspension. Of course, the NFLPA would fight that, but there is a way for the NFL to take their policies from the league level to a more granular level.
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While the league has spent a year enhancing policies, it remains to be seen if its massive engagement on the issue of domestic violence will filter down to the teams in their proprietary decisions. Ultimately, the league can make presentations, provide lectures and education, but it won’t go down the rabbit hole of influencing personnel decisions in all 32 front offices. For that, we must rely on the teams to make character-based decisions, knowing the reality is that they are in business to win and are sometimes fueled by circumstances such as seeing the last pass rusher on the draft board.
And that leads me to my final point about Roger Goodell, the Conduct Commissioner. Even in a situation in which Ray McDonald appears to have bamboozled the Bears, I hear much of the criticism rain down not on the McCaskeys, the team owners, but on Goodell, who had nothing to do with McDonald's acquisition by the Bears. If it has not been made clear already, here is the reality: Goodell is a punching bag for fans and media, taking the blows so that the owners do not. It is an implicit part of the job description, and compared to Goodell, the owners conveniently skate in the court of public opinion. Goodell is doing exactly what ownership wants him to do in absorbing the public relations hits that would otherwise come their way. Meanwhile, business booms.
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