The NFL has a player violence problem.
On June 7th, 2022, the New York Times published a bombshell report, detailing NFL quarterback Deshaun Watson’s extensive sexual misconduct. Over a 17-month period, Watson met, at a minimum, 66 women for massages. Over 30 women have since accused Watson of sexual misconduct in massage appointments. The public reaction to the accusations was near-universal disgust and outrage, however, Watson himself has faced little in the way of consequences. While Watson was suspended for 11 games and fined, his time in the NFL is far from over. In fact, even after the news of Watson’s misconduct broke, the Cleveland Browns offered Watson a fully-guaranteed, $230 million contract, the largest fully-guaranteed contract in the NFL.
Deshaun Watson is not the first NFL star to be accused of serious off-the-field misconduct. Punter Matt Ariza was recently cut from the Buffalo Bills due to his alleged involvement in a gang rape. Pittsburg Steelers quarterback Ben Roethlisberger was famously, credibly accused of rape multiple times. Tyreek Hill, current Miami Dolphins wide receiver, was recently granted a $120 million dollar contract extension despite being recorded admitting breaking his three-year-old’s arm and threatening his girlfriend.
Reports of violent behavior by active NFL players run in limitless supply, yet consequences for such behavior are few and far between. A recent study analyzed the effect of violence against women on NFL players’ careers. Based on a matched-pairs analysis of NFL player arrests from 2000 to 2019, researchers found that the effect of an arrest for violence against women was negligible in terms of career outcomes. Further, even that small difference in career outcomes completely disappears if the arrested players in question fall within the top 75% of the league. In short, even average and slightly-below-average football talent extinguishes career consequences for documented violence against women. As league coaches openly admit, in deciding penalties for serious misconduct, “each case must be measured on its own merits…a player’s production is one of the factors.”
Current league procedures are insufficient.
The rampant unanswered violence against women in the NFL begs an obvious question: what is the league doing wrong? The NFL follows a specific procedure following a player’s arrest. At the outset, the NFL often makes a public statement. In 2006, after 35 player arrests that year, NFL president of public relations Greg Aiello issued a statement declaring “[m]ost NFL players are good citizens, and some are outstanding citizens,” crediting the misconduct to a “small percentage” of the league, and asserting that “[t]he goal is to eliminate all such negative conduct.” But despite promises such as these, procedural steps beyond a public statement are limited.
While a Disciplinary Officer conducts the initial investigation of a player’s misconduct, the league Commissioner is the arbiter of internal misconduct investigations. The Commissioner has the power to overturn, reduce, or increase the discipline issued by the Disciplinary Officer. With such absolute power localized to one decision-maker, under the current system, outcomes are at the behest of a single, potentially-biased decision maker. It is not in the best interest of the Commissioner to take the league’s stars out of the game. This reality is on full display upon review of the league’s consistent laxed response to player violence, particularly against women.
Private institutions’ punishment structures affect the public.
While league punishment is viewed as private punishment–as opposed to the public form of punishment implicated in criminal proceedings–even private punishment processes have material consequences for the public penal system. Further, many features of league punishment more closely resemble public punishment than private. League punishment is highly publicized. Each instance of player violence and the league’s reaction to that violence sparks massive public discourse. Such discourse has the potential to, and certainly does, influence the larger public. For example, the highly publicized trial of former running back O.J. Simpson has been described as fundamentally changing pop culture. Public interest in player misconduct is undeniable.
The NFL also proudly touts its relationship and responsibility to the community. This perhaps explains the league’s engagement in public acts of punishment when dealing with episodes of misconduct, further concentrating the exposure of any given incident. Such a public response is likely derivative of a sense of accountability to the public, shared by both the league and the public. Further, beyond simple accountability to fans, the NFL also espouses independent moral authority to punish. The league and its affiliates often refer to players as “role models.” Moral rhetoric is consistently exercised by the NFL, particularly when issuing public statements regarding player misconduct. Such moral authority, pedaled and perpetuated by the NFL itself, further bolsters the NFL’s position as operating in direct connection to the public.
Given the public implications of league adjudication, the NFL must do more to correct current trends of violence in the league. Scholars Janine Young Kim and Matthew J. Parlow identified different forms of private punishment: cooperative, exclusive, and private policing. Under the cooperative model, public criminal law depends on the active participation of private individuals and groups to function. The exclusive model involves opting-out of the public criminal law in favor of better procedures for achieving justice. Contrarily, the private policing model involves private groups working towards goals other than achieving justice. Rather, private policing prioritizes “efficiency and goal-achievement” over community good.
Currently, the NFL adjudicative system most closely resembles the private policing, self-interested model. The NFL should turn away from this model in favor of either a cooperative or exclusive model of punishment. Meaning, the NFL should not only be as effective at policing violence of its players as the criminal system, but more effective. Domestic violence cases involving athletes have a 36% conviction rate, as opposed to the general public rate of conviction of 75%. The NFL should rise to the challenge it set out for itself by taking on the responsibility of moral beacon in the community and take tangible steps to stop violence by its players.
The first step to curbing the unrelenting violence in the NFL is instituting real consequences and making those consequences visible. While the NFL could not ban all players who committed crimes without violating anti-discrimination laws designed to protect those with criminal records, the league could take immediate, individualized action for each new instance of violence or serious misconduct. Deterrence is entirely absent from the equation when time and time again, league superstars like Deshaun Watson and Ben Roethlisberger commit repeated heinous acts and escape any and all long-term reprieve. Second, punishments for misconduct should be talent- and player-value-blind. Allowing players to evade punishment if they are sufficiently talented undercuts any posturing of moral fortitude by the NFL. Most importantly, given the legitimate social repercussions of all punishment actions taken by the NFL, the NFL needs to demonstrate an actual interest in stopping player violence through immovable rules, procedures for handling violations, and consistent punishments. Words are not enough.
Marie is an NYU alumnus and current 2L at Cornell Law School. She has experience working in psychiatric mental health and incarceral settings and is interested in the criminal justice system. She loves the Buffalo Bills, her dog Khaleesi, and Chipotle.