Ray Rice
Tar & feathers, Dept.

Originally posted Sept. 17th.  Kicked back to the front because of Mojician's prophecy below, in the comment titled "Rice Arbitration."  Tomorrow's News Today, indeed.

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Here there be sports-political commentary.

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At Bill James Online -- still a measly $3 per month -- there are scintillating discussions on several societal issues.

He led off the Ray Rice discussion with vintage logic and satire:

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Is it OK if the NFL suspends players who have been ACCUSED of domestic violnce? Most of the time there's no video.
Asked by: Steve9753
Answered: 9/15/2014
There are a tangle of issues involved.
Do we really WANT employers to have the right to impose penalties on their workers which go beyond (and in some cases are more burdensome than) the penalties imposed by the state? If so, does the employer have the same burden of proof that the state has? Is his burden of proof lower? Is it higher? Do the wishes of the victim matter? If the employer, in the process of punishing the accused, also punishes the victim, does that matter? Does the employer have an OBLIGATION to intervene in this matter?
I don't have the answers to any of these questions. Perhaps it would be worth my time to try to sort them out, but at the moment I just don't have the time, so. .
.. Logical thought requires time and effort. Self-righteous posturing is quicker and easier.

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Then he indulged my own shtick with a wry volley:

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Re: Employers 'punishing' employees for morals etc … I'm a minister. If I had an affair with a deacon's wife, I would become 100% ineffective in my job. The group would be FORCED to replace me - because the goals of the employer are no longer forwarded by retaining me. There is nothing ignoble about that; it's a natural consequence, a cause-and-effect. Even a benevolent employer would have to remove such an employee.
 
But when EXTERNAL GROUPS bring pressure to bear on the employer, their concern cannot possibly be --- > the welfare of the company. Then what is their goal? Vindictive punishment? "Making an example" of a person with a lynching that maximizes suffering? That's where your "self-righteous posturing" charge is so compelling.
 
In NOW's case, their track record is inescapable. They want examples made of offenders, and without discussion. The media groupthink doesn't look a lot better to me, either. Who is holding down the position of leniency? - Jeff
Asked by: jemanji
Answered: 9/17/2014
What if you had an affair with the deacon's husband? Actually, in my church, we DID have an associate pastor (female) who had a more-or-less open affair with a married member of the congregation, about 25 years ago (I joined the church 20 years ago, and heard about it after the fact.) She was NOT fired; she took a position with another church and moved on.
Leniency may be a lost cause. There is something we can still argue for, I think; tolerance, a recognition that we are all very fallible people and make mistakes, an argument that excessive or redundant punishments do more harm than good. Leniency. . .not sure we can sell that concept any more.

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Calling Mojician

Isn't the U.S. criminal justice (fairness) system intended, at least, to "balance" a transgression by applying a penalty that is already weighted to correspond to the crime?  Isn't this apparatus precisely the way that "society" responds to transgressions? 

 

Why, then, apply that and then also --- > apply a second apparatus with exactly the same intentions of punishment, sending messages, etc.?

 

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Rice's wife, the victim, has begged "society" to let them resume their lives and happiness.  The NFL responded this morning by suspending Rice indefinitely.

Sometimes you wonder how different we are, emotionally, from the lynch mobs of the old west.

Or not,

Jeff

Comments

1
M's Watcher's picture

Many of us are subject to at-will employment, where either employer or employee can sever the relationship for any or no reason. Only statuses like race, age, disability, etc. are legally protected but still frequently violated. If my actions outside of work cast my employer in a bad light, I'd be out the door. I'm not very sympathetic toward these privileged individuals that mess up publicly. Professional athletes are protected somewhat by collective bargaining and standardized contracts, but expect to see changes to cover more objectionable behaviors.

2

The law regarding discrimination by private parties is found in Sections 2 and 5 of the Fourteenth Amendment.
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
U.S. Const. Amend XIV.
The Fourteenth Amendment was passed after the Civil War to curtail slavery.  Most Constitutional law is determined and written by the federal courts, but some things, like enforcing equal protection, and regulating Indian Tribes, are left up to Congress.
Congress has passed many landmark laws interpreting the Fourteenth Amendment including:
1. The Klu Klux Klan Act of 1871,
2. The Equal Pay Act of 1963,
2. The Civil Rights Act of 1964, 
3. The Age Discrimination Act of 1967,
3. The Fair Housing Act of 1968,
4. The Americans with Disabilities Act of 1990,
5. There are lots of other 14th Amendment enforcement acts.
Of course, the federal courts interpret what these statutes mean, they just have to treat each 14th Amendment enforcement statute as if it is itself part of the Constitution, and cannot invalidate any part of it.  
When evaluating the rights of an employee who is discriminated against by his company, we have to ask:
1. Is the discrimination against the employee based on his race, color, religion national origin or sex? (From Title VII of the Civil Rights Act).
2. Is it because he is old?
3. Is it because he is a woman?
4. Is it because he is disabled or pregnant?
If no to all, then its probably okay.
Although it gets kind of gooshy, the Equal Protections Clause only protects a person based on who he is, not on what he does.  Private Americans routinely discriminate against the poor and those who show criminal tendencies.  
Now, Doc's question is about Due Process.  Should a person be shown some degree of due process in disputes at his workplace?  The only federal law controlling how Employers treat all employees that I can think of is the Fair Labor Standards Act of 1938.  The FLSA is made under Congress' power to regulate interstate commerce, and not under the Fourteenth Amendment Due Process Clause.  The FSLA covers thing like minimum wage and the 40 hour work week and does not apply to millionaire football players.
The Fourteenth Amendment Due Process Clause generally only applies to state governments, and not to private parties.  Is your kid being expelled from school without the principal hearing his side of the story?  Due Process case.  Did your boss fire you for your Facebook beer bong picture?  Private problem, no federal case.  Did your boss fire you because he heard of your Ramadan fast?  Equal Protection case.
This is the law.  Is it just?  
I think that a companies' desire to dissasociate from a certain person is okay.  A company has its own Constitutional rights, including Freedom of Association, and Freedom of Speech.  If an employee does something that tarnishes the brand image of that company, the company has a right to dissasociate itself from that person, as long as it is following the Equal Protections enforcement statutes outlined above.
Here, The NFL is confronted with the footage of a player knocking his girlfriend unconscious and dragging her body from the elevator.  This sort of footage is not endearing to female fans, its sponsors, or the general public, and has diverted attention from the on field product that the NFL is trying to promote.  Did Ray Rice owe the NFL a hearing before he cost it millions in revenue and goodwill by his act?  A company has a broad ability to dissasociate itself from unprofitable people in a free market.

To put it another way, what did the Baltimore Ravens ever do to deserve this?  
 
 
 
 

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1.  Thanks for the detailed explanation, Counselor.  Do I get two college credits?
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2.  If an employer wants to disassociate itself from an employee that is counterproductive, that is great by me, both in the spirit and letter of the law.
2a.  Personally, I'd like to see Rice horsewhipped in town square.  And then for him and his wife to be able to move on.  I ain't soft-pedaling man-on-woman violence.
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3.  The NFL did not wish to disassociate itself from Rice.  It wished to suspend Rice for 2 games.
3a.  External groups applied pressure to increase (actually maximize) the penalties on Rice.  They demanded that the NFL "send a message," as opposed to acting to protect its own business interests.  NOW continues to demand that Goodell resign, on the basis that he was insufficiently motivated by politics, and too motivated by his company's own wishes (to get Rice back onto the field ASAP).
It is with respect to this factor that I crave your professional judgment.  Or perhaps we're not in legal territory at all, since it is the NFL's choice whether to indulge this media-lynching or not.
:: japanese bow ::

4

Yeah Doc, this isn't legal territory at all.  But, you've drove me to it:  Here's what the NFL Collective Bargaining Agreement of 2011 says:  Credit Forbes for getting me started:
All disputes involving a fine or suspension imposed upon a player for 
conduct on the playing field (other than as described in Subsection (b) below) or involv­ing action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly: send written notice of his action to the player, with a copy to the NFLP A. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player's approv­al, may appeal in writing to the Commissioner
CBA 2011 Article 46 § 1.(a)
The Collective bargaining agreement then lays out a complex arbitration process that is similar to a court trial and appeal procedure for disputes of this kind.  
Forbes argues that NFL CBA domestic violence abuse guidelines set down by Goodell himself, the Promptness Clause of Article 46 § 1 and the Double Jeopardy Clause of CBA Article 46 § 4, as well as settled arbitration principles preclude a lifetime ban.  
The Goodell sentencing guideline is a memo that Goodell allegedly sent to owners stating that players would get a six game suspension for a first DV offense.  The CBA double jeopardy clause reads as follows:
The Commissioner or a Cub will not both discipline a player for the same act or conduct.  The Commissioner's disciplinary action will preclude disciplinary action by any Club for the same act or conduct.
Nothing in Article 46 says that the Commissioner gets to impose discipline on a player twice, and, if there was a 6 game guideline in place, then Rice may have something in arbitration.  It should be noted that the fact that the NFL has a double jeopardy clause has just joined my long list of reasons why I don't enjoy football games.
 
Now, about external pressure.  A group determines how important public pressure is to it.  For profit organizations generally have more of an eye to public pressure than not for profit organizations.  A church generally is more insulated from outside pressure than a company, but it doesn't mean that the company is wrong for caving to public opinion.  Think of it from a product angle:  
Steve Jobs thought that a large screen smart phone would never sell.  Tim Cook and the board of Apple decided that they were tired of losing their cellphone market to Samsung and LG, and so they changed up their product to include an iPhone 6,(big) and iPhone 6+ (Bigger).
The NFL is doing the same thing.  Ray Rice, like the four inch iPhone, has fallen out of public favor, and it is costing the NFL money.  Therefore, get rid of Ray Rice, problem solved, crisis averted.  This does seem kind of chicken, and it does violate the NFL's branding of itself as the league of rules and not men, but it doesn't seem too extraordinary given the circumstances.

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Eminently reasonable, even-handed, and literate.  So much appreciated!
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I like your analogy of the iPhone 6.  Still and all, there we are talking about products, not people.
 If your legal firm decides that you deserve 2 weeks without pay for a DUI, and you also pay the DUI state penalty, and then MADD calls for you to be disbarred etc ... in my mind, for the sheriff to throw the prisoner out to the crowd, that's another subject.  The sheriff has already decided what is fair punishment -- as Rice originally got the 2-game ban -- and now he is going to release the prisoner to the will of the crowd?
Pandering to public opinion always gets into gray areas.  The very last area I would cave in on, personally, would be the question of what punishment my employees deserve.  When does integrity come into question?
The NFL, of course, has no such principles, and no integrity that I can perceive.  Whatever chings the cash register is what will be implemented.
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I guess the spirit of the "Double Jeopardy" concept is what provokes me here, emotionally.  (I mean, double jeopardy apparently means if you're found *innocent,* then the state doesn't get a second crack at you, but still ...)
From the standpoint of NOW -- that is really my interest here, the lynch mob POV -- it is totally irrelevant whether a judge is going to determine Punishment X as "just."  NOW is interested in maximum pain, maximum suffering, and it will go into a rage at those who dare enter a defense on the behalf of the accused.
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That's what's blotting out the sun for me.  Your treatment is far more balanced.
 

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One more Q-and-A at BJOL:

One final idea from me, on the issue of "How much punishment is enough." The 'hardliners,' and I, want the same things: Protect society, send a message, cause offender to understand the suffering he's caused. The question is, WHO will calibrate the penalties that you and I (as citizens) pay? (Rice today; you and I tomorrow.) … A judge is (relatively) detached, qualified, etc., at least compared to a lynch mob. Both the hardliners, and I as a "dove," are in danger of applying too much or too little punishment. How many "hardliners" -- in their demands for resignations, etc etc -- wish to be the de facto judges of what the penalty will be? … does this "mob mentality" factor not also argue for leaving the matter to the justice system? - thanks, Jeff
Asked by: jemanji
Answered: 9/17/2014

Exactly. A free market for justice is called a lynching. While I understand that it is dangerous and counter-productive to tell businesses that they can't do what is in their own best interests, it seems to me more dangerous to pretend that the market place will measure out justice in these situations. The marketplace of ideas is often not easy to distinguish from a lynch mob. It is in society's best interests, I think, if businesses are encouraged not to meddle in issues of crime and punishment. - Bill

 

7

Here's what's probably going to happen:
Rice goes to arbitration.  The arbitrator either reduces the lifetime ban to 6 games based on the Goodell memo, or 2 games based on the double jeopardy or promptness clauses of the CBA, or uses some other NFL precedent we don't know about (Arbitration is secret) and then Rice will be out looking for a job, as the decision by the Ravens to cut Rice will still stand.  He then signs with some other team, or no team will sign him and he is blacklisted.
Goodell then states that he disagrees with the arbitrator's decision, and he gets to blame the arbitrator for enforcing unpopular NFL policies and the CBA.  What is wrong with this picture is that Goodell is supposed to uphold the CBA and NFL policies.  It is his job.  If the lifetime ban is clearly contrary to the CBA and NFL arbitration precedent, then he isn't doing what is right.  Also, your point about caving to public pressure regarding employee discipline is very convincing.  If there is one thing you shouldn't cave to public pressure on, it may be that.
Thanks Doc for a good philosophy dispute.

8

We'll sit back, jadedly wait, and (no doubt) watch things play out just the way you (cynically?  realistically?  wisely?  All three, I bet) project.
'He gets to blame the arbitrator for enforcing the CBA' :- )
Thanks for the time jump Mojo.

9

It's mind boggling how poorly the NFL has bungled this. It *should* cost Goodell his job. They give a Rice a two game suspension...then once they see the video (supposedly), they punish him some more? What exactly did they think happened in that elevator to render her unconscious? Or did they just think that the video would never become public?
Goodell looks every bit the weak kneed weasel of a company man that he is. No way the NFL can be led by a guy like that.

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misterjonez's picture

I thank both of you, along with the rest of the community here (which, true to form, didn't jump in to suppress discussion of the subject at hand!) for the enlightening back-and-forth.
This is why I keep coming back here :) To heck with the M's, lol!

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IcebreakerX's picture

I really don't have an opinion on the whole thing that's gone on with the NFL, but I've been thinking about a couple things....
- VISIBILITY
If Ray Rice worked for the Baltimore Municipal Waste Authority, this would have been a local news item and never hit the national news wire.
If Ray Rice was a practice team or 53rd player on the roster, we'd have probably heard less too.
It's clear that this has been a huuuuuuge part of the entire issue.
And it's also become a lynchpin regarding the issue of crimes and NFL players.
So while this whole discussion has taken place, it's entirely been about punishment rather than a multitude of problems; the NFL's lack of a unified discussion or agreement on processing players who are being subject to the criminal justice system, the lack of transparency in the process, is violence & crime a problem in the NFL, etc.
- STATISTICS
Related to visibility, I'd like to see (I'm sure the NYT had this, but I can't find it) statistics of crime and professional sports.
The thing is, I don't hear about domestic violence or robbery or general crime cases happening on the New York Yankees, much less the San Diego Padres.
In my mind, crime seems to be NFL -> NBA -> NCAA -> MLB.
If it's a problem that's plaguing the league, then they need to be pressured to address it, but I don't think you can go all vigilante either.
The only reason it's slid this badly is the profile level of the players combined with them being public figures.
If the NFL has a crime problem, then it should create a system that creates disincentive to commit the crime.
And it needs to be transparent and all the side dishes we want.
...Just thoughts... I had more when I was in the bathroom, let's see if I get them back.

12

"I had more when I was in the bathroom, let's see if I get them back."
I Hear Ya, Ice.
No, no...NOT in the bathroom.
I hear ya about losing good thoughts and wondering if you'll get them back. I guess once we get to that point most of the time their just gone forever.

13

Thug behavior (or the perception of thug behavior) seriously wounded the NBA and it hasn't really bounced back to peak popularity.

14

There comes a tipping point.  A place where the fans go "ugh, who needs it any more" as to the league generally.
Not sure how close the NFL is to that.

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