It Isn't, or Shouldn't Be, the NFL's Job to Punish Crimes

So apparently the official talking point in the Boston sports world about the four-game suspension of Patriots quarterback Tom Brady for what seems to have been his role in actually seriously cheating, at least in the AFC championship game last year right before the Patriots' Super Bowl win (and possibly, like, for many years prior) is that it's an outrage that Brady was suspended for twice as long as Ray Rice was for his domestic abuse. And like, so, the thing is, my instinct about Brady is that the suspension is an outrage, in that it should've been for a whole season. And so the Ray Rice comparison line annoys me, because I basically agree that the Ray Rice thing was handled disgracefully and that he got off awfully light. Certainly the point that, y'know, abusing footballs shouldn't be seen as worse than abusing women or whatever is an accurate one. But like, I dunno... I kind of feel like it isn't, or shouldn't be, the NFL's job to punish crimes? Like, domestic abuse is an offense against the victim and an offense against the state; it's not an offense against the National Football League, and cheating at football in the semifinal game of the NFL playoffs is. We wouldn't want the U.S. government, or the government of Massachusetts, to punish Brady for his cheating at football, I don't think, because it's not that kind of offense.

In my Criminal Law class we discussed at one point the idea of "shaming penalties," where instead of directly, like, punishing the (typically low-level) offender, e.g. by imprisoning or even fining them, but rather just basically publicizes their offense. There's a sense that these punishments manage to be less cruel than, say, incarceration, while still being unpleasant enough to be a deterrent (indeed, perhaps more of one) and maybe even, if done right, having some rehabilitative effects. One line of criticism is that they're humiliating, to which the defenders rather powerfully respond, have you seen our prisons? But another line of attack is that there's something a bit disturbing about where exactly the punishment comes from in these shaming punishments. It comes from everyone in the community. In the most troubling cases, the government seems pretty explicitly to be trying to foster a mob mentality that will enlist the public to carry out the sentence, basically, by basically making the offender persona non grata in that community. And this is kind of troubling. It's almost, like, an embrace of the lynch mob by the government, or at least it can approximate that. Obviously imprisonment often leads to that same kind of informal social sanction afterward, but I kind of think that it shouldn't, or at least not insofar as those sanctions are meant as sanctions rather than as sensible precautions against a potentially dangerous or untrustworthy person. I tend to think that we should let the state punish people, and then once it's had its say, we should welcome people back into society as full citizens, though without turning a blind eye to any dangers they may represent.

Which brings us back to Brady and Ray Rice. Like, it really, really shouldn't be the NFL's job to punish Ray Rice. And people who do bad things, including beat their girlfriends which is a very bad thing, shouldn't just stop being able to be part of society. The idea that sports leagues should have the policy that people who've committed crimes of a certain level should never be allowed to participate in them strikes me as a terrible one. The problem is that this all takes place in the shadow of the well-known fact that the state isn't doing it's effing job with regard to domestic violence, so basically if the NFL doesn't punish Ray Rice, no one will. And in certain ways the NFL is even in a better position to punish him than the state is, because it doesn't need to hear the victim testify, it doesn't need to get proof beyond a reasonable doubt, it can just say, hey, we saw the video, we know what we think went down, we're gonna suspend his ass. But that's a huge problem! For those of us who believe in the ideals of the criminal justice system, and of innocent until proven guilty and the like, the idea that when someone is known to have done a bad thing, this should be handled by having anyone in society who has power over them and who isn't bound by the Bill of Rights should just punish them any way they can, it's, like, it's really problematic, and it really does kind of feel like mob justice.

Now, that doesn't really point to a solution, since it's not like the general unenforcement of domestic violence laws is gonna change any time soon, and I'm not really saying that I think the NFL shouldn't be allowed to discipline its players for their off-field misdeeds. But it's wrong, I think, to reason from the fact that domestic violence is worse than cheating at football to the conclusion that the relative lengths of the Brady and Rice suspensions say something so terrible about the NFL's priorities. The NFL isn't in the business of outlawing domestic violence. It is in the business of making sure dudes don't cheat at football.* One of these things is much, much more its responsibility than the other, and that's not something wrong with the world. That's something right with the world! The NFL shouldn't just decide that, because domestic violence is so bad, it's going to assume as much responsibility for punishing and deterring it as it does for cheating at football, no more than any one of us has the right to go out and become a vigilante.

So, I'm sorry Boston, but pointing at Ray Rice doesn't give you a great argument for why Tom Brady is being treated unfairly.



*Well, arguably it is. Or at least it should be.