- Lester Munson, Legal Analyst
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Relying on the powers granted him under the NFL's personal conduct policy, commissioner Roger Goodell has suspended Ben Roethlisberger for six games and demanded that the quarterback undergo a comprehensive behavioral evaluation. Goodell's decision comes after Georgia authorities evaluated a 20-year-old female college student's allegation of rape and decided not to file criminal charges against Roethlisberger. The commissioner's action raises legal questions. Here are some of the questions and their answers:
If Roethlisberger did not violate the law, how can Goodell suspend him for six games?
The league's personal conduct policy gives Goodell the power to impose discipline even without any violation of the law. The prosecutor's decision not to file charges meant little to Goodell's decision-making process, though the suspension might have been significantly harsher had Roethlisberger been facing a criminal proceeding. Goodell stated that his decision is "not based on a finding that [Roethlisberger] violated Georgia law." However, Goodell did rely on his review of an enormous and detailed investigation and concluded that Roethlisberger's conduct was "detrimental to the league" and was a "danger to the safety and well being of another person."
What was it about Roethlisberger's conduct that caused Goodell to impose so severe a penalty? How bad was it?
Goodell's decision was not difficult. A review of the police investigation of the events in Milledgeville, Ga., on the night of March 4 and in the early-morning hours of March 5 shows that Roethlisberger's alleged conduct easily could be considered disgusting and predatory. Witnesses, according to the investigation's files, said Roethlisberger was drinking steadily the entire evening. One witness told investigators that, "As soon as he was finishing one drink, he would order another." Within minutes after Roethlisberger, two bodyguards (or "personal assistants" if you prefer their terminology) and a few others arrived at the Capital City Club, the police report indicates that he demanded a private bartender, a shot girl and a club bouncer. His instructions were to let only young women into his VIP area.
As he ordered trays of Patron shots, the police report says he yelled, "All my b----es, come and take a shot." When he hit on one of the sorority girls, she responded with a joking expletive and Roethlisberger had her ejected from the VIP area, according to statements from the sorority girl and others. Moments later, one of the bodyguards, according to witness statements, ushered one of the woman's sorority sisters, who was obviously intoxicated, into a dark hallway and left her there for Roethlisberger. When Roethlisberger entered the hallway, he was exposing himself, according to a statement from the young woman who later claimed that Roethlisberger raped her in the bathroom. One of the members of Roethlisberger's entourage told a detective from the Georgia Bureau of Investigation that as they drove back to Roethlisberger's lake house 30 miles away, they were "afraid to ask him what happened," the report says.
If Roethlisberger's conduct was so terrible in the eyes of the NFL, why wasn't he charged with a crime in Georgia?
If District Attorney Fred Bright had filed charges, he would have faced two major problems: (1) the accuser's intoxication; and (2) a finding by a physician who examined the accuser that the physician could not say her injuries were the result of forcible sex. Numerous witnesses told police in detailed, written statements that the accuser was extremely drunk. Clearly in the brownout-blackout stage of intoxication, according to statements from her friends, the accuser had been seen "hanging all over Ben." As she tried to tell a police officer what happened, the report says she was slurring her words and staggering. The officer and three of the accuser's friends agreed that they could not tell whether she was saying "bathroom" or "back room." According to a police interview of one of Roethlisberger's crew, and confirmed in an interview of the officer, Sgt. Jerry Blash, later in the investigation, Blash at one point said, the woman was drunk and "accusing Ben of rape." Another friend of the accuser's told the police the accuser "still appeared to be drunk" the following morning (Friday, March 5). Even though the evidence collected by the investigators indicated that the accuser was apparently too drunk to consent to anything, the prosecutor knew a jury would view her behavior as risky and contributory and would be unlikely to vote to convict Roethlisberger.
The physician who examined the accuser shortly after the incident found bruises, a laceration and blood in her genital area, but the doctor was unwilling to conclude that the injuries were from an assault. That is perhaps the single most curious finding in the entire investigation. How could the doctor reach such a conclusion? It might be the result of the accuser's alcohol-fogged memory. According to the police report, when Sgt. Blash asked her whether she had been raped, she replied, "No, I didn't know what was going on." Asked whether she had sex with Roethlisberger, the report says she replied, "Well, I'm not sure." If the physician heard the same history from the accuser in his examination, it might have led him to conclude that he could not testify about a rape. The doctor's report left a serious gap in the evidence and forced the prosecutor to conclude that he could not file a charge.
The commissioner wants Roethlisberger to undergo a complete behavioral evaluation. Is it because Goodell took into account a pattern of behavior?
Yes. In addition to the Milledgeville incident, there is the sexual assault damages lawsuit filed in Reno, Nev., by a hotel concierge who says Roethlisberger lured her to his room on a pretext and raped her in July 2008, as well as an unrelated and unconfirmed incident detailed in the police report and put in front of Goodell. With the possibility that Roethlisberger has been involved in more than just the Milledgeville case, it is easy to see why Goodell is requiring a total evaluation of Roethlisberger and his behavioral tendencies.
How will the NFL Players Association react to Goodell's decision?
Although the players agreed to the terms of the personal conduct policy more than three years ago, the union is likely to challenge Goodell's actions concerning Roethlisberger. The union's duty is to represent its constituency even when the conduct of the player might have been reprehensible. Any players' union wants the commissioner to know that the union will challenge a decision such as this, no matter how reasonable the decision might be. DeMaurice Smith, the union leader, is likely to file a grievance and ask for an arbitrator's review of the sanctions imposed on Roethlisberger.
The union will challenge the six-game suspension, but its real challenge will be to the demand for a behavioral evaluation, likely to be a degrading requirement for Roethlisberger. It is a new form of punishment, and the union will want to send a signal that it is not happy with this level of invasion into the life of one of its players. Roethlisberger obviously will be put into the NFL's substance abuse program with its weekly and even daily alcohol checks, but the total evaluation requirement takes this a step beyond the alcohol program. My expectation is that the union will file a grievance and demand an arbitration. Only if Roethlisberger objects to the grievance will the union drop it. He might want to avoid further examination of the incident and show some level of contrition by waiving the grievance.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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