On Monday, New York Giants kicker Josh Brown was suspended by the NFL for the first game of the season pursuant to the league’s personal conduct policy.
Brown’s suspension is linked to his domestic violence arrest in May, 2015, after he allegedly attacked his ex-wife at their home in Washington state. According to his ex-wife Molly Brown’s statement, taken on the day of that arrest, her husband had been violent toward her on over 20 different occasions. The NFL investigated Brown for 10 months before concluding their inquiry last Friday. Molly Brown did not cooperate with the NFL investigation.
Molly Brown accused the kicker of — amongst other things — threatening to kill her, violently throwing her on the floor while pregnant, and kicking a door off it’s hinges and into her teenage son. According to ESPN, Ms. Brown also alleged that the Giants were complicit in silencing one of the couple’s landlords, who was attempting to extort them based off of Brown’s proclivity for beating his wife.
According to the NFL, the inability to corroborate Molly Brown’s claims is the reason why Brown is not being suspended for a longer length of time. On Wednesday, Giants owner John Mara supported this stance: “A lot of times, there’s a tendency to try to make these cases black and white…. There are allegations made, you try to sort through the facts and try to make an informed decision. That’s what we did here.”
Consistent with Mara’s statement, the NFL stated the following:
Over the course of the 10-month investigation, we also made numerous requests— as late as this spring— to local law enforcement officers for information on the case and previous allegations. They declined those requests for information. As a result of these factors, our investigators had insufficient information to corroborate prior allegations…. The NFL, therefore, made a decision based on evidentiary findings around this one incident.
The NFL’s new personal conduct policy, drafted in the wake of the NFL’s admittedly poor handling of the Ray Rice domestic violence case, calls for a baseline suspension of six games for domestic violence. The policy provides that the NFL can give out a shorter suspension if it finds mitigating circumstances.
So, despite numerous incident reports, a protective order filed against Brown, and the aforementioned extortion fiasco, the NFL felt that the lack of evidence warranted a suspension significantly shorter than the baseline six-game suspension. This is difficult to square with other cases given the NFL’s willingness to suspend players for longer with less evidence (see Deflategate).
Given the media backlash on Brown’s light suspension, is it possible that the NFL could extend Brown’s suspension?
As an initial matter, anything is possible under the NFL’s current regime, and we have seen discipline altered based on public pressure. But the question of whether or not an additional suspension would hold up on appeal takes us back to the Ray Rice case. In 2014, Rice, then a Baltimore Raven, was suspended by the NFL for his role in a well-publicized domestic violence incident. Initially, Rice was banned for two games pursuant to the league’s Personal Conduct Policy. However, after a TMZ released a second video showing Rice strike his wife in the case, the NFL changed course and suspended Rice indefinitely.
Rice appealed the NFL’s decision to impose additional discipline. At arbitration, NFL Commissioner Roger Goodell claimed that he had not seen the video. Rice, in response, posited that whether or not Goodell had seen the video made no difference. Although extremely disturbing, the existence of the video was merely another vehicle of communicating the same details that Rice had provided to Goodell when he met with him to discuss the incident, not additional evidence proving an additional wrongdoing.
Ultimately, the arbitrator sided with Rice and vacated the indefinite suspension:
I do not doubt that viewing the video in September evoked horror in Commissioner Goodell as it did with the public. But this does not change the fact that Rice did not lie or mislead the NFL at the June 16 meeting.
Thus the arbitration held that Goodell, even while invoking his almighty Article 46 “conduct detrimental” power, cannot impose a second round of discipline for the same conduct.
That brings us back to Josh Brown. As it stands, even though nearly everyone agrees that Brown’s one game suspension is woefully inadequate, assuming that no new evidence is introduced, the NFL cannot increase Brown’s suspension.
However, a more interesting scenario arises if more evidence were to come to light. For example, what if the media frenzy convinces Molly Brown to change course and speak with the NFL? What if TMZ or another media outlet uncovers a video or evidence of another incident? This additional evidence could open the door for Goodell to revisit the Brown suspension and would potentially not be in conflict with the arbitrator’s ruling in the Rice case. Regardless of how the NFL may rule (or attempt to re-rule) in this case, Josh Brown’s treatment of his wife is unbecoming of any human and undermines the NFL’s handling of domestic violence cases post-Ray Rice.