Sports World Has Due Process Problem

By now you have heard that Dallas Cowboys running back Ezekiel Elliott is suing the NFL for suspending him six games after he was accused of domestic violence. The thrust of his complaint is that his suspension was based on non-credible evidence, and evidence supporting his case was suppressed in what his attorney describes as a conspiracy.

From the Fort Worth Star-Telegram:

"“Elliott and the Union were subjected to an arbitration process in which, among other things, there was a League-orchestrated conspiracy by senior NFL executives, including NFL Senior Vice President and Special Counsel for Investigations Lisa Friel, to hide critical information, which would completely exonerate Elliott.”"

That is some good and typical lawyerin’ for a situation like this. Makes a good pull quote, and leaves plenty of room for Elliott and his attorney to eventually concede points without giving up the essence of their complaint.

And it’s the essence of the complaint I want to talk about here. Which is: The NFL suspended Elliott not because it believed he had done something wrong, but because the public did.

According to the Star-Telegram, NFL investigator Kia Roberts, the only NFL employee who actually interviewed Elliott’s accuser, recommended no suspension for Elliott. That recommendation wasn’t included in the NFL’s final report, and the Star-Telegram reported Roberts wasn’t included in meetings held to discuss disciplinary action against Elliott.

Now the NFL is getting sued.

You’ll notice this sort of thing doesn’t happen much in real courts, where there is a presumption of innocence, proceedings are open to the public, there are established rules about evidence and testimony, lying is a crime, and you don’t get sentenced without being found guilty.

But it happens a fair bit in the sports world, where there is a way of thinking that says criminal courts, yeah, they’re OK, but — ugh — the cases take so long, what with all the “fairness” and “procedure” getting in the way, and what’s needed is stern action from a strong leader to make sure the fans don’t have to grapple with, heaven forbid, a conflicted thought or two.

A similar scenario is playing out at USC, where Zoe Katz, the girlfriend of a former USC kicker, says the Title IX office put words in her mouth to make it sound like she told them she’d been abused by Matt Boermeester, who was kicked out of school.

The Title IX office has pretty much called her a liar. There is video of the incident, but USC so far hasn’t let anybody see that video or any other evidence it says it has, for that matter. Because unlike the district attorney, the Title IX office isn’t accountable to the public. Maybe it has the evidence it says it has, and maybe it’s making that up. Maybe Katz told them one thing at first, and later changed her story because she was afraid of Boermeester. We may never know for sure, because — think about this for a second — the Title IX office didn’t record or transcribe its witness interviews.

Makes you wonder who they’re really trying to protect.

These are criminal matters that should be taken seriously by people who actually know what they’re doing and don’t have a stake in the outcome. Which is to say the police and the courts. It’s well within the rights of a business like the NFL or a school like USC to associate or disassociate with whomever it pleases. But where there was once a certain deference paid to the criminal justice system, there seems now to be an expectation that sports organizations will provide some sort of extra-judicial reckoning carried out behind closed doors and influenced by who knows what.

Boermeester filed a petition seeking reinstatement in Los Angeles Superior Court.

"“USC places the entire responsibility for the investigation, prosecution, fact-finding, and adjudication in the hands of non-sworn, non-licensed individuals who act as police, prosecutor, and judge without an evidentiary hearing,” the petition says."

A hearing is upcoming.

If an institution publicly accuses somebody of wrongdoing, it is responsible to support that claim with publicly observable evidence. To do otherwise is cowardly. Most of us learned this before we learned to ride a bike.

None of this is to say the NFL or schools like USC shouldn’t carry discipline against criminal behavior. They should for a number of reasons, and they need not abide by as high a burden of proof as “beyond a reasonable doubt.” Unlike the courts, they don’t have the power to take anyone’s freedom. And there is nothing inherently unfair about reducing the burden of proof for something like this to a “preponderance of evidence” (i.e. it was more likely than not), as long as there is a consistent and shared understanding about what constitutes “evidence,” that evidence is not hidden from the accused, and the procedure is carried out publicly. It’s not just for the benefit of the accused, either.

Because as the NFL and USC are finding out, when you try to play judge, you might just wind up in front of a real one.