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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, December 30, 2010

If Lawyers Ran Sports—Oh, That's Right, They Do

Some students understand a point about criminal law when they see the point played out in another setting with which they are familiar. Thank God for sports!

Football Two articles in today's papers illustrate the point: the coverage in The New York Times of the NFL's verdict in the Brett Favre workplace harassment case, and Tim Sullivan's column in the San Diego Union-Tribune headlined NCAA's delayed suspension of Ohio State players shows it's just business—as usual.

Both articles help make points about burdens of proof. The NFL's statement says that, "On the basis of the evidence currently available to him, [NFL] commissioner [Roger] Goodell could not conclude that Favre violated league policies relating to workplace conduct. The forensic analysis could not establish that Favre sent the objectionable photographs to [former Jets employee Jenn] Sterger."

This conclusion is hard to assess without some specification of the burden of persuasion that Goodell applied and the gaps in the evidence that Goodell perceived. One could not be absolutely sure that Favre sent explicit invitations to huddle up even if the forensic evidence tied the messages to Favre's phone number—after all, someone could have taken Favre's phone and sent the messages. Would that possibility constitute reasonable doubt? Sufficient doubt to preclude a finding of wrongdoing by a preponderance of the evidence? How is the conclusion affected by Goodell's conclusion that Favre had not been forthcoming during the investigation—a conclusion in which Goodell was sufficiently confident to impose a fine based on it?

Sullivan makes a similar point about the NCAA's conclusion that extenuating circumstances precluded suspending five Ohio State players for their upcoming bowl game, instead deferring their punishment to next season, even though they might all elect to enter the NFL draft anyway and hence escape all punishment: "Mitigating their punishment on the premise that the players were inadequately educated about NCAA rules, and not simply contemptuous of them, requires another suspension — of disbelief." Sullivan's conclusion derives from a general understanding of how systematically NCAA schools educate their athletes about the rules they must follow. When I offered to take a friend's son—a baseball player—to lunch on my campus, he immediately knew that he couldn't accept the act of hospitality.

But the NCAA rules in question in the Ohio State case do illustrate how much more plausible it is to believe that a person can innocently violate a prophylactic rule than a rule targeting actual harm. At issue in the Ohio State case was the rule forbidding players to sell memorabilia that they own. Why? The theory is that they might sell it for more than market value, which would allow boosters to funnel payments to the athletes in the form of alleged "purchases." But if players actually sell memorabilia at market value, and if indeed they have not been educated about the rule, then one could imagine that the players might not think they were doing anything wrong. A similar dynamic is at work in when we criminalize conduct that seeks to avoid harm indirectly. For example, burglars know that their conduct is wrong; those who possess burglar's tools could be collectors.

In both the Favre and Ohio State matters, some have speculated that the fact finders had financial incentives to act as they did. I will leave to the reader to determine whether the criminal justice system should be indicted on the charge that money affects outcomes. But if the glove doesn't fit, you must acquit.

KC

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