The Integrity of the Game: Professional Athletes and Domestic Violence

This is article from the JSEl examines the consequences of off-field issues and their impact on professional athletes and how they are perceived.
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Developer / Lead Author	Bethany P. Withers
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The Integrity of the Game: Professional Athletes and Domestic Violence
Bethany P. Withers

This article is from the Journal of Sport and Entertainment Law
Vol.1, issue 1, p146-181

Abstract
There is an argument to be made that our sports heroes should be valued solely for their conduct on the field, that the Halls of Fame should bestow the honor of admission based only on career achievement; professional athletes need not be role models to earn our esteem for their talent. However, Major League Baseball (“MLB”), the National Basketball Association (“NBA”), and the National Football League (“NFL”) have not chosen to proceed according to these principles. While past league rhetoric has sometimes pointed to the opposite conclusion,1 it is clear from league action that certain off-field conduct is indeed a consideration of team and league evaluation and discipline of players. One must consider: What off-field conduct has been deemed detrimental enough to the league to result in disciplinary action? What message does this send regarding the off-field player conduct that is routinely ignored and thus implicitly condoned? Finally, what value judgments are being made and passed down to the fans through these decisions?

From the time the role of the commissioner was established in MLB, player gambling has been forbidden. Similarly, substance abuse is punished with either suspensions or fines. Conversely, other off-field crime has traditionally remained a permissible activity for professional athletes—one that is met without team or league punishment. One might attempt to justify this pattern of punishment by arguing that gambling and substance abuse directly affect the outcome of games, whereas other criminal activity does not;2 however, this argument is flawed. Players are punished for gambling, whether or not they bet on games involving their own team, whether or not they bet on games involving their own sport. Players are also punished for use of drugs that do not enhance performance. The leagues have chosen to condemn drug use and gambling, despite the fact that it occurs off field and may not impact the game.

On the other hand, domestic violence has been largely ignored by professional sports leagues. This inaction persists despite the fact that a survey revealed seventy-six percent of U.S. adults and eighty-two percent of teens think it is “bad for society” to allow athletes to continue their sports careers when convicted of a violent crime.3 Only fourteen percent of adults and teens think allowing athletes to go unpunished is “good because it shows people deserve a second chance.”4

Although MLB, the NBA, and the NFL do not release information regarding player arrests or player punishment by teams or leagues, some external studies were conducted in the late 1990s as a result of public attention to domestic violence during the O.J. Simpson murder trial, which concluded with his acquittal for the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman in 1995.5 One comprehensive study conducted by Jeff Benedict, former director of research at the Center for Sport in Society, found that 172 athletes were arrested for sex felonies between 1986 and 1995, yet only thirty-one percent were successfully prosecuted.6 The study also concluded that 150 athletes had domestic violence criminal complaints filed against them between 1990 and 1996, yet only twenty-eight resulted in convictions and the majority of cases were not prosecuted.7

The O.J. Simpson trial and the attention that studies such as Benedict’s brought to the issue of domestic violence had a direct effect on NFL policy. Within weeks of the murders, the NFL sent counselors to twenty-eight team training camps to discuss domestic violence with the players.8 In addition, then-Commissioner Paul Tagliabue adopted the Violent Crime Policy in 1997, which was further revised in 2000, becoming a version of the current Personal Conduct Policy.9 It was, and is, the only policy of its kind among major U.S. sports.10

Regardless of the attention given domestic violence in the 1990s and the studies and policies that resulted therefrom, it remains difficult to go even one week without hearing of an athlete involved in some sort of domestic altercation. For instance, at the start of the broadcast of the 2008 NFL season playoff game between the Arizona Cardinals and Atlanta Falcons, television commentator Cris Collinsworth stated that, in the week leading up to the game, Larry Fitzgerald’s girlfriend obtained a restraining order against him and Michael Turner was involved in a domestic dispute with the mother of his child. Fitzgerald and Turner were two of the most celebrated players on the field that day.

Some argue that athletes are predisposed to commit acts of domestic abuse and sexual assault because they are trained to use violence and intimidation for a psychological edge during their games and because sports create a “macho sub-culture” that equates masculinity with violence.11 One statistical analysis by researchers at Northeastern University and the University of Massachusetts appears to give credence to these beliefs.12 The study reviewed 107 cases of sexual assault reported at thirty National Collegiate Athletic Association Division I schools between 1991 and 1993 and concluded that “male college student-athletes, compared to the rest of the male student population, are responsible for a significantly higher percentage of the sexual assaults reported to judicial affairs on the campuses of Division I institutions.”13 Limiting the scope to ten schools, the study found that student-athletes comprised 3.3% of the male student body, but were involved in nineteen percent of the reported sexual assaults.14

Despite this study and the perceived prevalence of such activity in professional sports, evidence is inconclusive regarding whether athletes are more likely to commit violent acts against women.15 The San Diego Union-Tribune reviewed news reports and public records from January 2000 to April 2007 and concluded that the biggest problems for NFL players were the same as those of the general population: drunken driving, traffic stops, and repeat offenses.16 Further, it concluded that the arrest rate among NFL players was less than that of the public population.17 In an April 2008 update to the study, the Union-Tribune found that the NFL’s arrest rate since 2000 was better than that of the rest of society—there was approximately one arrest per forty-seven players per year compared with one arrest per twenty-one for the general population.18 It is indeed quite possible that the rate of domestic violence involving professional athletes mirrors the violence against women that occurs in society at large, but when committed by professional athletes and splashed across the sports page, the prevalence of such abuse in our society simply becomes more noticeable.

Nonetheless, there is evidence that professional athletes are not punished by the leagues, teams, or criminal justice system as harshly or consistently as their general public counterparts. “One study indicates that, out of 141 athletes reported to police for violence against women between 1989 and 1994, only one was disciplined by league officials.”19 While this number has increased since 1994—an increase that will subsequently be addressed—the number remains remarkably low. Similarly, conviction rates for athletes are astonishingly low compared to the arrest statistics.20 Though there is evidence that the responsiveness of police and prosecution to sexual assault complaints involving athletes is favorable,21 there is an off-setting pro-athlete bias on the part of juries.22 For example, in 1995, domestic violence cases involving athletes resulted in a thirty-six percent conviction rate, as compared to seventy-seven percent for the general public.23 There are many individual cases that reflect occasional bias at some point in the criminal justice system, including those of Clarence Kay,24 Barry Bonds,25 and John Stephens.26

While there is extensive off-field conduct that arguably should be punished by professional sports leagues, this article will focus on domestic violence because of its prevalence in sports and society at large and because of the interesting issues that charges of domestic violence raise, given that they are frequently dropped and often do not result in conviction.27 In order to assess what can and should be done regarding the treatment of domestic violence in sports, this article will first trace the authority of the league commissioners and clubs in disciplining players in MLB, the NBA, and the NFL. After examining the legal documents and case precedent of the three leagues, this article will trace the disciplinary action that has been taken against players. Given the increased attention to domestic violence in the late 1990s, the article will focus on the comparative actions of Commissioners Bud Selig (MLB), David Stern (NBA), and Paul Tagliabue and Roger Goodell (NFL), who have been responsible for league action since that time. The NFL’s Personal Conduct Policy is emphasized, as it provides a template for possible league action against off-field behavior that compromises the integrity of the game; however, the NFL’s Personal Conduct Policy will also be analyzed for its potential faults. Lastly, this article proposes the adoption of similar league-wide personal conduct policies in MLB and the NBA with a few modifications, including the addition of sentencing guidelines, the inclusion of provisions ensuring due process and prohibiting double jeopardy, and the incorporation of such policies into the collective bargaining agreements of the respective leagues.

1 For instance, in a 1998 article, Greg Aiello, NFL communications director, was quoted as saying, “We’re not the criminal justice system. We can’t cure every ill in society. You know, we’re putting on football games. And unless it impacts on the business, we have to be very careful [from a legal standpoint] about disciplinary action we take.” Ellen E. Dabbs, Intentional Fouls: Athletes and Violence against Women, 31 COLUM. J.L. & SOC. PROBS. 167, 183 (1998).
2 See, e.g., Dabbs, supra note 1, at 183 (“Gambling and drug use reduce the public’s belief in the honesty and fairness of the athletic contest. The NFL’s Lee Burnham distinguishes this from domestic violence: ‘[T]his domestic violence thing is different. It’s a society thing and there are laws that govern it.’”).
3 Anna L. Jefferson, The NFL and Domestic Violence: The Commissioner’s Power to Punish Domestic Abusers, 7 SETON HALL J. SPORT L. 353, 354 (1997) (citing David Diamond, Victory, Violence and Values Out of Bounds, USA WEEKEND, Aug. 25, 1996, at 4).
4 Id.
5 See Elliott Almond & Gene Wojciechowski, Domestic Violence Comes Out of the Closet; Discipline: Once an Issue that Was Hushed Up When Athletes Were Involved, Now It’s Front-Page News, L.A. TIMES, Sept. 12, 1995, at C1. The murder trial brought new light to Simpson’s 1989 New Year’s Day arrest for allegedly beating his wife, Nicole Brown Simpson. See Bill Brubaker, Violence in Football Extends Off Field, WASH. POST, Nov. 13, 1994, at A1. He allegedly kicked and punched her while screaming “I’ll kill you.” Id. Nicole complained to the police that her eight previous 911 calls had resulted in no action. See id. While Nicole asked that no charges be filed the next day, prosecutors filed charges anyway. See id. The Times did not report the incident; later, when he pleaded no contest, only a small brief appeared. See Almond & Wojciechowski, supra. The plea resulted in two years’ probation, counseling, 120 hours of community service, a $500 donation to a battered women’s organization, and a $200 fine. Brubaker, supra. Simpson was not punished by the league or his team and he retained his endorsement deals with Hertz and NBC Sports. See id.
6 JEFF BENEDICT, PUBLIC HEROES, PRIVATE FELONS: ATHLETES AND CRIMES AGAINST WOMEN 80 (1997).
7 Id.
8 See Brubaker, supra note 5. Though Lem Burnham, in charge of the NFL’s employee assistance program, insisted that domestic violence was already on his “laundry list of things to cover” with players, the timing insinuates that, at the very least, domestic violence became a more pressing concern after the murders. Id.
9 See Robert Ambrose, Note, The NFL Makes It Rain: Through Strict Enforcement of Its Conduct Policy, the NFL Protects Its Integrity, Wealth, and Popularity, 34 WM. MITCHELL L. REV. 1069, 1086–87 (2008).
10 See id.
11 Note, Out of Bounds: Professional Sports Leagues and Domestic Violence, 109 HARV. L. REV. 1048, 1050 (1996) (citing MICHAEL A. MESSNER & DONALD F. SABO, SEX, VIOLENCE & POWER IN SPORTS: RETHINKING MASCULINITY 34 (1994)).
12 See Dabbs, supra note 1, at 169–70 (citing William Nack & Lester Munson, Special Report: Sports' Dirty Secret, SPORTS ILLUSTRATED, Jul. 31, 1995, at 68).
13 Id. at 170.
14 Id.
15 See Note, supra note 11, at 1050–51; Brubaker, supra note 5.
16 See Brent Schrotenboer, Arresting Image; As Concerns over Player Conduct Rise, A Review of Crime Reports Shows Arrest Rates Are Consistent with General Population, and DUIs Dominate, SAN DIEGO UNION-TRIB., Apr. 22, 2007, at C1.
17 See id.
18 Brent Schrotenboer, Holding that Line; In the Year Since NFL’s Player-Conduct Policy Took Effect, the League Has Taken a Tougher Stance with Players with Criminal Issues . . . Or, at Least, Most of Them, SAN DIEGO UNION-TRIB., Apr. 19, 2008, at D1.
19 Michael O’Hear, Blue-Collar Crimes/White-Collar Criminals: Sentencing Elite Athletes who Commit Violent Crimes, 12 MARQ. SPORTS L. REV. 427, 431 (2001) (referring to Linda Nicole Robinson, Note, Professional Athletes—Held to a Higher Standard and Above the Law: A Comment on High-Profile Criminal Defendants and the Need for States to Establish High-Profile Courts, 73 IND. L.J. 1313, 1330 (1998)).
20 See Carrie A. Moser, Penalties, Fouls, and Errors: Professional Athletes and Violence against Women, 11 SPORTS LAW. J. 69, 77 (2004) (citing BENEDICT, supra note 6, at 80).
21 See O’Hear, supra note 19, at 432. Out of 217 sexual assault complaints involving athletes from 1986 to 1995, at least fifty-four percent resulted in formal charges, which compares favorably with sexual assault cases generally. Id.
22 See id. In this same study, only fifteen percent of the cases that went to trial resulted in conviction. Further, while fifty-four percent of rape arrests nationally result in conviction, only thirty-one percent of athletes were convicted. Id.
23 Id. (noting that this may have as much to do with juries’ bias in favor of the athletes as it has to do with athletes’ ability to hire superior defense counsel).
24 In 1990, Kay, a Denver Broncos tight end, was arrested on a domestic violence charge after allegedly breaking into the home of his ex-girlfriend, Patricia Spillman. See Brubaker, supra note 5. While domestic violence charges usually result in overnight jail time, he was released only five hours later, allowing him to fly to Tokyo with his teammates for a preseason game. See id. This only perpetuated the cycle of violence, which eventually ended with Spillman obtaining a restraining order after one of many instances of domestic violence and breaking and entering, and Kay being placed on probation after pleading no contest to violating the order. See id.
25 Sun Bonds and Barry Bonds, then San Francisco Giant outfielder, divorced after alleged instances of domestic violence, including one instance in which Barry Bonds allegedly grabbed his wife around the neck, threw her into a car, and then kicked her when she was on the ground. See Aditi Kinkhabwala, Way off Base: MLB Needs to Take a Stand against Domestic Violence, SI.COM, May 31, 2007, http://sportsillustrated.cnn.com/2007/writers/aditi_ kinkhabwala/05/31/dukes.domestic/index.html. When Barry went to court to request a reduction in his family-support payments to Sun and their two children, pleading financial hardship during the baseball strike, County Superior Court Judge George Taylor granted the request and then asked Bonds for his autograph. See Nack & Munson, supra note 12, at 70.
26 Kim Williams, former wife of then-New England Patriots running back John Stephens, claims she made several domestic violence-related complaints to the police, who never arrested him or counseled her on her rights, and repeatedly told her to “calm down.” Brubaker, supra note 5. Stephens was later charged with the rape of another woman, which resulted in conviction of a lesser charge of sexual assault and only five years’ probation. See Matt Taibbi, Hands of Stone, Sports Blotter: “Ex-Patriot” Edition, BOSTON PHOENIX, Jan. 16, 2008, http://thephoenix.com/Boston/RecRoom/54696-Hands-of-stone/?rel=inf.
27 Domestic violence victims frequently back away from allegations because they fear their abusers or want to avoid disruption of their family lives. See Brubaker, supra note 5. It has been suggested that wives of professional athletes may be even more likely to drop charges because of the increased publicity and disruption to their lives. See id.

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