This week on HBO’s award-winning sports program Real Sports, Bryant Gumbel explored the all-too-familiar issue for NFL fans of player punishment for both on-field and off-field behavior. Oddly, the off-field question is often framed within the parameters of burden of proof within the judicial system. Gumbel and the Real Sports team also fell into this trap. The argument is often couched as, “No charges were brought,” so how can the NFL be so self-righteous as to dole out punishment? This premise conveniently ignores the tremendous burden of proof on law enforcement for bringing charges on matters of domestic violence – the most hot-button of issues facing the NFL’s PR machine.

It is understandable that both Gumbel and what is essentially his HBO show would frame the debate in such a manner. Gumbel is 68 years old, was born in New Orleans, grew up during the civil rights movement, and has been a life-long journalist – a very reputable one -, all traits that tend to favor a sympathy for the individual over the institution. And then there is the unmistakable fact that Roger Goodell and the NFL often over-reach in disciplinary matters and hand out punishment in clearly arbitrary and capricious manners. But, as in the case with most issues in public debate these days, the issue of domestic violence by professional athletes and the punishment by their respective employers is far from clear cut.

Setting aside the soap opera dramas of Jerry Jones v. Roger Goodell, Robert Kraft v. Roger Goodell, Roger Goodell’s ridiculously high salary, Deflate-Gate, the upcoming CBA, or the perception – probably rightfully – of discrepancies in punishment depending on race, what should be the burden of proof for handing out suspensions in a monopolistic business like the NFL?

Beyond a Reasonable Doubt

The burden of proof in a criminal case is “beyond a reasonable doubt.” The logic here being that if the state is going to deprive an individual of his or her freedom in the form of incarceration, the burden on the state should be extremely high. While not all criminal convictions or confessions are met with the penalty of incarceration, it’s possibility demands the highest of burdens to prove by the state in the exercise of individual liberty.

So, when a Ray Rice or a Greg Hardy or an Ezekiel Elliot are accused of domestic violence, it is paramount that the state is able to prove their guilt beyond a reasonable doubt. While the technical definition of beyond a reasonable doubt varies some from English speaking country to English speaking country (and Japan) – the concept stemming originally from English common law – the hurdle for a jury is set intentionally high. An online legal dictionary (Black’s Law Dictionary requires a paid subscription – sorry) describes the burden thusly:

There can be some small amount of doubt but sufficiently small that a reasonable person would have virtually no doubt that the fact occurred. Some refer to this standard as 99.9% proof or fully satisfied or entirely convinced.

Does it seem reasonable that any employer, much less an employer handing out multi-million-dollar contracts to highly specialized workers like the NFL, should need to meet such a standard to levy fines and/or suspension?

So, keep in mind that while both Ray Rice and Greg Hardy were prosecuted for domestic violence, with different outcomes, Ezekiel Elliot was not. An Ohio prosecutor, looking at the evidence for domestic violence against Elliot, weighed the burden of proof, and came to the conclusion it could not be met. Should the NFL, with presumably saw the same evidence, need to overcome the same burden in order to suspend the Cowboy’s running back? This is an important question in light of the fact that all three men were suspended for their actions – two prosecuted in the court system, one not. But, over time, the severity of the punishment increases, ironically, with the one not prosecuted.

Preponderance of the Evidence

If you’re of a certain age but not a lawyer, judge, paralegal, or law clerk, your first introduction to the difference in the burden of proof between a criminal case and a civil case was likely the trials of O.J. Simpson. If you are a little younger, perhaps you watched Ezra Edelman’s award-winning documentary O.J.: Made in America and made the same discovery. Legal analysts like Greta Van Susteren, Roger Cossak, and Lester Munson launched their television careers by explaining this and other concepts to a riveted audience.

On October 5, 1995, Orenthal James Simpson was found not guilty of the murder of Nicole Brown Simpson and Ronald Goldman. But a year and a half later on February 4, 1997 Simpson was found liable for the deaths of Nicole Simpson and Ronald Goldman. What changed? Among other things, the burden of proof.

Returning once again to the not-Black’s Law Dictionary, the definition of the lesser burden faced in a civil lawsuit that can only deprive a person of money and not life or liberty is as follows:

Preponderance of the Evidence: This standard, most frequently used in civil cases, is also known as the balancing test. The standard of proof is merely that one side of the scale dips lower than the other side. It is the proposition that something is more likely to be true than not to be true a 51% to 49% chance that the plaintiff or defendant’s version of the truth is the one more likely to have happened than not to have happened.

So, the question under this standard is whether it’s more likely that it happened than it didn’t happen. So, the NFL when confronted with criminal charges against one of its players, compelling public evidence that an incident occurred – photos of bruises on a young woman or the arrest taking place at 2 a.m. outside a bar -, and often contradictory explanations for the incident in question by the player himself, what is the league to do? Should it apply the standard required in a criminal case that Gumbel intimated should be the standard (and endless “hot take” pundits on ESPN and other sports outlets)? Or should the standard be closer to the burden of proof in a civil case – more likely than not?

Let’s consider a more common “real world” scenario, since most of us have no idea what it’s like to be elite athletes in multi-billion-dollar entertainment ventures. Let’s say Bobby Convenience Store closed up last night and the next morning the till is $200 short. No one else closed with Bobby, the last count was spot on, and the log shows no sales for the last hour the store was open. What do you think happened? What’s more likely? A burglar broke in after hours, managed to not set off the alarm, wasn’t captured on the surveillance camera, and took the $200, or Bobby pocketed the cash when counting down the till?

Hey Bobby. You’re fired.

In every real sense, this is what the NFL is faced with in most of the off-field incidents that result in suspension of fine. It’s really likely this incident happened. We don’t really condone such behavior. In fact, it’s in your contract that we don’t condone such behavior.

Hey Zeke. You’re suspended.

Other Bad Arguments About NFL Discipline

Confusion about what the burden of proof for the NFL to discipline a player is usually the first argument against a suspension or a fine, but it’s not the only way in which sports commentators muddle their arguments. The idea that the commissioner is taking away a player’s “right to earn a living” comes in a close second. Nothing could be more absurd. A suspension or a fine to an NFL player only affects the player’s ability to make money in the NFL, nowhere else.

The simple math of 54 x 32 = 1,728 means that at no point are more than 1,728 men ever employed as starting players in the NFL. A few hundred more will occupy spots on practice squads and that’s it. Bluntly put, there is no RIGHT to play in the NFL. It is an occupation reserved for a very small number of individuals at any given moment, individuals who possess incredibly unique skill sets that don’t translate to any other occupation. Like any other workplace, there are rules to work in the NFL, along with the requisite skills, and a violation of those rules may result in you not being welcome to work there.

Much is also made of the limited window of time that a player can play in the NFL given the physical demands. This is true and a legitimate argument. But, when you consider that the median salary for an NFL player is $770,000 and the average career lasts “just” three years, totaling out to $2.31MM, a figure that would take the median U.S. household roughly forty-five years to earn, it’s a little bit hard to be sympathetic.

Yes, the owners are billionaires. Yes, the owners are exploiting the workforce. Yes, there is vast inequality in between tiers of players in the NFL. Yes, other leagues pay more (with fewer employees – think NBA). And finally, yes “they get paid a lot compared to the average worker” is a practical argument, not a moral argument. But, in most instances, we operate in a practical world that we hope to make more moral, not the other way around.

All of this is to say, that the NFL is probably on solid ground for levying fines and suspensions on the “more likely than not” model, that it isn’t a right to work in the NFL (or at Google or Amazon or the gas station down on the corner), and that, in the larger scheme of things, it may not be too much to ask of players to behave for three years while becoming millionaires and act like knuckleheads after they retire.

But there are some things the NFL, and more specifically Roger Goodell, get wrong about player discipline.

The Good Arguments Against NFL Discipline

Bryant Gumbel and other commentators should be commended for their overall moral outrage, even if parts of the outrage are misplaced. One man should not be the Prosecutor / Judge / Jury / Appeals Court / and Executioner. But, that’s essentially what Roger Goodell is – all five. You can blame the NFLPA for ceding that power in the last CBA or you can blame the owners for intimidating the players into accepting such a draconian form of justice. Either causal impetus, the result is fundamentally unfair and most fans seem to understand that even if they are mostly inclined to think the punishment is fair. (By the way, the determination of fairness by fans, unfortunately, largely rests on who the player is and what team is affected. Not my team? Good).

The other most compelling argument against NFL player discipline policy is, ironically, intertwined with the burden of proof argument at its core. That is what is the prescription for the severity of the punishment?

In a criminal case, where the burden of proof is beyond a reasonable doubt, the prescription for punishment is codified. A judge has discretion within certain parameters. If he or she exceeds those parameters, that, in and of itself, is grounds for appeal.

While in a civil case, where the burden of proof is the preponderance of the evidence, the award is at the discretion of the jury, within certain limits. A case where the award is seen to be “excessive,” will almost always be appealed, but the case where the award may be “too little,” almost never sees another day in court.

So, is it hypocritical to approve of a lower burden of proof for workplace discipline in the NFL while hedging that bet and feeling more comfortable with prescribed penalties? No, probably not. Think back to the convenience store example. Was it reasonable for the store clerk who absconded with cash from the drawer to expect to be fired if caught? Yea.

But, is it equally reasonable for a player in the NFL to expect the same suspension for either hitting his girlfriend, getting into a fight at a bar, getting a DUI, saying something “offensive,” or visiting a legal marijuana shop on a visit to Denver or Seattle and posting a picture on social media? Most would say no, and while no one has been suspended six games for all of those various examples, it wasn’t so long ago that everyone was hunky dunky with Ray Rice getting a two-game suspension for knocking his then fiancé out cold before the hotel video magically appeared. Slippery Slope is a fallacious argument, but one that is easily imaginable in today’s NFL under soon-to-be extended Commissioner Goodell.

So, the incidents will continue, the punishment will get doled out, and the hot takes will spew. Stephen A. Smith on ESPN and Skip Bayless of FS1 will solve the problem again and again in under two minutes. But, the issue for the players, for the league, and for the fans is a lot more complicated. Real Sports doesn’t get it entirely right, but it comes closer. If you have HBO, check it out.