Suppose you’re considering a job applicant who seems to check all the right boxes. He has the skills you’re looking for. He has accolades from experts in the field. It’s obvious that he can be of enormous help to your company. Then, in the course of your background check, you learn that he is facing accusations of sexual assault. What do you do?
If you’re an ordinary employer, you go to the next applicant on your list. If you’re the National Football League, you roll out the red carpet.
That’s at least one potential lesson from this past weekend’s NFL draft. In the first round, the Oakland Raiders drafted Gareon Conley, who has been accused of rape. In the second round, the Cincinnati Bengals selected Joe Mixon, who in a much-viewed video punches a woman so hard that she falls down unconscious. In the sixth round, the Cleveland Browns selected Caleb Brantley, who was accused of doing pretty much what Mixon did. And they are not the only drafted players who face or have faced such charges.
Of course not every accusation is true. The players might turn out to be innocent. (Well, not Mixon, who pleaded guilty to a misdemeanor and reached a civil settlement with the victim.) But most employers would nevertheless tread warily, no matter how much talent the prospective hire might bring. Yes, there is a certain unfairness in punishing would-be employees who have been convicted of no crime. On the other hand, a business has reputation and morale to worry about.
The NFL is different. Although some fans say that they are giving up professional football, there’s no serious prospect that outrage over accusations of violence against women will lead to significant boycotts. Nor am I advocating such a course. (I’m going to keep watching.) But we live in an era when over two-thirds of those surveyed believe that the league has a serious domestic violence problem. The figures are the same for fans and non-fans. When that large a swath of the public believes you have a problem, you have a problem. It’s true that lots of players who have been violent against women in the past have been drummed out of the league with plenty of competitive years left in them. It’s also true that the ESPN announcers looked shocked when Mixon, horrific footage and all, was drafted in the second round. The network immediately showed the video.
Still, before we all jump on the anti-NFL bandwagon, let’s look at three arguments the other way:
(1) The league gets a bad rap. Its players are less likely than the general population to be accused of domestic violence.
There is limited merit to this contention. A detailed 2014 analysis of post-2000 data by FiveThirtyEight found that the rate at which NFL players commit domestic violence is significantly lower than the rate in the general population; the rate at which they are arrested for crimes generally is a small fraction of the rate in the general population.
On the other hand, the same data tell us that the domestic violence rate among NFL players is much higher than for similarly compensated professionals in other fields. So it would be an error to conclude from the data that the league does not have a problem.
(2) The fact that a young man is accused or even convicted of assault should not keep him from earning a living.
This frequently made argument is a bit of a red herring. As stated, the proposition is unobjectionable. But I daresay that he does not necessarily have a right to earn a living as a professional athlete. There is something to be said for the old-fashioned notion that those who are in the public eye bear a public responsibility to conduct themselves in ways that others might emulate. When he does otherwise, there ought to be a penalty. Here I refer not simply to the penalty exacted by law but to the penalty exacted by the profession itself. A male lawyer or doctor who punched a woman so hard that she required surgery would most likely face, at minimum, a suspension of his license.
The NFL has a protocol for dealing with domestic violence issues, and the protocol includes the possibility of suspension. The commissioner retains the authority to discipline even players cleared by the judicial system. Journalists are predicting that the league will soon have something to say about Mixon’s status. One hopes so. Professional football is a private business, but it is touched with a public responsibility.
(3) College players accused of violence against women have already been punished by the league, through the discount applied to them in the draft.
This actually may be the strongest of the counterarguments. Consider the case of Conley. Prior to the rape charges some experts expected him to be chosen in the top five. Most had him in the top 10. Instead, he was picked 24th. The difference, according to the league’s rookie salary scale, will cost him something between $6 million and $15 million in contract value. That’s a hefty fine.
Mixon, who dropped into the second round, will lose even more. (A Forbes columnist estimates his penalty at $25 million.) As for Brantley, because he fell all the way to the sixth round, he would likely receive only the rookie minimum salary were he to make the team. That minimum -- currently $465,000 -- is certainly a lot of money. But it’s a pittance when compared to the millions he would have earned if he had been drafted in the first or second round, as most experts predicted.
In short, the accusations do indeed cost the players money. Lots of money. Note, however, that the money does not go to the victim. It is simply transferred to other players who are drafted where the accused would otherwise have been selected.
I fear that I must end on an unsatisfactory note. There is no perfect balance to be struck between the presumption of innocence and the need for the NFL and other sports leagues to set a proper example. What we can safely say is that whatever other discipline the commissioner might decide to impose, at this year’s draft the league’s public image took a hit.
Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”