He's not your judge.

Photographer: Jonathan Daniel/Getty Images

For the NFL, It's Money Over Morals

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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An Amtrak train derailed and the Vatican recognized Palestine as a state, but in Boston, Deflategate is the only topic people want to debate. At the core of the discussion is the four-game suspension that the National Football League gave New England's Tom Brady for his general knowledge of deflating game balls and his non-cooperation with investigators. And the basic objection is this: How can Brady get four games for a game-ball infraction when Ray Rice got a two-game suspension for beating his wife?

The objection from Patriots Nation is moral, not legal.  Fans are responding to what feels like a basic problem in punitive justice: How can an act that’s morally worse be punished less severely than an act far less wrong? In a similar vein, my Bloomberg View colleague Kavitha Davidson thinks Goodell showed "wild inconsistency" in his punishments of Brady and Rice. But that inconsistency may be more apparent than real -- when the goals of the punishments are taken into account.

The extremely counterintuitive answer here may well have practical consequences. Brady officially appealed his suspension Thursday -- and his appeal appears to rely on an analogous argument that claims his punishment was arbitrary.

To start with, let’s acknowledge a flaw in the premise of the moral objection. Rice’s two-game suspension was surely too light -- and it was subsequently vastly expanded. Morally speaking, then, it’s a bit unfair to compare Brady’s suspension with the punishment Rice initially got. Compared to the indefinite suspension that Rice subsequently received -- which was reversed on appeal to an arbitrator -- Brady’s punishment doesn’t look as extreme.

What’s more, in the aftermath of the Rice debacle, NFL Commissioner Roger Goodell has raised punishments for domestic violence. Adrian Peterson received an indefinite suspension for domestic violence, although he, too, was eventually reinstated after suing the NFL. Belatedly, then, the NFL appears -- I say appears -- to have recognized the moral gravity of domestic abuse.

Yet the moral objection based on the comparison still feels like it carries weight. The reason it does is that Goodell, who set both punishments, is the same person. His moral judgment is what’s being questioned. He may have been pressured to acknowledge domestic violence, but his initial instincts were that punching your now-wife was worth two games and knowingly playing with a deflated ball was worth four. This seems plainly absurd -- like a subversion of ordinary moral values.

Yet on closer examination, it may not be. The solution to this quandary lies in a single moral question: Why punish? And as it turns out, the reason the NFL commissioner punishes someone may be very different from the reason the state punishes a criminal. The different circumstances of the NFL require a different moral analysis.

When the government punishes a crime, it’s sending a message of our collective moral condemnation of the act. Sure, other reasons exist, too, such as making the streets safer, preventing other crimes, and maybe even rehabilitation. But the deeper reason we punish is to express moral blame.

The NFL is different. Though it’s easy to forget, the NFL isn’t a government -- it’s a private business. The commissioner is hired and fired by the owners of its for-profit teams (though the league itself was technically until recently a nonprofit). The true objective of the commissioner is to make money for the NFL, which in effect means the owners and their partners or shareholders.

Thus, when the league punishes conduct, it isn’t asking how morally wrong the conduct is. It’s asking what decision would enable the league to make more money.

Crass as that equation sounds, it actually makes sense. We don’t really want our bosses to sit in moral judgment of us -- at least I don’t. We prefer, rightly, that our bosses be governed by the logic of their jobs -- so that we can be governed by the logic of ours.

So the proper question for the NFL should be not how morally wrongful Brady’s conduct or Rice’s was, but rather how harmful the conduct was to the league’s bottom line.

Here it’s possible to see how Brady’s conduct might appear worse than Rice’s. Brady’s alleged actions undercut faith in the fairness of the game. And the ideal of the fair game is the league’s most important product. It’s a major reason we watch. 

If you doubt that this asset of fairness is vulnerable, think of baseball. The sport’s long slide in popularity can’t be explained completely by its performance-enhancing drug scandals -- but those scandals certainly did vast harm, because they shook fans' faith in the basic fairness of the game.

Rice’s actions were, obviously, incomparably worse as a moral matter. But they weren’t necessarily worse for the NFL. Of course the perception of players as abusers is bad for business, as Goodell learned to his chagrin after underpunishing Rice. But off-the-field conduct, no matter how evil (looking at you, Aaron Hernandez), doesn’t necessarily undermine the credibility of the league’s premier product. It tells us that players shouldn’t be treated as idealized role models. But it doesn’t tell us the game is rigged.

Brady’s sentence may yet be reduced, either by an arbitrator or by a court that hears a subsequent challenge to the arbitrator’s decision. And his sentence may be unjustifiably long, even by standards of harm to the league. But as we argue it out, we should recognize that the relevant comparison shouldn’t be the moral truth that cheating is much less bad than domestic abuse. Football isn’t life. Roger Goodell isn’t Lady Justice -- nor should he be.

  1. In terms of the NFL’s rules, there are differences between the two situations that make legal comparison difficult. Rice violated the personal conduct code, which is administered outside the labor agreement between the league and the players, while Brady committed conduct detrimental to the integrity of the game, which is part of the labor agreement.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net