A victim?

Photographer: Donald Miralle/Getty Images

Greg Hardy Prosecutors Bowed to NFL Justice

Kavitha A. Davidson is a former Bloomberg View columnist.
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The NFL enjoys more-than-equal treatment under the law in many ways, from its congressional antitrust exemption to its longtime nonprofit status to huge tax breaks for shiny new stadiums. To that list, you can now add redefining access to public records and skirting employee rights and protections.

Deadspin's Diana Moskovitz did a deep dive into how the league -- and only the league, not the public or the press -- obtained from prosecutors photos of the woman that Dallas Cowboys defensive end Greg Hardy was convicted of assaulting in 2014. (The verdict was vacated on appeal.)  The league claimed it wanted the photos, taken shortly after the incident, so it could decide on proper punishment for Hardy's actions. But once the NFL had them in hand, there was no chance they'd be seen by the news media or the rest of the public.

E-mails between the NFL and the district attorney's office in Mecklenburg County, N.C., reveal that the league promised to honor what amounts to a non-disclosure agreement in exchange for the set of photos, which were not part of the police files because they were given to prosecutors by a non-law-enforcement source. In initally asking for the photos, the NFL maintained they were part of the public record; but ultimately it agreed they actually weren't, which prevented anyone else from seeing them.

Mind you, the NFL already had access to additional photos that were part of the criminal record, as well as other evidence and an initial conviction on which it could base its discipline of Hardy. As Moskovitz notes, and as I wrote back in April when the photos were obtained, it seems pretty obvious that the league wasn't interested in finding out what actually happened. Rather, the NFL needed to know just how bad it was, to make sure whatever punishment it handed down would stand up to public scrutiny should those photos ever leak. This was about optics, not justice. The league suspended Hardy for 10 games, a ruling that was never going to hold up to appeal, and was ultimately reduced to four games.

There's a lot about this that's troubling, and it all hinges on the idea that the NFL can get special advantages just for being the NFL. The league's powerful legal team, which threatened to sue the prosecutor's office for the photos, is pretty tough for any lesser entity, even the government, to stand up to. If those photos are not part of the public record -- if they don't serve a social function important enough for the rest of us to need to see them -- then the NFL viewing them is a gross violation first and foremost of the victim's right to privacy.

I'm reminded of the case of the University of Oregon student who says she was raped by three basketball players. The school dismissed the players, but also gained access to her private medical records from therapy sessions and used them to defend itself against a lawsuit over its handling of her sexual assault case. Time and again, it seems a victim's right to privacy falls by the wayside when powerful institutions find their backs against the wall, a repeated violation that amounts to re-victimizing these women.

Secondary to concerns over protecting victims, but still important, are concerns over protecting workers from draconian employers. Greg Hardy did a horrible thing, but it sets a dangerous precedent for the NFL to be able to swoop in and access private documents about a player who committed a crime outside the workplace. It's certainly not surprising that the NFL believes it should have this kind of power; we're talking about a league that tried to force its star quarterback to hand over his private cell phone without actually having subpoena power. Now the league has basically demonstrated it can attain de facto subpoena power, even when the law doesn't quite abide.

This should be a problem for the NFL Players Association to fix, but the weakest union in sports doesn't exactly have a proven track record of protecting its members. And the NFL definitely doesn't have a proven track record of protecting victims. So we're left with an institution whose power continues to grow existing outside the sphere of the American justice system manufacturing its own rule of law. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Kavitha A. Davidson at kdavidson19@bloomberg.net

To contact the editor responsible for this story:
Tobin Harshaw at tharshaw@bloomberg.net