The NFL's Punishment of Michael Vick

With his guilty plea, Michael Vick will face sentencing in a federal district court. As I write, it appears Vick will plead to the charges filed, which means he will be convicted of one count of conspiracy to violate the Travel Act, 18 U.S.C. section 1952. The sentencing possibilities are many, especially now that the federal sentencing guidelines are no longer mandatory. (Here's an informative article discussing Vick's possible sentence, for those researching along at home.) Surely Vick's plea of guilty, although perhaps inevitable, counts for something along the lines of acceptance of responsibility, suggesting mitigation. At the same time, the allegation that Vick was the de facto head of the enterprise, at least financially if not operationally, will militate in favor of a severe sentence.

If Vick was in fact the head of the operation and did in fact maliciously kill the animals, then he should get a severe sentence in the upper end of the presumptive sentencing range. As I've written before, if he killed the animals out of malice, not from humane impulses, then his conduct was despicable. (If he killed out of humane impulses, then we must remember that he did not have access to the most humane method of euthanasia, an injection, since resort to a veterinarian was obviously not possible.) So as the facts add up, it seems that Vick will receive a criminal sentence that will surely include a substantial term of imprisonment, perhaps some additional sentence such as home detention or parole, and a stiff fine: a sentence that will be much more harsh than his co-conspirators will likely receive.

So what should the NFL do about Vick? Should its penalty be similarly severe?

Not necessarily. The NFL should be careful not to over-punish Vick.

1. Let's first clear up some of this confusion about the NFL's new and much-discussed "Personal Conduct Policy." The new policy gives the Commissioner discretion to impose a suspension, including a lifetime ban. But so did the former, now-superseded policy. The new policy does direct the commissioner to consider "the nature of the incident" in setting his penalty, along with similar factors, but these factors are obvious and would be implicit under the old policy. My point is that the new policy hasn't changed much from the old policy, at least not in any way relevant to the Vick case. The major changes in the new policy are two: the Commissioner may punish players for conduct that is not criminal, but that "undermines or puts at risk the integrity and reputation of the NFL"; second, the new policy obliges the league to conduct an investigation before punishment is imposed and gives the player a right to some kind of hearing afterwards. (By the way, although the former policy had been widely characterized as requiring a criminal conviction as a prerequisite for the NFL imposing punishment, the former policy didn't quite read that way: it defined "prohibited conduct" to include "criminal activity," but it didn't explicitly require that the criminal activity result in a criminal conviction in order to justify a league sanction.)

2. So despite the popular perception, nothing in the new policy directs Commissioner Goodell to impose more severe punishments under the new policy than did Commissioner Tagliabue under the former policy. The fact that the new policy allows the Commissioner to respond to non-criminal conduct is helpful, as the NFL will not be beholden to the discretion and priorities of the local prosecutor. Of course this aspect is not relevant to Vick, who apparently has been relatively trouble-free until this episode arose. But with respect to Vick, with a criminal conviction looming, Commissioner Goodell should and undoubtedly will take advantage of the criminal process. Vick's sentencing hearing, and the statement of facts to which he will agree, should reveal many specifics about the nature of Vick's conduct.

3. The new policy directs the Commissioner to consider, as mentioned, the "nature of the incident" in setting his punishment. But it also directs him to include "other relevant factors," and goes on to say that, with respect to criminal offenses, the Commissioner should await "the disposition of the proceeding" before imposing punishment. If the new policy allows the Commissioner to impose his punishment regardless of whether or not the conduct results in a conviction, then why should the Commissioner have to wait until the criminal case is over? What are these "other relevant factors" that Goodell must consider that involve the "disposition of the criminal case"?

4. Commissioner Goodell needs to wait for this: the actual criminal sentence. The NFL's sanction needs to be gauged in light of the severity of the federal court's response. In other words Goodell, like a judge imposing a sentence, needs to be mindful of the total penalty Vick will suffer. I find pitting dogs against each other in a death match deeply disturbing, as I do cock fighting and bull fighting and certain forms of human fighting (were such allowed by law). I bet Goodell shares my aversion to this sort of thing. But Goodell has to consider more than his personal response. Vick's conduct will likely result in a substantial (six months at least) term in federal prison, some lengthy sentence of probation, the largest fine allowable by law, the loss of the remainder of his $130 million contract, public enmity and stigma that will follow him for a lifetime, plus the loss of very large ancillary income from endorsements, post-career job opportunities, and so forth. Surely there must be some limit to a sanction, no? Surely Goodell, imposing a suspension in the wake of the criminal penalty, must consider the severity of that sanction, and the other relevant public and private sanctions, in crafting his response.

5. All crimes are bad; if not, we shouldn't call them crimes. Yet prudence, the limitations of resources, the desire to rehabilitate, and basic humanity require us to make distinctions among crimes. Not every crime should result in maximum life imprisonment or a sentence of death. It's easy and glib to say, as have many commentators, that Vick should be put away for life or subject to physical torture or the like, but really, would we want that as social policy? If we impose huge punishments for animal fighting, what should we give for spouse abuse, which in my mind can be every bit as disturbing and wrongful as dog fighting, and maybe worse? What about child abuse? What about child abuse that involves drug selling? See, almost all crimes are bad, and all deserve our condemnation. But even the staunchest advocates of law and order recognize that our punishments have to vary for crimes according to their seriousness. If we punished all crimes at the maximum, then an offender might as well commit the most serious crimes, since the outcome will be the same in terms of legal liability.

6. It amazes me how often, when an athlete or other public figure has violated the criminal law, I hear people say that that person should lose his job. We have sanctions for crimes in this country: imprisonment, home detention, probation, parole, fines, restitution, death. Why do people want to so easily and quickly add a non-criminal sanction, job loss, to this list? It's one thing if the person, say a politician or lawyer, has abused his office in committing the crime, but that's not the case usually. Why add job forfeiture? Why take away a person's livelihood? Why should one animal abuser (say one of Vick's co-conspirators) get to serve a six-month sentence and then go back to his occupation but Vick have to lose his, plus suffer the additional penalty of a $130 million dollar contract loss plus a substantial forfeiture of his future income? Let's be honest here: many of us have engaged in conduct that could have been a crime. No? Say you're driving home from work above the speed limit. That's not usually a crime (not everywhere), but if bad luck comes your way and you hit and kill a pedestrian who wandered into the street, now you're a criminal. You would be deeply sorry, you would plead guilty, you would suffer a criminal sanction. Should you get fired from your job too? We've all driven our cars too fast. Should we lose our job just because bad luck intervened?

[6a. I realize Vick's crime was not the result of bad luck, and I'm not saying speeding is analogous to dog fighting. That's not my point with this analogy. The analogy is this: that some crimes (indeed many, it turns out) are the result of bad luck. People do negligent or reckless things all the time, and once in a while that carelessness hurts someone. It's bad luck, but in the eyes of the law it doesn't matter that it was bad luck. It's a crime, just like dog fighting is a crime. Do we want job forfeiture for all crimes, even the (many) "bad luck" crimes? Or do you want job forfeiture only for some crimes? Which ones? There are a lot of crimes.]

[6b. Job forfeiture as a remedy for a crime makes no sense to me, generally speaking. If an employee commits a crime and then the employer "must" (pursuant to our job-forfeiture ethos) fire the employee, then by the same logic the next employer (regardless of whether or not it's in the same line of work) must not hire that same employee. So the upshot is that criminal offender is now permanently disbarred from working for a living. If Vick cannot be hired to quarterback an NFL team, should he be hired by another company? By yours? If not, what's he to do for the rest of his life, just go on public assistance? I'm old school. What ever happened to paying one's debt to society and being done with it?]

7. I'm not saying the NFL is not entitled to add to Vick's penalty. Clearly the league has, and has asserted, its interests in presenting its fans with players who represent the league appropriately. But the NFL's response, as its policy suggests, must include consideration of all the penalties the player will suffer.

8. Despite the common wisdom, Commissioner Goodell has not been a hanging judge. Pacman Jones got a one-year suspension, but his conduct, which consisted of a multitude of bad behaviors and brushes with the law, did not result in any criminal sanction: the NFL's suspension was all he got. Jamal Lewis's did time: he helped set up a drug transaction, was convicted of drug trafficking, and received a two-game suspension. Why so light? Why so little for a drug dealer (who to be clear was but minimally involved in the crime)? Because Lewis also received a two-month term of imprisonment; the NFL moderated its penalty to account for the federal sanction. Tank Johnson got an eight-game suspension in the wake of a two-month term of imprisonment for illegal firearms possession, but in his case there were several other incidents involving firearms, including a shooting involving his bodyguard. Albert Haynsworth got five games for kicking an opposing player in the head, but that conduct was not addressed criminally. (See here and here.) Vick's dog fighting was terrible; so was Haynesworth kicking a exposed man in the head with metal cleats.

9. So Goodell, like Tagliabue before him, has shown some judgment in his penalties, and clearly appears to be mindful of the criminal sanction imposed on a player. Goodell, even in his limited tenure, has shown discretion. What should the NFL's penalty be for Michael Vick? In light of the seriousness of his crime, and due to the public uproar, and with consideration of the precedent of other penalties, it strikes me that a one-year suspension should be about right. But here's my point: that penalty should run concurrent with the rest of Vick's sanctions. One year of job loss is enough, regardless of whether Vick is sitting at home or in a federal penitentiary. If Vick is sentenced to six-months' imprisonment, for instance, those six months should also count as part of his NFL suspension. Why? Playing in the NFL is a short-term employment. Vick at age 28 has only a handful of seasons left. In fact, although some quarterbacks can hang on as backups for many years (see Vinny Testeverde), Vick is an erratic thrower who relies on his speed and quickness to make plays. Surely that athleticism will fade with time, and Vick will be reduced to a pocket passer, a task for which he is not well-suited (he's a bit short for the position). Vick does not have many years left. When he comes back after a year he'd be a social pariah, relegated to a backup position on one of the NFL's less-notable teams. He'll be relegated to backup money too, and will never again earn a penny in outside endorsements. He'll live with the stigma of his crime for the rest of his life. A lengthier suspension that took away, for all practical purposes, all chances for the only job for which he has ever trained seems, to me, unreasonably harsh.

10. It's never easy to argue for any sentence, high or low. How much time in prison or suspension from a league is appropriate is always indeterminable. There is no mathematical exchange rate between the conduct of an individual and the official response. Added to the mix is the fact that people respond to the same sanction differently: for one person, even a month in a federal prison might be unbearable; for another, less so. The same might be said of social stigma or job loss: some of us might bear it better than others. But Goodell will not have the luxury of calling the question indeterminable: he has to pick a number that adequately responds to Vick's conduct and protects the interests of the NFL. Vick is now and will suffer to a huge extent from his conduct; Commissioner Goodell needs to take this into account when he imposes his suspension.

The Dubious Crime of Referee Tim Donaghy

Although details remain sketchy, we are now learning how NBA referee Tim Donaghy went afoul of the league's prohibition on gambling. One of Donaghy's sins was to alert his cronies as to the composition of the refereeing crew for each game. Each referee tends to call fouls a little differently, with some more whistle-happy than others. So knowing in advance the identity of game referees could assist gamblers, who would bet the "over" side in a game officiated by referees who call tight games, or could wager a "side" (pick the victor) on the team with better free-throw shooters. Donaghy apparently also passed on player injury information and details about how certain players interacted. Not sure who would care much about the latter, but clearly injury information can matter a lot in basketball, where only a few players actually see much court time and even fewer take most of the team's shots. Finally, although I'm not sure about this, I've read that Donaghy may have made some bets on his own account. Donaghy got paid by his co-conspirators for successful bets, at about $5,000 per game.

So as this scandal begins its slow passage into history, the NBA will undoubtedly "learn" from its mistakes. Undoubtedly the league will tighten up its oversight of referees, players and other league employees. Hiring and retention criteria will be reviewed and augmented; policies will be rewritten; financial disclosure and review obligations will be enhanced, all in an effort to prevent this tragedy from ever again happening.

But has the NBA learned the correct lesson? Does the NBA need to impose more regulation to eliminate game fixing? How about deregulation instead?

1. In effect, Donaghy was betting on his own account. Regardless of whether or not he put his own money on the line, the fact that he was paid only for successful bets gave him an interest in the outcome of a game equivalent to a wager. I don't think there's a lot a referee can do, in the average game, to influence the ultimate outcome in terms of victory. But he may systematically put the game into the "over" category. What Donaghy could do was call games tight (which it seemed he did), hide the fact that he was to referee a game (the NBA took care of this for him, but not revealing the identity of game referees until the last minute), bet the over, and then profit from the tendency of games he worked to go over the total. Given the preference that the NBA league officers seem to have for tightly called games (I read about it in the last issue of ESPN the Magazine, which I assume is subcription-only, unless I'm the only one paying for it), Donaghy's habit of calling games tightly, instead of raising suspicion, actually put him in good stead. Ironically, Donaghy's gambling interests helped him earn a high league rating.

2. Donaghy's betting was made possible by the NBA's decision to hide certain information. Hiding information makes it valuable, and allowed Donaghy to profit from it. What if that decision were reversed? What if the information had been publicly disclosed? Donaghy would have had nothing to trade. With available information, gamblers and other people interested in game outcomes would study referee tendencies. Point spreads and total scoring lines would be adjusted accordingly, much as they are for (known) player injuries, player talent, home-court advantage, and so forth. Making information public renders it comparatively worthless.

3. Why did the NBA feel it necessary to shield the identity of game referees? Maybe there are competitive reasons (perhaps discouraging teams from preparing game plans to play to the particularities of certain referees), but they seem slight. On the other hand, clearly this practice infuses the seemingly innocuous "game referee" information with value, making this inside information a target for those who stand to profit from even slight betting edges. Think of all the people who had to know referee assignments well in advance of games: besides the referees themselves, there are referee and league supervisors, travel agents, family members, close friends, traveling companions, and perhaps others. A determined gambler would have a multiplicity of targets. But these people are targets only because the NBA made referee assignments a secret in the first place. Let the public know ahead of time and that information, already factored into the over/under total line, would have value to nobody.

4. Much the same can be said with respect to injury information and the like. The NFL (a betting league if there ever was one) is diligent in requiring teams to disclose player injuries, even going so far as to mandate that teams classify the severity of the injury. Remarkably, this classification must be made not according to the actual severity of the injury. Instead, teams are obliged to describe player injuries along the dimension of the player's likelihood of appearing in the forthcoming game. This practice can only be designed to assist bookmakers in setting the gambling line precisely right. (Fans with game tickets aren't going to not attend because the tight end is injured.) Why should the NFL care about the integrity and accuracy of the betting line? Why should it be so concerned about teams disclosing even minor injury information? Because the NFL is well aware that gambling permeates its game and wants to make sure that no valuable "inside" information exists: if all is disclosed, all temptations for insiders to profit from information is gone. Disclosing this information publicly takes away the opportunity and incentive for players, trainers or others to conspire with gamblers.

5. Imagine a world in which information about referees and player injuries were disclosed. Without any inside information to sell to gamblers, Donaghy's only option, were he determined to make money from wagering, would be to officiate a game in a manner at odds with his normal performance, hoping by excessive foul calls to push the game into the "over." (It is unlikely that Donaghy would risk much on a side bet on the victor: it would seem too hard for a lone referee to dictate the winner; players making or missing shots would be beyond his control.) Even if this strategy were successful, the referee had better place a large bet, for his officiating in this abnormal manner would draw attention to him and signal his interest in the point total. No way a referee would risk forfeiting a $200,000 per year job for a $5000 payoff. The risk of salary loss would provide for a substantial and automatic check on any incentives to profit from game fixing.

6. Instead of relying on disclosure and risk of salary forfeiture to prevent game fixing, the NBA imbued their referees with valuable gambling information and then told them not to use it. The league was playing with fire. It will be lucky if the scandal stops here.

7. By the way, Donaghy did violate some laws, but for the federal prosecutor to charge him with fraud (to which he pleaded guilty) is just stretching the law in a bad way. Donaghy didn't trick anybody out of anything (unless we're to worry about his counterparties on the illegal bets). The government's theory was that Donaghy tricked the NBA out of the loyal and honest services he owed. In other words, the government's fraud allegation basically says that anytime an employee acts disloyally or dishonestly toward his employer, or breaks some company rule, that employee is not just in trouble with his employer, but he's also committed a federal crime. Nice way to criminalize the fiduciary obligations of employees. This theory of law has been around for a while but still makes no sense to me.