I have a few thoughts on Ray McDonald. But, first, a disclaimer: I don't have a law degree, and I know that many people here have one, so their opinion should be taken highly - higher than mine, certainly. As such, I want to pose an opinion that I've been thinking about recently, but follow it up with some questions for discussion, because I'm interested in reading how people with more law experience than I have deal with this issue. So yes, I'm going to start this post by admitting my ignorance. The heaviest level of engagement that I've had with law is reading Cicero and Lysias. I occasionally read Supreme Court decisions and don't understand them. But I try!
But, it seems to me that we haven't really done a good job at defining what "due process" means and how it applies to a business like the NFL. I won't get into defining what due process actually is (see my first paragraph), but it seems like we are all using it to mean that until an investigation has concluded, no punishment should be handed out. As a consequence, Ray McDonald should be playing football until the investigation is concluded.
Recently, though, there have been calls for McDonald to be taken off the field as the investigation is underway. Most notably, Jerry Rice and Steve Young have forwarded this position. At first, I rejected these out of hand, because due process. But I have come to take these arguments a little more seriously the more I think about them.
For one thing, we need to recognize that a business is not under the legal trappings so often discussed. While the state is required to reserve punitive action until the whole process has been completed, a business is under no such obligation. To expect a business to act like a civic entity is, well, problematic. This is part of the problem of Roger Goodell's whole approach to player punishments.
In many walks of life, including civic, reasonable suspensions are taken during the course of investigations. Police officers, for example, are frequently put on leave during an investigation of certain actions that they may have taken in the field. A member of a business' board might have his or her activities in the business revoked while an investigation is pending, only to reinstated or fired depending upon the outcome of the investigation. I know I speak broadly here, but only because we see examples of this frequently. The most notable example in my mind, having graduated from UC Davis, is the circumstances surrounding the Davis pepper spray incident. The perpetrator was put on leave while an investigation was ongoing.
If the 49ers deactivated McDonald In this way, the team is able to make a moral distinction without the trappings of legality that doesn't actually apply to it. Moreover, they wouldn't be punishing McDonald in the sense that they could still pay him, allowing him to practice and travel with the team, but simply make him inactive on Sundays. If they feel uncomfortable with something harsher, then just not allowing him to play on Sunday is not at all unreasonable.
And, it gives the team the moral cover that, frankly, the NFL really needs right now. Should McDonald be guilty, can you imagine the implications it will have for this team? And for the NFL at large? The recent actions of the commissioner have really brought down the credibility of the NFL as an institution. And, I'm not going to deny it, it is affecting the way I think of the game. Has it gotten to the point that I will stop watching games? Of course not. But, many things distract me now. I'm aware of how artificial the presentation of the games is and the ineptitude of the people running the show. It's frustrating.
But, I'm sure that there are many who disagree with me. How would you define due process and how would you say that it relates to the team's actions? Should it have a large impact in how the teams act? Or, is it viable to recognize that a business is held to different standards than a government?