The Bengals took their turns in the NFL draft two weeks ago under the cloud of a new player conduct policy that would go so far as to hold the team responsible if their players should persist in going astray. By all indications, the Bengals played it safe, as they already were stung by the new rules.
At that moment, we mentioned NFL Commissioner Roger Goodell's ex post facto enforcement of the new policy and walked past it to address the draft (see "Bengals Tread Water in NFL Draft While Browns Improve," issue of May 2). Indeed, virtually everyone writing about football or talking about it over the electric waves has walked past the ex post facto issue, if they've considered it at all.
And that's a pity. In these days of fear and retribution — when the president claims executive privilege of questionable legality, when the government seeks tools of surveillance against private citizens, when an older generation aggressively casts moral condemnation on a younger generation — we risk losing our grip on the rule of law and the underlying guarantees of personal freedom in the United States Constitution.
A dangerous perversion is settling among us, tempered only by the president's failing political influence in the face of his poorly considered war. We've come terribly close to deciding that the way to preserve a free society is by turning it into an unfree society. A punitive morality valuing security over freedom can go so far as to transgress the rule of law itself, which defeats the underlying purpose of rules designed to promote freedom and security.
On April 10, the NFL announced a new player conduct policy and suspended two players on the very same day under the disciplinary provisions of the new policy for actions occurring before the new policy went into effect.
So Tennessee Titans cornerback Pacman Jones is out for the year and Bengals wide receiver Chris Henry is out for the first eight games of 2007.
Though the old policy prohibited violent and criminal behavior off the field, it didn't provide for league discipline in advance of a conviction. And no player had ever been suspended for more than four games under the old policy due to conduct away from football.
Under the new policy, the commissioner can suspend players almost entirely at his discretion for off-field incidents, even when their legal matters are pending and they haven't been convicted of crimes.
Whether Goodell's action is strictly illegal could be a matter for the courts. But there can be no question that retroactive suspensions under the new policy constitute a broadside against the spirit of law and the general ethos of fairness by increasing the penalties for infractions after the infractions have been committed.
This is not a trivial point or a mere inconvenience, for it lies at the very base of a free society. It's right there in the Constitution in Article One, Section Nine, where it says, "No bill of attainder or ex post facto law shall be passed;" Article One, Section 10 prohibits states from passing ex post facto laws.
In other words, if you're 21 on Tuesday and the drinking age increases to 22 on Wednesday, the authorities can't come and get you on Thursday for the drink you had on Tuesday. It's a simple matter of fairness without which punition isn't even credible.
Obviously, the NFL is neither a federal nor state government, so its policies aren't laws. Yet the NFL does engage in labor relations regulated by labor and antitrust legislation tied to the constitution, and we shouldn't be surprised if an enterprising labor attorney makes a case out of it. We don't have to be attorneys to know that if there's a path from the player conduct policy to Article One, they'll find it.
Indeed, Jones' attorneys hinted in a letter to the NFL last week that a lawsuit could be in the offing if his suspension weren't reduced on appeal, and based on aspects of Jones' appeal that have been made public we might expect an argument based not only on the suspension's unprecedented gravity but its retroactivity as well.
Furthermore, Jones could sue the NFL Players Association for breaching its duty of fair representation, for the union not only isn't lifting a finger on the ex post facto issue but it rolled over for a policy that no self-respecting union would accept. The appeals process alone is a joke.
When the commissioner takes disciplinary action, the appeal goes nowhere near an outside review or independent oversight committee. It goes straight back to the commissioner in the silly hope that he might have second thoughts.
Among the many aspects of its unfairness, retroactive discipline is arbitrary. For example, the new policy allows the commissioner to sanction teams of bad actors by docking draft choices. Through January, nine Bengals players were arrested in nine months. So, if Goodell can suspend Jones and Henry retroactively and to such an unprecedented degree, why doesn't he just go ahead and dock the Bengals draft choices right now?
Understand that it's only the principle against retroactive discipline that is here defended. Jones and Henry are indefensible.
Jones is obviously a miscreant and a sociopath, arrested or cited for assault, vandalism, marijuana possession, obstructing police, disorderly conduct and public intoxication within two years of being drafted in 2005. A recent violent incident at a Las Vegas strip club reportedly began when Jones showered $80,000 on dancers and then tried to get it back.
By one report, Jones told the commissioner he would stay clean and self-impose a midnight curfew, only to be pulled over for speeding at 12:45 a.m. a few days later.
Henry's rap sheet is shorter, though, unlike Jones, he hasn't completely escaped jail time. Henry has pleaded guilty in such diverse matters as concealed weapons, providing alcohol to minors and drunken driving.
In a 14-month period, police arrested him four times. Of course, a good number of Henry's teammates also are familiar with Cincinnati area police.
But fair is fair, and disciplining players retroactively under a new policy simply isn't fair or just. A commissioner who lodges punishment retroactively and arbitrarily can't make a serious claim to moral authority, no matter how well it plays in the public and the media.
The Jones suspension certainly seems like a public relations win for the NFL, which is struggling with a player who adds up to so much bad news that it almost seems wrong to wait for a conviction. But what's good for public relations isn't necessarily good for justice.
We shouldn't be surprised to see it in court.