Bring it to Light, We Might Make it Right

Photo credit: https://www.flickr.com/photos/astros/

by Jordan McGee*

The NFL’s domestic violence program has returned to the spotlight again, thanks to Greg Hardy.  The Cowboys player made headlines after Deadspin obtained photographs taken the night Hardy and his former girlfriend, Nicole Holder, were involved in a domestic abuse incident at Hardy’s apartment in North Carolina.[1]  Hardy had called the police in the early morning hours of May 13, 2014, claiming Holder had attacked him.  Holder, however, alleged that Hardy had beaten her, thrown her into a bathtub, dragged her around by her hair, and finally slammed her into a sofa covered in automatic weapons; she also said Hardy choked her, stopping only when she told him she was ready to die and asked him to kill her.[2]  The photographs show bruises covering much of Holder’s body, with particularly vivid impressions around her throat and on her back.[3]

Reports of what happened that evening circulated well before publication of the photos earlier this month, yet Hardy faced only minimal public outcry before the release of the Deadspin article.[4]  As Ray Rice, another troubled NFL star, has put it – “It really shouldn’t take photos or anything to understand the severity of domestic violence.”[5]  The response to Hardy’s case calls into question the league’s promise to do better following the Ray Rice scandal.

The NFL Makes a Pledge, Forgets to Take a Stand

Following the controversy surrounding Ray Rice’s highly publicized domestic violence case last year, the NFL and its Commissioner, Roger Goodell, pledged to improve its response to such incidents.  An elevator camera captured footage of the incident, which showed Rice knocking his now-wife unconscious, and dragging her from the elevator.[6]  Part of the ensuing controversy revolved around whether the NFL had seen the footage at the time it gave Rice an appallingly low two-game suspension.[7]  Once the footage was released and a media firestorm resulted, Roger Goodell announced a new policy calling for a minimum six-game suspension for any NFL personnel found to have committed domestic violence or sexual assault.[8]

After being criminally charged, Hardy was placed on the Commissioner’s exempt list and played only a single game during the 2014-15 season.[9]  He was convicted of assault by a judge in July, 2014.[10]  This conviction fell apart after Hardy requested a jury trial, which was granted.  By that time, Holder had ceased to cooperate with prosecutors.[11]  Prosecutors alleged Hardy paid Holder off in an out-of-court settlement, and eventually they dismissed charges against Hardy in February 2015.[12]  The NFL held a reinstatement hearing for Hardy in April 2015, at which time the league reinstated Hardy and gave him a ten-game suspension.  Hardy appealed, and the arbitrator in his appeal reduced the sentence to a mere four games, calling ten “simply too much.”[13]

However, Hardy’s story contained numerous inconsistencies.  At the reinstatement hearing, he and his lawyer told the assembled NFL representatives that Holder slipped on a scale and fell in the tub.[14]  Later in the hearing, Hardy’s lawyer characterized Holder as a lovelorn ex who “went crazy” after Hardy denied her sex.[15]  The lawyer then claimed that Holder had thrown herself into the tub in a fit of rage, causing her injuries.[16]  This testimony painted Hardy, himself, as the victim, a tale tough to swallow given Holder’s statements to the police on the night of the incident, (corroborated by a witness in the apartment), Holder’s testimony at trial, and the photographic evidence of her injuries.[17]

Unlike in the Rice scandal, it is clear here that the NFL had access to the pictures before it issued Hardy’s punishment.[18]  However, unlike Rice, Hardy continues to be a player that the Cowboys – and the NFL – find worth the publicity trouble.  Jerry Jones, owner of the Cowboys, went so far as to call Hardy a “leader” on the field and spoke of giving Hardy a second chance.[19]  For his part, Hardy has largely glossed over the incident, never formally apologizing.[20]  After the pictures went viral, Hardy proclaimed on his Twitter biography that he was “innocent until proven guilty,”[21] which prompted many commentators to point out that a judge had already found him guilty in his first trial.[22]  While Hardy’s punishment reflects a greater seriousness than Rice’s original two-game suspension, the NFL had seen the public backlash over the minimal sentence in the Rice case at the time Goodell sentenced Hardy.  Indeed, according to some critics, the league gave Hardy a sentence it knew would not survive appeal in order to cover itself in case the photos were leaked.[23]

Are We in Good(ell’s) Hands?

It is apparent from the outrage over Hardy’s perceived lenient punishment that the public wants the league to take further action.[24]  This discontent with Hardy’s quick return to the game even extends to fellow NFL players: says Eagles player Jason Kelce, “I think it’s a joke a guy like that is able to play this quickly.”[25]

Following Goodell’s suspension of Hardy and its later reduction, there isn’t much left for the league itself to do.  The NFL can try to suspend Hardy again, but the NFLPA will certainly take the matter to court, and likely win.  The NFL also cannot order a team to cut a player, and the Cowboys seem to have no interest in cutting ties with Hardy at present.[26]  However, Hardy is currently signed to a one-year deal.[27]  If public opinion finally sours his relationship with the Cowboys, the only thing they lose by cutting him is talent.  And as public fury over Hardy’s increases, even that might not be enough to save him.[28]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2016, Villanova University School of Law.

[1] See Diana Moskovitz, This Is Why NFL Star Greg Hardy Was Arrested For Assaulting His Ex-Girlfriend, Deadspin (Nov. 6, 2015, 12:57 pm), http://deadspin.com/this-is-why-nfl-star-greg-hardy-was-arrested-for-assaul-1739117634?trending_test_e&utm_expid=66866090-62.H_y_0o51QhmMY_tue7bevQ.5&utm_referrer=https%3A%2F%2Ft.co%2FLAnJll1i6X (detailing events on May 13, 2014, when police were called to Hardy’s residence).  Moskovitz’s  article relies primarily on police reports and photographs to reconstruct what happened that evening.  Neither Holder nor Hardy gave statements specifically for this piece.

[2] See id.

[3] See id. (reprinting Holder’s testimony to police as well as graphic photos of her injuries).

[4] See Jean-Jacques Taylor, Cowboys Reiterate Backing of Greg Hardy in Wake of Revealing Photos, ESPN (Nov. 9, 2015), http://espn.go.com/nfl/story/_/id/14088383/dallas-cowboys-reiterate-greg-hardy-backing-photos (documenting mild response to Hardy’s case before photos).

[5] See Will Brinson, Ray Rice on Hardy: Shouldn’t Take Photos to Grasp Severity of Violence, CBS Sports (Nov. 8, 2015, 9:51 am), http://www.cbssports.com/nfl/eye-on-football/25366953/ray-rice-on-greg-hardy-shouldnt-take-photos-to-grasp-severity-of-violence (quoting Rice’s reaction on SportsCenter to Hardy controversy).

[6] See Jeffrey Tomik, An Overdue Ruling: Outcry Forces NFL to Ban Ray Rice, Again, Wash. Post (Sept. 8, 2014), https://www.washingtonpost.com/express/wp/2014/09/08/an-overdue-ruling-outcry-forces-nfl-to-ban-ray-rice-again (describing domestic violence that led to Rice’s suspension).  Interestingly, Tomik’s article makes an early comparison (back in September 2014) between Ray Rice and Greg Hardy, stating that the only differences in their cases had to do with the lack of photographic or video evidence in Hardy’s case.  See id.  The uproar after the release of the photographs in Hardy’s case shows how right the author was.

[7] See Report: Rice Video Was Sent to NFL, ESPN (Sept. 11, 2014), http://espn.go.com/nfl/story/_/id/11503851/ray-rice-videotape-sent-nfl-executive-april (detailing conflicting responses between NFL and prosecutor’s office over release of Rice tape).

[8] See Howard Fendrich, After Rice, NFL Increases Domestic Violence Bans, AP (Aug. 28, 2014, 9:53 pm), http://bigstory.ap.org/article/nfl-increases-penalties-domestic-violence (discussing changes to NFL’s domestic violence policy, which continue to leave discretion in Goodell’s hands).

[9] See NFL: Greg Hardy Eligible to Sign Deal, ESPN (Mar. 5, 2015), http://espn.go.com/nfl/story/_/id/12426223/greg-hardy-carolina-panthers-exempt-list-ok-sign-deal-nfl-says.

[10] See id.

[11] See id.

[12] See Moskovitz, supra note 1 (reporting that “prosecutors say, [Holder] received a settlement, which contributed to the criminal case against [Hardy] falling apart”).

[13] See Samer Kalaf, Greg Hardy’s 10-Game Suspension Reduced to Four, Deadspin (July 10, 2015, 2:45 pm), http://deadspin.com/greg-hardys-suspension-reduced-to-four-games-1717074014 (explaining quoting reasons for arbitrator Harold Henderson’s regarding decision to reduce Greg Hardy’s suspension).

[14] See SI Wire, Report: Greg Hardy Told NFL in Reinstatement Hearing Victim ‘Tripped’, Sports Illustrated (Nov. 11, 2015), http://www.si.com/nfl/2015/11/11/greg-hardy-domestic-violence-cowboys-trip-victim-explanation (quoting Hardy’s testimony from reinstatement hearing).

[15] See John Breech, Greg Hardy Blames Ex-Girlfriend for Legal Woes in Leaked NFL Transcript, CBS Sports (Nov. 11, 2015, 9:58 pm) http://www.cbssports.com/nfl/eye-on-football/25370745/greg-hardy-blames-ex-girlfriend-for-legal-woes-in-leaked-nfl-transcript (providing and reporting on leaked transcript of Hardy’s reinstatement hearing).

[16] See id.

[17] See Moskovitz, supra note 1.

[18] See Diana Moskovitz, How the NFL Convinced Prosecutors to Give Them (And No One Else) the Greg Hardy Photos, Deadspin (Sept. 16, 2015, 2:09 pm), http://deadspin.com/how-the-nfl-convinced-prosecutors-to-give-them-and-no-1729992346 (describing great lengths NFL went to in order to obtain photographs taken on night of incident).  Unlike in the Rice case, the NFL does not dispute that it was granted access to the pictures before the general public here.

[19] See Will Brinson, Cowboys’ Jerry Jones Goes All in On Calling Greg Hardy a Leader, CBS Sports (Oct. 27, 2015, 12:57 pm), http://www.cbssports.com/nfl/eye-on-football/25355390/jerry-jones-doesnt-back-down-on-calling-greg-hardy-a-leader (quoting Cowboys’ owner’s response to Hardy controversy).

[20] See James Dator, Greg Hardy Expresses Regret in his Tweets, but Not in His Behavior, SB Nation (Nov. 8, 2015, 10:33 am), http://www.sbnation.com/nfl/2015/11/8/9691344/greg-hardy-twitter-regret-cowboys-nfl-domestic-violence-nicole-holder-photos (reprinting Hardy’s tweet expressing his “regret 4 what happened in past”).

[21] See Todd Archer, Greg Hardy Briefly Changes Twitter Profile to Declare Innocence, ESPN (last viewed Nov. 12, 2015) http://espn.go.com/nfl/story/_/id/14104193/greg-hardy-dallas-cowboys-proclaims-innocence-twitter-profile (quoting Greg Hardy’s Twitter profile).

[22] See, e.g., Nate Scott, Texas Sports Anchor Dale Hansen Has Words For Greg Hardy, USA Today (Nov. 12, 2015, 9:01 a.m.) (quoting critique by notable Texas sports reporter in response to Hardy’s proclamation of “innocent until proven guilty”).

[23] See, e.g., Moskovitz, supra note 18 (theorizing that NFL’s insistence on obtaining Hardy pictures to support ten-game suspension was simply to protect itself from public condemnation if pictures were released).  Deadspin writer Diana Moskovitz observed: “In public, the league claims that its main interest is in justice; in private, its actions suggest an intense desire to avoid being humiliated – or surprised.”  Id.

[24] See Frank Schwab, Deadspin Story Reminds Us Cowboys Sold Their Soul to Sign Greg Hardy, Yahoo! Sports (Nov. 6, 2015, 9:13 pm), http://sports.yahoo.com/blogs/nfl-shutdown-corner/cowboys–greg-hardy-hypocrisy-looks-worse-with-explosive-deadspin-story-192210508.html (discussing response in light of Deadspin releasing photos of Holder).

[25] See Josh Alper, Jason Kelce: It’s a Joke Greg Hardy Is Able to Play So Quickly, NBC Sports (Nov. 9, 2015, 6:04 am), http://profootballtalk.nbcsports.com/2015/11/09/jason-kelce-its-a-joke-greg-hardy-is-able-to-play-so-quickly/ (reporting statements of Eagles player about Hardy’s punishment).

[26] See Ken Belson, Domestic Violence Is a Recurring Quandary for the NFL, N.Y. Times (Nov. 10, 2015), http://www.nytimes.com/2015/11/11/sports/football/domestic-violence-is-a-recurring-quandary-for-the-nfl.html?_r=0 (discussing Cowboys’ support of Hardy in light of NFL’s struggles to address domestic violence).

[27] See Brinson, supra note 19.

[28] See Jessica Luther, Being a Fan, Fansided (Sept. 23, 2015), http://fansided.com/2015/09/23/being-a-fan/ (describing difficulty of watching or enjoying sports given widely publicized criminal behavior of many players, observing: “[f]or many people, being a sports fan is increasingly becoming an act of reconciling what you know with what you love, and then compromising”).