Former federal prosecutor John Dowd wasn’t surprised in the least that Judge Richard Berman vacated Tom Brady‘s four-game suspension on Thursday.
But the bigger story to Dowd goes beyond the Patriots’ star quarterback being able to play starting next Thursday night against the Steelers.
What matters to him is the miscarriage of justice by the National Football League and how they can correct their disciplinary process going forward. Dowd, the author of DeflategateFacts.com, is the man who successfully helped Major League Baseball bring charges against Pete Rose and George Steinbrenner in the late 80s and early 90s. Those cases resulted in suspensions that held up and were not overturned.
“I think we did do it right in Major League Baseball, and it wasn’t like it was in any book,” Dowd told WEEI.com by phone Thursday. “We just thought being fair about it, that was the way to do it, and so we did. I don’t know any other way to put it. You think about it, a man’s fortune, his reputation, his profession. Pete Rose, George Steinbrenner, the commissioner I worked for cared deeply about the rules, fairness, integrity, transparency because the fans own the game, and you want the confidence of the fans in the game, in the discipline you apply. Why football doesn’t do that is beyond me.”
But the bigger issue to Dowd here is what the NFL can learn from this and how they can improve a disciplinary process that is clearly flawed. But to fix it, the NFL must first acknowledge its system is broken. Dowd has his doubts.
“The NFL is really hard to predict what they’re doing. They’re so full of themselves,” Dowd said. “They made such fundamental errors here. To me, they’ve got to sit down and recognize what happened here, and take a look at the five suggestions I made to guarantee [fairness]. What you want is confidence in the discipline that’s imposed in the game. You want the players to respect it, live by it, etcetera. If you do it fairly and thoroughly and honestly, they will.
“There’s no magic formula. Those are the ingredients of justice. It applies administratively. It applies under the collective bargaining agreement, it applies in the court of law. That’s the way we do things in this country and it’s important to the game that people have confidence in the game, that it’s being played honestly but also the rules are being enforced honestly. And if someone has a question about it, you can litigate it and deal with it. I don’t know any other way to describe it.”
Here are five simple changes the NFL could make to its disciplinary process going forward. While these recommendations are just a start, they would help the League restore basic fairness, transparency and consistency.
1. Hire an independent Special Counsel’mutually agreed upon by the League and the NFL Players Association’with criminal trial experience, integrity, and fairness, who is free of conflicts, maintains no other business or relationship with the League, and remains committed to devoting his or her full time to the completion of a confidential, leak-free investigation.
2. Enable the player’s counsel to raise, confidentially, any objections to the League’s handling of the investigation for an immediate ruling within one week by Special Counsel, who should be required to notify all parties as the investigation progresses.
3. While failure to cooperate by the player should remove the player from the field until full compliance, failure to cooperate by the Commissioner or the League should void the inquiry until full compliance. Failure to cooperate means any endeavor to frustrate, impede or obstruct the inquiry’including leaking information relevant to the investigation.
4. Upon completion of the inquiry, Special Counsel should make a confidential draft report with interviews and exhibits available to both sides for expeditious comment. The full working papers of Special Counsel shall be available to assist in examining witnesses or providing additional evidence, and both sides may examine any witness interviewed by Special Counsel. All suggestions and comments of both sides shall be considered and duly noted by Special Counsel in the public Final Report.
5. The standard of proof for the Special Counsel and any ensuing arbitration shall be ‘beyond a reasonable doubt.’ Arbitrators shall be experienced, independent, and unbiased’as well as selected and agreed to by both parties. If the parties fail to agree with five days, the Special Counsel shall have the power to select the Arbitrator to hear the case. The Arbitrator shall hold a full and fair hearing with all witnesses and evidence available on the final record.