Goodell's Hypocrisy a Feature, Not a Bug, of NFL Law

Michael Silver of Yahoo Sports pens an open letter to NFL Commissioner Roger Goodell about his apparently inconsistent disciplinary decisions:

I believe you have a blind spot on the issue of punishing coaches whose behaviour tarnishes “The Shield,” and it kind of makes you look like a hypocrite.

Personally, I’m not a big fan of fining players for things like improper shoe colour or calling wifey on the phone (possibly in a loopy state) to say, “Honey, let’s have a candlelight dinner tonight … actually, make that dinner in a completely darkened room.” But I get it – you’re the Sheriff, and rules are rules.

That said, if you’re going to flex your power, it kind of helps your credibility when you at least go through the motions of doing so in an even-handed manner. Too often, your decisions seem arbitrary.

Actually, it’s not that Goodell’s decisions “seem” arbitrary. They are arbitrary, because the NFL’s rules grant Goodell virtually unlimited discretion not only to punish violators, but to determine ex post what constitutes a violation. By definition anything Goodell does will be arbitrary.

Now I’m no Goodell supporter. Like Silver, I’ve pointed out the glaring inconsistencies in Goodell’s makeshift jurisprudence. But even I’ll admit it’s silly for us to criticise Goodell for hypocrisy. He’s a regulator, not a businessman, and he’s only acting according to his nature.

Think about it. The title “commissioner” alone suggests Goodell’s office is more akin to a member of the Federal Trade Commission — whose members are also “commissioners” — than the CEO of a private trade association. Like an FTC member, he’s granted broad powers to identify and punish malfeasance. In Goodell’s case it’s “conduct detrimental” to the the league; in the FTC’s it’s “unfair” competition. Both mandates rely on the judgment of the individual regulator rather than a clear list of prohibited acts and accompanying penalties.

And like Goodell, the FTC is maddeningly inconsistent. I’ll give one recent example. This week the FTC hears arguments in a case it brought against the State of North Carolina. The FTC objects to a state regulator’s decision to treat teeth-whitening services as a form of “dentistry” subject to the same licensing requirements as dentists. The FTC claims the state’s actions discourage competition and unfairly bolster the licensing board’s monopoly. The FTC has a point.

Except that the FTC does the exact same sort of thing at the federal level. The FTC frequently drives firms out of the marketplace when they try to compete with the federal government’s drug monopoly, aka the Food and Drug Administration. In fact, the FTC uses the exact same legal arguments that North Carolina has in support of its teeth-whitening restrictions. Hypocrisy? Sure. But that’s irrelevant. As long as you accept the premise that the FTC should exercise a broad, discretionary mandate, you can’t then turn around and complain their using that discretion inconsistently. As a famous fictional bureaucrat, Colonel Jessup, put it in A Few Good Men, “I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it.”

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