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Posted: Monday June 15, 2009 7:31PM; Updated: Monday June 15, 2009 7:31PM
Michael McCann Michael McCann >
SPORTS LAW

Goodell unlikely to punish Burress until court decides his fate

Story Highlights

Roger Goodell can sanction any player whose conduct is detrimental to the league

Goodell need not wait for a particular triggering event, like a conviction

Burress could try to gain leverage by threatening to join the new UFL

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If convicted, Plaxico Burress would face a minimum of three and a half years and a maximum of 15 years in prison.
AP

Plaxico Burress' representatives believe that Monday's adjournment of their client's trial until Sept. 23 clears the way for the 31-year-old free agent to sign with an NFL team. They are particularly optimistic that teams will be interested because the trial may be adjourned again until after the 2009 season.

NFL commissioner Roger Goodell may have other ideas. Under the league's personnel conduct policy, Goodell can sanction any player whose conduct is "detrimental" to the league, with "detrimental" determined by the commissioner.

As the policy is stated, Goodell need not wait for a particular triggering event, such as a conviction, guilty plea or even an arrest. Goodell may thus seek clarification of comments made by Burress' agent, Drew Rosenhaus, earlier this afternoon on Twitter. In a tweet, Rosenhaus seemed to imply that Goodell lacks the authority to sanction his client: "We are ... confident that the NFL will not have grounds to discipline Plex until after the adjudication of his case after this season." Keep in mind, under the policy, sufficient "grounds" are determined by the commissioner, not by the player or his representatives.

In Rosenhaus' defense, Goodell has thus far declined to sanction Burress, who faces criminal charges for the Latin Quarter Club incident that occurred last November. Although the Giants suspended Burress for the last four games of the 2008 season, Goodell has not sanctioned Burress. If Burress wasn't deserving of a punishment while he awaited a trial scheduled for June, why should a mere delay in the trial suddenly make him more deserving?

Plus, Goodell has normally waited for the disposition of players' legal woes before imposing a punishment. He waited for Michael Vick's guilty plea in 2007, for instance, and did the same for Tank Johnson, who pled guilty to misdemeanor weapon charges, also in 2007. Likewise, Goodell declined to sanction Randy Moss in January 2008 after a restraining order was issued against him. Although he is not obligated to adopt a "presumption of innocence" standard when sanctioning players, Goodell has generally done so.

Burress' past may also work in his favor as Goodell contemplates his next move. Burress' criminal history is limited to two dropped temporary restraining orders, and though he has faced multiple civil lawsuits and team punishments, they are not relevant for purposes of determining his criminal past. Goodell may also place significance in the fact that Burress is alleged to have committed a possession offense, as opposed to a violent offense: Burress does not face charges for accidentally shooting himself, only for possessing a loaded gun without a proper license. Indeed, as his attorney, Benjamin Brafman asserts, "There is not a victim in this case except Plaxico Burress."

Burress may also perceive that he has leverage over the NFL through the United Football League, which is scheduled to begin this October. The UFL, which will air its games nationally on the Versus cable television network, will be looking to make a ratings splash in its inaugural season. A player of Burress' recognition could help, and perhaps Burress believes the NFL would be less likely to suspend him as a result.

Goodell, however, may view the situation differently. For starters, he may object to Burress' representatives suggesting that he lacks the "grounds" to punish Burress.

In addition, Goodell has not always waited until the final disposition of a player's legal troubles. Recall that he suspended the often-arrested Pacman Jones in 2007 even though Jones had not yet been convicted of related charges. Although Jones' criminal problems were numerous, and more diverse and serious when compared to Burress' alleged crime, Goodell premised his punishment of Jones on protecting the integrity of the game, asserting that Jones had "brought embarrassment and ridicule upon [him]self, [his] club, and the NFL, and has damaged the reputation of players throughout the league."

Goodell could similarly reason that Burress' shooting himself brought embarrassment and ridicule to himself, the Giants, the NFL and other players. After all, the story made national headlines and it only corroborated public perception that NFL players and pro athletes in general are inclined to act "above the law."

Along those lines, though Brafman claims that Burress' only victim is himself, Burress, if convicted, would have committed a crime against the state of New York. More than that, Burress may have tried to cover up the incident. According to published accounts, Burress told doctors that his name was "Harris Smith" and that he had been shot at an Applebee's. If those accounts are accurate -- which a trial would reveal -- Burress' comments could have led to an unnecessary police investigation and a possible detention or arrest of an innocent person.

Goodell is also not bound by his own precedent, meaning he need not follow a particular script or set of rules gleamed from his earlier punishments. He also needn't worry about his decision to punish being reversed or modified on appeal: under the policy, any appeal goes right back to him.

Lastly, Goodell, son of the late U.S. Senator Charles Goodell (R-NY) and son-in-law of former White House Chief of Staff Sam Skinner, might be attune to the unusually politicized dynamics of Burress' case. New York City Mayor Michael Bloomberg, a leading advocate of the law used to prosecute Burress, has stressed that Burress should be prosecuted "to the fullest extent of the law" for otherwise there could be "a sham, a mockery of the law." Should Goodell allow Burress to sign a multimillion dollar contract with a team, particularly with the nearby New York Jets, it may be viewed disapprovingly by the Mayor.

Chances are, however, that Goodell will not sanction Burress until a court decides his fate.

And at some point, a court will do just that. Burress faces charges for criminal possession of a weapon in the second degree, a Class C felony that prohibits the possession of a loaded gun without a proper license outside the home or place of business. If convicted, Burress would face a minimum of three and a half years and a maximum of 15 years in prison. Unfortunately for Burress, the law is premised on strict liability: his intent, purpose and justification for carrying the gun are irrelevant.

Nonetheless, prosecutors have typically avoided seeking prison sentences for first-time offenders of this law, which would describe Burress. To many observers, three-and-a-half years in prison for a possession offense seems excessive.

Yet perhaps cognizant of Bloomberg's comments (or perhaps troubled by Burress so apparently mishandling a gun that it discharged or by his possible cover-up), prosecutors may not be taking the same approach with Burress. Brafman stated on Monday that he did not believe the case would be resolved through a plea agreement, which suggests that prosecutors are demanding that Burress serve some time. The parties will continue to negotiate over the summer, with the September trial date poised to be pushed back should they be unable to reach a deal.

Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

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