NFL Rules on Favre/Sterger Case - Reminder NFL Not a Court

The NFL has fined Brett Favre $50,000 for a “failure to cooperate” with the investigation into allegations he sent inappropriate messages and lewd photos to Jenn Sterger when they both worked for the New York Jets. However, Commissioner Roger Goodell “could not conclude” that Favre violated the league’s personal conduct policy based on the evidence currently available to him.

“The forensic analysis could not establish that Favre sent the objectionable photographs to Sterger,” the NFL's statement said. “The review found no evidence to contradict the statements of both Favre and Sterger that they never met in person, nor was there anything to suggest that Sterger engaged in any inappropriate conduct.”

Goodell determined Favre was "not candid in several respects during the investigation resulting in a longer review and additional negative public attention for Favre, Sterger and the NFL".

So this means that Favre is being fined for failing to cooperate with the investigation and not for violating the Personal Conduct Policy.

Offside predicted that the NFL may only fine Favre. Why? In order to suspend Favre, the NFL needed very clear evidence that not only did the lewd photographs come from Favre's phone, but that he sent them himself. While it's reasonable to conclude that Favre sent the photographs from his phone, it remains possible that someone else used Favre's phone to send the photographs (Favre denied sending the photos).

For the NFL to be in a position to come down really hard on Favre, they would need more than circumstantial evidence. Circumstantial evidence requires that one make a deduction to conclude that a fact exists. Without direct evidence that Favre sent the photographs, it would have been difficult for the NFL to impose severe sanctions on Favre by relying only on its deductions.

On top of that, there is the issue as to whether his behaviour constituted sexual harassment. Remember for that you need to show that the advances were unwelcome. There are some reports that Sterger didn't take the photographs too seriously and that she exchanged text messages with the quarterback. That together with not allegedly making Favre's voicemails and photographs public herself and waiting two years to engage on the issue (and doing so reluctantly) may suggest she did not deem Favre's actions harassment.

As for reconstruturing events, the NFL does not have the power to compel testimony by a witness or production of documents.

"We do not have subpoena power and it is sometimes difficult to reconstruct events that occurred more than two years ago" the NFL said.

This is an important point - there is only so much the NFL can do. They are not a court - they are a league. If Sterger believed she has a case, then it remained open to her to initiate legal proceedings in court.

Joseph Conway, Sterger's lawyer, wasn't too happy with the ruling.

"My client and I are extremely disappointed, but not surprised, at today’s NFL announcement that Brett Favre did not violate the NFL ‘workplace conduct’ policy,” Conway said. “While I am not privy to how Mr. Goodell reached such a finding, we strongly disagree with his conclusion that there was insufficient evidence to support a violation of the policy. To the contrary, our evidence and the personal testimony of Ms. Sterger clearly showed a pattern of lewd and offensive behavior by Mr. Favre that lasted all of the 2008 season.

“As noted in the NFL’s release, ‘there was no evidence to suggest that Sterger engaged in any inappropriate conduct.’ In addition to the offensive messages, there was ample evidence to show that the sexually explicit photographs were part of Favre’s inappropriate behavior. Our evidence clearly showed that the photos were sent by Favre.

“Likewise, Mr. Goodell completely failed to address the complicity of the New York Jet organization in Favre’s conduct. The evidence was explicit that Ms. Sterger’s personal telephone numbers were provided to Favre by still-current employees of the New York Jets. This was done without Ms. Sterger’s knowledge and consent.

“Furthermore, the fact that the League took the step of fining Favre for ‘not being candid in several respects during the investigation’ is disturbing in the message it sends. It clearly shows that an NFL star player was given preferential treatment and tells all other players that failure to cooperate may cost you some money but will not result in other punishment. Additionally, today’s decision is an affront to all females and shows once again that, despite tough talk, the NFL remains the good old boys’ league.”