Bountygate, the Nuremberg Defense, and Ordering vs. Physical Perpetration

by Kevin Jon Heller

The Nuremberg defense pops up in the strangest places.  As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit.  What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability. Here, for example, is Mark Kreidler at ESPN.com:

First, to answer the obvious: No, this isn’t the military. And yes, adult football players absolutely ought to be held responsible for their actions, regardless of who initially set them in motion. If I do something against the rules and try to blame it on my boss for ordering me to do it, realistically, we’re both going down. And that’s how it should be.

But when placed in the context of sports leagues, it is obvious — and has been for decades — that football is unlike any other endeavor in the U.S. It is tremendously more structured. It leans very heavily on a system in which orders do, in fact, get followed. Its locker rooms are closed-off places where secrets are kept. It is fundamentally a sport of violence.

Kreidler might recognize that the NFL is not the military, yet his case for the Nuremberg defense is the same one offered by the defendants at Nuremberg.  And it calls the same response, here articulated by the Einsatzgruppen tribunal: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery.”  If we expect soldiers in the heat of battle to refuse to follow manifestly unlawful orders, I don’t think it’s too much to ask football players to do the same.

Even more interesting, however, in this statement by Ray Ratto at CBSSports.com:

We know that in football, more than any other sport, the hierarchy is unshakable. The coach controls playing time, the head coach controls employment, and the general manager controls the reward for that employment. This is not an equal relationship, and we’re not saying it should be.

We also know that the nail that sticks out either gets hammered into the wood or pulled and thrown on the garage floor, so anyone under Williams’ care, or by extension the Saints’, had to play alone or not play. The price in football for nonconformity is nonexistence — except for the most extraordinary of talents, and they get theirs on the back end.

In short, the players cannot be equally responsible to the coaches for the same crime, because that isn’t how the business works. So the real argument here is not how much time the players got, but how much they got in relation to their bosses.

If Jonathan Vilma gets a year, he gets a year. But his culpability cannot be the same as Payton’s. And surely Loomis is not exactly as guilty as Hargrove — the illogic of that position is frankly breathtaking.

Indeed, the coaches and general managers are agents for the company, and if they betrayed the standards of the company, even if the standards for bounties have changed since people started paying attention to concussions and lawsuits, their culpability must be by definition greater.

This is a much more sophisticated version of the Nuremberg defense: it does not deny that those who carry out unlawful orders are criminally responsible, but it insists that those who order unlawful acts are more culpable than those who carry them out.  Is that true?  I think there is little question that the orderer is no less culpable than the physical perpetrator: unlike an aider-and-abetter, who is normally considered less culpable than the physical perpetrator because he does not have to share the physical perpetrator’s intent to commit the unlawful act, the orderer does share the physical perpetrator’s intent.  But more culpable?  I’m conflicted.  To be sure, there is jurisprudence that supports Ratto’s position: in Krnojelac, an ICTY Trial Chamber held that “[t]he participant who plans a mass destruction of life, and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing,” while in RuSHA a Nuremberg Military Tribunal held regarding deportation that “[w]hile in such a case the defendant might not have actually carried out the physical evacuation in the sense that he did not personally evacuate the population, he nevertheless is responsible for the action, and his participation by instigating the action is more pronounced than that of those who actually performed the deed.”  Still, in the absence of a legitimate duress defense (i.e., a defense that does not rely solely on the existence of a hierarchical organization behind the order), I think the better view is that the culpability of the orderer and the physical perpetrator is equal: although the physical perpetrator might not have committed the unlawful act but for the orderer’s order, he still committed the actus reus of the offence with the requisite mens rea.

Readers?

http://opiniojuris.org/2012/05/03/bountygate-the-nuremberg-defense-and-ordering-vs-physical-perpetration/

4 Responses

  1. Thank you for combining two of my favorite subjects — Nuremberg and the NFL!  Regarding your last point, even if there is no distinction as to culpability, there should be when it comes to punishment.  And your reference to RuSHA is consistent with that view.  Given that we’re talking about a U.S. sport, perhaps reference to the U.S. Sentencing Guidelines would be in order.  U.S.S.G. Section 3B1.1 provides for an upward adjustment to the offense level if the defendant was an organizer, leader, manager or supervisor of any criminal activity (and even higher if the criminal activity involved five or more participants or was “otherwise extensive”).
    One other point about Nuremberg and the culpability of subordinates.  In reference to the IMT’s judgment regarding Nazi Radio Division head Hans Fritzsche, the Tribunal found him not guilty on three counts of the indictment because “his only function was to transmit the Goebbels’ directives relayed to him by telephone” and “His position and official duties were not sufficiently important . . . to infer that he took part in originating or formulating propaganda campaigns.”  I think this is a very flawed decision (and inconsistent with Nuremberg jurisprudence generally) but perhaps it would be of use to Kreider were he to defend his position citing Nuremberg precedent.
     

  2. At least in the NFL there is punishment for both the lowlevel and the high level person.  Would that this could happen with accountabilty for torture by the US government.  Refluat stercus!
    Best,
    Ben

  3. Response…
    Should have tried the “John Yoo defense” — whether receiving a bonus for intentionally injuring others was not beyond controversy because a coach and a few others had authorized it!

  4. Excellent!  Intentional Injury required the specific intent to injure.  I of course did not have that specific intent to injure as my intent was to hold field position so my team could achieve a touchdown to accomplish the mission and protect the playoff/Super Bowl chances of my team and not to specifically intend to injure the other player. 

    Moreover my defensive position was in a zone and not man to man so that it is hard to see any intent to harm any specific player.

    Moreover injury is to be defined as the kind of severe physical harm similar to organ damage or that of death.  That was the definition I operated under and so this was not a bounty that was beyond the rule but merely a performance incentive bonus within the letter of the rule!

    Moreover any harm was not prolonged so it could not amount to an intentional injury of the kind for which bounties are prohibited.

    Moreover we understand the NFL protects all players from intentional injury but at the time of this bounty what such play by a defensive player amounted to was not sufficiently clear for these players to be on notice that what they were doing was not anything more than complying with an ordinary performance incentive rather than an illegal bounty.

    As a result, these players should have qualified immunity and the case dismissed.

    Best,
    Ben

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