Robert Kraft is close to victory in prostitution case, and the NFL faces hard choices

What started out as a prosecutorial layup for the Palm Beach County District Attorney has deteriorated into a law enforcement nightmare, and with it, the NFL’s ability to levy punishment against New England Patriots owner Robert Kraft under the league’s personal conduct policy.

The video surveillance allegedly showing Kraft engaging in solicitation of prostitutes got tossed out of his misdemeanor case and potentially expunged from the record entirely in the coming weeks. The police stop that identified Kraft leaving the Orchids of Asia Day Spa is hanging by a legal thread, as a judge considers whether police improperly manufactured a traffic stop to ascertain Kraft’s identity.

The value of a meticulous, highly paid defense team that will hunt every loose thread in a seemingly insurmountable tapestry of evidence was never higher for an NFL owner trying to keep himself from an embarrassing personal conduct fine and/or suspension that could be handed down by the league office.

To put it mildly, the case against Kraft has taken some turns in favor of the NFL owner. As a result, the league office is now faced with a significant question: If the Palm Beach County DA’s office scuttles its charges against Kraft – which now seems more likely than not – how aggressive is the league willing to be when it comes to levying its own determination against one of the NFL’s biggest power brokers?

Commissioner Roger Goodell has the latitude to go after Kraft regardless of his legal case imploding. But will he?

NFL Commissioner Roger Goodell, left, talks with New England Patriots owner Robert Kraft before the Patriots face the Oakland Raiders in an NFL football game Sunday, Nov. 19, 2017, in Mexico City. (AP Photo/Rebecca Blackwell)
NFL commissioner Roger Goodell (L) and Patriots owner Robert Kraft could be at odds again. (AP)

3 key questions for NFL after judge tosses video

Looking at the NFL’s options on a more granular level, there are three key questions in the wake of a judge ruling that the surveillance of Kraft is inadmissible in his trial:

First, if the Palm Beach prosecutor’s office drops the case against Kraft, will the league’s personal conduct investigation become moot?


Second, if the police department’s spa surveillance is expunged completely rather than released to the public, will the NFL seek to acquire it?

(Even more unlikely.)

And finally, with the determination that no human trafficking was involved in the spa operations, how damaging were Kraft’s actions to the league’s integrity – given that they were charged as low-level misdemeanors?

(Welcome to the subjective gray area that makes Goodell so powerful.)

What we’ve learned from the NFL in recent years is that those questions have a common theme running between them: The league’s ability to push personal conduct issues as far as it pleases, with Goodell overseeing an in-house disciplinary structure that is as fluid as it is unpredictable.

Roger Goodell can let Robert Kraft go unscathed

Without question, the NFL has set a standard with personal conduct cases that is almost impossible to pin down in a uniform manner. Convictions are not necessary to take action. But the lack of legal action often puts the NFL in nebulous territory, where Goodell uses whatever information he sees fit to decide what kind of punishment (if any) is necessary.

All of which means it’s possible the NFL does nothing to Kraft. That door will be available, particularly if all of the evidence in the case is suppressed and expunged. The surveillance is already heading in that direction. The traffic stop is likely next – if the case against Kraft isn’t dropped altogether before that even becomes necessary.

And that’s where this can get sticky for Goodell. Kraft has fought to wipe out the case against him and met nothing but success to this point. It stands to reason, he could take the same stance with the NFL, too. First by wiping out any evidence that he committed any crime, then by looking at Goodell and repeating what a judge just said about the surveillance: Kraft’s privacy was violated and it stands to reason that none of this should have ever come to light.

The problem? It did. And Kraft is going to have a hard time getting that genie back into the bottle when it comes to what can be considered “detrimental” to the NFL’s image. Especially when he made what now appears to have been a significant mistake in issuing an apologetic statement that suggested he did at least something wrong.

That statement – which was issued when authorities believed there was still a human trafficking element to Kraft’s case – could ultimately be the one misstep that opens Kraft to NFL discipline.

“I am truly sorry,” Kraft said in the statement “I know I have hurt and disappointed my family, my close friends, my co-workers, our fans and many others who rightfully hold me to a higher standard. Throughout my life, I have always tried to do the right thing. The last thing I would ever want to do is disrespect another human being. I have extraordinary respect for women; my morals and my soul were shaped by the most wonderful woman, the love of my life, who I was blessed to have as a partner for 50 years. As I move forward, I hope to continue to use the platform with which I have been blessed to help others and to try to make a difference. I expect to be judged not by my words but by my actions. And through those actions, I hope to regain your confidence and your respect.”

BOSTON, MA - APRIL 14:  Robert Kraft, owner of the New England Patriots looks on during Game One of the first round of the 2019 NBA Eastern Conference Playoffs between the Boston Celtics and the Indiana Pacers at TD Garden on April 14, 2019 in Boston, Massachusetts. NOTE TO USER: User expressly acknowledges and agrees that, by downloading and or using this photograph, User is consenting to the terms and conditions of the Getty Images License Agreement. (Photo by Adam Glanzman/Getty Images)
Robert Kraft won a critical legal ruling when a judge barred what police said was video evidence. (Getty Images)

Was Kraft’s apologetic statement damaging?

The pitfalls for Kraft in that statement when it comes to the personal conduct policy are that he apologized for hurting those who hold him up in confidence – although he isn’t specific about what he did – and that he is also “rightfully [held] to a higher standard”. That’s the type of language that will fall right into Goodell’s disciplinary wheelhouse when it comes to the “integrity” and “public confidence” aspects of the personal conduct policy.

If he goes after Kraft, Goodell can lean on the fact that a video tape of Kraft inside the spa does exist. Kraft’s own legal team hasn’t disputed that. The commissioner can then point to the apology and say the totality of that conduct reflects badly upon the NFL. And if Kraft disputes any of this, Goodell can ask Kraft and his legal team to produce the video to prove his innocence. If he refuses, he’s once again subject to obstructing a personal conduct investigation and acting in a way that is detrimental to the league.

One way or another, the tools are there for Goodell to make a move here. The case has already been tried in the public and the embarrassment has been absorbed by the NFL. Not only is Kraft an owner, he’s an owner who sits on multiple committees and also acts as a trusted voice within most of the league’s significant policy, business and public relations dealings. He’s a front man. One of the league’s most recognizable faces. And now this case will be stapled to the lapel of his tailored suits each time he steps in front of a camera.

Goodell knows it. Kraft knows it. And every other power broker in every corner of the league knows it, too. Including the lawyers. So while this case has fallen apart for the Palm Beach County prosecutor’s office and likely will never see a trial, the league’s trial is just beginning. The standard of evidence is lower and the latitude for a summary judgment by the commissioner appears to be largely unchecked.

This is heading to one last question. Maybe the only one that matters. As the court case against Kraft disintegrates, the fact remains that the NFL’s personal conduct policy doesn’t require overwhelming evidence to prove damage has been done to the league’s reputation. Roger Goodell can still take this wherever he wants when it comes to a fine or suspension.

He can apply that standard to one of the NFL’s most powerful men. But is he willing to?

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