Some actions that are not — and should not be — illegal are nonetheless reprehensible. Civil society plays a key role in these instances to foster good behavior. In the case of Pittsburgh Steelers' quarterback Ben Roethlisberger, who was accused of sexual assault last month, the NFL is correctly enforcing social norms outside of the legal system.
Though the legal case against the quarterback was recently closed and no charges were filed, NFL Commissioner Roger Goodell suspended Roethlisberger yesterday for four to six games, making clear that the quarterback's conduct was unacceptable. Goodell and the league's personal conduct policy both state that legality is not a sufficient measure of correct behavior.
In his letter to Roethlisberger, Goodell wrote, "The Personal Conduct Policy makes clear that I may impose discipline 'even where the conduct does not result in conviction of a crime. ...'"
My decision today is not based on a finding that you violated Georgia law, or on a conclusion that differs from that of the local prosecutor. That said, you are held to a higher standard as an NFL player, and there is nothing about your conduct in Milledgeville that can remotely be described as admirable, responsible, or consistent with either the values of the league or the expectations of our fans.
Roethlisberger's behavior, while not found criminal, was unacceptable. Responding to the need to maintain a good image for the league, the NFL is enforcing a certain standard of conduct.
This is exactly the sort of pressure a society needs to function smoothly. As economist James Buchanan has noted:
[O]bserved orderly behavior depends critically on mutual acceptance of certain informal precepts by all parties. Life in society, as we know it, would probably be intolerable if formal rules should be required for each and every area where interpersonal conflict might arise. (James M. Buchanan, The Limits of Liberty (Indianapolis: Liberty Fund, 2000) 150.)
The NFL's personal conduct policy is more a recognition of informal norms than a formalized set of rules. In the section relevant to Roethlisberger's case, the policy simply forbids behavior that is dangerous or that compromises "the integrity and reputation of the NFL, NFL clubs, or NFL players." Integrity and reputation are the realm of social norms, often enforced outside of the legal system.
By punishing Roethlisberger, Goodell is doing his part to maintain "informal precepts" of acceptable behavior. As adherence to social norms is slipping in our culture, we need more actions like Goodell's.