May 18, 2015

Lessons About Government from the NFL

Patrick McLaughlin

Director of Policy Analytics
Summary

Unfortunately, for a governing body like the NFL to admit a policy's failure seems to require undeniable, unforgettable, alarming visual evidence. It's not just the NFL that apparently has to be shocked into change. Federal, state and local governments have a longstanding tradition of ignoring problematic policies right up until the point that innocent and unwilling participants are irrevocably harmed by the policy.

In many ways, the National Football League is like the federal government. First, the NFL only exists because a group of individual entities — the teams — collectively agreed to form and subject themselves to governance by a centralized body, similar to how the states handed over power to Washington centuries ago. Second, the NFL creates and enforces rules about how the game is played, similar to regulations coming out of the federal government. Third, the NFL very seldom admits that any of its policies were wrongheaded and changes them — and when was the last time you heard a politician admit that a policy was a mistake?

Unfortunately, for a governing body like the NFL to admit a policy's failure seems to require undeniable, unforgettable, alarming visual evidence. It's not just the NFL that apparently has to be shocked into change. Federal, state and local governments have a longstanding tradition of ignoring problematic policies right up until the point that innocent and unwilling participants are irrevocably harmed by the policy. And even then, change only seems to come about when that harm can no longer be denied by society at large — like when a video is leaked. What lessons about governance can we draw from events that forced change inside a powerful governing body like the NFL?

Recent events — such as the suspension, sanctions and fines on Tom Brady and the New England Patriots over Deflategate — show that the NFL has apparently stopped its policy of treating star players differently from other players. But if it weren't for shocking examples like the Ray Rice video, the NFL may not have shifted away from its original policy of going light-handed on stars and using mediocre players as disciplinary examples. While in years past, teams might have turned a blind eye to red flags about a player's off-field behavior if that player was talented enough on the field, nowadays even the hint of a history of domestic violence can be enough to cause a consensus first-round talent to not be drafted at all (ask La'el Collins).

On rare occasions, the federal government has similar experiences. Nearly a century ago, the United States embarked on a very poor policy experiment: the prohibition of alcohol. The experiment lasted for 13 years, and it came at a huge social cost. Most people know about the rise of racketeering and bootlegging gangsters such as Al Capone that were facilitated by prohibition, but a lesser-known phenomenon is the large number of people who were physically disabled because they drank poisonous liquor.

Prohibition included exceptions for medicinal alcohols — often called patent medicines, a misnomer because they had no patents and generally performed no actual medical function. One such patent medicine was Jamaican ginger extract, or "jake," which typically contained 70 to 80 percent ethanol. During the Prohibition era, government enforcers required manufacturers of jake to add a higher content of ginger solids in order to render the drink more bitter and difficult to consume. Department of Agriculture inspectors would occasionally test jake shipments by boiling off the liquid and weighing the remaining solid residue. One manufacturer attempted to concoct a version of the liquor that would be relatively more drinkable and still pass this test, but in the process, created a poisonous drink that would later cause partial paralysis to an estimated 30,000 to 50,000 people — the largest mass poisoning in the history of the United States. This didn't have to occur. Jake had been used for "medicinal" purposes for 70 years with no record of poisonings from adulteration. But people respond to incentives, and prohibition-related policies created a perverse set.

The result was the equivalent of a modern-day NFL scandal. Newspapers covered the proliferation of often-permanently disabled workers. More importantly, you couldn't avoid seeing them — they were in your town, they were your neighbors, they were normal people like you. The country was staring at stark and shocking evidence that its policy was harming innocent people, and this helped bring about the rare moment where the government recognizes its policy as a failure.

For the NFL, the turn towards an arguably better policy regarding player conduct was only precipitated by a brutal video of a discrete act of harm. For government policies that slowly hurt Americans, it's harder to see how change can come about until it is too late. Examples of policies that are slow-burning failures abound: the inevitable insolvency of Medicare; the relentless accumulation of regulations and red tape; the war on drugs; cronyism. Unless the government can preemptively correct its course, these policies inevitably will lead to more situations at which correction to the policy can't do much for those who have already been harmed.