Much has been said today about the Ray Rice affair.  For those not paying attention, the former NFL player and former Baltimore Ravens running back not only hit his then fiancée (now wife) so hard that he knocked her unconscious, but the videotape unveiled today shows exactly what happened.

Although the Atlantic City police department (ACPD) had both her testimony and the videotapes, they decided that there was insufficient evidence of assault to pursue a criminal case.  (I guess in Atlantic City, cold-cocking someone is just his or her way of saying, “Welcome to Atlantic City.”)

The NFL — either having seen or not having seen the videotape inside the elevator — suspended Rice for two whole games — or 120 minutes of playing time (well, half that anyway) for his indiscretion. The Ravens cut Rice today.

Much of the debate has focused on what the NFL knew about the assault, and when they knew it.  Did they know about the videotape(s)?  Did anyone at the NFL or Ravens see the videotape?  Did they attempt to obtain the videotape either from the hotel or from ACPD?

But I have a different question.  A privacy related one.

Should your employer have the right to access information about your non-employment related activities?  Should the police routinely provide evidence of crimes (or non-crimes) to employers?  Should third parties (like the hotel) act as agents for the employer?

I don’t have the answer.  That’s the great thing about being a professor. I can ask the question and look smart.

In many respects the NFL is like every other employer. They hire someone (Rice) to do a job (run fast, hold ball, don’t fall down) and pay him to do it.

The NFL contracts require the players to adhere to standards of conduct, which include behavior off the field. Many employment contracts do this. Most TV reporters, many celebrities, and high-level corporate executives have so-called “morals clauses” in their contracts.

Hollywood celebrities (no, not the very attractive ones recently “exposed”) have such clauses since the Fats Arbuckle and Errol Flynn (in like Flynn) scandals of the 1920’s and 1930’s.

Even Catholic schoolteachers have such clauses in their contracts. Babe Ruth reportedly had a clause in his contract that prohibited him from consuming alcohol (yeah, that worked) and the Yankees owners wanted a similar clause prohibiting womanizing, to which the Babe reportedly stated, “”I’ll promise to go easier on drinking and to get to bed earlier, but not for you, fifty thousand dollars, or two-hundred and fifty thousand dollars will I give up women. They’re too much fun.” Fun yes. A punching bag?  No.

Assuming that there was a morals clause or similar language in Rice’s contract, does this give the NFL or the Ravens the right to access to “evidence” held either by the police or a third party concerning his potential violation of the clause?

Nope.  Not at all.

There was no reason whatsoever for the ACPD or the hotel to give the videotape or any other evidence of Rice’s activities to the Ravens or the NFL. In fact, if I got drunk at a bar on vacation and created a ruckus (admittedly not the same thing as what Rice did) I would be very upset if the hotel bar shipped a copy of the videotape of the incident to my employer.

There’s no law that prohibits it, mostly.  The videotape is the property of the hotel or the company it hired to conduct the video surveillance.  They can give it, or not give it to whomever they please.  Unless there’s a subpoena, warrant or court order.  Then they have to produce it or challenge the order.

If I were representing the hotel, I would NOT turn over the tape to the NFL. Nope.  My rule would be that the employer doesn’t get the tape unless there is (1) imminent harm or threat of imminent harm (in which case, I give it to the police); (2) some other threat which overrides the privacy of the employee.  So if I see evidence of a schoolteacher molesting kids, I would turn that over to the school officials as well as to the police. But neither the hotel nor the ACPD are agents of the NFL any more than they are agents of the employers of any other hotel guest.

When Rice’s fiancée slapped him in the face, should they have disclosed that to her employer?  Not creating false equivalence here between a slap (or what the law calls an assault and battery) and a knockout punch (felony assault, or what the NFL calls, a two game suspension).  Just saying that the employer is not part of this equation.

Unless they make themselves so.

The NFL could have tried to enforce the morals clause.  They could have sued Rice for breach of the morals clause, and issued a subpoena to either the ACPD or the hotel for “evidence” of the breach.  As far as I can tell, they did not.

With the average person being caught on surveillance cameras dozens or hundreds of times a day, we need better rules about who has access to these cameras, and the data contained therein, and under what circumstances.

Whether there should be some sort of legal process, or just a handshake agreement — cause that won’t protect privacy.  We all know that the one entity that will ultimately have access to these videotapes is not the NSA, nor DHS, nor the FBI.

At the end of the day, we depend for our privacy on TMZ.  Scared yet?

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