Legal Perspective on Bounty Case

[Stranger]

Perspective on the Bounty case from a Texas lawyer...

NFL Exit Strategy for Saints Bountygate Mess?
http://www.stradleylaw.com/nfl-exit-str ... ountygate/

As I noted last March in my blog post entitled, "Why the New Orleans Saints Bounty Penalties are Too Harsh (http://www.stradleylaw.com/why-the-new- ... too-harsh/)," the NFL was likely going to face issues with the Saints Bountygate investigations and if they extended the penalties to players as well.

As I explained then, I am not a Saints fan, nor am I advocating bounties or pay for injury or pay for performance pools.

No one is. If there ever were a "culture of bounties," such a thing is dead. Not just because of the unprecedented NFL penalties but because of public stigma and the prohibition against them couldn't be any more clear now.

As a fan of the NFL, I am concerned with the procedures the NFL uses to choose particular discipline. If they use a flawed and arbitrary punishment/investigation method as it relates to the Saints, the NFL can do this to any team for whatever their pet issue du jour is.


How Can There Be Bountygate Closure?

Unlike the Spygate punishment, there can't be any quick punishment and closure of Bountygate. The Spygate tapes were destroyed and the punishment was significant and mostly at the top organizational level.

Saints fans understood there would be some punishment. Nobody anticipated the unprecedented scope and harshness of it.

Generally speaking, if the only punishment for a situation is an excessive one, it increases the incentives to contest it.

The coaching staff doesn't have a huge incentive to significantly contest the punishments because their careers have an extended duration, and they want to get back into Roger Goodell's good graces. The players have a shorter playing career–suspensions take away a huge part of their lifetime NFL income.

Here's a link to the Vilma v. NFL complaint filed over the weekend (http://www.scribd.com/doc/98869069/Vilm ... -Complaint). In basic terms, Vilma's lawyers are claiming that the NFL violated the CBA in the way that they did the hearing, are trying to compel Goodell to make a final decision, and are asking for a temporary restraining order and a preliminary injunction against beginning the suspension assuming that is ruled.

I strongly suggest that all NFL fans read that complaint. Of course, it is written from an advocacy standpoint, but it does raise troubling questions about the process and nature of the NFL investigation.


Integrity and Public Confidence in the NFL.

The NFL's approach to the Bountygate evidence has been mostly "trust us." The limited information released has been leaked in dribs and drabs over time.

Ironically, the NFL personal conduct policy was put into place to deter "conduct detrimental to the integrity of and public confidence in the National Football League." It seems to me that promoting punishments that harm peoples' reputations and take away their livelihood in a process that is not perceived as fair and transparent doesn't reflect highly on the NFL.

Even if parts of their evidence are inaccurate or wrong, the NFL [is]not likely going to want to reverse course because of two factors: 1. Upholding the principles of league discipline and not wanting to look like they cave every time some lawyer guy files suit; 2. The looming concussion litigation out there, and how the NFL handled the punishments in this situation.


Just Because You Can Do Something, Doesn't Mean You Should.

Defenders of Goodell's punishment claim that if the players don't like the form of punishment, they should have fixed that in the CBA. I suspect had the NFLPA known the extent of punishment and the NFL's failure to share even basic investigational evidence, they may have fought harder on the the Goodell-only form of judge, jury, appeal process.

Vilma's lawyers are claiming that even those procedural fairness protections contained within the CBA weren't followed.

And CBA or no, just because the legal system might allow you to do a questionable investigation and do a punishment that goes far beyond deterrence into vengeance (http://www.stradleylaw.com/why-the-new- ... too-harsh/), doesn't mean that doing so is good for the league. There is a profound lack of trust among the NFL, players and fans on how this situation was handled.

But that is the past. Toothpaste out of the tube and all. How do you engender trust in the process for the future? Trust by fans? How can the NFL move beyond this into closure?

Sometimes, when you are truly in a position of strength, the best approach is to give in a bit even though you don't have to. That just because you have the money and the lawyers and the leverage and the power to get your way fairness be damned, doesn't mean it is wise to do so. There's a high price of winning if you lose goodwill and trust and hurt the reputations of everyone during the process.

But what about the players injured in Bountygate? Every week of the NFL results in injuries. That's the thing. It is inherent to a violent sport. Punishing a select group of players who may or may not have participated in a program promoted by their defensive coordinator doesn't change that.

I'm less concerned with Bountygate, and more concerned with future Goodell punishments of teams, players, coaches. Bountygate illustrates an arbitrary punishment system with an investigation that might actually be right, but I have no confidence in given the public information revealed about it. Saints fans weren't at fault in Bountygate, yet they receive the punishment and are supposed to just be fine with it. (I don't remember who said it on Twitter, but someone suggested that Roger Goodell show up to the Super Bowl in New Orleans in hologram form. He might want to look into that).


Ideas for an NFL Exit Strategy?

I'm not sure what the NFL's exit strategy will be in this case. Likely just paying the lawyers a bunch more money than they've already been paid.

As an attorney who worked in-house for large organizations, I know that lawyering up is often the expensive path of least resisistence to risk-adverse, ego-full clients who aren't paying the bills out of their own pocket.

I've tried to figure out what could constitute closure in this case–which would address the NFL's concerns but also the reputational/professional ones of the players involved. And the anger and fairness concerns of an entire Saints fanbase. Just seems like the course that is going on right now is a lose/lose for everyone. Players defending themselves. The NFL slowly dripping out negative information. Saints fans angry at uncertainty and poor information.

I like to find positive outcomes to negative situations but I don't think one exists here. The NFL doesn't give concessions except when they are forced to.

Or you might be of the view that it doesn't matter that Bountygate is a PR blackeye to everyone involved. And even if the information about Vilma and other players isn't accurate, it is fine to sacrifice them in the desire to save the sport. Can't say I like ends justifies means sort of business practices.

Whether you think what the NFL did was right or wrong, is there any way to get closure in a timely way? I think there is too much ego, money and principal involved which means that the lawyers get paid until all legal methods are exhausted.

 

[Guard]

good read. I tried to get thru the Vilma complaint that was linked, but alas.... just too long.

No good outcome to this story... but the NFL will survive.

 

[Stranger]

good read. I tried to get thru the Vilma complaint that was linked, but alas.... just too long.

No good outcome to this story... but the NFL will survive.

FYI... for an abbreviated version, I posted some interesting excerpts from the Vilma complaint in the quote boxes below. (I originally posted these in the "The Commish upholds ruling on the Saints Bounty case" thread, but reposting here for convenience). It provides a very different perspective than the media case presented by the NFL.

Full Complaint can be downloaded at:
http://www.scribd.com/doc/98869069/Vilm ... -Complaint

84. Vitt recently stated publicly as follows: “…It cannot be emphasized enough, none of our players, particularly those who are facing suspensions, ever crossed the white line with theintent to injure an opponent.” Vitt equally forcefully denied that Vilma ever offered $10,000 foran injury to Favre or Warner, or any amount of money for an injury to any player.

87. The NFL failed to produce Vitt to testify at the Appeal Hearing

90. A close friend and associate of Williams’, who has met and spoken extensively with Williams, and who was present for at least one communication Williams had with Goodell, claims as follows: Williams never acknowledged that there existed a Bounty Program, Williamshas no information that there existed a Bounty Program, Williams has no information or evidence that Vilma ever offered $10,000 for an injury to Favre or Warner, or any amount of money for an injury to any player.

91.The same close friend and associate has confirmed that Goodell told Williams that reinstatement depends on Williams’ cooperation with Goodell and that Goodell has put a gagorder on Williams prohibiting his direct communication with any of the Saints players or officials who have been punished

95. There are serious flaws in both of the alleged Ledger entries.

96. First, Goodell’s allegation against Vilma and the other Saints, and the basis of his claim that there is a Bounty Program, is premised upon a charge that Saints players pledged money in advance of games as an award for injuring pre-designated opposing players.

97. The supposed Ledger does not in any way evidence that opposing players were targeted for injury or that any money was pledged to award an injury to any opposing player.

98. Second, Giants offensive tackle Kareem McKenzie suffered a groin injury during the October 18, 2009 game. McKenzie, as game film evidences, suffered the injury attempting to recover a fumble in a scrum of players. There is no realistic way in which any Saints defensive player could have intentionally caused McKenzie’s groin injury in hopes of earning analleged Bounty.

99. Third, after it was publicized, in reaction to the NFL’s leak, that no Bills offensive players could have conceivably been the victim of any bounty during the September 27, 2009 game, the NFL revised its leak to Cole and claimed that the Ledger in fact related to a November 8, 2009 game against the Carolina Panthers.

100. The NFL’s revised allegation about the Ledger evidenced was equally specious.

101. The only Panthers player injured in the November 8, 2009 game was defensive player Thomas Davis. Davis suffered a knee injury after backpedaling and falling untouched by any other player

105. Cerullo was an assistant coach with the Saints from 2007 through the 2010 season. The Saints terminated Cerullo following various incidents, including disappearing from the Club during the 2009 Season and providing a pretextual excuse that was shown to be inaccurate and, again, disappearing from the Club during the week leading up to the Super Bowl in 2010, again giving a pretextual excuse that was shown to be inaccurate. Following the Saints’ Super Bowl victory, Cerullo was given a cubic zirconia Super Bowl facsimile ring rather than a genuine Super Bowl ring, for which Cerullo has strenuously and vehemently expressed his resentment.

106. Cerullo pledged revenge against the Saints, and particularly against Vitt, following his termination.

107. Upon information and belief, Goodell and the NFL relied principally upon Cerullo’s statements during its investigation into the alleged Bounty Program.

108. Upon information and belief, the NFL interviewed Cerullo multiple times and based its disciplinary decisions largely on Cerullo’s statements.

109. According to a close associate of Cerullo’s, who discussed the Bounty Program investigation with Cerullo on multiple occasions, Cerullo retracted his previous claims about the Bounty Program, including in a communication directly with Goodell that occurred in April 2012.

138. Based on multiple factors, including the fact that the NFL could not sustain its burden to justify the suspension because it had no documents or evidence it could legally offer at the Appeal Hearing, because it had failed to produce any witnesses with first-hand knowledge of any of the relevant facts, because it had failed to produce the witnesses requested by Vilma, because Goodell by his words and actions prior to the Appeal Hearing had demonstrated that he could not act as a fair and neutral arbitrator, because the NFL had failed to produce well over 99 per cent of the relevant information it had gathered, because the NFL had failed to produce any exculpatory evidence, because the NFL had provided only altered documents and, even for the altered documents, refused to identify the source of the documents or the dates of their creation, and because even under the CBA Goodell lacked jurisdiction to entertain the Appeal Hearing, Vilma moved Goodell to rescind the suspension and dismiss the proceedings.

 

[-X-]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

 

[Stranger]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

 

[-X-]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

Yeah, sure. Take your time. No rush.

And you gotta admit, Casey Anthony's defense painted a wildly different picture. :ww:
Sometimes bullshit works, sometimes it doesn't. Kinda like when we were 10 years old.

 

[Stranger]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

Yeah, sure. Take your time. No rush.

And you gotta admit, Casey Anthony's defense painted a wildly different picture. :ww:
Sometimes bullshit works, sometimes it doesn't. Kinda like when we were 10 years old.

But even Casey got due-process via a jury trial. Why can't these players get anything remotely similar, which is essentially my biggest point here.

If Goodell's case is so damn strong, the NFL shouldn't have anything to worry about as they'll be proven correct in the fairest process we probably have. I guess I want to just see them "prove" their case, so that I can know whether if I can start distrusting them less.

 

[Guard]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

Yeah, sure. Take your time. No rush.

And you gotta admit, Casey Anthony's defense painted a wildly different picture. :ww:
Sometimes BS works, sometimes it doesn't. Kinda like when we were 10 years old.

But even Casey got due-process via a jury trial. Why can't these players get anything remotely similar, which is essentially my biggest point here.

If Goodell's case is so damn strong, the NFL shouldn't have anything to worry about as they'll be proven correct in the fairest process we probably have. I guess I want to just see them "prove" their case, so that I can know whether if I can start distrusting them less.

Because the owners, and the NFLPA (union) have entered into an agreement on how workers employed by the NFL will be adjudicated.... and the players had a say in whether or not that they would agree to these kinds of disciplinarian measures in order to have the opportunity to be paid millions of dollars to play a game all of us grew up playing, and still love to watch being played at its highest level. I don't want to see a long protracted hearing with judges and lawyers and justice delayed like our court system works, every time a football player stubs his toe. Though I may not agree with the harshness of the penalties, or this whole bounty thing, I think the system itself is fine for me. I want a commish who is not afraid to keep these young, immature players in check.

 

[Stranger]

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

Yeah, sure. Take your time. No rush.

And you gotta admit, Casey Anthony's defense painted a wildly different picture. :ww:
Sometimes BS works, sometimes it doesn't. Kinda like when we were 10 years old.

But even Casey got due-process via a jury trial. Why can't these players get anything remotely similar, which is essentially my biggest point here.

If Goodell's case is so damn strong, the NFL shouldn't have anything to worry about as they'll be proven correct in the fairest process we probably have. I guess I want to just see them "prove" their case, so that I can know whether if I can start distrusting them less.

Because the owners, and the NFLPA (union) have entered into an agreement on how workers employed by the NFL will be adjudicated.... and the players had a say in whether or not that they would agree to these kinds of disciplinarian measures in order to have the opportunity to be paid millions of dollars to play a game all of us grew up playing, and still love to watch being played at its highest level. I don't want to see a long protracted hearing with judges and lawyers and justice delayed like our court system works, every time a football player stubs his toe. Though I may not agree with the harshness of the penalties, or this whole bounty thing, I think the system itself is fine for me. I want a commish who is not afraid to keep these young, immature players in check.

What if Goodell did NOT follow the CBA, which is one of the points being contended on several fronts, would that change your view?

Or, what if Goodell is deliberately suppressing evidence and witnesses that conflict with his ruling, how do you feel about that?

 

[Guard]

Re:

Interference,

I don't agree with your view on this, but I'm open to your take on it regardless of how I feel. That said, would you be interested in writing a short article detailing your take for the blog? It doesn't have to be 100% grammatically correct (because we have an editor), so you could focus instead on getting it all off your chest.

Interested?

I realize almost no one agrees with my view, I believe mostly because the media has done such a good job of bombarding our senses with "the NFL-view" of things. But yeah, I'm interested. It just might take me until late next week, if that sort of timeline is workable.

You gotta admit, Vilma's complaint paint a wildly different picture.

Yeah, sure. Take your time. No rush.

And you gotta admit, Casey Anthony's defense painted a wildly different picture. :ww:
Sometimes BS works, sometimes it doesn't. Kinda like when we were 10 years old.

But even Casey got due-process via a jury trial. Why can't these players get anything remotely similar, which is essentially my biggest point here.

If Goodell's case is so damn strong, the NFL shouldn't have anything to worry about as they'll be proven correct in the fairest process we probably have. I guess I want to just see them "prove" their case, so that I can know whether if I can start distrusting them less.

Because the owners, and the NFLPA (union) have entered into an agreement on how workers employed by the NFL will be adjudicated.... and the players had a say in whether or not that they would agree to these kinds of disciplinarian measures in order to have the opportunity to be paid millions of dollars to play a game all of us grew up playing, and still love to watch being played at its highest level. I don't want to see a long protracted hearing with judges and lawyers and justice delayed like our court system works, every time a football player stubs his toe. Though I may not agree with the harshness of the penalties, or this whole bounty thing, I think the system itself is fine for me. I want a commish who is not afraid to keep these young, immature players in check.

What if Goodell did NOT follow the CBA, which is one of the points being contended on several fronts, would that change your view?

Or, what if Goodell is deliberately suppressing evidence and witnesses that conflict with his ruling, how do you feel about that?

I guess I would have to ask to what end? For what purpose? Everyone is accountable to someone. The players are accountable to their teams, their owners and to the NFL as a whole. The commish is accountable to the owners. If the owners don't feel that he is doing right by the league, then they get a new commish. I guess I'm probably not going to change my position on the way the "system" currently operates.

I respect and understand what you see as issues with the system.

 

[Stranger]

Vilma will argue Goodell’s public comments went beyond CBA
Posted by Mike Florio on July 5, 2012, 4:31 PM EDT
2012 NFL Draft - First Round Getty Images
http://profootballtalk.nbcsports.com/20 ... eyond-cba/

So with Commissioner Roger Goodell defending himself against Saints linebacker Jonathan Vilma’s defamation lawsuit by claiming that the Collective Bargaining Agreement blocks the allegations, what will Vilma do to get around what appears to be a strong argument rooted in basic principles of labor law?

Vilma will claim that Goodell went beyond the borders of the CBA when making public statements regarding Vilma’s alleged role in the bounty program.

“Jonathan’s defamation lawsuit focuses exclusively on statements Mr. Goodell has made publicly and outside the confines of the CBA,” lawyer Peter Ginsberg tells Daniel Kaplan of SportsBusiness Journal. “Mr. Goodell, like all citizens, must abide by certain standards and laws. Having the title of ‘Commissioner’ does not provide Mr. Goodell with a license to make the accusations and allegations he has made against Jonathan in public forums without facing the same scrutiny as other citizens.”

The league surely will contend that the public comments were directly related to and arose from the suspensions, and that given the tremendous popularity of and public interest in the NFL the comments were necessary. Vilma, via Ginsberg, likely will argue that no comment was needed beyond the basic announcement of the suspension, which the league employees when suspending players for violation of the substance-abuse policy or the steroids policy.

The outcome of this issue will go a long way toward determining whether Ginsberg will be able to use the discovery process to get to the truth, whatever the truth may be.

 

[Stranger]

Saints Bountygate is Now Saints Litigate: Common Q&As
(visit the blog to find all of the referenced links)
http://www.stradleylaw.com/saints-bount ... ommon-qas/

This week in dysfunctional labor relations pits the NFL Players Association (NFLPA) against the NFL. Unsurprisingly, after the NFL came out with their final determination in the so-called Saints Bountygate bounty/pay for performance issue, the NFLPA filed suit against the NFL on behalf of all the penazlied players except Jonathan Vilma.

This is after Saints player Vilma had already sued Roger Goodell for defamation, and Goodell and the NFL to stop his punishment.

If you are a NFL fan who wants to have an informed opinion about these matters, I suggest reading the actual legal documents.

Some people believe that this is something that only Saints fans should have interest in, but if you are a NFL fan, you should have a concern about these troubling detailed allegations. If Roger Goodell can do draconian punishment with unusual due process protections to the Saints and their players, they can do this to any team.

And if you are not interested in this matter, the documents double as a cure for insomnia.

Also want feedback from lawyers who might have expertise in this area or have practiced in front of the Eastern District of Louisiana to leave their comments here for sort of a roundtable discussion.

All of the following are Scribd links.

Key NFL Background Documents:

NFL – NFLPA Collective Bargaining Agreement

NFL Decision Memo Sent to Teams

Transcript of Player Meeting with Roger Goodell, June 18, 2012

Roger Goodell Letter To Players Articulating Final Appeal Decision, July 3, 2012


Vilma v. Goodell Defamation / Injunction Case Key Documents:

Vilma v Goodell Original Complaint

Vilma v. Goodell, Goodell's 12 (B)(6) Motion to Dismiss

Vilma v. Goodell Amended Complaint


NFL Players v. NFL Key Documents:

Vilma v. NFL

NFLPA (on behalf of Fujita, Hargrove, Smith) v. NFL


Common Bountygate Litigation Q&As.

Maybe you've read the legal documents, maybe not. Here's some common questions/misconceptions I've been asked about and the answers as I see them:

If the NFLPA agreed to a Collective Bargaining Agreement (CBA) process involving the NFL Commissioner as judge, jury, executionor, isn't it way too late for the players to be complaining about it now?

In any negotiation, each side has to give on things. The NFLPA tried to get the role of Goodell changed in the CBA but was unable to negotiate that.

That being said, Vilma and the NFLPA aren't arguing against the CBA procedures. They are arguing that the NFL failed to follow the new CBA as written.

Vilma is arguing that the decision making and document sharing wasn't done timely.

The NFLPA is making a more sweeping argument saying that both the fairness procedures in the CBA and just basic "industrial due process" weren't followed. That is, the NFLPA didn't have to build in a lot of detailed technical fairness procedures into the process because they are just a part of normal fairness procedures in other CBA contexts. Industrial due process is that bare minimum standards of due process that are allowed all disciplined employees in arbital proceedings.

How are the courts going to rule on this stuff?

In general, do not try to predict what federal judges are going to do. They have a job for life as long as they don't do anything completely criminal. And even then, it is hard to get rid of them.

More specifically to this case, this is a bizarre situation. As both the NFL and the NFLPA state, the punishment in Bountygate was unprecedented.

Not only is the punishment unusually harsh, but it is an odd circumstance. With many of his off-the-field punishments, Goodell has access to police investigation records. And it is obvious that the player did something bad and dumb even if they haven't been criminally prosecuted fully yet. And often there are enough carrots with his stick punishment, that players know they can get on the field quicker if the player is sufficiently contrite, does some sort of therapeutic penance and stays out of trouble. These are usually one-off situations that affect one player's particular criminal event.

Or in Spygate, the punishment was swift, sure, punitive, but didn't overly effect people's long range careers.

In Bountygate, the players have a very limited playing career, feel punished for an organizational issue and are very much contesting the allegations made against them. Whether the players did this or not, Bountygate affects every aspect of league punishment and stands for the proposition that players can be penalized for things organized and promoted by their teams based on secret evidence.

I'm guessing that if the investigation had been finalized prior to the signing of the CBA, the NFL may have used a fairer procedure and may have done lesser punishment. I'm guessing, if the NFLPA knew that the NFL would provide sanitized limited evidence in an untimely fashion and call it fair, they would have fought the NFL harder to make employee protections more explicit.

Doesn't the NFL need to protect the whistleblower(s) in Bountygate?

Whistleblower laws in the United States are a patchwork of different laws for different circumstances. Usually those circumstances are very limited. Most whistleblower laws protect employees against retaliation from their employers in very narrow situations, not from other employees finding out what you told your employer.

Do think the NFL has an interest in keeping whistleblower information secret. However that interest seems to diminish when they use that information to take a disciplinary action that deprives an employee of money, harms his limited playing time career, damages his professional reputation.

What are the odds of Jonathan Vilma's defamation case in winning?

Public figures who have false allegations made against them that causes them harm are often urged to sue for defamation. Few do. Why?

It's expensive. And public figures have a higher hurdle to prove than non-public figures. They have to prove "actual malice," which means that the person making the statement knew it to be false or said it with reckless disregard for the truth. In addition, if it is a matter of public interest, often those statements can be protected from defamation claims.

And in this particular case, Goodell is arguing that the courts don't have the jurisdiction to handle defamation matters related to things in the CBA. This point is the important one. If a court has no jurisdiction, means that broad judicial lawsuit discovery doesn't happen at all. The NFL wants to say their information is solid, their process is fair, but they don't want to share any of the information without it being heavily sanitized. If Vilma gets passed this first procedural hurdle, federal court discovery is very broad in scope, and just about everything will be out in the open.

So aren't these lawsuits just about getting discovery information?

That's a part of the Vilma defamation complaint. I wouldn't just reduce it to just that because it is bad thing to have your reputation tarnished in a way that you believe is false in a way that affects your ability to make a living. Defamation suits are an expensive, emphatic, often futile way of saying, "I didn't do this."

Defamation suits are serious business. Typically, most human resource lawyers for companies advise supervisors not to make public statements about company investigations of employees or former employees for defamation concerns. Of course, those situations usually do not involve things of public interest nor public figures.

If you look at both the Vilma and the NFLPA cases, it goes beyond just figuring out what the NFL's evidence is instead of relying on "just trust us." This involves larger important matter of: If Goodell is making career altering decisions, what is the minimum level of due process that he needs to do and what protections do players have against false accusations?

That is a big deal, a 10-year-length of the CBA big deal.

Why didn't the players talk to Goodell and defend themselves? Why don't they talk to Goodell now since Goodell said he'd think about reconsidering the punishment?

If you read the complaints and the public statements about this, there are differing accounts of whether the players and/or their attorneys had the ability to meet with Goodell.

There's a dispute on the nature of the evidence that the NFL needed to provide the players and the timing of that evidence.

Ultimately, the players are put in a very bad situation. They are the subject of general accusations against them coming from a secret source. It is difficult to prove a negative, particularly when you can't examine the evidence against you and may have limitations in accessing and questioning witnesses.

Goodell is holding out the carrot of some sort of outside of the CBA reprieve if the players talk to him, but I'm not sure there is any middle ground. If someone believes you are lying, and are punishing you partially because he thinks you are lying, it is pretty hard to convince someone to the contrary.

This is dumb. I am sick of hearing about it. Why can't the NFL and NFLPA get along?

Best question of all.

I hereby agree to mediate this disagreement for 1/10th of what the lawyers are getting paid to litigate this and fund my childrens' college educations.

Mediation actually is a way that parties in litigation can come up with a result that everyone can live with. When courts order this, and make the parties do this, it allows both sides to save face by forcing them to talk without harming their litigation cases.

The NFL would likely want no part of that because they don't want the courts to have the ability to tell them to do anything. The NFLPA/players would likely think it is futile given the NFL's public statements to make the Saints an example. It's very hard to mediate when each side perceives no middle ground.

The NFL and the players could do a mediation outside of being a court ordered one. A time out. I've used these in disputes even before litigation has occurred and resolved things in a face-saving way for everyone.

High stakes power, PR, money and ego issues make any sensible, quick resolution difficult. Would not be unexpected for this matter to evolve a bit like the Star Caps one, where the punishments are deferred until process issues have time to be sorted in the courts.

 

[Thordaddy]

Don't agree with the severity of Vilma's punnishment , but still believe the CBA was crafted to prevent this and if there is a complaint against Goodell it needs to go before the owners before it goes to court.
For now it's lawyers making paydays IMO.
If they find a dead body in Rogers back yard I'll change my view, but Vilma not being joined in his suit by other players and coaches sez sumthin.

 

[Ram Quixote]

http://www.latimes.com/news/opinion/com ... 4132.story

By Kevin Hassett and Stan Veuger

July 15, 2012

This spring, the football world was rocked by news of the organized bounty system operated by the New Orleans Saints over the last three seasons. The program allegedly involved cash payments for hits against targeted players on the opposing team.

NFL Commissioner Roger Goodell has been aggressive with his punishments. Coaches and management were suspended — head coach Asshole Face for the entire 2012 season; former defensive coordinator Gregg Williams indefinitely; linebacker coach Joe Vitt for six games; and General Manager Mickey Loomis for half the season. The NFL also handed out punishments to four current or former Saints: Jonathan Vilma, Anthony Hargrove, Will Smith and Scott Fujita, with linebacker Vilma receiving the harshest verdict — suspension for the entire 2012 season.

The punishments given to the players stem from such allegations as contributing funds to the bounty program, lying about it or obstructing the investigation. These allegations are being contested — Vilma, for one, recently stated, "I have been linked to a bounty, and it is simply not true." But even if they are true, there is a relatively benign explanation for the players' off-field involvement in the bounty program. That explanation rests on dueling facets of any coach-player relationship: Players don't always want to do what their coaches ask them to, but coaches don't ever want to be ignored.

When a coach asks a player to act maliciously or illegally, this tension is bound to arise. And so, while there is strong evidence that the Saints' coaches encouraged misbehavior, what if the players ignored their coaches' exhortations to violence on the field, while providing token participation — and appeasement — off the field? As the commissioner's rulings are appealed, there's one important question that must be answered: Did the Saints actually cause more injuries than the average team?

The NFL's penalties for the coaches are easy to justify. Their misbehavior has been well documented. But such harsh penalties for the players should require some evidence that the bounty system affected their on-field behavior, evidence that the Saints injured more players than the typical team. As Hargrove's agent, Phil Williams, pleaded to the league: "If these men have committed such grievous crimes that you have determined that their careers should be in danger and / or their names sullied, why be so secretive about the 'evidence' that you use to condemn them.… Do you actually have any concrete evidence that any player from another team was injured as a result of a 'bounty' and that a player from the Saints was therefore paid accordingly?" The NFL has still provided no such evidence. Looking at all of the NFL's evidence, we know that the bounty system existed, but we don't know whether it influenced the players' on-field behavior. Ultimately, the latter is an empirical question.

We collected data on player injuries for the 2009, 2010 and 2011 football seasons, those in question for the bounty scandal. Each week, teams publicly list a pregame injury report that catalogs every player who might have his performance affected by injury in that weekend's game. Collecting all of those reports provides fairly complete information regarding the timing and severity of player injuries.

With these lists, one can roughly pinpoint when a player was injured by identifying when he is added to an injury report. Though injuries might occur innocently and not technically be "caused" by one's opposition, a team that tends to injure more opponents should stick out in injury reports.

If the Saints tended to injure more players, then teams that played them would tend to list more injuries the following week. To test whether the Saints injured more players than a typical team, one need only compare the number of players added to injury reports after a Saints game to the league-wide average.

Did the New Orleans Saints injure more players?

The data-driven answer is a resounding "no." The Saints appear to have injured far fewer players over the 2009, 2010 and 2011 seasons. The numbers are striking. From 2009 to 2011, the Saints injured, on average, 3.2 opposing players each game. The rest of the teams in the league caused, on average, 3.8 injuries per game. This difference is highly statistically significant, or in other words, it would hold up in a court of law or a fancy academic journal. In each year of the bounty program, the Saints injured fewer players than the average for the league. In 2009, the Saints injured 2.8 players a game, and other teams injured on average 3.8. In 2010, it was 3.5 and 3.6, and in 2011 it was 3.3 and 3.8.

The Saints' behavior on the field was certainly aberrant, but positively so. Only one other team, the San Diego Chargers, injured fewer opponents per game over this entire time frame (3.1 injuries). Of the 32 teams, the Saints injured the third fewest in the 2009 season, the 15th fewest in 2010 and the third fewest in 2011. Might this record be linked to the Saints' being too weak or cowardly to respond to the bounties? Certainly not. Lily-livered players don't win Super Bowls.

However, the bounty system was run by the defense. Perhaps the offense was unusually kind to its opponents, offsetting the statistical misbehavior of the defense. That too is easily disproved with the data. Even if one focuses only on injuries to opposing offensive players, the Saints don't stand out as particularly vicious.

In 2009, the Saints injured far fewer offensive players than did other teams, at 0.9 per game as opposed to an average of 1.9 for other teams. But in 2010 and 2011, the Saints were statistically average, injuring slightly more offensive players in these seasons but no more than chance might allow. Over the three years, the Saints injured fewer offensive players than average.

The NFL's case against the players should require documentation that the Saints injured significantly more players than average. They did not.

The evidence, then, suggests that the Saints' story is consistent with a scenario in which the Saints players admirably ignored their coaches on bounty hits. Because no NFL player ever wins an argument with a coach, one can understand why the players might not have protested. But the data show that the bounty system is unlikely to have influenced their play.

Kevin Hassett is director of economic policy studies at the American Enterprise Institute, where Stan Veuger is an economist and research fellow. Neither is a Saints fan.

 

[Stranger]

The NFL's case is becoming laughable IMO.

In 2009, the Saints injured 2.8 players a game, and other teams injured on average 3.8. In 2010, it was 3.5 and 3.6, and in 2011 it was 3.3 and 3.8.

The Saints' behavior on the field was certainly aberrant, but positively so. Only one other team, the San Diego Chargers, injured fewer opponents per game over this entire time frame (3.1 injuries). Of the 32 teams, the Saints injured the third fewest in the 2009 season, the 15th fewest in 2010 and the third fewest in 2011.

 

[Ram Quixote]

The NFL's case is becoming laughable IMO.

In 2009, the Saints injured 2.8 players a game, and other teams injured on average 3.8. In 2010, it was 3.5 and 3.6, and in 2011 it was 3.3 and 3.8.

The Saints' behavior on the field was certainly aberrant, but positively so. Only one other team, the San Diego Chargers, injured fewer opponents per game over this entire time frame (3.1 injuries). Of the 32 teams, the Saints injured the third fewest in the 2009 season, the 15th fewest in 2010 and the third fewest in 2011.

Regarding the players, I agree. I have no doubt Williams and Payton were up to their necks in this. But, as the article states, it seems more likely the players were simply motivated in a rhetorical sense, rather than the physical.

The coaches are still liable for their part in creating this particular bounty system, lying about it and not stopping when they were told to stop.