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In bounty lawsuit, NFL focuses on players’ failure to participate in hearings

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We previously predicted that the players’ strategic decision to not participate in the bounty suspension appeal process before Commissioner Roger Goodell would come back to haunt them.

The NFL has now officially said, “Boo.”

In a pair of Friday filings, the NFL raised against Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Packers defensive end Anthony Hargrove, and Browns linebacker Scott Fujita their failure to take full advantage of the internal procedures as a primary basis for preventing a reversal of their respective suspensions.

The league’s dual briefs — one submitted in response to Vilma’s request for a preliminary injunction to block his suspension while the legal process unfolds and the other submitted as an affirmative attack on the lawsuit filed by the other three players challenging their suspensions — advance other arguments, including the notion that Commissioner Roger Goodell was not impartial because the players, through their union, bargained for a procedure that entailed the Commissioner reaching a decision and then presiding over the appeal of it.

In other words, by agreeing to let Goodell make the decision and then handle the review of the decision, the NFL believes that the players necessarily have embraced a procedure that lacks true objectivity and impartiality.  To the extent that the players claim that Goodell’s public comments in support of his decision constitute bias, the NFL argues that the process of preserving the integrity of and public confidence in the game of professional football compels him to do so.

In other, other words, the NFL contends that the NFLPA bargained for a potentially biased judge, who will be making decisions based not on what’s right or fair to the players but based on the best way to ensure “public confidence” in the game of football.

But here’s where the NFL’s logic may contain a hole.  The CBA doesn’t say that the Commissioner must handle the appeals.  Instead, it gives the Commissioner the ability to appoint the person who’ll handle the appeals.  Given that the Federal Arbitration Act expressly requires an impartial arbitrator, the Commissioner could have — and arguably should have — tapped on the shoulder someone in the office who had not been involved in the investigation or preliminary decision making.

Given that Goodell had direct involvement in the investigation and, presumably, access to the full scope of evidence (much of which wasn’t introduced at the appeal hearing), a judge could find that Goodell should have been mindful of the requirements of the Federal Arbitration Act in identifying a truly impartial person who could resolve the appeals.

The players will eventually respond to the league’s briefs, and Judge Helen G. Berrigan eventually will entertain oral arguments (Vilma’s hearing is set for July 26), and Judge Berrigan eventually will issue a decision.  And the decision likely will be appealed.

Through it all, the NFL will have arguments that look good on paper but have arguable flaws and the NFLPA will have arguments that look good on paper but have arguable flaws and in the end women and men who wear black as a job requirement will decide how justice should be done.

Still, the one flaw that could keep the players from winning could trace back to the decision not to participate in the appeal process.  Though the players may believe they were caught in a damned-if-we-do-damned-if-we-don’t dilemma, they may have picked a path that makes it easier for the NFL to persuade a judge that they did the wrong damn thing.

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14 Responses to “In bounty lawsuit, NFL focuses on players’ failure to participate in hearings”
  1. sgtr0c says: Jul 20, 2012 6:05 PM

    Why couldn’t he just approve himself? Let’s say he chooses a owner, he could be accused of partial to his team….a judge, he is still picked by Rog, Rog’s guy……Goodell picks himself cause the oppossing arguement is still, Goodell picks someone.
    That is what I would argue back, the players agreed for Goodell to pick someone, he coose himself. There is no one he could choose that would not be an arguement from one side or the other…. Just my view.

  2. mrpowers88 says: Jul 20, 2012 7:14 PM

    Wait… So by not defending themselves at all in the appeal hearing, the players might have screwed themselves???

    I don’t follow- I thought they were all angels

  3. proudwhodat says: Jul 20, 2012 7:26 PM

    So for the “Bountygate” allegations the NFL has produced a PowerPoint presentation. For the two briefs that were presented today before the Judge they produced legal arguments that contained over 1300 pages with reasons why the lawsuit should not proceed. Hmmmm, do,you think there is a reason that they don’t want this to go to court?

  4. tahoenflfan says: Jul 20, 2012 8:35 PM

    No defendant who fails to show up for the proceedings is found innocent. By stamping their feet and throwing their hissy fits in public instead of defending themselves in their hearings, they cemented their own status.

  5. packhawk04 says: Jul 20, 2012 8:39 PM

    The nfl doesnt care if this goes to court. This is a kevin/pat williams situation. We know they did it, they know they did it, the players are just hoping to drag this out for as long as they can.

  6. larryjames836 says: Jul 20, 2012 8:51 PM

    The players don’t stand a fair hearing NFL commissioner Roger Goodell backyard they need a court where the Judge will tell Roger Goodell this is my court. The NFL have nothing to do with it then the players can fight for themselves but finding the right court. This CBA mess need to be trashed and sat a fire not good for the players I think this CBA is made for the NFL and Owners to help them control they business. Keeping former and current players from suing the NFL they don’t care about players safety if the NFL cares about players safety why aren’t they paying off these lawsuits to players that needs the help. Don’t get me wrong I love football but the NFL is blowing smoke up the players butt its all the NFL and Owners. Look at Vilma case lets not put the pay – for – injuries in this, lets look at Vilma were just suspended for a year because he wouldn’t set and talk to Roger Goodell and Vilma were seeing doctor in the building. So being suspended from the fields should not have anything to do with his physical treatments but the NFL commissioner Roger Goodell says they worry about players safety but kicking Vilma from his treatment trying him to find his own doctor not caring about players safety. Its just starting lets see what next season going to bring.

  7. sfsaintsfan says: Jul 20, 2012 9:22 PM

    Really, this is the best argument the NFL has? The players refused to take part in a kangaroo court where Roger Goodell was the judge, jury and executioner and the NFL’s best argument is that the players didn’t “participate” in the kangaroo court. Maybe the players figured that they hadn’t participated in the alleged “bounty” program and that didn’t appear to matter to the NFL?

    Also, Sean Payton did participate in his “appeals hearing” and afterward, because he dared to defend himself against the baseless allegations of a “pay to injure” program, he was slapped with a harsher suspension than he was originally given. Look it up. Originally, he was to be re-instated automatically after the Super Bowl, after the kangaroo court “appeal hearing” the terms of his suspension were changed to “he can apply for reinstatement” after the Super Bowl…..

    The NFL, not a prime example of fairness. Not even close.

  8. nettenetteredzone says: Jul 20, 2012 9:30 PM

    Still, the one flaw that could keep the players from winning could trace back to the decision not to participate in the appeal process. Though the players may believe they were caught in a damned-if-we-do-damned-if-we-don’t dilemma, they may have picked a path that makes it easier for the NFL to persuade a judge that they did the wrong damn thing.
    ————————————————————-
    The league didn’t provide evidence, provided their exhibits six to seven hours before the hearing was due, refused to allow witnesses that were requested. How is it that the players refused to ‘meaningfully’ participate? Complete none sense!

  9. cwwgk says: Jul 20, 2012 9:49 PM

    The player’s decision not to participate in the appeals process before Goodell defies logic. While Vilma, et al. were crying their eyes out to the press and calling Goodell all sorts of names, the commissioner and his lawyers had to be laughing hysterically.

    The players now have the burden of showing either that 1) Goodell failed to adhere to the terms of the CBA in suspending them; or 2) that Goodell actions violated the Federal Arbitration Act. Both are extremely difficult standards for any party to satisfy.

    There’s simply no question that Goodell followed the dictates of the CBA in suspending the players. Although he had the option of appointing someone other than himself to preside over the appeals, he was well within his powers under the CBA not to.

    Under the FAA the players have to prove to the U.S. District Court that Goodell’s decision to uphold their suspensions was the result of “evident” partiality or corruption. The players were provided a hearing. They all were represented by lawyers skilled in the art of cross-examination. Through counsel, the players had the opportunity to put into the record of the hearing all the deficiencies they felt existed in the NFL’s case against them. They could have then presented the record to the U.S. District Court and argued why it demonstrated “evident” impartiality or corruption by Goodell.

    Instead the players and their lawyers chose to walk out. All the record contains now are the undisputed allegations. Kind of hard to prove corruption from a blank page.

    If the players lose it will be because they forfeited. They’ll have only themselves to blame. Hope they enjoyed those press conferences.

  10. musicman495 says: Jul 20, 2012 10:27 PM

    I still believe that there are more options available to the judge in this case than have been presented here or in other forums. She could, for example, rule against the NFL’s request for dismissal, and require the league to show some or all of its evidence to her or to the suspended players, and THEN deny the appeal on the basis of the terms of the CBA. In that case, the players would have had their rights preserved, and would be able to challenge the validity of the evidence, even if they ultimately lose – a very important point worth fighting for.

  11. huskylawyer says: Jul 20, 2012 11:37 PM

    I think one thing people are overlooking is that generally, ALL contracts impose an implied obligation to act in good faith. Even a collective bargaining agreement. The literal interpretation of the contract obviously holds the most sway, but generally, a party can’t exploit things in a bad faith manner. I haven’t read the pleadings, but I suspect a judge could use this if they are inclined to side with the players (e.g., Goodell, by appointing himself, acted in bad faith).

    I’m also perplexed about the Hargrove case. The NFL has backtracked and somewhat admitted that the tape they relied on is probably not an accurate depiction of Hargrove’s culpability, but now they say his suspension is justified because he was dishonest. Well, the commissioner said Brett Favre was “dishonest” or not “forthcoming” during the investigation, and he was fined like $50K? If I’m Hargrove’s lawyers, I’m latching onto that. Favre gets $50K, and Hargrove gets multiple game suspension? That seems very over the top…

  12. hooterdawg says: Jul 20, 2012 11:56 PM

    IIRC , the use of Goodell in the appeal process was something that the NFLPA objected to. It was an issue that was decided in the 11th hour of the new CBA. The union presumably got something back in return for allowing Goodell to continue to be the judge, jury, and executioner. What was it?

  13. chi01town says: Jul 21, 2012 9:02 AM

    Goodell has to go… the Saints are not the problem they are just chickens in the hen house. Goodell is the WOLF. hes hiding behind the players getting DUI’s an fighting with there family’s. Goodell wants to stop KICKOFFS DURING THE GAME,… Goodell wants to END the Pro Bowl… Goodell has made playing Defense a penalty… Goodell is the most DANGEROUS man in the league,.. an if the NFLPA dont get rid of him, HE WILL GET RID OF THE NFL… NOW GIVE HIM TIME IF YOU WANT TOO

  14. oldcracker says: Jul 23, 2012 5:49 AM

    Jesus Christo, isn’t there any other news on the Browns? Can’t we just get this over with and move on?

    Hey PD writers, start earning your pay. Find some news on the team and not just spout the company line. Where’s Grossi when you need him?

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