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.