Complex litigation often turns on the manner in which a single domino falls. In the bounty cases pending before Judge Helen G. Berrigan in a New Orleans federal court, the NFL could be headed for a bad outcome if she ultimately concludes that there was exaggeration, embellishment, and/or fabrication regarding one specific fact that, as explained last night, she has decided to closely scrutinize.
It all centers on what did -- or didn’t -- happen before March 21, the day that the NFL announced its punishment of the Saints, coach Sean Payton, G.M. Mickey Loomis, assistant head coach/linebackers coach Joe Vitt, and former Saints defensive coordinator Gregg Williams.
Saints linebacker Jonathan Vilma claims that public comments made by Commissioner Roger Goodell regarding his alleged offer of $10,000 to whoever knocked Brett Favre out of the 2009 NFC title game on March 21 fall beyond the formal discipline process, and are thus subject to a defamation lawsuit, because Goodell hadn’t fully investigated and resolved the question of Vilma’s responsibility at the time the statements were made. The league claims within the confines of the bounty lawsuits that it was ready to discipline the players at the same time the non-players were disciplined, on March 21, but that the NFLPA specifically asked Goodell to delay the announcement.
“[T]he Commissioner was prepared to issue his suspension decision with regard to the players at the same time that he disciplined the franchise and the coaches. But he held off doing that. He held off doing that because he was asked to do that by the Union, which represented to him that it was conducting its own investigation and no investigation ensued,” NFL counsel Gregg Levy told Judge Berrigan in court on August 10.
And so Judge Berrigan wants to see if the NFL can prove that the NFLPA asked the league to delay announcing the decision, by ordering the parties to identify no later than noon on Friday, August 17, the date on which the request was made.
Here’s the potential problem for the league, as demonstrated by links some of you have pasted in the surprisingly high number of (approved) comments to last night’s story. It looks like a decision hadn’t been made regarding the players as of March 21, which would mean that the NFL told the court something other than the truth, the whole truth, and nothing but the truth.
As Jim Trotter of SI.com reported on March 16, the NFL told the NFLPA in a letter dated March 14 that “there is no basis for delaying the imposition of any discipline in this matter.”
Based on that letter, it appears that, yes, the NFLPA made the request but that the NFL actually told them, no, we’re not going to do what you want us to do.
Then there’s the fact that Commissioner Roger Goodell said in an April 24 interview with the league’s in-house TV network that decisions still had not been made as to the players.
“I hope to reach those decisions very soon,” Goodell said. “We have been continuing our work. We have continued to talk to players and other people that can give us a perspective. Once we have got all the information and we feel that we are in a position to be able to issue the fairest and most thorough types of decisions, we will do that but I expect to do that soon because this is a big element to me.”
Goodell didn’t say, for example, I’m ready to announce a decision and I’ve been ready since March 21 but I’ve been delaying it until the NFLPA can finish its own investigation.
It’s not a big piece of the litigation puzzle, but it can operate like the keystone of an arch. Once it gets knocked out, the whole thing can crumble because the judge thereafter won’t accept at face value anything the NFL has to say about the case.
Given that the outcome before Judge Berrigan is destined to be appealed by the losing party, this factual disconnect likely could be the centerpiece of the players’ presentation to the panel that will be reviewing Judge Berrigan’s work.
It also could be the tipping point in a P.R. battle that, to date, the NFL hasn’t been able to win as conclusively as it ordinarily does.