The judge presiding over the bounty cases recently has focused on a specific factual contention from the NFL, and the NFL has now answered the judge’s question by producing a letter from the NFLPA along with a sworn statement from Commissioner Roger Goodell.
On Wednesday, Judge Helen G. Berrigan ordered the parties to identify by 12:00 p.m. on Friday, August 17 “the date on which the NFLPA requested that Goodell defer issuing discipline notices to the players rather than issuing them at the same time that he disciplined the coaches.”
In response, the NFL has submitted a March 7, 2012 letter from former NFLPA general counsel Richard Berthelsen to NFL general counsel Jeff Pash requesting generally a 60-day delay in all disciplinary proceedings, for players and non-players alike.
Assessing the letter at the superficial level, the NFLPA technically never made a request that the discipline against the players be deferred; instead, the union wanted all discipline delayed. Goodell explains in his sworn statement that the league nevertheless delayed announcing player discipline on March 21 in deference to the March 7 letter.
Goodell also explains that, despite a March 14 letter from Pash to the NFLPA explaining that there was no basis to delay the discipline “especially with regard to discipline of the club and non-player employees,” Goodell and NFLPA executive director DeMaurice Smith agreed in subsequent talks by phone “to address first discipline of the club and then to afford the NFLPA a reasonable opportunity to conduct its own investigation and express its views before [Goodell] imposed discipline on the players.”
Though the judge didn’t explain the reason for her most recent order, it appears that the judge wants to confirm that such a request was actually made, since that would tend to bolster the representation from NFL counsel Gregg Levy at the August 10 hearing in the bounty cases that any statements made on March 21, the date on which the discipline of non-players was announced, about Saints linebacker Jonathan Vilma reflected conclusions reached by Goodell as part of the official disciplinary process contemplated by the Collective Bargaining Agreement. If the truth is that Goodell hadn’t started the process of determining player penalties when publicly accusing Vilma and/or other players on March 21 of bounty-related wrongdoing, then Vilma’s argument that those comments can provide the foundation for a separate defamation lawsuit becomes stronger.
The NFL’s submission seems to clear things up appropriately, eliminating the impression that the process of disciplining players hadn’t commenced as of March 21.
That said, the NFLPA has yet to submit a response to the judge’s order, as far as we know. It’ll be interesting to see what the union has to say -- and more specifically whether Smith will acknowledge that he and Goodell reached an agreement before March 21 that the league would give the union a “reasonable opportunity” to conduct an investigation of its own before disciplining the players.
If Smith denies that point, then this one fairly specific fact could sprout even longer legs as the judge tries to craft her rulings.