All too often, a lawsuit gets focused on a collateral issue. And that collateral issue then takes on a life of its own.
That’s precisely what has happened over the last 48 in the bounty cases.
The NFLPA has, at the direction of Judge Helen G. Berrigan, submitted information regarding the date on which the NFLPA asked the league to delay the imposition of discipline on players. Judge Berrigan asked for that information via a Wednesday court order in an apparent effort to confirm (some may say “call B.S. on”) an August 10 claim by NFL outside counsel Gregg Levy that Commissioner Roger Goodell was ready on March 21 to impose discipline on the players and the non-players, but that Goodell waited as to the players at the request of the union.
The question has relevance because the players believe that statements made by Goodell about the players on March 21 reflect that he had made up his mind before conducting a full investigation and rendering a reasoned decision. If he already had made his decision as of March 21, the statements provide no proof of bias or partiality. (Saints linebacker Jonathan Vilma also believes that the statements fall beyond the scope of the labor deal and are thus subject to a defamation claim, if they were made before the investigation had completed.)
Before I go any farther, I need to be clear on one thing. I’m not suggesting or saying or implying that the NFL deliberately gave false information to the court. Routinely, lawyers who didn’t experience the events that they’re trying to wedge into a predetermined narrative make unintended factual mistakes. It’s one of the byproducts of the duty of zealous representation; sometimes, the zeal causes a lawyer to accidentally drift beyond that which is real.
Moreover, direct conflicts in sworn testimony don’t mean that someone is committing perjury. Humans often perceive their communications very differently, as proven time and again by the “grocery list” experiment in grade school, where the teacher tells Kid No. 1 to get “milk, eggs, bread” and by the time it gets to Kid No. 27 the lists consists of “purple, monkey, meatball.”
I’m saying this because the curve ball thrown by Judge Berrigan has quickly become a full-blown, he-said/she-said clusterfudge.
On Thursday, the NFL explained in its submission that the NFLPA asked for a 60-day delay of all discipline on March 7, that the NFL later declined to delay discipline “especially with regard to discipline of the club and non-player employees,” and that Goodell and NFLPA executive director DeMaurice Smith later agreed verbally “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.”
Predictably (given the inability of the NFL and NFLPA to agree on anything right now), Smith disagrees with Goodell’s contention. “At no point did I reach some sort of agreement with Mr. Goodell that, in exchange for delaying the NFL’s imposition of discipline on players, the NFLPA would conduct its own investigation and share the results of that investigation with the NFL,” Smith said in a sworn statement filed with the court on Friday, a copy of which PFT has obtained.
Smith also takes advantage of the opportunity to fire another shot at the league’s overall process.
“I stressed to Mr. Goodell that it was important for the accused players and the NFLPA to have access to the League’s information, and that the information be presented so that the accused players could respond before any punishment was imposed,” Smith said. “Finally, I emphasized that transparency was important, so that if there were clear evidence of a pay-to-injure program, the NFLPA could work with the NFL to stop such behavior and ensure it never happens again. The cooperation and transparency that I requested, and that I firmly believed was in the best interest of all parties, was not provided and to date, it has never been provided.”
Taking it all one level higher, Browns linebacker Scott Fujita executed an affidavit in which he directly disputes the claim that Goodell was ready to discipline the players as of March 21. Fujita testifies that he called Goodell on “approximately” March 20, because Fujita was “disturbed that my name had been leaked in media reports concerning the NFL’s investigation.” Fujita then testifies that, during the call, “Goodell told me he would be coming down hard with punishments on the Saints coaches, but that with respect to Saints players, he was not quite sure what he had on them, and that player punishments therefore would take some time.”
In other words, the NFLPA believes that Goodell’s sworn statement was unintentionally inaccurate, at best.
Now that Judge Berrigan has the information, it’s not known what the next step will be. She could, in theory, convene an evidentiary hearing, at which time Goodell, Smith, Fujita, and perhaps others would testify in open court — and Judge Berrigan would then decide based on their words and demeanor what really happened.
She also could try to resolve the factual dispute based on the information that has been provided. Given that every move she makes now eventually will be scrutinized by an appellate court, don’t be surprised if she takes the safer course and creates a full factual on which her eventual decisions will be based, by ordering that the parties and witnesses give live testimony.
And if Judge Berrigan decides that a decision as to the players hadn’t been made as of March 21, she could be much more likely to find that Goodell’s March 21 statements fall beyond the protections of the labor deal with respect to Vilma’s defamation claim — and that Goodell’s March 21 statements about player responsibility reflect bias and partiality in the overall process, given that the statements came in the absence of a completed investigation.
Remember, Judge Berrigan said last week, “If I can [rule in Vilma's favor] legally, I will. If I find a way, I will.” This factual dispute, if resolved in favor of Vilma and the other players, could give Berrigan the path that she has been looking for.
Regardless of how it all turns out, it’s obvious based on the traffic and comments generated by the articles regarding the March 21 issue that this obscure quirk in the facts has caught not only Judge Berrigan’s attention, but also yours.