Strident in defeat on Friday, the NFL likely will impose the same suspensions that were scrapped on Friday by an appeals board established under the Collective Bargaining Agreement. After all, the players won on a technicality, with the NFLPA finding language in the labor deal that powered a creative argument that Commissioner Roger Goodell didn’t use the right words when fashioning the punishments.
So now Goodell will use the right words, and he will re-issue the penalties that previously were issued against Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and free-agent defensive end Anthony Hargrove. But while on the surface it seems like a simple task of writing new suspension letters, the bounty suspensions remain destined for a legal challenge before Judge Berrigan, if the NFL simply repeats the process that it previously used.
As a result, the league now has a chance to make its suspensions less susceptible to reversal. To get there, the NFL must commit to doing things differently.
For starters, the league should disclose more information to the players. Too much of the 50,000 pages of evidence has been hidden from the players, and too many of the snippets that have been given to the players and leaked to the media contain serious flaws. The mere fact that the league’s outside counsel, former prosecutor Mary Jo White, would so clearly mischaracterize the contents of the notorious sideline video from the Vikings-Saints playoff game in 2009 proves that it would be prudent for the league to re-build its case, from scratch.
When putting the evidence together again, the league needs to drop the unreasonable insistence on protecting whistleblowers turned witnesses. If the league is committed to fairness, the league will persuade the persons who provided information the league plans to use against the players to allow their names to be attached to the evidence. Witnesses routinely testify in open court on far more controversial matters; if retaliation happens, those who retaliate are punished. The NFL should be willing to apply a similar procedure.
Most importantly, Commissioner Goodell should consider appointing as the eventual hearing officer someone other than himself, a right that he expressly possesses under the labor deal. With the NFLPA arguing — and Judge Berrigan apparently agreeing — that Goodell isn’t capable of being impartial, Goodell should exercise his authority to designate the person who will hear the appeal, and he should choose someone from the league office who has had no role in the process.
Ideally, Goodell should agree to delegate the responsibility to Art Shell or Ted Cottrell, the two men who already have jurisdiction over on-field infractions. (Actually, the re-writing of the suspension letters could result in penalties that fall within their jurisdiction anyway.)
The league’s lawyers already have failed once in their effort to craft suspension letters that survive the appeal process. It’s now incumbent on the lawyers to engineer a procedure that properly navigates the various competing policies and provisions — and that seems objectively fair to the players.
Regardless of whether, you know, it actually is fair.