In a brief submitted on the question of whether NFLPA lawyer Jeffrey Kessler’s relationship with the union creates a conflict of interest regarding his representation of three of the players suspended in connection with the Saints’ bounty scandal, Kessler makes a somewhat surprising disclosure.
Kessler writes that, in late August, the NFL offered to provide Saints linebacker Jonathan Vilma with a new hearing before Commissioner Roger Goodell regarding Vilma’s one-year suspension. Per Kessler, the league also indicated that a new hearing would have been available for the other suspended players — Saints defensive end Will Smith, Browns linebacker Scott Fujita, and former Packers defensive end Anthony Hargrove. The new hearings would have been provided without a dismissal of the pending legal actions filed by Vilma and the other players.
The offer to “reopen” the appeal initially came in a letter dated August 21, eleven days after the hearing at which Judge Helen G. Berrigan said she would rule in Vilma’s favor if she could legally do so. The letter from NFL general counsel Jeff Pash to Vilma indicated that the hearing would commence two days later — on August 23 at 1:00 p.m. ET. The letter from Pash also suggests that Vilma specifically had asked for a new hearing.
In response, the NFLPA explained that the league had no authority to “reopen” the hearing, but that the NFLPA would be willing to meet with Commissioner Goodell for the purposes of engaging in confidential settlement talks, and that anything discussed or disclosed during the meeting would not be used as part of the ongoing legal proceedings before Judge Berrigan. The parties were unable to come to terms on the parameters of a reopened hearing. One of the unanswered questions was whether the league would be producing any additional evidence or witnesses in support of its contentions — and likewise giving the players a chance to cross-examine key witnesses.
Some will regard the league’s offer as an indication that the NFL has concerns regarding the quality of the hearing that was provided. The league would surely say that it was merely reacting to a request that Vilma made, and that the Commissioner had indicated a willingness to consider any evidence the players may want to introduce, even after upholding the appeals.
The decision from Judge Berrigan that most likely will be coming at some point today could, in theory, compel the league to conduct new hearings before a third-party arbitrator who would make a final decision based only on the evidence that the NFL decides to present. If she chooses to order the league to proceed in this fashion, she would most likely lift the suspensions pending the outcome of the new hearings.