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NFL responds to effort to recuse Tagliabue from appeal hearing

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As expected, the NFL has filed its response to the effort to recuse former Commissioner Paul Tagliabue as the hearing officer in the appeal of the suspensions issued against Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and free-agent defensive end Anthony Hargrove.  As expected, the NFL disagrees with the players’ position that Tagliabue should be disqualified.

The respective positions of the parties pit notions of legal ethics against collectively-bargained procedures for resolving disputes.  The NFLPA has agreed that the Commissioner or his designee will have authority to handle these appeals.  The NFLPA, under the league’s argument, must accept the exercise of that authority — even if the person appointed has a potential conflict of interest via his employment with a law firm that represents the league.

The NFL’s argument is that the potential conflict of interest has been waived via the appointment of Tagliabue to handle the appeal.  The NFLPA’s argument is that Tagliabue doesn’t truly have the freedom to rule against the NFL because the law firm that employs him represents the NFL’s interests in, among other things, a defamation case against Commissioner Roger Goodell that could get a lot stronger if the internal appeal process results in a dressing-down of the manner in which the Commissioner handled the investigation and discipline of the players.

Like so many legal issues, each side persuasively has articulated its position.  Now, the judge in Louisiana (key words:  “in Louisiana”) must pick one position or the other, or possibly a combination of the two.  In this case, the second page of the NFL’s brief points out that the entire effort arises from alleged conduct detrimental to “the integrity of, or public confidence in, the game of professional football.”  In turn, the selection of an employee of a law firm that represents the NFL could undermine “the integrity of, or public confidence in” the justice system.  For that reason, many judges would politely ask Tagliabue to step aside, erring on the side of ensuring that there will be no tarnish to the perception of the courts.

Looking at the situation more broadly, the question becomes whether it’s right to even put Tagliabue in the position of having to consider, consciously or not, the potential impact of his decision on existing relationships.  When jurors are screened for service in a trial, judges routinely ask if they know or are related to the parties or the lawyers or the witnesses.  When I had a chance to ask the jurors questions, I’d ask if any are related to or know each other.  When it’s time to hash out justice, the folks in the jury room shouldn’t have to worry about the impact of their decision on any of their relationships — including their relationships with jurors that they may have already known before the trial.

In this case, Tagliabue has relationships that could be impacted by a ruling against the NFL, especially in light of the unprecedented degree to which the facts of the case are contested by the players and the NFL.  And while plenty of past hearings have been handled by league employees who may have compromised their employment relationship by not doing what the Commissioner wanted them to do, the sharp conflict between the parties and the extreme publicity and notoriety of the situation make this case one in which it would be imprudent — and arguably unfair — to have Tagliabue handle the appeal.  For that reason, a judge could err on the side of caution and ask the league to appoint a different hearing officer.

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16 Responses to “NFL responds to effort to recuse Tagliabue from appeal hearing”
  1. bigjdve says: Oct 26, 2012 4:28 PM

    Since the NFLPA thinks that Tags is a bad choice, because of undue influence, what does that mean by them choosing a judge in Louisiana? Isn’t that a conflict as well?

  2. mazblast says: Oct 26, 2012 4:51 PM

    a judge could err on the side of caution and ask the league to appoint a different hearing officer.
    ————————————————-
    There are scores of impartial arbitrators available to the league. Were it not for the obvious nature of his vendetta against the players in question, Goodell could have chosen one of them.

  3. butthatmakestoomuchsense says: Oct 26, 2012 5:03 PM

    I need a CBA expert to tell me that the players agreed that Goodell is allowed to suspend the players- for the nine thousanth time.

    If someone else could say “Vilma should shut up” I’d appreciate the originality of that as well.

  4. jason1980 says: Oct 26, 2012 5:15 PM

    Could someone else say “ignorance lives” within the fans of the NFL. Vilma should be applauded for his courageousness in this matter. BRAVO MR. VILMA!

  5. tater2 says: Oct 26, 2012 5:26 PM

    It truly is amazing that Roger Goodell has done everything to undermine the NFLPA and the CBA. To just challenge them at every opportunity is just not smart. Is there really any way this is not going to come back and haunt him and the NFL? He has so overstepped on this bounty issue has become a joke. Anyone who has really paid attention knows that nothing was done on the Saints that is not done throughout the league except they had a coach that organized it. Of course Tagliabue should not be the arbitrator! Of course he has a relationship with Goodell. Of course a decision that would go against the NFL would be an big issue and a source of embarrassment to the NFL. If Goodell knew he had a strong case and position on this he would not have to try to block everything in the path of finding the truth…..

  6. addmack24 says: Oct 26, 2012 5:26 PM

    butthatmakestoomuchsense says:
    Oct 26, 2012 5:03 PM
    I need a CBA expert to tell me that the players agreed that Goodell is allowed to suspend the players- for the nine thousanth time.

    If someone else could say “Vilma should shut up” I’d appreciate the originality of that as well.

    ===================================

    I really wish that you would share what you know with the rest of us since you are so sure that Vilma is guilty. And it may helpif you talked to someone who understands what they read a la CBA. It states that the commissioner does not have the power to suspend players for a pay for performance pool, he can only fine them. So see if you can find someone who can translate the CBA for you.

  7. goodellgate says: Oct 26, 2012 5:28 PM

    I don’t get this. Goodell says they’re guilty and that he has overwhelming evidence to prove it. So why is he so scared to show it to someone truly independant ??

  8. butthatmakestoomuchsense says: Oct 26, 2012 5:53 PM

    addmack24 says: I really wish that you would share what you know with the rest of us since you are so sure that Vilma is guilty.

    Not sure how you got that out of my comment. Maybe you missed the sarcasm.

    I have no idea if Vilma is guilty or not, but I certainly won’t label him as such just on the word of the untrustworthy Roger Goodell.

    The people asking “if Goodell has such overwhelming evidence, why can’t he assign an impartial arbitrator ?” have it right.

  9. tdshouldbeinthehall says: Oct 26, 2012 6:02 PM

    I clicked just to say who gives a flying f#ck about this anymore. We have football now.

  10. nathanbetz91 says: Oct 26, 2012 6:45 PM

    How much longer till they finish this crap? If they were for sure guilty as goodel believes then shouldn’t they have wrapped this up by now?

  11. tebowislife says: Oct 26, 2012 6:54 PM

    NFL should hold firm on Tags. Let Tags have his hearing, he will find the players guilty as charged by Goodell. Maybe he reduces the suspensions some. This should take most of the rest of the season. By the time the case gets back to the completely biased Berrigan for her to reverse the suspensions again Vilma will have missed most of the season. Then in the offseason when a federal appeals court finds in favor of the NFL based on longstanding CBA law the league can then resuspend Vilma for most of next season. No way case goes beyond that. Goal of NFL is for Vilma to play as little as possible this year so he screws himself for next year. But he forced them into a corner by being so obstinate.
    From Vilma’s standpoint he needs to stop listening to his lawyers who are giving him bad advice. They want to take on the league, not look out for his best interest. A compromise with the league could have been had multiple times but Vilma and his lawyers keep pressing the issue. Now, by blindly following where his lawyers are leading him, he is going to hang himself in the end while going bankrupt in the process.

  12. mwindle1973 says: Oct 26, 2012 7:57 PM

    My question is who is Goodell going to appoint that isnt’ going to have a conflict of interest? Again the judge has not issued in orders at this point. Why? Because she needs to let the labor process play out first before taken action of her own. The legal case can’t move forward until all avenues of solving this through the CBA process(es) have been exhausted. Expect the judge to leave it up to the NFL as to whom they appoint. My thinking is until a conflict of interest has occurred, meaning until Tags makes a decision. Then we can’t say he’s biased. WHy? Because it’s speculation, for all we know he could overturn the suspensions. Is there still a conflict if he does that? Judge Berrigan will be inclined by the rule of labor law to allow the process to play itself out first before doing anything. I predict Tags will hear the appeal. And then she will decide if a conflict existed. She really can’t make a legal ruling until the process is complete. You can’t say a process was unfair, before it has been completed.

  13. daveman8403 says: Oct 26, 2012 11:56 PM

    tebowislife

    Biased Berrigan? Give me a break. She is a Federal judge. Bias is hearing an appeal to a judgement that your firms client made (Tags). Not only that, but it’s your protege that runs a company that still gives you an 8 mil a year pension. If that is not bias, I don’t know what is.

  14. seenoland54 says: Oct 27, 2012 12:29 AM

    OK, I’m a longtime Falcons fan and flip over here to see what is going on, football wise, with another team in the division and instead of reading football, I feel like I’m reading the Harvard Law Review. Can the writers stick with football?

    Oh yeah, just for the fun of it, I haven’t seen it in three articles and comments here so let me add “Drew Breeze needs an explanation”…let the flaming begin!

  15. CKL says: Oct 27, 2012 6:24 AM

    I skip most of the bounty stories, so maybe someone has asked this already: why in the name of bleepity bleep would Goodell think the NFLPA and the players involved were going to let Tags decide this? REALLY?

  16. notthathand says: Oct 27, 2012 6:41 AM

    Looks like the Steelers (and I don’t care about them either way) were right in not signing the labor agreement, which gives the Commissioner the right to be judge, jury, and hangman. Because it lacks a provision for the appointment of independent, neutral arbitrators to adjudicate these matters, the CBA favors the league here, and I don’t see how Berrigan overrules it without being accused of renegotiating the contract.

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