On the same day that former Saints assistant Mike Cerullo testified in the bounty appeal hearing convened by former Commissioner Paul Tagliabue, Judge Helen Berrigan issued a reminder that she has ultimate jurisdiction over the process.
And she hinted that she’s leaning against the league’s position.
Larry Holder of the New Orleans Times-Picayune has obtained an order entered by Judge Berrigan on Thursday. Here’s the full text of it: “In light of the CBA Appeal Panel’s Decision of September 7, 2012, that ‘pay for performance’ discipline was within the exclusive jurisdiction of the Systems Arbitrator, anticipating that the forthcoming decision by Mr. Tagliabue may be subject to an expedited review as to its fundamental fairness, and assuming as undisputed the testimony by the New Orleans Saints players and coaches that only ‘legal hits’ were used to intimidate and/or injure opposing players, the parties shall brief the following: 1. Does Articles 43 and 46 of the CBA exclude discipline by the Commissioner for ‘legal’ contact? 2. Does the CBA give the players and coaches adequate notice as to what conduct could be sanctioned as ‘conduct detrimental?’ In other words, is that portion of the CBA ambiguous, hence unenforceable? Counsel should discuss the significance, if any, of the separate provision for sanctions upon players for ‘unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player’ in Article 46, Section 1(b) from '[a]ll disputes involving a fine or suspension imposed upon a player for conduct on the playing field’ and ‘conduct detrimental’ in Section 1(a). Reference to relevant NFL rules defining ‘legal’ and ‘illegal’ contact is welcomed, as well as a discussion of examples of ‘conduct detrimental’ provided in the CBA and related documents.”
In English, Judge Berrigan wants the parties to submit written documents that address specific angles and issues that may be relevant to her decision about the imposition of punishment on players for a pay-for-performance system based on clean, legal hits that kept opponents from continuing in a given game. The way the questions are written suggests that she has identified specific problems that the NFL may have under the Collective Bargaining Agreement.
For example, Judge Berrigan wants the parties to address whether discipline for “legal” on-field contact is prevented because she apparently thinks it may be. Likewise, she wants to know whether the CBA gives players and coaches “adequate notice” regarding the conduct that could be regarded as “conduct detrimental” because she thinks it may not.
Judge Berrigan also seems to think that the punishment for clean, legal hits falls under the portion of the CBA that gives Ted Cottrell or Art Shell exclusive jurisdiction over the disciplinary process -- an argument that the NFL surely will argue the players have waived by not raising it under the CBA.
Regardless of the arguments raised by the parties, the order seems to be good news for the players, and bad news for the NFL. The fact that it was issued at a time when key witnesses in the case against the players are testifying could rattle the league’s lawyers and create a sense that, no matter what happens before Tagliabue, the suspensions will ultimately be thrown out.