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Tagliabue’s ruling doesn’t undermine Vilma’s defamation case

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When assessing the decision made by former Commissioner Paul Tagliabue to overturn the suspensions imposed on four players, it’s important to understand both what he says and what he doesn’t say.That’s particularly important when assessing the contention that Saints linebacker Jonathan Vilma offered $10,000 to any teammate who knocked former Vikings quarterback Brett Favre out of the 2009 NFC title game, since Vilma’s denial of that claim provides the basis for his defamation lawsuit against Commissioner Roger Goodell.

Early in the 22-page ruling, Tagliabue explains that he is “not reviewing Commissioner Goodell’s October 9, 2012 findings and conclusions de novo.”  Those last two words are a common Latin legal term, which mean “from scratch.”

Basically, Tagliabue didn’t build the house of facts all over again.

“If the parties had intended such a review, they would have written it into the CBA,” Tagliabue says.  “Instead, I am giving appropriate deference to Commissioner Goodell’s reasonable findings and am applying the same standard of review to findings of violation and to findings underlying the level of discipline.  I am not substituting my judgment for the Commissioner’s judgment, except insofar as I have received and considered new material information of which the Commissioner was unaware.  In this instance, based on both the prior record and additional information, I am reviewing the discipline for consistency of treatment, uniformity of standards for parties similarly situated and patent unfairness or selectivity.”

In other words, Tagliabue acted like a traditional appeals court, declining to start the case over and taking advantage of the work that already has been done.  This distinction becomes critical when assessing whether and to what extent Tagliabue’s finding impacts Vilma’s pending lawsuit.

As to the most important factual question presented by the appeal process, Tagliabue doesn’t determine that Vilma offered a bounty on Favre.  Instead, Tagliabue “find[s] there is more than enough evidence to support Commissioner Goodell’s findings that Mr. Vilma offered such a bounty.”

In other words, Tagliabue believes it was reasonable for Goodell to conclude based on the evidence that Vilma offered a bounty.  But the opposite proposition also could have been accurate — that it would have been reasonable to conclude that Vilma didn’t offer a true and actual bounty.

Indeed, Tagliabue implicitly reached the latter conclusion, since he wasn’t willing to suspend Vilma because Tagliabue couldn’t conclude that the “talk” from Vilma amounted to a real threat, as opposed to “rhetoric and exaggeration.”

“[T]here is little evidence of the tone of any talk about a bounty before the Vikings game,” Tagliabue writes.  “Was any bounty pledged serious?  Was it inspirational only?  Was it typical ‘trash talk’ that occurs regularly before and during games?  The parties presented no clear answers.  No witness could confirm whether Vilma had any money in his hands as he spoke; no evidence was presented that $10,000 was available to him for purposes of paying a bounty or otherwise.  There was no evidence that Vilma or anyone else paid any money to any player for any bounty-related hit on an opposing player in the Vikings game.”

In other words, Tagliabue wasn’t able to determine that the words uttered by Vilma were real, that he meant what he said and intended to act on it.

Tagliabue used that specific occasion to give more passive-aggressive, big-picture advice to his successor:   “It is essential to recognize that Vilma is being most severely disciplined for ‘talk’ or speech at a team meeting on the evening before the Saints-Vikings game. He is not being punished for his performance on the field and, indeed, none of the discipline of any player here relates to on-field conduct. No Saints’ player was suspended for on-field play by the League after the game in question. If the League wishes to suspend a player for pre-game talk including ‘offers’ to incentivize misconduct, it must start by imposing enhanced discipline for illegal hits that involve the kind of player misconduct that it desires to interdict. The relationship of the discipline for the off-field ‘talk’ and actual on-field conduct must be carefully calibrated and reasonably apportioned. This is a standard grounded in common sense and fairness.  It rests also on the competence of NFL officiating and the obligation and ability of the League to closely observe playing field misconduct, record it and review for illegal hits or other related misconduct.”

For Vilma’s defamation case, none of this matters.  He insists he didn’t make the offer, others insist he did, and eventually someone else will have to consider the evidence and make factual decisions “from scratch.”  In this regard, the transcript of the testimony from the Tagliabue appeal hearing could be very useful, since the witnesses will have a hard time disowning the testimony they’ve already provided under oath.

The fact that Vilma’s lawyer has called upon Tagliabue to release the transcript publicly suggests that the totality of the testimony could help Vilma.

Thus, regardless of Tagliabue’s belief that Goodell’s conclusion that Vilma made the offer was reasonable, others will eventually tackle that question within the confines of civil litigation, and there’s a chance that Tagliabue’s emphasis on the difference between words and actions will cause the judge and/or the jury to think that Goodell didn’t exercise enough care in distinguishing the two as he should have before publicly painting Vilma as a thug.

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7 Responses to “Tagliabue’s ruling doesn’t undermine Vilma’s defamation case”
  1. soitgoes37 says: Dec 12, 2012 6:10 AM

    Mike,

    It would be useful for non-lawyers to expand on the standard for defamation that applies to public figures.

    Because Vilma would very likely be considered a “public figure,” he would have to show that Goodell acted with “actual malice.” That means he knew the statements (saying Vilma made these offers) were false, or was incredibly reckless in ascertaining the truth of those statements.

    It wouldn’t even be enough if Vilma proved that he did not, in fact, actually offer money for injuries. He’d have to prove that Goodell knew that he didn’t make those statements, or reckless in ascertaining their truth. It’ll be hard to do that after Tagliabue steps in and says there was certainly enough evidence to uphold it.

  2. 6thsense79 says: Dec 12, 2012 7:15 AM

    Reading Tags snippet shows just how much of a blowhard Goodell is. A lot of fans from the jump were troubled with the disconnect between penalties or fines for illegal on field conduct for the Saints and what they were being punished for. Now Tags layed out what should have been considered from the go. If this “bounty” system was so widespread then where are the bodies? The Saints were one of the least penalized teams in the league in terms of illegal hits during that span. When news first broke they were operating a “bounty ” system I was shocked because from their on field play I never would have guessed it. Now if to had told me the Ravens or Steelers were accused of something like this I would be like I can see that based on what I’ve seen on field. Don’t flame me too hard Ravens and Steelers fans I still would have wanted the league to provide hard evidence and even if they did I still think the suspensions would have gone too far.

  3. spfreak says: Dec 12, 2012 7:42 AM

    Certainly enough evidence? Okay. But the thing I can’t get away from in this ruling is that: you do the crime, don’t you have to do the time?? If enough evidence’ was there to uphold it, then why not uphold it? Fact is, legally, Vilma’s in the driver’s seat now or else some degree of punishment should have been upheld, even so much as a $1 fine. It’s the principle. Vacating all just upped Vilma’s cause and I’ll bet a week’s pay, a settlement check is coming his way. Truth is that Goodell was quick to jump, he and the NFL knows it, or else they would not have reached out to Vilma on two or three occasions to try and have him drop his suit. Right or wrong, I’m just going with the news that’s out there… looks to be in Vilma’s favor.

  4. atwatercrushesokoye says: Dec 12, 2012 7:54 AM

    I may be mistaken but didn’t Vilma come out right after the initial suspensions and say something along the lines of him not actually intending to pay the cash to anyone? Wouldn’t that imply that he made the statements and wouldn’t that exonerate Goodell?

  5. wiley16350 says: Dec 12, 2012 8:15 AM

    Vilma is using the fact that he never gave the $10,000 to anybody as his defense that he never meant to give the $10,000. The problem is, Favre finished the game and never got carted off, which meant he didn’t have to pay the money out. So we’ll never actually know Vilma’s true intent. I’m guessing that if a player did knock Favre out of the game, they would have expected the money.

  6. mdd913 says: Dec 12, 2012 8:46 AM

    For Vilma’s defamation case, none of this matters. He insists he didn’t make the offer, others insist he did,

    ————————————————-

    Actually, at this point, nobody insists he did. Gregg Williams and Mike Cerullo both retracted their statements that Vilma or anybody offered any money. Jimmy Kennedy says any talks of a bounty is a lie on the part of Goodell. 28 different Saints players and coaches have also testified in federal court under penalty of perjury that there was no bounty.

    The only person involved in this whole mess that still says there was a bounty is Goodell, and as we can all see at this point, his credibility is hovering right around zero.

  7. wiley16350 says: Dec 12, 2012 10:25 AM

    Actually, at this point, nobody insists he did. Gregg Williams and Mike Cerullo both retracted their statements that Vilma or anybody offered any money. Jimmy Kennedy says any talks of a bounty is a lie on the part of Goodell. 28 different Saints players and coaches have also testified in federal court under penalty of perjury that there was no bounty.

    The only person involved in this whole mess that still says there was a bounty is Goodell, and as we can all see at this point, his credibility is hovering right around zero.
    ___________________________________
    Where did you get this information? Taglibue came to the same conclusion as Goodell in that Vilma did in fact offer $10,000 for injury to Favre. He stated that both Cerullo and Williams testified to that fact. He also stated that Cerullo and Williams were more credible than Vilma. Maybe you should actually read Taglibue’s report. The reasons Taglibue let Vilma off was because there is no evidence that Vilma actually paid the $10,000 (which is pointless since Favre remained in the game til the end, therefore no payout was expected) and because he holds the coaches as responsible for allowing and encouraging the behavior. The only difference in Taglibue’s and Goodell’s decisons is that Taglibue feels the coaches and management are the ones that deserve the punishments and not the players. Taglibue also felt that Goodell should have basically warned players that this type of behavior is not acceptable and severe penalties will result in any future cases and not been so harsh in this case to make his point. Those are the only differences. Taglibue didn’t clear the Saints of any wrong doing. He confirmed everything Goodell accused the Saints of, he just didn’t agree with the way Goodell went about imposing penalties and the penalties he imposed on the players.

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