As the legal battle between the NFL and the NFLPA launches, with the players initially trying to steer the appeals of the suspensions of Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and Packers defensive end Anthony Hargrove away from Commissioner Roger Goodell, nagging questions remain regarding the quality of the league’s evidence that players funded a pool that was intended to pay other players who inflicted injury on opponents -- and that players actually received money for inflicting injury on opponents. Specific proof in this regard has yet to be made available to the media and the public, or more importantly to the NFLPA.
Per a source with knowledge of the situation, the union has had limited access to information establishing player guilt. Specifically, the NFLPA has received the March 2 “confidential” report of NFL Security (which promptly was leaked to the media by one or more teams), the March 21 announcement of discipline upon the Saints, coach Sean Payton, G.M. Mickey Loomis, assistant head coach/linebackers coach Joe Vitt, and former Saints (now Rams) defensive coordinator Gregg Williams, and roughly 20 Power Point slides that were shown, but not given, to union representatives at a meeting to discuss the situation. (The media, and in turn the public, has had access to everything but the Power Point slides.)
At some point, the NFL must disclose all information to the NFLPA, including the precise basis for the factual conclusions the league has reached. It’s not enough to provide summaries of evidence; the league must identify for the NFLPA how it knows what it knows, and that evidence must be subject to scrutiny, via cross-examination or otherwise.
Earlier this week, NFL “independent” counsel Mary Jo White carefully sidestepped questions regarding whether witnesses who supplied information to the league will testify at the coming appeal hearings, and whether the NFL will even disclose their identities to the NFLPA. Again, there’s a fundamental difference between protecting a whistleblower and affording due process to persons accused of wrongdoing. While it’s important to encourage persons with knowledge to come forward by protecting them from retaliation, it’s equally important to ensure that the information provided by such persons can be tested. Eventually, a whistleblower must become a witness, or true justice cannot be done.
That’s not to say the players are entitled to the full range of Constitutional rights, including the right to confront accusers. After all, this is a private, quasi-judicial process involvement employment rights. Whether Commissioner Roger Goodell or someone else resolves the appeals, the players aren’t “on trial” in the classic sense.
Still, they have a fundamental right: (1) to know the specific factual basis for the conclusions that have been made; and (2) to scrutinize and challenge those facts. By providing all witnesses with the kind of protection that, ironically, the league failed to give Jeremy Shockey, the NFL necessarily fails to provide the players with a fair opportunity to defend their reputations and their incomes.
For now, there are only conclusions offered unilaterally by the league. Those conclusions can’t be tested unless the NFL discloses the facts on which those conclusions were based to the NFLPA. Whether or not those facts exist (and the NFL surely believes they do), it’s wrong to conceal them from the NFLPA.