Next wave of bounty litigation will be an uphill climb for players

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Monday’s tweet from Jonathan Vilma confirms what anyone following the Saints bounty scandal already knew.  Unless he’s planning to buy a condo at Del Boca Vista, “Phase 2″ means litigation.

Technically, the litigation will be in the form of an attack on an arbitration award.  And as the judge who recently rejected the challenge of Broncos linebacker D.J. Williams to the league’s decision to uphold his six-game suspension explained it, ‘[j]udicial review of an arbitration award ‘is among the narrowest known to the law.'”

The reason is simple.  Courts like it when parties privately agree to settle their own disputes via arbitration, since that reduces the number of cases that otherwise end up clogging the publicly-financed justice system.  Thus, Commissioner Roger Goodell’s inevitable decision not to reconsider his initial decision on the player suspensions will be overturned only if he “ignore[s] the plain language of the collective bargaining agreement” or if he “strays from interpretation and application of the agreement and effectively dispenses his own brand of justice.”

The Federal Arbitration Act, a law that requires courts to defer to arbitration awards, creates four specific reasons for scrapping the outcome of arbitration:  (1) if the decision was “procured by corruption, fraud, or undue means”; (2) if there was “evident partiality or corruption by the arbitrator”; (3) if the arbitrator was “guilty of misconduct in refusing to postpone a hearing, in refusing to hear evidence, or in misbehaving in some other way”; or (4) the arbitrator “exceeded his powers and imperfectly executed them.”

Given the perceptions and opinions of the suspended players, those four factors likely provide a source of encouragement, since they believe Goodell crafted a flawed procedure that was both partial and corrupt.  And so the players have focused — and will continue to focus — on alleged problems with the nuts and the bolts, from failing to demand the introduction of testimony supporting the league’s position to producing the documents the league intended to use less than 72 hours before the hearing (which may be a clear violation of the plain language of the CBA) to failing to share exculpatory evidence generated during the investigation with the players.

Perhaps the biggest problem for the league continues to be the decision of Roger Goodell, after leading the investigation and being aware of (or at least having access to) every nook and cranny of the evidence developed, to appoint himself to serve as the arbitrator.  That’s why the NFLPA asked Goodell to stand down at the outset of the June 18 hearing; they believe that his public comments in support of the league’s discipline predispose him to finding that the discipline was proper.  (Regardless of which side you personally favor, that’s not a bad argument.

And so these various factors give the players reason to believe that “Phase 2” will have a chance at succeeding.

Still, it’s a high bar.  The court won’t be able to second-guess Goodell’s decision.  Instead, the court will be able to disregard it only if the court believes that flaws in the process fall within one of the four factors on which arbitration awards may be overturned.

Either way, look for the lawsuit to be filed in the U.S. District Court for the Eastern District of Louisiana, where the appointed judge potentially will be more likely to have an open mind when assessing the various ways that an arbitration award can be overturned.

And look for that lawsuit to be filed promptly upon the issuance of the letters from Goodell upholding the suspensions.

27 responses to “Next wave of bounty litigation will be an uphill climb for players

  1. That’s why the NFLPA asked Goodell to stand down at the outset of the June 18 hearing; they believe that his public comments in support of the league’s discipline predispose him to finding that the discipline was proper. (Regardless of which side you personally favor, that’s not a bad argument.)


    Actually it is a bad argument because the players were aware what the appeals procedure would be when they signed the CBA. Also, let me remind you that the NFLPA has yet to meet a ruling (that doesn’t favor them) that they’ve failed to appeal to the highest court in the land that they are able to.

    You consistantly don’t see the forest for the trees. You nitpick every point along the way without realizing that the players were going to take it all the way to the supreme court if they could, regardless of the procedure followed. That is what they do, that is all they do.

    What is really sad is that the NFLPA is spending alot of time and money defending 4 players while they are, for the most part, ignoring the majority of their membership. They are holding up making the workplace safer (mouthguards, newer model helmets, etc) to stick it to the NFL.

  2. Except you forgot to mention that some of the counts of the lawsuit will likely involve defamation of character. Even if they lose their arbitration appeal, if they win their defamation suit, it may be seen as a vindication of the players and a indictment of the process and of Goodell. It may lead to a settlement where suspensions are reduced even if they lose the arbitration appeal because it would be a huge black eye for the league.

  3. Sick and tired of this whole process and this is just another example of why I am sick and tired of pro sports. I may not agree with everything Godell does but in my view he is an excellent commissioner who is looking out the league and its players. De Smith and the players continue to show there arrogance and lack of cooperation in this whole process. Players like Vilma cannot stand there and play the victim card about what they say are incorrect facts, while refusing to own up the things that were done wrong during these years in question. To say no one got maimed during this time does not excuse the behavior. Just because I shoot at you with a gun and come at you with a knife but miss both times I still attempted to do harm. Vilma and others were given multiple chances to tell their version of events and have said nothing to date, so the language only has the results of their investigation to go on.

    I am sorry but if I am accused of something and need to clear my name I will speak up and say what needs to be said, including taking responsibility for my own actions. These wining overpaid babies only hurl insults and criticize the commish for doing his job, and this behavior is pathetic and an attitude we see throughout society where no one wants to man up and take responsibility for their actions.

    Vilma and others, man up and face the music if you want to put this behind you. Revis and other who thing they are overpaid every year stop the greed and be an example kids can look up to not just another spoiled athlete. Mr Brees 19 mill a year a year is more than enough money so sign the offer and get to work! This team gave you 10 mill a year when no one else would sign you, so you were never underpaid and your greed now shows you only care about yourself, not the future of the saints.

  4. jrmbadger–Actually, it’s only Vilma that’s suing for defamation of character and he WON’T win that suit. He has to prove that Goodell went out of his way to intentionally and with malice, defame him. He’s not going to prove that.

  5. As the moving party, the players really do have an almost impossible burden to meet. It’s why I find it almost shocking that they were advised, and apparently chose, not to meet with Goodell before the suspensions were handed out and then not to participate in the appeal process.

    As summarized in the article, the court will not analyze whether the final outcome was “was fair.” That is, the presiding judge won’t consider whether the players should have been suspended based on the evidence presented.

    Quite to the contrary, the court will only review the process by which to suspend the players was reached. If the judge is satisfied that the dictates of the CBA were followed, the case is over.

    The evidence of the the NFL complying with the CBA is overwhelming. Much has been made about whether the exhibits were timely. However, not one of the players even hinted that their decision not to present their case at the appeal hearing had anything to do with exhibits. In fact, their union has advised they had already had obtained other copies of the documents months in advance of the hearing.

    In contrast, the players chose not to engage the NFL as provided in the CBA. It certainly was their right. But I’m not sure how they’re going to complain to the court with a straight face about a disciplinary process to which they agreed.

    In the eyes of the judicial system, this really is just a garden variety labor dispute. Who yelled the loudest to the media doesn’t matter.

    The NFL followed the rules of the CBA. Game over for the players. Welcome to the real world.

  6. This is looking a lot like the steroid thing in baseball. One of (but not the only one) main reasons that the Players Union finally gave in on testing was that the CLEAN members of the union felt they were losing their roster spots to CHEATERS and the union was more focused on those folks than the folks that played by the rules.

    Eventually we will see a great number of NFL players questioning why their union has spent so much time and money on a few members that sought to injure other members. I expect that these non Saints will say “enough is enough!” and tell De Smith to focus on issues that effect ALL the players (safety, revenue, after retirement counseling, etc)

  7. This is so dumb. The players are fighting a system they agreed to after months (actually years might be more acurate) of negotiating and just dont like anymore. Why would anymore allow them to have their way with this just because those 4 guys decided they won’t stand up for what they did.

    I still enjoy seeing the league come down very hard on teams/players for misbehavior because it serves as a warning. Living in Europe, I know what happens if the teams & players have more power than the system itself – just look at the soccer world over here.

    I also can’t get the point of the union. Those guys were trying to seriously INJURE others. Isn’t the union supposed to step up for the targets of the bounty program as well? I mean instead of just trying to act as if no player ever did something wrong?

  8. Simply put, anyone with an ounce of legal training knows that either an appeal from an arbitration award or a defamation claim are very difficult to win. Based on the known facts in this matter, these players are facing an incredible uphill battle. Not only are the Saints players getting lousy legal advice, but they’re wasting an awful lot of money on it.

  9. And look for that lawsuit to be filed promptly upon the issuance of the letters from Goodell upholding the suspensions.
    …three days from now….

    news has just come that the players filed their lawsuits against the nfl @ 2:01pm with the U.S. District Court for the Eastern District of Louisiana. The person stated “he was instructed to be @ the court around this time friday anticipating the leagues time table for decisions made in this case”.

  10. “Either way, look for the lawsuit to be filed in the U.S. District Court for the Eastern District of Louisiana, where the appointed judge potentially will be more likely to have an open mind when assessing the various ways that an arbitration award can be overturned.”

    And look for a change of venue request to be immediately filed by the NFL, as no one in New Orleans is capable of being impartial in this. Hey what’s good for the goose, is good for the gander, as the old saying goes. And the players have constantly questioned the integrity of Goodell in this, just as many in the media (and fans) have questioned Mary Jo White’s integrity as well.

  11. Final ruling, millions of legal dollars late- NFL can do whatever they want to to punish teams and employees of those teams for whatever conduct they deem inappropriate, including suspension or banning of players and coaches. Moving on.

  12. To all the people that KEEP saying, just because he wasn’t able to hurt someone doesn’t make hjim any less guilty, PROVE THE INTENT!!!

    Show ONE PIECE of evidence that they INTENDED to hurt another player.

    Go ahead…I am waiting

  13. @49erminer4life: Most teams admit to the issue, and then discontinue the entire system that the NFL has a problem with (or are illegal). In this case, I’m pretty sure the severity of the punishments is entirely due to the Saints organization and players, intentionally lying to the league.

  14. @charitymike

    How about the ledger for the Vikings game, Brett Favre getting hurt, and the video of a Saints player (maybe Hargrove, maybe not, but definitely somebody) saying “Give me my money.” Have you seen the footage of his game? Did you see guys picking up Favre to drive him in the ground? Did you see them laying Favre out after he handed off the ball on a reverse? Did you hear the audio of Gregg Williams telling guys to aim for Alex Smith’s chin, Crabtree’s ACL, or the head of the kid coming off a concussion? How about confessions of a program by the suspended coaches? Just because we don’t know the identity of the whistle blower doesn’t mean his testimony is inaccurate. How much evidence do you need?

    Or you can just believe the NFL made up the evidence, made crappy bounty slide shows, made fake ledgers, faked audio of players saying “pay me,” forced confessions out of Payton, Loomis, and Williams, called an inordinate amount of unnecessary roughness and roughing the passer penalties to fit he narrative of their conspiracy, and faked or forced the audio of Williams. Coincidentally, ex-Williams players have copped to similar programs on other teams, and an e-mail from a felon friend of the team which sounds a lot like it offers bounty money but is declared to be “a joke” shows up. It just seems like there’s an awful lot of coincidences and circumstantial evidence to make it seem like not only was there a program, but that players bought into it.

    But you’re probably right, the NFL orchestrated this huge conspiracy to help them in the lawsuits against former players who were unaware that football is a dangerous sport.

  15. “mornelithe says: Jun 26, 2012 11:48 AM

    In this case, I’m pretty sure the severity of the punishments is entirely due to the Saints organization and players, intentionally lying to the league.”


    If that is the case then they should be punished for “intentionally lying to the league”.

    Jon Vilma, Scott Fujita & Will Smith never talked to the league.

    Anthony Hargrove gave the league a statement and was punished 8 games for lying to the league.

    So: A. How could Vilma, Fujita & Smith be punished for lying if the league investigators didn’t interview them?

    B. Why would anyone ever give the league a statement if all they are going to do is exaggerate what is says and hold it against the you?

  16. After reading through the Saints article’s comments in here for the last several weeks I have had to come to a depressing realization.

    That is, that most of the comments are “anti-Saints” if you want to call it that, and most if not all of those posting constantly about the same debunked stuff over and over and over just aren’t smart enough to see anything objectively. Notice I didn’t say “unwilling to see”, but seriously just not smart enough. The facts (real facts) have been presented to pretty much all of you time and again but you just don’t possess the intelligence to see them, and that’s beyond merely sad. It’s disheartening. It looks like Idiocracy will be coming earlier than expected……. (For those of you that ‘can’ see the actual truths that are out there, watch for the ones that respond to this with “What REAL facts?” or something similarly derogatory, those are the ones to ignore.)

  17. Next wave of bounty litigation will be an uphill climb for players
    It is always an uphill climb if you did something wrong, got caught, lie about it and then try to avoid any responsibility by publicly attacking the process, evidence and intent of the authorities rather than trying to provide something tangible that says that the obvious conclusion is false. This wasn’t a big deal to the Saints/players until the punishments came down. Once players realized that it would be more than just a fine, they freaked out. Sorry guys but the players did wrong and they know it. This theatrical display is just grasping at legal straws while they attempt to rebuild their own reputations at the expense of the league/Roger Goodell. They deserve to be punished whether or not a “bounty/injury” program can be proven. They did something wrong, got caught, lied, ignored multiple warnings, got caught again and ultimately punished. The Saints are very lucky many more players/staff were not disciplined as well. It is obvious Goodell tried to make an example of the “ringleaders” and that has brought about criticism of his being unfair. He could easily have suspended every player that was interviewed and denied the existence of the shady stuff going on. He could just as easily targeted another team, but the Saints were warned and thumbed their collective noses at the league.

  18. Good grief these players are actually dumber than we’ve even thought. Get over, cry babies. The players did something sleazy and got caught. The CBA covers this and there’s nothing they can do about it. I LOVE the fact that you whining fools can’t accept this. Hope it drags on and on and just continues to drag the Aints down. Cheaters!

  19. 49erminer4life says:
    Jun 26, 2012 11:42 AM
    To all the people that side with roger and the nfl. what happens when he comes after your team for something he can prove.
    If he comes after my favorite team “with something he can prove” I would bet I wouldn’t sound as whiny and skeptical of EVERYTHING the league says as many commenters seem to be. Some of these guys actually seem to believe there is a massive conspiracy by the league to defame and belittle the Saints.

  20. The real truth is that the Saints can still put 40+ points on any team in the NFL. Hence the hatred.

  21. @kidpresentable

    First off, your name says it all.
    Second, what ledger are you speaking of? The one they couldn’t figure out what game it was that 3 cart offs were paid for? Or the one presented recently that also had a coach on there for $5000 who the NFL said wasn’t ever suspected of putting money up? Yeah solid stuff here.

    I got one for all of you. The game that the 3 cart offs were paid for supposedly. If you go look at the game log, you will see that there were 2 forced fumbles and a fumble recovery. But that makes to much sense and is no fun huh. It’s just a coincedence right?

    You other point of Greg Williams audio. How exactly is that proof? It’s proof that he is a moron that will say anything to fire up men. Other than that, name me the players hurt in that game. BUT YET…the Giants players come out all over ESPN and SAY that there plan was to take out the kick returner, and DID IT!! But who’s more fun to kick the Saints.

    So I am still waiting for one of you genious high schoolers to show me proof of INTENT to actually hurt somebody on PURPOSE!

    Go ahead..I keep waiting..

  22. Clearly nothing was going on. Just like the Lunar Landing of 1969 this is a vast conspiracy of epic circumstantial proportions & completely fabricated evidence that Goodell conjured up all by himself because the Saints were just too good.

    It was obvious by the overwhelming & deafening silence coming from the large majority of the players when the coaches & GM were given their suspensions. Where was the outrage by these guys then? If nothing was going on why didn’t any of these players say “How can you punish our coach when he did absolutely nothing wrong and we KNOW you have no evidence that he did?” Having no evidence isn’t something that just popped up now that the players are getting punished. If they don’t have the evidence now that means they didn’t have the evidence then. If the players knew there was no evidence then and still said nothing in Williams, Payton & Loomis’ defense then shame on them for having no spine! It’s only now that they find themselves in the hot seat that Goodell is lying & fabricating. If this bounty program didn’t happen now, that means that it didn’t happen then and still they said nothing! If they’re going to accuse Goodell of fabricating and tampering with evidence they are going to need to prove that. If they’re going to say that the whistle-blowers are under a gag order they are going to have to explain why the NFL went on the record and told the press that they were free to speak to the press if they choose to. This means that anyone of these guys can speak out, contradict the evidence they gave and the NFL can’t do anything.

    These guys are cowards who have no trouble with other people taking the blame so long as they get paid. Punishments are harsh for a reason and that’s because these guys don’t get it. When they’re 50 years old, can’t afford their medical care and their lawsuit against the NFL gets overturned, maybe then they will understand.

  23. whodatsaybaby says:Jun 26, 2012 1:58 PM

    The real truth is that the Saints can still put 40+ points on any team in the NFL. Hence the hatred.

    Except the Bucs in week 6 and the Rams in week 8, right?

  24. @charitymike,
    If you are still waiting for proof of intent to injure, Vilma himself could hand you a signed confession and you would not believe it. You would probably claim that he was coerced or tricked into confessing to something he did not do. There is plenty of “evidence” that proves that something shady was going on. You need look no further than the players actions to see it. First there was no program at all (but the coaches’ punishment was not enough to warrant an opinion from any player) then there was a performance program but the players were told to lie about it’s existence, then there was the denial of lying to investigators, then there was the video where a player believes he is owed money because Favre was supposedly out of the game. (Don’t try to say that it could have been a vendor or another player talking about something else–it was part of the Favre is out of the game conversation). The team/coaches and GM have all apologized for a program that the players say did not exist. There is plenty of “evidence” that can be individually scrutinized to be “less than convincing” but when you look at the totality of everything (that has been released) it is reasonable to deduce that there was an illegal pool of money being used as incentive by Saints coaches and players. Sorry, but it does not take a rocket scientist to see that something happened. The media hyped it into “bountygate” so they had a moniker that would resonate. The fact is that these guys are all being punished for “conduct detrimental to the league”. Goodell does not need to prove a “bounty” was promised, acted upon and collected in order to justify the punishment. He merely needs to show that something “detrimental” (in his opinion) was going on, and he has done just that. An argument can be made as to whether the severity of punishment is justified as that is a matter of opinion, however, like it or not, there is more than enough here to justify some form of punishment against the people involved.

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