Goodell dismisses perception of bias in bounty appeals


[Editor’s note:  The eight-page, single-spaced letter from Commissioner Roger Goodell affirming the suspensions of the four players accused of involvement in the Saints’ bounty program raises several intriguing points, arguments, and circumstances.  We’re breaking them up into separate posts, because after all a cow can’t milk itself.]

Accused of not being an impartial arbitrator in the Saints bounty case, Commissioner Roger Goodell has responded by explaining that he merely has implemented the procedures for which the players collectively bargaining.

The lawsuits challenging Goodell’s final ruling as to the suspensions of Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Packers defensive end Anthony Hargrove, and Browns linebacker Scott Fujita focus on the claim that Goodell wasn’t capable of being a fair and impartial judge, because he had his mind made up before the June 18 appeal hearing — as evidenced by his public comments defending the discipline he imposed.

“[T]hat is precisely what the Union agreed to,” Goodell writes in the July 3 letter upholding the suspensions.  “It did so following extensive discussion and negotiation.  The Players Association and the League agreed not to interject a third-party into the review process, but instead to leave in place the longstanding practice of review by the Commissioner of ‘[a]ll disputes involving’ Commissioner action regarding conduct detrimental” to the game.

Goodell also explains that “prior announcement of the basis for discipline cannot render the Commissioner incapable of hearing an appeal due to the appearance of bias or any other reason.”

“In short,” Goodell explains, “I was no less capable of hearing these appeals in an unbiased manner than I have been of hearing, under this CBA and its predecessor, numerous other appeals involving conduct detrimental.  Nor, given the review process to which the parties agreed in the CBA, was there any basis for asserting an appearance of bias.”

While a federal judge eventually may agree that Goodell was impartial, there definitely is a good-faith basis for making the assertion that he wasn’t.  The league’s justifiable objective of “maintaining the integrity of, and public confidence in, the game of professional football” requires among other things a public relations strategy that pulls the public’s strings in a way that causes them to have confidence in the game of professional football.

So in cases where the Commissioner serves as the face of the effort to ensure public confidence in response to the league’s pre-appeal belief that the players were involved in a bounty program, it necessarily becomes harder to the Commissioner to serve as a truly impartial arbitrator.  If he changes his mind, the prior statements regarding his unequivocal belief that the players are guilty would have to be massaged and rectified and explained.

And if Goodell can’t pull that off without coming off as a flip-flopping politician or the ultimate leader of an investigation that turned out to be deeply flawed, public confidence in the game of professional football could be significantly shaken.

The procedure to which the parties agreed in the CBA gives Goodell a way to juggle situations in which his P.R. and/or investigative duties possibly have cemented his position as to player guilt.  Under Article 46, Section 2(a) of the CBA, the Commissioner appoints “one or more designees” to serve as hearing officers.  And so, in a case like this one, he could have (and the NFLPA will argue that he should have) handed the baton to someone who had no role in the investigation or in the effort to ensure that the league could disclose its belief that the Saints maintained a pay-for-performance/bounty system without shaking public confidence in the game.

The fact that Goodell was personally involved in the investigation (Mike Ornstein told PFT last month that he personally met with Goodell as part of the probe) potentially strengthens the argument that Goodell should have appointed someone who was more likely to come to the appeal process untainted by, for example, the mountain of evidence that was never introduced at the June 18 hearing by the league.  As the NFLPA will surely contend, how can anyone forget everything they learned during the investigation and focus only on the presentation from former prosecutor Mary Jo White as the sole record of evidence on which the appeals would be decided?

And so, while the NFLPA has agreed to a procedure that allows the Commissioner to resolve appeals involving cases of conduct detrimental to the game, federal law entitles all players to a truly impartial arbitrator — not an arbitrator who, consciously or not, feels compelled to defend the statements he has made and/or the investigation over which he has presided.

Put simply, the NFL wants an in-house appeal process that allows the league to treat as the top priority “maintaining the integrity of, and public confidence in, the game of professional football.”  The Federal Arbitration Act contemplates a process that provides fairness to those who have something tangible to lose as a result of an eventual arbitration ruling.  Even if the NFLPA agreed to the current process, a process that fundamentally is unfair to and/or biased against one side should not survive judicial scrutiny.

In the end, that’s the issue the court system faces.  The NFLPA will claim that Goodell wasn’t impartial, Goodell will claim that he was, and a federal judge will have to break the tie.

17 responses to “Goodell dismisses perception of bias in bounty appeals

  1. So Goodell wasn’t biased in the bounty proceedings because the rules allow him to be biased.

    Got it. Good, glad we got that resolved.

  2. Too bad the NFLPA isn’t a little more unbiased. If they were, perhaps they’d be a tad more concerned about protecting the players that were targets of a bounty and disciplining the player rep who broke league rules and contributrd to a pool that was at least a salary cap violation, rather than putting their desire to fight the league ahead of common sense.

  3. Goodell will dismiss everything the nflpa have to say and if it isn’t in the interest of Goodell..he will also reject it…Goodell will hide behind the CBA and say he has a right to railroad the players because they signed off on it..Federal Court here it comes!

  4. People seem to forget that what the saints did deserves the suspension. Also if the union agrees to those terms they cannot turn around and call foul when something goes wrong. I applaud Goddell for standing by his decisions.

  5. They say in a lot of sports that a good game is when referees are seen but not heard. That a good referee is one who isn’t in the spotlight and lets the players play.

    The same can be said of commissioners of sports. Roger Goodell is turning the NFL into something all about Roger Goodell. It didn’t start just now, it’s been going on for a while now, but it’s increasing at a rapid rate.

  6. The union had their chance to change the commissioner’s power. The league probably wanted a bigger percentage of the pie in exchange for an independent judge. Players preferred money. Now they complain. Let’s see what happens in a few years when the contract is up. Will players sacrifice money for an independent judge?. I don’t think so.

  7. It is hard to be unbiased but i think Goodell is trying. His priority is the game itself not a specific team or player.

  8. Every team but the Steelers voted for Goodell to be investigator, prosecutor, judge, jury, and executioner. Now no team but the Steelers has a right to complain. It is, however, a ridiculous amount of power to invest in one person–which is why our nation’s founders divided power in setting up our government. I hope a real court will take Goodell down a peg.

  9. FinFan68 says: Jul 7, 2012 2:21 PM

    It is hard to be unbiased but i think Goodell is trying. His priority is the game itself not a specific team or player.

    If this were true, wouldn’t he want to make sure that the entire process was conducted in a manner that held up to rigorous scrutiny? Either by appointing someone else as the “hearing officer” or not involving himself in the investigations so he would at least have a stronger argument of impartiality.

    As it stands now, the perception is that Roger Goodell, directed the investigation, interpreted the results of the investigation, determined the punishment, hired Mary Jo White to evalutate/concur with the process and his findings, then passed sentence. When one is so intimately involved in every aspect it becomes exceedingly difficult to claim impartiality.

    Just imagine if our legal system was set up so that the arresting officer, was also the prosecuting attorney as well as the judge and jury.

  10. FinFan68 says: Jul 7, 2012 2:21 PM

    It is hard to be unbiased but i think Goodell is trying. His priority is the game itself not a specific team or player.
    Maybe so FinFan, but what he’s done so far is tomake himself look like a fool that doesn’t need to recognize or follow the facts, therefore making the league look stupid.

  11. Roger Goodell is a tyrant, and a fan of Hitler, & is not capable of being fair & impartial…especially if he is expected to rule against the very entity that employs him.

  12. Can we at least agree that any challenge to Goodell’s impartiality must necessarily include supporting credible evidence? What SPECIFICALLY has Roger Goodell said or done that can be even remotely construed as evidence of bias or pre-judgment in this matter? Of course the NFLPA can try to “sell” the argument that under Article 46, Section 2(a) Goodell should have designated another hearing officer, but how likely is it the court will “buy” it? Article 46, Section 2(a) also states: “Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal … AT HIS DISCRETION (emphasis added).” Absent a showing by credible evidence that Goodell was manifestly and incurably prejudiced in this matter, I’m inclined to think that the court will be reluctant to substitute its judgment for Goodell’s in the context of the player disciplinary hearing.

  13. DeMaurice Smith and the Players thought he did an amazing job. Matter of fact he got a million dollar bonus.
    The owners won out right the Union failed to negotiate key elements in these contracts and part of me thinks Smith was buddy buddy with Goodell the whole way through.
    This whole Goodell stuff is just a major put off the dude thinks he is larger than the game of football and it’s really starting to be a huge turn off.
    Where are the NFL people that do damage control? or are they threatened to be fired if they say something as well?
    Greg Aiello is a joke talk about a dude that has his head up Goodell’s you know what.

  14. Can somebody tell me where the bias is?

    Goodell and the NFL ran an investigation (as shoddy as it was) and came to a conclusion (which may or may not be right).

    The players appealed and did not say anything or show any evidence during the hearing to argue that the conclusion was wrong, except say Goodell was wrong to the media after. (Vilma’s lawyer was probably the only one to say anything to Goodell during the hearing)

    What unbiased arbitrator/judge is going to side with the party who does nothing to argue their side in an official hearing, except talk to reporters after saying the whole thing is a sham?

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