As the parties try to process the sudden and surprising decision of Commissioner Roger Goodell to recuse himself from Bounty Appeal Hearing 2.0, the NFLPA has several concerns regarding his replacement, former Commissioner Paul Tagliabue. And those concerns could result in a challenge to Tagliabue’s ability to proceed.
Per a source with knowledge of the situation, the concerns commence with the manner in which Tagliabue was chosen. While the CBA expressly requires that Goodell consult with the NFLPA before designating his authority to another arbitrator, the union believes Goodell didn’t consult with the players but merely informed them of the change. The players, if it were a true consultation, may have suggested a three-judge panel, or a federal magistrate, or someone not currently connected in any way to the league or the law firm representing the league bounty-related litigation, as Tagliabue is.
That’s why the NFLPA didn’t issue a statement on Friday regarding the decision. While the union is happy that Goodell came to the conclusion that he’s the wrong person to handle the internal hearing, Tagliabue may not be the right answer, and the union may eventually request that he step aside, too.
Then there’s the possibility that Tagliabue’s ongoing affiliation with Covington & Burling, the firm that through Gregg Levy represents the NFL in bounty-related court proceedings, may be automatically disqualified. Rule 2.4 of the Model Rules of Professional Conduct explains that “a lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.” Under the same set of rules, a client of a lawyer’s firm is regarded as a client of the lawyer. Thus, if one of the parties technically is a client of the lawyer, the lawyer can’t serve as a third-party neutral in a way that complies with the rules that regulate the practice of law.
In other words, if Tagliabue proceeds, he could be inviting regulatory scrutiny in the jurisdictions where he is licensed to practice law.
Then there’s the possibility that the NFLPA will decide to call Tagliabue as a witness, either in court or at the appeal hearing, regarding the league’s failure to enforce the bounty rules against the “Smash for Cash” program that operated on Tagliabue’s watch in 1996. If he’s a witness, he can’t also be the arbitrator.
No decisions have been made regarding whether Tagliabue’s service as arbitrator will be challenged. But yet another storm could be coming. And it could result in yet another arbitrator being assigned to handle the case.