The NFLPA hasn’t, and wont, ask former Commissioner Paul Tagliabue to step aside from his position as arbitrator in the bounty appeal process. Instead, the NFLPA will ask Judge Helen Berrigan to remove Taglibue from the process.
According to Daniel Kaplan of SportsBusiness Journal, the NFLPA will file a motion to recuse Tagliabue on Wednesday, the court-mandated deadline for doing so.
The fight will focus primarily on whether Tagliabue is disqualified from serving as the arbitrator given that he works for the law firm that represents the NFL in the bounty cases, and other matters. The NFL will argue that the arbitrator in a case of this nature, while impartial, is not “neutral,” which allows the NFL to designate as the hearing officer a lawyer who directly or through a law-firm affiliation represents the NFL. Indeed, NFL general counsel Jeff Pash has on many past occasions served as the “arbitrator” in appeals under NFL policies, even though Pash is a one-client consigliere, representing only the NFL.
The NFLPA likely will claim that the problem arises from the fact that Tagliague is employed by a law firm that has advocated specific positions on behalf of the NFL. And the NFLPA likely will point to a federal lawsuit from the 1970s in which the ABA Commissioner was disqualified from presiding over a matter involving Julius Erving because the firm at which the Commissioner was a partner was representing one of the parties to the arbitration.
The NFLPA also will argue that Tagliabue will be a witness in the bounty cases, given that he served as Commissioner when the league condoned player-funded “pay-for-performance” plans in the 1990s. It could be more tactic than legitimate strategy for proving the case, but it could do the trick.