As expected, the NFL has filed its response to the effort to recuse former Commissioner Paul Tagliabue as the hearing officer in the appeal of the suspensions issued against Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and free-agent defensive end Anthony Hargrove. As expected, the NFL disagrees with the players’ position that Tagliabue should be disqualified.
The respective positions of the parties pit notions of legal ethics against collectively-bargained procedures for resolving disputes. The NFLPA has agreed that the Commissioner or his designee will have authority to handle these appeals. The NFLPA, under the league’s argument, must accept the exercise of that authority -- even if the person appointed has a potential conflict of interest via his employment with a law firm that represents the league.
The NFL’s argument is that the potential conflict of interest has been waived via the appointment of Tagliabue to handle the appeal. The NFLPA’s argument is that Tagliabue doesn’t truly have the freedom to rule against the NFL because the law firm that employs him represents the NFL’s interests in, among other things, a defamation case against Commissioner Roger Goodell that could get a lot stronger if the internal appeal process results in a dressing-down of the manner in which the Commissioner handled the investigation and discipline of the players.
Like so many legal issues, each side persuasively has articulated its position. Now, the judge in Louisiana (key words: “in Louisiana”) must pick one position or the other, or possibly a combination of the two. In this case, the second page of the NFL’s brief points out that the entire effort arises from alleged conduct detrimental to “the integrity of, or public confidence in, the game of professional football.” In turn, the selection of an employee of a law firm that represents the NFL could undermine “the integrity of, or public confidence in” the justice system. For that reason, many judges would politely ask Tagliabue to step aside, erring on the side of ensuring that there will be no tarnish to the perception of the courts.
Looking at the situation more broadly, the question becomes whether it’s right to even put Tagliabue in the position of having to consider, consciously or not, the potential impact of his decision on existing relationships. When jurors are screened for service in a trial, judges routinely ask if they know or are related to the parties or the lawyers or the witnesses. When I had a chance to ask the jurors questions, I’d ask if any are related to or know each other. When it’s time to hash out justice, the folks in the jury room shouldn’t have to worry about the impact of their decision on any of their relationships -- including their relationships with jurors that they may have already known before the trial.
In this case, Tagliabue has relationships that could be impacted by a ruling against the NFL, especially in light of the unprecedented degree to which the facts of the case are contested by the players and the NFL. And while plenty of past hearings have been handled by league employees who may have compromised their employment relationship by not doing what the Commissioner wanted them to do, the sharp conflict between the parties and the extreme publicity and notoriety of the situation make this case one in which it would be imprudent -- and arguably unfair -- to have Tagliabue handle the appeal. For that reason, a judge could err on the side of caution and ask the league to appoint a different hearing officer.