New court order suggests judge is leaning against NFL in bounty case

On the same day that former Saints assistant Mike Cerullo testified in the bounty appeal hearing convened by former Commissioner Paul Tagliabue, Judge Helen Berrigan issued a reminder that she has ultimate jurisdiction over the process.

And she hinted that she’s leaning against the league’s position.

Larry Holder of the New Orleans Times-Picayune has obtained an order entered by Judge Berrigan on Thursday.  Here’s the full text of it:  “In light of the CBA Appeal Panel’s Decision of September 7, 2012, that ‘pay for performance’ discipline was within the exclusive jurisdiction of the Systems Arbitrator, anticipating that the forthcoming decision by Mr. Tagliabue may be subject to an expedited review as to its fundamental fairness, and assuming as undisputed the testimony by the New Orleans Saints players and coaches that only ‘legal hits’ were used to intimidate and/or injure opposing players, the parties shall brief the following: 1. Does Articles 43 and 46 of the CBA exclude discipline by the Commissioner for ‘legal’ contact? 2. Does the CBA give the players and coaches adequate notice as to what conduct could be sanctioned as ‘conduct detrimental?’ In other words, is that portion of the CBA ambiguous, hence unenforceable? Counsel should discuss the significance, if any, of the separate provision for sanctions upon players for ‘unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player’ in Article 46, Section 1(b) from ‘[a]ll disputes involving a fine or suspension imposed upon a player for conduct on the playing field’ and ‘conduct detrimental’ in Section 1(a). Reference to relevant NFL rules defining ‘legal’ and ‘illegal’ contact is welcomed, as well as a discussion of examples of ‘conduct detrimental’ provided in the CBA and related documents.”

In English, Judge Berrigan wants the parties to submit written documents that address specific angles and issues that may be relevant to her decision about the imposition of punishment on players for a pay-for-performance system based on clean, legal hits that kept opponents from continuing in a given game.  The way the questions are written suggests that she has identified specific problems that the NFL may have under the Collective Bargaining Agreement.

For example, Judge Berrigan wants the parties to address whether discipline for “legal” on-field contact is prevented because she apparently thinks it may be.  Likewise, she wants to know whether the CBA gives players and coaches “adequate notice” regarding the conduct that could be regarded as “conduct detrimental” because she thinks it may not.

Judge Berrigan also seems to think that the punishment for clean, legal hits falls under the portion of the CBA that gives Ted Cottrell or Art Shell exclusive jurisdiction over the disciplinary process — an argument that the NFL surely will argue the players have waived by not raising it under the CBA.

Regardless of the arguments raised by the parties, the order seems to be good news for the players, and bad news for the NFL.  The fact that it was issued at a time when key witnesses in the case against the players are testifying could rattle the league’s lawyers and create a sense that, no matter what happens before Tagliabue, the suspensions will ultimately be thrown out.

24 responses to “New court order suggests judge is leaning against NFL in bounty case

  1. Just rule against the NFL already so it can go to the appeals court and be overturned. Sad day in America when a judge can decides that a contract can be voided because she doesn’t like it. Wonder if that would work for my mortgage too.

  2. Does the players suspensions even matter anymore? The suspensions have already been “temporarily lifted” and by the time they are re-instated (if ever) one player is already out of the league and the others will probably be retired by then. None of this matters anymore, they got away with murder.

  3. This entire bountygate escapade has turned into a boondoggle for the league. I have no idea why Goodell is still the commissioner or what they are attempting to gain by prolonging this case.

    It seems like as the case drags on the owners continue to lose power to the players association instead of forwarding whatever agenda they had in mind to begin with.

    Just end it. Reinstate whoever has been wronged, and more forward. Everyone would be better off if the NFL can move past this.

  4. Most people realized this when she said she would try to fine any way possible to rule in favor of the players. What’s funny is the neglecting of the judge stating that there was in fact a bounty system

  5. I don’t think anyone was “murdered”. The NFL is in a dance to show how “concerned” they are for the safety of players. I think the proposed 18 game schedule and Thursday night football shows they are not at all concerned about anything but the almighty dollar.
    Any ruling Judge Berrigan makes will have to be appealed the the US 5th circuit court of appeals in, wait for it, NEW ORLEANS!

  6. Itrs great to see that a judicial officer can review what Roger thinks he is able to do. He got little carried away. This litigation is not good for the league, but it will be good for the league for a judge to give guidance about the limits of the Commisar’s power.

  7. Sounds unprofessional for a court judge to have a position of any kind before the case is heard.

  8. So does this suggest the fines levied against players for hits that were not flagged by the refs will have to be refunded? The NFL’s revenue stream generated by their arbitrary fines just might take a hit (as it should).

  9. So the fact that the players and coached were organizing this off the field would have nothing to do with it? And under this system, if an illegal hit knocked a player out of a game, they wouldn’t have gotten any $$? (Guess we would have to take the players’ word for it on that one)

    And asking for specific examples of conduct detrimental is garbage. Under this reasoning, anything not explicitly defined in the CBA would be allowed to occur without penalty. Like say, if a player paid a hitman to break the opposing team’s star player’s leg the night before a game- the CBA doesn’t say he can’t do that, so he obviously can under the CBA.

  10. All CBAs have to inherently include fairness. Its federal law. The NFL isn’t exempt. If that principle is violated and it certainly appears to have been, then it is a matter for a federal court. And by the way, the location of the court doesn’t give the players any advantage. It’s a Federal court and a appointed Federal judge not an elected state judge.

  11. Except bearnmind, the PLAYERS GAVE IT UP AFTER THE LOCK OUT.

    I find it funny how the players are crying about Goodell being the ultimate authority, yet they gave him that authority, when they wanted to end the lockout last year.

  12. Interesting point but irrelevant. It’s not the hits that are the issue, but the pay for performance system that the league ruled was conduct detrimental. And that the Saints were WARNED was inappropriate, so the argument that they don’t know what type of conduct is/isn’t tolerated doesn’t fly.

    Show a little character, admit what you did, serve your time, and go away.

  13. @mikeh3775

    The players gave Goodell the authority to be fair.

    They certainly did not give him the authority to issue capricious, unfair rulings.

    Kind of like we’ve recently given Obama authority to govern according to the rule of law. We have not given him authority to break it. As Nixon found out to his cost.

  14. This judge has no business overseeing this case. She went on record publicly before the case was even heard in court saying she would rule in favor of the players.

  15. The guilty players know theyre guilty, but theyre getting what they want- playing while the courts drag this on. By the time this is over, theyll all be retired.

  16. mp42245 says:
    Nov 29, 2012 8:10 PM
    So far, the only one screwed is Hargrove. He’d be playing already since week 8.


    No, the only ones screwed would be the team who thought Hargrove could play. That guy got cut by the Packers who were in desperate need of help on the D-Line.

  17. mthead55 says:Nov 29, 2012 8:20 PM

    So does this suggest the fines levied against players for hits that were not flagged by the refs will have to be refunded? The NFL’s revenue stream generated by their arbitrary fines just might take a hit (as it should).

    I’m pretty sure the fine money goes to charity not to the league.

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