When assessing the decision made by former Commissioner Paul Tagliabue to overturn the suspensions imposed on four players, it’s important to understand both what he says and what he doesn’t say.That’s particularly important when assessing the contention that Saints linebacker Jonathan Vilma offered $10,000 to any teammate who knocked former Vikings quarterback Brett Favre out of the 2009 NFC title game, since Vilma’s denial of that claim provides the basis for his defamation lawsuit against Commissioner Roger Goodell.
Early in the 22-page ruling, Tagliabue explains that he is “not reviewing Commissioner Goodell’s October 9, 2012 findings and conclusions de novo.” Those last two words are a common Latin legal term, which mean “from scratch.”
Basically, Tagliabue didn’t build the house of facts all over again.
“If the parties had intended such a review, they would have written it into the CBA,” Tagliabue says. “Instead, I am giving appropriate deference to Commissioner Goodell’s reasonable findings and am applying the same standard of review to findings of violation and to findings underlying the level of discipline. I am not substituting my judgment for the Commissioner’s judgment, except insofar as I have received and considered new material information of which the Commissioner was unaware. In this instance, based on both the prior record and additional information, I am reviewing the discipline for consistency of treatment, uniformity of standards for parties similarly situated and patent unfairness or selectivity.”
In other words, Tagliabue acted like a traditional appeals court, declining to start the case over and taking advantage of the work that already has been done. This distinction becomes critical when assessing whether and to what extent Tagliabue’s finding impacts Vilma’s pending lawsuit.
As to the most important factual question presented by the appeal process, Tagliabue doesn’t determine that Vilma offered a bounty on Favre. Instead, Tagliabue “find[s] there is more than enough evidence to support Commissioner Goodell’s findings that Mr. Vilma offered such a bounty.”
In other words, Tagliabue believes it was reasonable for Goodell to conclude based on the evidence that Vilma offered a bounty. But the opposite proposition also could have been accurate -- that it would have been reasonable to conclude that Vilma didn’t offer a true and actual bounty.
Indeed, Tagliabue implicitly reached the latter conclusion, since he wasn’t willing to suspend Vilma because Tagliabue couldn’t conclude that the “talk” from Vilma amounted to a real threat, as opposed to “rhetoric and exaggeration.”
"[T]here is little evidence of the tone of any talk about a bounty before the Vikings game,” Tagliabue writes. “Was any bounty pledged serious? Was it inspirational only? Was it typical ‘trash talk’ that occurs regularly before and during games? The parties presented no clear answers. No witness could confirm whether Vilma had any money in his hands as he spoke; no evidence was presented that $10,000 was available to him for purposes of paying a bounty or otherwise. There was no evidence that Vilma or anyone else paid any money to any player for any bounty-related hit on an opposing player in the Vikings game.”
In other words, Tagliabue wasn’t able to determine that the words uttered by Vilma were real, that he meant what he said and intended to act on it.
Tagliabue used that specific occasion to give more passive-aggressive, big-picture advice to his successor: “It is essential to recognize that Vilma is being most severely disciplined for ‘talk’ or speech at a team meeting on the evening before the Saints-Vikings game. He is not being punished for his performance on the field and, indeed, none of the discipline of any player here relates to on-field conduct. No Saints’ player was suspended for on-field play by the League after the game in question. If the League wishes to suspend a player for pre-game talk including ‘offers’ to incentivize misconduct, it must start by imposing enhanced discipline for illegal hits that involve the kind of player misconduct that it desires to interdict. The relationship of the discipline for the off-field ‘talk’ and actual on-field conduct must be carefully calibrated and reasonably apportioned. This is a standard grounded in common sense and fairness. It rests also on the competence of NFL officiating and the obligation and ability of the League to closely observe playing field misconduct, record it and review for illegal hits or other related misconduct.”
For Vilma’s defamation case, none of this matters. He insists he didn’t make the offer, others insist he did, and eventually someone else will have to consider the evidence and make factual decisions “from scratch.” In this regard, the transcript of the testimony from the Tagliabue appeal hearing could be very useful, since the witnesses will have a hard time disowning the testimony they’ve already provided under oath.
The fact that Vilma’s lawyer has called upon Tagliabue to release the transcript publicly suggests that the totality of the testimony could help Vilma.
Thus, regardless of Tagliabue’s belief that Goodell’s conclusion that Vilma made the offer was reasonable, others will eventually tackle that question within the confines of civil litigation, and there’s a chance that Tagliabue’s emphasis on the difference between words and actions will cause the judge and/or the jury to think that Goodell didn’t exercise enough care in distinguishing the two as he should have before publicly painting Vilma as a thug.