The old news is that a three member arbitrator panel overturned the discipline of NFL Commissioner Roger Goodell of four players allegedly involved in a bounty scandal while affiliated with the New Orleans Saints in 2009.
Jonathan Vilma was seen on Twitter doing his best Stewart Gilligan Griffin impression after the arbitrator panel issued its decision. This story still has legs, starting with the implications of the decision.
As you may recall from my last column, I mentioned that Judge Helen Berigan was waiting to make her ruling on the injunction filed by Jonathan Vilma against the NFL for the year-long suspension issued by Commissioner Roger Goodell from what many are calling “Bountygate” (as an aside, I am hoping that someday, sometime soon, people will stop adding a –gate to every scandal, unless it involved a break-in at a famous Washington, D.C. hotel. But I digress).
Judge Berigan’s pending decision is one of a few undetermined outcomes involving this matter. That being said, there are a couple of points to take from the arbitration panel’s (unanimous) decision that NFL Commissioner Roger Goodell exceeded his jurisdiction in issuing suspensions of players ranging from a few games to one full season for their alleged participation in a pay-for-play scheme in which rewards were allegedly issued for big hits or injuries to opposing players.
The arbitration panel, which consisted of three individuals, ruled that Commissioner Goodell exceeded his authority when disciplining the players. Specifically, the panel concluded that Goodell could rule on issues that are under the auspices of “conduct detrimental to the game,” but that this was an issue outside of that category. The decision allows the four players to return to team rosters and more importantly, allows those who are on NFL rosters to receive their entire 2012 season salary. After digesting the panel’s decision, I share some quick thoughts on what came to pass and what could still come to pass.
First, and foremost, is that the NFL may look to, pardon the phrase, “check itself” when it is looking to issue discipline. Discipline meted out pursuant to the NFL’s Personal Conduct Policy is one thing, because the players did agree to these terms. However, issues like the alleged pay-for-play system do not give Goodell and the League jurisdiction to issue discipline.
This was, accordingly to the appeals panel, a salary cap-related case, well outside the jurisdiction of the Commissioner. Goodell and his team of attorneys could simply take a step back and revise its discipline to cover that which is in his jurisdiction. While the discipline was vacated, the matter itself was “remanded,” or sent back to Goodell, for “expeditious redetermination.” Indeed, the NFL has said that:
“Nothing in today’s decision contradicts any of the facts found in the investigation into this matter, or absolves any player of responsibility for conduct detrimental. Nor does the decision in any way suggest what discipline would be appropriate for conduct that lies within the authority of the Commissioner. Per the panel’s direction, the Commissioner will promptly reconsider the matter and make a determination of the appropriate discipline consistent with the standards set forth in today’s decision. All clubs will be advised when that decision is made.”
This language, pulled from an internal NFL memorandum sent to teams, indicates that subsequent discipline of the four players may still be coming. If Commissioner Goodell decides to sit down and consider issuing a penalty which can be completely construed as coming directly from the collective bargaining agreement, the process by which the players are allowed to appeal such a decision might be tweaked to allow for more discovery or disclosure of evidence from and to each side. This was a point seemingly made by Judge Berigan during the injunction hearing late last month.
Second, Judge Berigan has still not ruled on the injunction. She may still decide to issue a ruling, or she may now wait for Commissioner Goodell to re-issue the discipline. The players do not seem to have another avenue of appeal at their disposal if Goodell issues a new disciplinary action, thus Judge Berigan could still be sought to rule on the issues brought before her.
When we last heard/read Judge Berigan, she seemed decidedly in favor of Vilma and the players in arguing that the system by which the NFL issued its discipline was decidedly one-sided and lacked due process. Accordingly, Judge Berigan could issue a decision in favor of Vilma, which could result in further litigation of this issue, and further drag the actions of Commissioner Goodell in the public eye. Further, if there are players who were asked to provide information under cover of protection, that protection might disappear if litigation were to ensue.
Third, the parties might just want to settle the matter financially. Considering the possibilities just discussed above, it might behoove the NFL to urge this type of resolution. Judge Berigan was requesting that the parties go this route at the injunction hearing.
Finally, the decision of the appeals panel may undercut Commissioner Goodell’s authority in the long term. The NFL Players Association of the present regretted at least in some part that the NFLPA of the past gave the Commissioner such power in the issuance of discipline, and had been looking for a successful way to challenge it. This gives at least some glimmer of hope to future appeals.
For now, we wait to see if Commissioner Goodell re-issues discipline to the four players and whether Judge Berigan will issue a decision before that time.