Litigation the method by which parties can choose to solve their disputes and disagreements. Sure, there are other ways to do this, like mediation, negotiation, sitting down and listening to one another. But when parties do not see eye to eye on the meaning of a particular agreement, or in some cases, when at least one party wants to draw either a line in the sand or prove a point on an issue involving a business agreement, they will duke it out in a court or before an arbitrator. Sometimes, in the case of the NFL, it will do both.
The NFL is involved in several different legal matters right now. While most large corporations are involved in multiple legal disputes at one particular time, the NFL is one of the world’s most well-known and popular corporations in the world. As an aside, the NFL is also a tax exempt organization under 501(c)(6) of the Internal Revenue Code. Incidentally, that means a payment of league fees by a particular team is, under the Internal Revenue Code, a donation to a tax exempt organization.
But I digress.
The NFL has, by my count, three high-level legal disputes on its hands. One is the Jonathan Vilma lawsuit, which may be determined by a Louisiana federal judge this week. Another is the league’s collective bargaining dispute with its referees and the NFL Referees Association, which reportedly was in eleventh-hour negotiations as the two sides try to avoid beginning the regular season with the regular referees locked out.
Finally, there is the concussion litigation, which the NFL has filed a motion to dismiss. I will address each of these pieces of litigation in turn.
SUSPENDED…OR NOT SUSPENEDED…THAT IS THE QUESTION
One of the more intriguing legal showdowns involves suspended Saints linebacker Jonathan Vilma who has two separate legal actions against the NFL. One is the appeal of a decision to suspend him for one year. A second action involves Vilma’s claim against NFL Commissioner Roger Goodell for defamation. Neither claim is tied to the other. This discussion speaks to the former of the legal claims.
Vilma’s attorneys are arguing for the suspension to be, essentially suspended, while the appeal process of Commission Goodell’s decision to issue a year long suspension from the league plays out. The League, in turn, argued that Vilma did not exhaust the dispute resolution procedures available to him from the collective bargaining agreement, and therefore, he had no jurisdiction to request injunctive relief from the court.
Further, the NFL’s position is that by granting an injunction to suspend the enforcement of a year-long suspension would set a dangerous precedent for future players to challenge League-issued discipline. Accordingly, the NFL has filed a motion to dismiss the injunction action brought against it. Vilma and the NFLPA are attempting to distinguish this discipline from the standard discipline issued by the League.
If you remember, back on June 18, Goodell heard the appeals of Vilma, Scott Fujita, Anthony Hargrove, and Will Smith. All four were implicated in an alleged scheme where Saints players were involved with coaches in a bounty system where players were awarded for hard hits and injuring opposing players. Vilma walked out of the June 18 hearing after just one hour.
On August 10, Vilma and his attorney went before Judge Helen Ginger Berrigan in the United States District Court for the Eastern District of Louisiana (as did lawyers for the National Football League Players Association and the NFL). Judge Berrigan told the parties that she believed that the penalty issued against Vilma was excessive and that if she was sure she had the jurisdiction to do so, she would rule in Vilma’s favor. After review of the hearing transcript, it is not hard to see why.
Judge Berrigan spoke of the procedural deficiencies:
Well, I'll be candid with you. I would like to rule in Mr. Vilma's favor. I think the proceedings were neither transparent nor fair. I think I made that clear the other day. I think the refusal to identify the accusers, much less have them at the hearing to be cross-examined, to look at biases, flaws in their testimony, and 18,000 documents that apparently were relied upon by Mr. Goodell, less than 200 were actually provided to you, many of them were redacted.
I do think you did exhaust your remedies at that hearing, because in essence, I think you were thwarted at every time by Mr. Goodell's refusal to provide you meaningful access to witnesses and to documents. So I think you did, in fact, do everything you could at that hearing to exhaust. As you know, I do think the whole -- I think this should have been dealt with by the System Arbitrator since it was a pay-for-performance program, or at least it was unnecessary roughness or unsportsmanlike conduct. It should have been -- gone to mutual hearing officers. I think the penalty hearing was too harsh. I think it's pretty obvious how I feel about all of that.
My question, though, I guess my concern is, and you mentioned it a couple seconds ago, there is still an appeal pending which is going to be heard, I understand, on August 30th. So while I do think you exhausted your administrative remedies at the hearing before Mr. Goodell, I have some -- I don't think they are exhausted with respect to Mr. Burbank's decision. So I don't know that I can do anything prior to that 30th hearing. I guess I would like your thoughts on that.
In sum, the judge thought that the NFL ran a kangaroo court style appeal process. Judge Berrigan also feels that the suspension of Vilma and the other three players is part of Section 14 of the NFL-NFLPA collective bargaining agreement, which vests authority in an appointed “system arbitrator” to deal with circumventions of the salary cap (which, if players were paid to hit or injure players, would constitute an attempt to pay players more money than they were allotted).
The League, by the way, argues that Goodell had the authority to punish the four players because it was an issue of conduct detrimental to the league, which vests the Commissioner with jurisdiction to issue discipline. Judge Berrigan said that she is awaiting a decision from appointed arbitrator Stephen Burbank who was scheduled to hear Vilma’s appeal (which, again the players argue is made pursuant to a process spelled out in the collective bargaining agreement). August 30 has come and gone without a decision from Burbank.
Judge Berrigan indicated at the August 10 hearing that she was inclined to wait until after Burbank’s ruling to make her own ruling. Additionally, Berrigan requested that the parties work to resolve the matter before she did. It was also widely reported that the NFL offered to reduce Vilma’s year-long suspension to eight games. This would at least indicate that there is some sense on the side of the NFL that it may indeed “lose” in front of Judge Berrigan.
With no ruling from Burbank as of yet, Judge Berrigan could still make a ruling in this case on the basis that she believes no matter what Burbank says or does eliminates the fact that the dispute should have been determined by an arbitrator and not Commissioner Goodell. If Berrigan rules for Vilma and the other three players, expect an immediate appeal to the United States Court of Appeals for the Fifth Circuit.
If that happens, the League would also ask the court to “stay” its decision, meaning that the suspensions of the players would continue until the appellate court ruled on the same issue. That might take months, months which would carve into the suspensions of the four players.
DOWN TO THE WIRE WITH THE ZEBRAS
The NFL has been embroiled in countless lawsuits and other disputes over its history. Few have involved its referees, who are permanent part-time players at present time. As I discussed in my last column, the NFL Referees Association (NFLRA) has been “locked out” by the NFL as a result of a failure of the two sides to come to terms on a new collective bargaining agreement.
As a result of their continued dispute, the League froze out the referees and has been using replacement referees, which some of our columnists have discussed at length. Results have been mixed and criticism of these replacement referees (“scabs” is an often un-endearing term used for, among other things, one who takes the place of a unionized worker during a labor dispute).
The NFL and the NFLRA have been at a stalemate for some time. The NFLRA has publicly stated that the NFL was intent on locking out the referees. Talks had stalled until August 31, when the sides met for the first time in one month. However, as of September 1, the talks broke off again after three days of meeting.
No further negotiation sessions have been scheduled.
The sides are reportedly at odds over a small amount of salary, retirement benefits, the hiring of additional crews, and the hiring of an additional crew to work full-time employees for the League. The NFLRA wants fair compensation is its members are going to be working full-time.
Remember that the locked out referees have other career pursuits, so they would be foregoing those for a full-time opportunity with the League. The NFL has already informed teams via memorandum that replacement officials would work the season opener (Giants and Cowboys) Wednesday, September 5.
What once was a reason for optimism of an eleventh-hour deal and for NFLRA referees working the regular season is now very unclear. The League used replacement referees for one week of regular season games in 2001.
Incidentally, some very good points were raised by Alicia Jessop in an article in Forbes magazine that the players’ union probably cannot strike over the referee situation because they are barred by language in the most recent collective bargaining agreement. However, the NFLPA can continue to apply pressure through a vigorous public relations campaign, by warning that any players injured on the watch of replacement referees could bring lawsuits similar to those brought by thousands of former players. This serves as the perfect transition to the next story.
MOTION TO DISMISS
The NFL has filed a motion to dismiss in a Philadelphia federal court on August 30, seeking to end a class-action lawsuit brought by over 3,000 plaintiffs, which consolidated over 140 separate lawsuits against the league. The NFL’s argument is based on section 301 of the Labor Management Relations Act (LMRA). Specifically, section 301 of the LMRA preempts any state law claims if they are substantially dependent upon, are inextricably intertwined, or arise under a collective bargaining agreement.
Section 301 is being used by the NFL as a jurisdictional argument, such that the former players cannot bring their claims of fraud against the League because there is a collective bargaining agreement that exists between the parties. The “class” as it is called in class action lawsuits, sees it differently. The former players’ argument is that there is no provision in the collective bargaining agreement that would protect them from the underlying legal claims brought forth in the class action lawsuit.
As part of its motion to dismiss the concussion class action lawsuit, the NFL filed a 40-page brief, complete with 14 exhibits including past collective bargaining agreements (CBAs) and League by-laws and constitutions. Simply put, the NFL argues this is a labor dispute and the class action lawsuit is “preempted” by section 301 of the LMRA. The class is arguing, or at least it will have to argue in its reply brief to the federal court, that this litigation is not based on the collective bargaining agreement.
Keep in mind that the current CBA, as did many other past agreements, covered such issues as medical care, workers compensation, injury grievances (which the CBA states must be taken to arbitration), and player safety, which has and continues to be handled through a joint union-management task force of sorts.
If you want to follow the litigation yourself, as well as other concussion-based lawsuits, nflconcussionlitigation.com does the best job out there. This is certainly something I will be following and will update you about as the reply brief is filed by the class and the judge makes his decision. If the over 3,000 players can get over this significant hurdle, this case will not go gentle into that good night.
Other news and notes…
Readers of my first column may recall brief discussion of the University of Virginia lacrosse player who was convicted of murdering his ex-girlfriend, who also played lacrosse at the school. George Huguely V was sentenced on August 30 to 23 years in prison for the murder of Yeardley Love.
As I stated in my column, it could be argued that the University may have had some knowledge of Huguely’s propensity for violence by way of his involvement in a few incidents prior to the murder. While I doubt this matter ever involves the University of Virginia, Circuit Court Judge Edward L. Hogshire may have put it best when he told the court with respect to a 2008 incident where Huguely put his hands around Love’s neck at a bar “was a foreshadowing of what was coming.”
If any good can come from this tragedy, it is that Virginia lawmakers mentioned Love when they expanded existing laws to make it easier for people who are dating, but not living together, to obtain court orders seeking protection from an abusive partner.
The University of Virginia has also now requires that at the start of each school year, students report whether they have been arrested or convicted of anything other than minor traffic infractions. According to reports, the school has also increased training and awareness to faculty, staff, and students alike with training to recognize abusive relationships or struggling with addiction or mental health issues.
A VERY BIG DEAL
IMG College signed a sponsorship agreement with Lowe’s that will allow that company’s logo to be associated with some 80 schools as their “exclusive home improvement retailer.” As part of this agreement, that is to say, contract, Lowe’s will be able to use the schools’ logos and intellectual property in marketing, advertising, and for hosting special events.
In turn, Lowe’s will be the title sponsor for 40 IMG homecoming events. So fans at the University of Miami (Florida), Boston College, Appalachian State, and Virginia Tech, among others, can look forward to a homecoming sponsored by Lowe’s. IMG estimates there are 172 million college sports fans in the United States, including 29 million who earn north of $100,000. I can only presume that Lowe’s sees potential there for some business growth, as does ING.
CALL ME (MAYBE) LATER
Lawyers for Brett Favre are voicing their complaints in the court of public opinion and with a New York court with respect to claims made by two massage therapists who claim they were blacklisted by the New York Jets after they objected to sexually suggestive messages. Favre’s attorneys claim that the former Packers-Jets-Vikings quarterback should not have to respond to certain embarrassing claims about his personal activities. As part of discovery in a suit brought by the two massage therapists, Favre was asked to admit or deny certain questions.
One question reportedly asked him to admit or deny whether he solicited women for sexual encounters and sent sexually explicit photos to former Jets game hostess Jenn Sterger. After a complaint and an answer is filed, which are part of the pleadings, the parties move into the discovery phase. At times, one party might be able to file a motion with the court to protect an individual from releasing certain information if it can be shown that the information is highly prejudicial and not relevant. This motion will be resolved in front of a judge.
THE “BRYANT RULES”
This is not the new reality program on Bravo, but it is a set of orders from Dallas Cowboys brass to third-year wide receive Dez Bryant. Bryant, if you recall, was recently charged with allegedly assaulting his mother. The Cowboys have placed around-the-clock security detail on Bryant and have ordered him to stay away from strip clubs, to a midnight curfew, to attend counseling sessions twice per week, and avoid drinking alcohol. Essentially, the team wants Bryant to avoid situations where trouble might find him.
As you may know, the NFL has a Personnel Conduct Policy from which Commissioner Roger Goodell can issue discipline to those players that have had a skirmish with the law. It has been reported that Bryant’s mother wishes to drop all criminal charges against her son, but Commissioner Goodell might still take issue with what occurred.
Therefore, the Cowboys might just be trying to protect their former-first round draft pick. If Bryant has agreed to these rules, and he reportedly has, then there is likely no civil rights issue. The issue here might be trying to have a young man “grow up.” If that is what Commissioner Goodell is seeing at present time, there is likely no need for any League involvement.
O’BANNON V NCAA
Finally, lawyers representing former college football players, among others, filed a certification of their class action against the NCAA, Electronic Arts, and Collegiate Licensing Co. that could, if granted, change the face of collegiate sports insofar as the compensation of student-athletes goes.
The players filed a motion with a federal court in California seeking to not only obtain monetary damages for the players in that class for the improper usage of the names, likeness, and images, but to hold in trust similar monies generated for current players until they complete their playing careers.
The lawsuit is O’Bannon v. NCAA et al., and features among its class plaintiffs Oscar Robertson and Bill Russell. This is extremely creative thinking on the part of the attorneys in this case and worthy of at least watching the developments.
With college and professional football beginning their seasons this week, it is easy to forget the strategy going on in the courtroom. With more events on the horizon, this columnist will be watching both.