1) How do you explain today’s ruling in the context of Roger Goodell’s powers as commissioner?
Many have described Goodell as “judge, jury and executioner” since, under the Personal Conduct Policy, he not only judges whether conduct warrants a punishment but also decides the appropriate punishment. Furthermore, a sanction can only be appealed back to Goodell. This circular system of justice, which NFL players assented to, contrasts with systems of justice found in other major sports leagues, which typically feature commissioners’ disciplinary powers checked by independent arbitration.
The CBA makes clear, however, that arbitration, rather than unilateral action by Goodell, is appropriate for certain types of infractions allegedly committed by players. This is true of secret employment agreements between a team and player. The NFLPA has maintained that bounties are a form of secret employment agreement, since players receive additional compensation if they perform a certain on-field task. In July, NFL system administrator Stephen Burbank determined that, contrary to the NFLPA’s interpretation, this CBA language failed to address bounty agreements. Burbank distinguished secret employment agreements between teams and players from bounties, which involve players pooling and maintaining funds, with some assistance from coaches, and which involve the injure other players.
Today’s ruling by a three-person panel (retired federal Judge Fern Smith of San Francisco, retired federal Judge Richard Howell of New York, and Georgetown professor James Oldham) overrules Burbank with respect to pay-for-play, but not with respect to intent to injure. The effect of today’s ruling is that the suspensions of linebacker Jonathan Vilma, Browns linebacker Scott Fujita, Saints defensive end Will Smith and free agent defensive lineman Anthony Hargrove are lifted. Goodell, however, could reissue said suspensions if he believes there was intent to injure beyond creating incentives for performance.
Keep in mind, while today’s ruling is a defeat for Goodell, it does not limit his authority to use the Personal Conduct Policy for the types of misconduct (e.g., players being arrested by police) that have motivated him to punish other players. In that respect, today’s ruling may have limited effect on Goodell’s authority.
On the other hand, if today’s ruling motivates the NFLPA and players to more often challenge Goodell’s decision under the Personal Conduct Policy, Goodell might become less willing to use this power. This is particularly true as NFL concussion litigation — and its more than 3,400 retired players as plaintiffs — looms. The last thing Goodell probably wants is to deal with more litigation and hearings. Along those lines, should future scandals arise, Goodell may be reluctant to issue league-run internal investigations, or at the very least, reluctant to do so without substantial involvement from the NFLPA and the sharing of evidence with the NFLPA. In those respects, today’s decision is an important process victory for the NFLPA
2) Will Goodell reissue the suspensions?
As Sunday’s games loom, the next 36 hours are crucial for both the NFL and Goodell. If the suspensions remain lifted and if the league and the four aforementioned players work together toward a litigation settlement, the league would avoid a worst-case scenario: losing high-profile courtroom trials to NFL players and the NFLPA, and being forced to reveal its sources for the bounty investigation.
But not reissuing the suspensions would come with a cost for the NFL and Goodell: it would signal defeat. Worse yet, attorneys for the concussion plaintiffs could use the lack of reissued suspensions as evidence the league does not care seriously enough about player safety. It would reflect poorly upon the league that it would so readily give up a fight to sanction bounties, which Goodell previously said were a major concern.
The NFLPA and the suspended players — especially Vilma, who got the litigation ball rolling — have backed Goodell into a corner.
3) How does this ruling impact Vilma v. Goodell and NFLPA (Fujita, Hargrove & Smith) v. NFL?
Although Goodell lost today’s arbitration ruling, it could end up helping him and the league in court: the ruling increases the chances for an out-of-court settlement with the suspended players.
In May, Vilma sued Goodell for defamation, claiming that his comments implicating Vilma in the bounty scandal are defamatory since they damage Vilma’s reputation and, according to Vilma, are untrue. The other three players filed a lawsuit against the NFL in July.
US District Judge Ginger Berrigan, who is presiding over the litigation, has expressed disappointment at the inability of players and the league to settle the matter. There have been rumors the NFL offered to reduce Vilma’s suspension from 16 games to eight in exchange for Vilma dropping his lawsuit, but Vilma has insisted he would not accept any settlement in which he is suspended. Berrigan has also appeared sympathetic to Vilma. None of this is good news for Goodell and the NFL, which want to avoid pretrial discovery. Worse yet would be a trial, in which a court would review the merits of the bounty investigation. Such a review would likely include information on players and others who served as informants to the NFL in its bounty investigation, and who the NFL probably gave assurances of confidentiality. Depending on the wording of their agreement with the NFL, informant-players who were assured confidentiality from the NFL could sue the league if their names are revealed.
Today’s ruling, however, takes the divisive issue of suspended games off the table for settlement discussions. The two sides could now try to negotiate a confidential settlement that only involves dollars changing hands. A settlement would make sense for both sides. The players probably want to return their focus to upcoming games and not have to worry about upcoming court dates and meetings with lawyers. Goodell and the NFL want to avoid judicial review of the bounty investigation and any potential embarrassment that could result.
But if Goodell reissues the suspensions, the prospects of a settlement would dwindle.
4) Does today’s ruling mean that Sean Payton and the other suspended coaches can return to work?
No. Today’s ruling does not legally benefit Payton — or, for that matter, Gregg Williams and Joe Vitt — because they are coaches, and do not enjoy collectively bargained protections as do Vilma and other players. Players enjoy these protections because they are members of a union, the NFLPA, which collectively bargains with the NFL for rules impacting players’ wages, hours and other working conditions. In contrast, Payton’s relationship with the NFL is governed by an employment contract with the Saints and which, like all coaches’ contracts, contains stipulations he must accept NFL judgments.
That said, today’s ruling could motivate former Saints defensive coordinator Gregg Williams, who has been suspended indefinitely and whose NFL coaching career may be over, to more seriously consider suing Goodell and the NFL. While a lawsuit would be challenging, Williams could argue the NFL and its teams have essentially boycotted him on exaggerated or fictitious grounds. Given their continued employment, it is less likely Payton, Vitt and Saints general manager Mickey Loomis would seek litigation against the league.
Michael McCann is director of the Sports Law Institute at Vermont Law School, a visiting professor at University of New Hampshire School of Law, and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV’s On-Air Legal Analyst. Follow him on Twitter.