Monday, March 5, 2012

Bounty Hunting and Pro Football

The revelation last week that certain teams were paying their players additional amounts of money for hard contact on the field (a practice that goes back decades, notwithstanding the current hoopla) creates a series of problems for the NFL at a number of levels.

The aspect of a bounty system getting the most attention, of course, is that this type of conduct promotes injuries in a sport that has tried recently to sell itself as being concerned with the players' physical well-being by instituting rule changes to protect players, especially high-value players, from injury. In short, it's a public relations nightmare-the league looks hypocritical for saying it's trying to protect people when members of its management team are out there providing walking around money to players in exchange for knocking other people out for a game/season. For that reason alone I expect some fairly stiff penalties to come out of the NFL's New York headquarters, aimed at former Saints defensive coordinator Gregg Williams, Saints head coach Sean Payton, the Saints organization, and perhaps the Washington Redskins, where Williams used coach.

But there's a separate and legally more problematic point here. The NFL collective-bargaining agreement is quite specific with respect to payments to players. Clubs cannot make payments to players that are not factored in as part of the salary cap process. It's very clear from what's been described in the press so far that these bounty payments were "under the table", and off the books for purposes of tracking salaries and compensation. To that extent, the bounty payments are an unfair labor practice by the clubs, and could form the basis for charges by a player or by the union before the NLRB.

The union could simply raise the issue as a circumvention of the salary cap system and demand some kind of unspecified damages, either through arbitration or through the NLRB process. But it would be far more interesting if individual players brought unfair labor practice charges, because it might be possible to link specific player injuries to the bounty hunting practices of certain teams. To use a not unreasonable example, Peyton Manning, who suffered a vicious hit on his neck and head against the Williams-coached Redskins in 2006, conceivably could file an unfair labor practice charge against the NFL and claim lost wages as a result of his injury. Or he could simply file a claim for some type of intentional or grossly negligent malfeasance by the league in either tolerating or failing to monitor the bounty situation. Given Manning's annual compensation, we could be talking about some real money very quickly. And I can certainly see the NLRB taking on a case like this, for the notoriety, if nothing else.

If I can think of this type of approach, I'm guessing there are 10,000 other lawyers out there who can do the same.  True, the clubs would immediately argue that the injury claim was barred by workers compensation requirements. But in most places, an employee who is injured as a result of deliberate employer misconduct can sue the employer directly.  This could get very interesting, very quickly. Stay tuned.

UPDATE:  And the penalties handed down by the NFL were severe, as anticipated.  Now we will wait to see if the League goes after some of the players involved.  My bet is that it will, but with much more limited sanctions.

UPDATE #2:  The sanctions for the players are still up in the air, but I have a hard time thinking they will as severe as handed out to the coaches.  If they are handed out at all, that is.

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