Sunday, July 15, 2012

The NFL Litigation Bonanza

The dust has settled a little following the NFLPA filing its lawsuit relating to discipline imposed on Saints players for participating in the alleged bounty system designed to knock other teams' players out of football games. So far, a couple of things are pretty clear:

--The NFLPA has a lousy case. The main thrust of the union's complaint is that it wants relief from a federal judge in the form of invalidating a process that the union itself authorized. This is a loser from the get-go in all but the most egregious situations. Basically, the union is asking to be saved from its own bad judgement in allowing the NFL to negotiate and win a provision that gives the league commissioner the power to not only impose discipline, but then rule on whether he himself was reasonable in making his decision. I don't know why anyone would think that's a good idea--most union contracts have SOME type of check and balance provision on the discretion of management. But the NFLPA allowed that process to stand, and federal courts are notoriously reluctant to mess with union agreements and disputes.

--The only way the union prevails is to show that the process was so awful and unfair that the league was not following the CBA terms when it approved the discipline handed down. That's going to be tough, because the players didn't participate in their own defense at the arbitration, and because it appears that NFL Commissioner Roger Goodell didn't do anything other than rule on what he believed was the evidence. Procedurally, there has to be more than that to sustain an arbitration challenge (Grantland has a nice analysis here).

--Notwithstanding the comment above, the union had to file its lawsuit in order to save some kind of face with its membership, and to preserve the jobs of the union leadership. After all, that $5K a year per player in dues has to go for something, right?

--The NFL isn't exactly covered in sugar here, though. The league has pretty much demonstrated that its "airtight" case against the players has a few leaks. Audio tapes that aren't clear, a failure to produce the infamous ledger of bounty payments, and a number of other shortcomings all show that there was a lot of slippage between those press releases of a fully operational payoff scheme to injure other players and reality. Maybe the players should have showed up for the hearings, after all.

--Linebacker Jonathan Vilma's defamation lawsuit, which is a separate filing from the bounty gate union suit, but is seeking much of the same relief, should probably be kicked out of court because the subject of the dispute falls under the conflict resolution provisions of the union contract. In fact, the NFL filed a grievance against Vilma basically asking that an arbitrator require Vilma to use the CBA grievance procedure instead of court. The interesting question is whether a personal claim of defamation against Goodell can be preempted by the union contract, which nominally only applies to disputes between the union and the league in the course of football business. For example, if Goodell punched Vilma, Goodell , in addition to getting a severe beatdown, would be sued directly as an individual for battery.

One thing for sure--those of us who thought there would be relative labor peace following the CBA signing last fall could not have been more wrong. And isn't it interesting to see a union defending members that were allegedly willing participants in a system that set out to deliberately injure other union members?

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