A Badly Managed Case From Start to Finish

It's hard to imagine a personnel matter as significant to the NFL as Bountygate being managed as badly as it was. I know the League has bunches of very expensive lawyers both on its staff and at its beck and  call at its outside counsel firm in Washington, DC. I am also reasonably sure that whatever advice these people gave, League management either ignored it, or only followed it in part. I’m sure of that because the result of the this process was so garbled that it's virtually impossible to draw any meaningful conclusions as to exactly what conduct violated what provision of the NFL Collective Bargaining Agreement.

I am not going to recap the allegations from the NFL, except to say that apparently the League had statements from at least one coach indicating that bounties were being offered by coaches and players for hard hits out on the playing field. As far as I know, there is not a shred of evidence that these hard hits resulted in anybody being injured, or even resulted in a greater level of penalties for the teams involved.  Armed with this revelation, League investigators then set out to try to identify with sufficient specificity individual players who could be disciplined for engaging in bounty hunter conduct.

Ultimately, the League settled on four players from the New Orleans Saints, most of whom had left the team by the time the League penalties were put in place. One of those players, Jonathan Vilma, was particularly vilified as someone who not only accepted bounty money but offered it to his teammates for knocking out opposing players. Vilma promptly filed a defamation lawsuit against the League, and over the course of that litigation, plus the ineptly handled dispensation of League penalties, it became apparent that whatever the NFL thought it had, the evidence was not particularly overwhelming that a bounty system was even operating at the Saints.

After the arbitration panel overturned Commissioner Goodell’s initial round of discipline (finding not that he was too harsh, but rather, too lenient because he had not considered all the potential Collective Bargaining Agreement violations inherent in the alleged conduct), and Goodell reimposed his original punishments,  a former commissioner and Goodell’s mentor, Paul Tagliabue, vacated all of the penalties for the players.

So whatever the League was ultimately trying to achieve here (and I do not for a minute believe that Tagliabue made his decision without consulting with NFL officials), it ultimately accomplished nothing except terminating two coaches from their position s for a year, defaming the game as an exercise in brute savagery, and demonstrating the inability of the League to perform complicated investigations without stepping all over itself.

Not that the players did much better – Vilma’s defamation lawsuit, which promised to open up some real evidence about exactly what the process was at the League on this matter, has now been dismissed. Whether that is the actual end of Bountygate fallout will probably not be known until sometime next season after the disgraced coaches have been rehired and any appellate options have been exhausted. But this has been nothing but a black eye for the NFL and its management as far as I am concerned. I cannot think of a single one of my clients that would have allowed such a sloppy investigative process, and such poor internal review of the legal options available to the company.

UPDATE 1:  Sean Payton is back in football.  And just before Goodell has to show up in New Orleans for the Super Bowl.  What a coinky-dink.

Not So Fast, Commissioner

The NFL bounty scandal continues to provide worthwhile lessons for unionized employers. The latest development occurred on September 7, when the NFL Collective Bargaining Agreement Appeals Panel reversed an arbitration decision from early last summer, upholding NFL Commissioner Roger Goodell’s ability to discipline players involved in the alleged bounty system used by the New Orleans Saints over several seasons.

Goodell imposed discipline, including fines and suspensions, on four New Orleans Saints players for their “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Specifically, the players were alleged to have participated in a compensation for injury program by either paying into or accepting money from a pool designed to reward players for injuring opposing team members during a game.

The players' union challenged the Commissioner’s discipline on the ground that he did not have jurisdiction to make such a determination. Instead, the union argued that the conduct alleged was a violation of the collective bargaining agreement clause that prohibits players and clubs from entering into undisclosed agreements involving off-the-books payments. In essence, the issue is whether the conduct involved in the bounty system amounted to conduct detrimental under Article 46 of the collective bargaining agreement, or whether it was an undisclosed compensation agreement under Article 14 or 15 of the CBA. The former can only be addressed by the Commissioner (with limited right to appeal), the latter, only by a grievance before the system arbitrator.

After the initial ruling by the system arbitrator in favor the Commissioner, the matter went to the NFL’s appellate Panel for review. The Panel determined that the bounty system, in fact, violated both the “conduct detrimental” provision and the undisclosed compensation provision. As a result, the Commissioner and the system arbitrator each had jurisdiction to impose penalties; the Commissioner for players' participation in a plan to injure, and the system arbitrator for the agreement to receive payments from the bounty pool.

The Panel was not convinced, however, that the Commissioner was disciplining the players just for their engaging in conduct detrimental to the League. Accordingly, the Panel reversed the initial discipline against the four Saints players and returned the matter to Goodell for reevaluation.

Note that this does not preclude the Commissioner from disciplining the players, even to the extent that they were previously punished. In fact, it opens up a new avenue of discipline for the League, based on the violation of the compensation provision. The players, who were immediately reinstated, may wish that they were subject only to the Commissioner’s discipline by the time this is all over. In any event, it provides an interesting window into the various and fine demarcations drawn when assessing the language of a collective bargaining agreement and its application to employees in a disciplinary environment.

UPDATE:  And, no surprise, the Commissioner kept almost all of the restrictions in place, especially for the people the League views as the principals in the scandal.  it will be interesting to see what happens if this ever gets to a court  although I believe that the union will have serious issues trying to get a judge to intervene in a collectively bargained discipline process.