With all the talk about the right or wrong behind the NFL's decision to suspend four current and former New Orleans Saints players for the roles (both alleged and admitted) in the recent bounty scandal, perhaps the most troublesome aspect of the process is the extent to which the NFL Players' Association has asked the league for specific information regarding the process Roger Goodell and his minions went through ... and hasn't received it.
Yahoo's own Mike Silver and Dan Wetzel have written well this week about what needs to happen on both sides for this process to seem fair and equitable. When Shutdown Corner spoke with NFLPA lead outside counsel Richard Smith on Friday, we were surprised to find that the post-suspension appeal process isn't even about the right and wrong of bounties at this point -- right now, it's about jurisdiction and due process. In other words, folks, the repercussions of the bounty scandal have just begun.
[Related: Read the NFLPA's filings here]Will Smith for the first four games, and current Cleveland Browns linebacker Scott Fujita for the first three -- the NFLPA attempted to do what it does. According to Smith, the PA received nothing but a summary statement and the ability to review a PowerPoint presentation the league put together regarding the particulars of the violations.
Beyond that, Smith says, the NFLPA was given nothing requested -- no player names, no interview transcripts, no dates of violations per the NFL's investigations ... they weren't even allowed to take a copy of the PowerPoint with them to review it. Based on Smith's recollection of the process, the NFLPA's attempts to get that information and properly represent the players resembled the student court in "Animal House" -- a kangaroo court process from start to finish.
"All the PA ever physically received from the NFL were the report and the coaches' suspension decision [attached as Exhibits A & B] to the Burbank grievance, and the suspension letters to the 4 players, attached as Exhibits C-F to the Burbank grievance," Smith told us. "This the sum total of the "facts" that have been provided by the NFL. The League exhibited the PowerPoint in a meeting in March, 2012, but refused to make a copy available. They refused to make anything else available, even under an agreement of confidentiality. The PA's multiple requests to the NFL for documents and for the ability to interview witnesses have all been denied. The letters that were sent asking coaches to give interviews to the PA have all gone unanswered."
The Burbank grievance smith spoke of is the grievance the NFLPA felt it had to file, given its unsuccessful attempts in the post facto discovery process. On Thursday, the PA filed a grievance with the NFL's vice president of labor arbitration and litigation, Buckley Briggs, and a System Arbitration with the System Arbitrator, Professor Stephen Burbank of the University of Pennsylvania Law School. You can find the filings here, but in a nutshell, these are the PA's contentions:
1. Roger Goodell's punishments "violated the [league's] duty of fairness to the players" and went against several aspects of the new collective bargaining agreement. First, per the filing, authority for any on-field conduct rests with the System Arbitrator (Burbank has served in this capacity for years) and not with the Commissioner.
2. Per the new CBA, Goodell is "prohibited from punishing NFL players for any aspect of the 'pay-for-performance/bounty' conduct occurring before August 4, 2011," which is when the new CBA was ratified. As we saw when the league came down hard of the Dallas Cowboys and Washington Redskins for alleged salary cap violations at a time when the salary cap didn't technically exist, Goodell now feels that the timeframe in which the league operated in a vacuum is now completely in his jurisdiction. The PA argues that the league agreed to release players from penalties for any pre-CBA conduct.
Right now, what Vilma and the Saints did or didn't do isn't part of the NFLPA's argument. (Getty Images)
There are other issues here, but let's take a break from all that legalese and read the statement the NFL released on Friday as a response to the grievances.
On May 2, Commissioner Goodell suspended four current or former New Orleans Saints players for conduct detrimental to the integrity of and public confidence in the NFL based on their participation in the pay-for-performance/bounty program that operated during the 2009-2011 seasons.
Last night, the NFLPA initiated two arbitration proceedings challenging the suspensions. The proceedings do not challenge the underlying facts, which were first shared with the union more than two months ago after being obtained from Saints executives, coaches, players, and others. The proceedings also do not challenge the reasonableness of the discipline imposed by the commissioner.
In one proceeding, the union seeks immunity for the four suspended players, a position it never advanced during months of discussion on this matter. In the other, the union argues that someone other than the commissioner should have imposed the discipline.
We expect that the arbitrators will 1) reject the union's efforts to protect players from accountability for prohibited and dangerous conduct directed against other players and 2) uphold the disciplinary process that was so carefully negotiated in the Collective Bargaining less than a year ago.
No doubt the NFL sees it that way, but if the NFLPA is right, there are some serious logic flaws here. Nobody I've spoken with from the NFLPA comes anywhere close to condoning what these players did. In fact, whether the players did what they are accused of or not isn't yet the issue -- the NFLPA is arguing that Goodell is overstepping his jurisdictional boundaries, and the only way the players will see a fair and objective process is to provide an objective buffer between the league and this very sensitive subject.
At the very least, Smith told us, the committee led by Art Shell and Ted Cottrell has more of an actual legal right to adjudicate this case. Shell and Cottrell are the ones who are supposed to handle on-field infractions before they get to an independent arbiter, and as far as Smith knows (or doesn't know), those two men were never part of the process.
"If these matters are not barred altogether by the release in the CBA, they are within the exclusive jurisdiction of the System Arbitrator, not Roger Goodell," Smith contended via e-mail. "If the System Arbitrator were to find that he does not have exclusive jurisdiction over the entire matter, the only conceivable issue remaining would fall within the on-the-field provisions of the CBA that culminate in an appeal to Messrs. Cottrell and Shell. None of it is within Roger Goodell's jurisdiction. He had no jurisdiction to take the action he took, period. Please see the grievances that the PA filed on these issues."
As to the issue of the infractions falling in the framework of a post-CBA timeline (i.e., did any of these incidents occur after the CBA was ratified?), Smith told us that due to the NFL's refusal to reveal the information respected by the PA, the PA simply doesn't know. And when the subject of the NFL's "independent" outside counsel, former prosecutor Mary Jo White, comes up ... well, there are increasing questions regarding the objectivity present in Ms. White's involvement and findings.
"Since we've never had any meaningful disclosure from the League, we don't know what they contend took place after August 4, 2011 that is an alleged problem," Smith said. "We would note, however, that Ms. White didn't mention anything specific after August 4, 2011 being a problem. So as far as we can tell at this point, the release in the CBA is a complete bar to this action by Roger Goodell."
We're not advocating that anyone who tried to encourage the intentional injuries of athletes should be given a free pass -- you may remember us as the folks who said that giving Greg Williams a lifetime ban from the NFL was a very good idea. And if the players are guilty as charged, they should face the penalties they have been given by the league, shut up about them, and consider themselves lucky that a District Attorney somewhere in America doesn't want to get involved.
But as Smith told us on the phone and via e-mail, that's not what these specific grievances are about. These specific grievances are about the NFL's alleged misuse of the discovery process, its refusal to act in a way that would be reasonable in any American court of law, and its insistence that Roger Goodell may act without let or hindrance as the league's judge, jury, and executioner.
And if that's the case, stopping the NFL from acting as such is almost as important to the future of the NFL as the eradication of the practice of intentional injury.
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