Based on the statements she made in her August 10 hearing of the NFL's appeal of New Orleans Saints linebacker Jonathan Vilma's defamation suit against Roger Goodell, it seemed that U.S. District Judge Helen G. Berrigan had some serious doubts about the league's process in issuing a number of suspensions. In her most recent order given to the league, Judge Berrigan advanced those doubts, and may be interested in providing a thorn to the NFL's side. According to Pro Football Talk's Mike Florio, who obtained a copy of the order, Judge Berrigan has asked the parties involved in the suit to identify the date the NFLPA asked the NFL to defer discipline against the players.
It was March 21 that the NFLPA allegedly did so, and that was the date that Goodell said he would have dropped the hammer on the players at the same time he did to the Saints' coaches and non-players. Goodell made that clear in national media appearances, and Judge Berrigan wants a bit of clarification. From the written order, per Florio:
"The Court is aware that Goodell stated, during the March 21, 2012 interview with the NFL Network and ESPN, that he would have disciplined the players at the same time as the coaches but for the NFLPA's indication that they 'wanted some time to investigate [the allegations] and talk to its own players. The Court is asking for the specific date on which this request occurred. If the date is already in the record, the parties may simply cite to the relevant document in the record; if it is not, then the parties shall submit the relevant evidence."
What Judge Berrigan wants to know is whether the NFL had or had not made the decision to suspend the players when Goodell made that statement. If not, as Florio points out, "the statements made on March 21 by Goodell regarding Vilma could be viewed as unnecessary to the disciplinary process and thus not within the confines of Goodell's job duties and, most importantly, completely beyond the scope of the labor agreement's arbitration procedures."
This would jibe with what NFLPA Lead Outside Counsel Richard Smith told Shutdown Corner via e-mail in May. "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 told us. "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. None of it is within Roger Goodell's jurisdiction. He had no jurisdiction to take the action he took, period."
And if that's the case, Judge Berrigan might rule that Goodell violated the CBA in his disciplinary process. The NFL does not want that at all, because Judge Berrigan has already found the process by which the players were suspended to be highly questionable, to the point where she said from the bench, "If I can find a way to legally do it, I will rule in Vilma's favor." Judge Berrigan also said that she believed Vilma had suffered the irreparable harm he claimed in the defamation suit.
Where Judge Berrigan hesitated, and where people thought she might be trying to get the parties to settle, was in her own ability to override the CBA's process.
The request for a specific date isn't a death blow to the NFL's case, but it's these types of orders that will put one side on edge. I'm reminded of Judge Tyrone Kipler's order to F. Leo Drummond in John Grisham's "The Rainmaker," when Kipler demanded that Drummond provide him with the name of one case he had ever asked to fast-track. It was the beginning of a trial won by overmatched underdog Rudy Baylor, and Drummond knew from day one that His Honor was not impressed with Drummond's methods.
In the end, if Judge Berrigan rules that Goodell acted outside his authority, every single suspension issued by the league could be in legal jeopardy. As could the power Goodell so cherishes. One thing we know for sure -- the NFL hasn't heard the last of Judge Berrigan, and they can't be happy about it.
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- Company Legal & Law Matters
- Roger Goodell
- Jonathan Vilma