With a Monday deadline for any of the players suspended in the recent bounty scandal to appeal those penalties, New Orleans Saints linebacker Jonathan Vilma has done just that. And just as it was when the NFLPA filed grievances against the process last Thursday, these appeals are less about the facts of the case, and more about jurisdiction and due process. There is an increasing belief that NFL Commissioner Roger Goodell acted as judge, jury and executioner when he suspended Vilma and three other current and former Saints players for allegedly participating in the intentional injuries of opposing players for financial gain. That is what the NFLPA has a problem with, and that is what Vilma's attorney is contesting.
As ESPN's Adam Schefter first reported, the three other suspended players -- Saints defensive end Will Smith, current Cleveland Browns linebacker Scott Fujita and current Green Bay Packers defensive lineman Anthony Hargrove -- have also filed their appeals with the NFL.
"[W]e do not believe the Commissioner's Office has jurisdiction over this issue, and we are filing the instant Appeal without waiving Mr. Vilma's right to challenge the arbitral jurisdiction," Vilma's attorney Peter Ginsberg wrote in a letter to Goodell, per Pro Football Talk. "As you are aware, the National Football League Players Association ('NFLPA'), acting on behalf of Mr. Vilma and other players, has filed pleadings in two other forums seeking to resolve the issue of the proper jurisdiction to address the instant dispute."
When Shutdown Corner spoke with NFLPA lead outside Counsel Richard Smith last Friday, Smith broke down the primary issues with the judgment process to date: Per the NFLPA's understanding, Goodell doesn't have absolute power to hand down the suspensions as he did, the league is withholding information in a move that impedes the discovery process, and there may be timelines in the fact-finding process that are not applicable under the current collective bargaining agreement, because they took place before the new CBA was ratified.
"All the PA ever physically received from the NFL were the report and the coaches' suspension decision [attached as Exhibits A and B] to the Burbank grievance, and the suspension letters to the four 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."
Ginsberg's frustration was similar in the letter he wrote to the NFL.
"The NFL has refused to provide a single piece of evidence to us. That approach to this serious matter was reflected in the NFL's outside counsel's disturbing recent statement to the media that the players' requests to review and understand the alleged evidence against them is a 'red herring.' Rather, to be able to share, discuss and analyze the supposed evidence that has been gathered is a fundamental cornerstone of a fair and just process, and a vital prerequisite to uncovering the truth. Indeed, the failure of the NFL to conduct itself in a just manner has compromised the process and resulted in erroneous and damaging conclusions."
In his letter to the NFL, Ginsberg made 17 specific evidence requests, including:
-- All documents and communications evidencing a "pay-for-performance/bounty" program;
-- All documents and communications evidencing that Mr. Vilma "pledged," made or received payments of any kind resulting from an opposing player being carried off the field, i.e., "cart-offs;"
-- All documents and communications evidencing that Mr. Vilma "pledged," made or received payment of any kind resulting from an opposing player being injured;
-- All documents and communications evidencing that Mr. Vilma "targeted" an opposing player in any manner that would violate NFL rules;
-- All documents and communications evidencing that Mr. Vilma engaged "in unsafe and prohibited conduct intended to injure players;"
-- All documents and communications evidencing that Mr. Vilma offered, paid or intended to pay $10,000, or any amount of money, to any player for knocking Kurt Warner, Brett Favre, and/or any other player, out of the 2009 Divisional Playoff Game, 2010 NFC Championship Game, or any other game;
-- All statistics of any nature gathered in the course of the 'bounty program' investigation relating to penalties assessed against Mr. Vilma and all other New Orleans Saints players during the years 2009 — 2011;
-- All game film of New Orleans Saints games and players gathered in the course of the `bounty program' investigation of exhibition games, regular season games and playoff and championship games during the years 2009 — 2011;
-- All witness statements, notes of interviews and declarations gathered during the course of the 'bounty program' investigation; and
-- The names and identification of all persons interviewed by the NFL and all persons acting on behalf of the NFL during the course of the 'bounty program' investigation.
As Smith told us, the NFLPA's view is that the process for any on-field infractions is supposed to go through a side panel headed by Art Shell and Ted Cottrell. The league is supposed to be fairly transparent when it comes to the discovery process, and the appeal process isn't supposed to go back to Goodell and Jeff Pash. The NFLPA wants the appeals to go through an independent arbitration 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 told us via email. "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."
If the NFLPA and any individual player filings do manage to switch jurisdiction, this case could get a lot more interesting. One thing's for sure -- the ramifications are far from over.
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