When former NFL commissioner Paul Tagliabue made a ruling on Tuesday that vacated the punishments of four formerly suspended New Orleans Saints players, it closed a chapter (though not the entire book) on one of the more embarrassing and elongated sagas in NFL history. In his appeal deliberations, Tagliabue did what Goodell did not -- he talked to witnesses on all sides, weighed the credibility of those witnesses, and assembled what appears to be a reasonably accurate summary of the Saints' bounty scandal, and how it came to be.
Of course, Goodell had been smacked down by other entities in his nine-month power play -- a three-person panel of arbitrators overturned his original suspensions and ruled that Goodell had gone beyond the parameters in his prosecutorial authority. U.S. District Court Judge Helen G. Berrigan, who heard the initial arguments in the defamation suit filed against Goodell by Saints linebacker Jonathan Vilma, said in August that she believed Vilma had suffered the irreparable harm cited in the suit, and also said that "If I can find a way to legally do it, I will rule in Vilma's favor."
In the end, that was what Tagliabue had to do. In his ruling, the former commissioner said that "My affirmation of commissioner Goodell's findings could certainly justify the issuance of fines. However, this entire case has been contaminated by the coaches and others in the Saints' organization. Moreover, the League has not previously suspended or fined players for some of the activities in which these players participated and has in the recent past imposed only minimal fines on NFL Clubs -- not players -- of a mere $25,000 or less."
Goodell did what he has a tendency to do -- he shot before he aimed. He made repeated public pronouncements regarding the unquestioned guilt of the suspended players, yet refused to release the supposed evidence in an equally public fashion. As perception started to weaken his case in the court of public opinion, Goodell kept moving the goalposts as to what the case was really about -- more and more, he tried to tie his unilateral (and possibly illegal) punishments to the nebulous "player safety" directive that the NFL is using more and more to exert authority where it has little or none.
And now that Vilma will press his defamation suit, Goodell has also opened himself and the league to possible civil liability. First response to Tagliabue's findings as regards that lawsuit seemed to be that since Tagliabue ruled that the Saints engaged in "conduct detrimental," Vilma's suit had lost its legal strength. But that's not how Peter Ginsberg, Vilma's attorney, sees it. On a Wednesday morning interview with Mike Greenberg and Mike Golic of ESPN Radio, Ginsberg said that the proven lack of credibility of certain witnesses in the Tagliabue hearings actually opens the gate further.
"Commissioner Tagliabue had conflicts both in practical terms -- because his partners were representing Mr. Goodell in the defamation lawsuit, and really, in philosophical ways," Ginsberg contended. "Commissioner Tagliabue clearly cares about the NFL, and he clearly cares about the badge. I think his decision reflects that any discipline would have been totally unjustified. On the other hand, his decision is clearly targeted to try and protect commissioner Goodell, and that's just not good enough, as far as Jonathan's concerned."
Further along, Ginsberg brought up what may be the meat of the defamation case as it proceeds. The next step, as Ginsberg sees it, is to get Tagliabue to release the transcripts of the testimony. And according to Ginsberg, that's when all heck could break loose.
"Probably the most inflammatory and highly publicized allegation against Jonathan was that he walked into a meeting before the Arizona Cardinals playoff game [in 2009], held up $10,000 in cash, and put a bounty on [Arizona quarterback] Kurt Warner's head. The person who had been the source for that allegation was thoroughly discredited during the hearing. There's a slew of other evidence showing how ridiculous that allegation really is. But when you look at commissioner Tagliabue's decision, he doesn't even mention the Kurt Warner allegation, and that's because, by the end of the arbitration, the NFL realized the allegation couldn't be pursued. But the fact that commissioner Tagliabue used that source as a basis for other facts speaks volumes about commissioner Tagliabue's agenda.
"The fact that commissioner Goodell, literally seven times, told the public that Jonathan held that money up before the Cardinals game when there was not one iota of credible evidence to justify it, should have discredited everything that Roger Goodell did in this investigation."
To be fair to Tagliabue, and as Ginsberg himself said, the former commissioner was put in an untenable position in the first place. Goodell had to recuse himself in part due to the increasing sense that he was not only biased, but reckless, in his investigation. Tagliabue had to strike a balance between his realization that Goodell had made a mockery of the CBA, and his instinctive desire to protect the best interests of the NFL.
Still, in his ruling, Tagliabue made some broad statements regarding Goodell's brand of frontier justice.
Often one way of avoiding or minimizing the severe reaction of parties subject to discipline - - such as Saints' coaches and players in this matter - - and the unconscionable obstruction led by non-player personnel is to eliminate the motivation to deny. This can be done by creating a tailored type of safe haven for individuals to respond to inquiries or provide information about the destructive culture and help change it - - without risk of sanction for a specified period of time. Common examples include whistleblower programs with defined and limited immunities; specified immunities for informants or witnesses in various contexts; and the use of company-managed investigative or fact-gathering panels to identify clearly the character and causes of negative cultures. Such systems are antidotes to the code of silence or culture that condones or encourages illegal or improper conduct despite organization rules and policies against such conduct.
Goodell never provided any kind of "safe haven" -- most likely, it never occurred to him that such a solution was possible. While Tagliabue and Pete Rozelle were able to establish sliding scales of discipline in various instances, breaking the code of silence as much as it was able to be done, Goodell went forth with a complete sense of authority and a seemingly nonexistent sense of responsibility. It appeared to be Goodell's belief that the alleged crimes performed by the Saints organization were so heinous, nobody would care if the allegations were correct.
In vacating the suspension of defensive lineman Anthony Hargrove, who had supposedly lied and obstructed when first asked by the NFL about the bounty program, Tagliabue outlined just how far outside precedent Goodell had gone -- ironically bringing up the name of one of the quarterbacks the Saints' players had supposedly "targeted."
In December 2010, the NFL fined Brett Favre $50,000 - - but did not suspend him - - for obstruction of a League sexual harassment investigation. Although not entirely comparable to the present matter, this illustrates the NFL's practice of fining, not suspending players, for serious violations of this type. There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. This is not to mitigate in any way the severity of obstruction of an investigation with substantial issues as unique as those involved here.
As a further complication, it is unclear exactly what NFL investigators asked Hargrove regarding the Program or any other alleged program and, thus, unclear whether he lied about the Program or the fact that it included cart-offs and knockouts.
Goodell did not follow precedent. It's not clear whether he was aware of precedent in this case, and we'll go ahead and assume that he wouldn't have followed it if he was aware. That's bad news, because precedent provides a valuable road map for all sides in any legal argument or case, unless you're making up the rules as you go along. And the fact that even Tagliabue, who should have had access to all available evidence, couldn't figure out what NFL investigators asked Hargrove gives you a pretty good idea of just how filmy the league's process really was.
The decision to vacate any discipline against former Saints linebacker Scott Fujita may have been the most damaging to the NFL. Tagliabue found that Fujita had not engaged in a "pay-to-injure" scheme -- at most, he was involved in pay-for-performance, which has been common, if technically illegal, component in the NFL for decades. Tagliabue acknowledged this in his ruling, and brought up the NFL's inability to define the performance bonus structure.
The NFL in its policies sends a mixed message by allowing "kangaroo courts" where players are fined for mental lapses and other onfield mistakes but prohibiting any distributions to players via those courts. Most important, no matter what the League rules and policies are or have been, if many teams in the League allow pay-for-performance programs to operate in the locker room, as seems to be the case, and, in the main, the League has tolerated this behavior without punishment of players, then many players may not have a clear understanding that such behavior is prohibited or where the lines are between permissible and impermissible conduct.
It's easy enough to say that the players should have been aware of the potential consequences. But if you live in a country where jaywalking is only illegal on even-numbered streets, the jaywalking law is outlined in a way that is completely contrary to the realities of life in a big city, and you're in a hurry to get to work, what are you going to do?
Tagliabue also brought up the aspect of this process that Goodell seemed determined to ignore: the pressure put on players by coaches to do what the coaches want, and the risk to their jobs if the players do not comply. Goodell gave Hargrove a brief admonition that he was supposed to tell the truth even if his coaches told him to lie, and left it at that. As was generally the case, Tagliabue far better understood the reality of the situation.
NFL players on average have short careers; their careers can end suddenly through injury or declining skills; players want to be good, cohesive members of the team, or unit, not complainers or dissenters; and players accept that they work for coaches, in "programs" conceived by coaches. These are programs for which coordinators and assistant coaches are often specially selected and hired to execute. Here we have a classic example: Head Coach Payton hired Defensive Coordinator Williams with directions to make the Saints' defense "nasty."
In such circumstances, players may not have much choice but to "go along," to comply with coaching demands or directions that they may question or resent. They may know - - or believe - - that from the coaches' perspective, "it's my way or the highway." Coaching legends such as George Halas and Vince Lombardi are not glorified or remembered because they offered players "freedom of choice."
While more recent and current coaches may debate whether and how much coaching approaches to "do it my way" have changed over time, it is clear that directions such as those given by the Saints' coaches in creating the Program are usually followed by most players. NFL head coaches told me in my seventeen years as Commissioner, "If players don't do it our way, they can find another team to pay them." I understand these perspectives, and I certainly don't condemn them. (They are often part of the culture that makes teams successful and team sports a worthwhile learning experience.) But neither can I ignore these realities when I am reviewing the record developed in this proceeding and assessing the suspensions to be imposed here.
And that's why Tagliabue was a fair and correct arbiter where Goodell was not. Tagliabue understood that players have pressure put upon them in ways both spoken and unspoken. He did not excuse the behavior of the players based on those pressures, but he did acknowledge them, and he incorporated them into his findings.
Tagliabue acted like a 21st-century attorney. Goodell acted like a 19th-century schoolmarm.
In the end, and as Goodell refused to do, Tagliabue put the burden on the NFL to prove the tie between words and actions, and found that no such connection could be made.
When NFL players are facing the biggest game in their careers (a Conference Championship game where a victory puts them in the Super Bowl), they are working extraordinarily hard, they are under exceptional pressure - - from within and from outside - - and each day may bring changes of emotion, changes of perspective and changes of "talk." Here, [defensive assistant] Coach [Joe] Vitt credibly testified that in one team meeting before the Saints-Vikings game, there were no words spoken at all for an hour, just silence as the players pondered the enormity of their opportunity and their challenge. Obviously other team meetings gave way to a completely different dynamic as in the pre-Vikings game meeting at issue here.
If one were to punish certain off-field talk in locker rooms, meeting rooms, hotel rooms or elsewhere without applying a rigorous standard that separated real threats or "bounties" from rhetoric and exaggeration, it would open a field of inquiry that would lead nowhere.
Sadly, that's precisely what Goodell did.
So, what is the NFL left with in its current commissioner? Goodell will no doubt make a statement in which he claims a win -- after all, everybody now knows how dangerous bounties are, and that they will no longer be tolerated. Player safety, blah blah blah. But Goodell's refusal to adhere to any semblance of his actual authority through this case opens the NFL to all sorts of problems.
First, it emboldens the NFLPA, whose executive director, DeMaurice Smith, announced on Tuesday that he would be filing a lawsuit on behalf of players who have allegedly been forced to sign medical waivers. Second, it severely undermines Goodell's power as an authority figure in any future fights -- not that this already hasn't happened. Third, it will automatically bring a serious blowback to any decision Goodell makes in a unilateral fashion -- after all, given how he botched BountyGate, people will say, why should we trust him to decide anything else? Fourth, it's not just Vilma who has a defamation case here. Fujita, whom Tagliabue basically cleared of all wrongdoing, has a case that seems far more open-and-shut if he wants to pursue it. And what of current free agent Hargrove, who may have been employable by a team were it not for the specter of a suspension hanging over his head?
This is a dangerous time for the NFL commissioner to be so undermined. The league faces all sorts of serious issues right now -- player safety, concussion lawsuits, Adderall "abuse," possible HGH testing, and on and on. The overturned one-game suspension given to Baltimore Ravens safety Ed Reed was the most obvious recent example, but any informal poll of NFL players would tell you decisively that they do not believe Goodell acts in their best interests.
That's fairly common in any sport, and some would argue that a commissioner liked by the players isn't serving the owners who employ him. The question is, how long will it be until the owners stop trusting Goodell's judgment, as well?
Based on Tuesday's ruling, Paul Tagliabue gave the NFL a serious primer in how a real commissioner is supposed to conduct business.
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