The NFL Commissioner is inexplicably cracking down on player discipline in an attempt to save the NFL from losing money in ongoing litigation. Oh, and by the way, no one can stop him. Roger Goodell has suspended four Saints players and two coaches for their involvement in a ”bounty” program where players were allegedly compensated to injure others. Yet, Goodell and the NFL have released little evidence supporting the suspensions. Year-long suspensions of a head coach and a star player with little evidence that the two were heavily involved in the bounty program is unprecedented and extremely harsh. Which leads us to ask, is something bigger going on here? And is there any way for players to see exactly what evidence the NFL has?
To put the suspensions into context, we must look at what else is going on with the NFL. As the sport of American football matures, we’re learning that life after professional football is not exactly a walk into the sunset for former players. Highlighted by the recent suicide of Junior Seau, it’s obvious that many former NFL players are in very poor physical and mental shape. Because of these injuries, the NFL is in the midst of countless legal battles with it’s most formidable opponents to date: former NFL players. As of the date that this article was published, 79 concussion-related lawsuits have been filed against the NFL. According to Paul Anderson of NFLConcussionLitigation.com, those lawsuits include 2,213 plaintiffs, many of which are former players. To top it off, many of the lawsuits highlight a study published by the NFL in the 90′s that essentially said that NFL did not consider concussions as a big deal.
Because of the lawsuits, we’ve recently seen the NFL take a hard-line stance on big hits and injuries. There are new rules regarding when and how long a player has to sit out after getting diagnosed with a concussion and stiff penalties for violating those rules. Speaking of stiff penalties, several new rules have been implemented in the name of player safety including: hits on ”defenseless” players, rules regarding what body parts a defensive player is allowed to hit, moving kickoffs closer, stopping play if a player loses his helmet, and more. (Here is a list of the evolution of the NFL safety rules). Consequently, defensive players–as well as fans of the big hit that has made the NFL popular–are not pleased.
The NFL is taking a similar hard-line approach to the Saints’ bounty scandal for the same reasons. As we’ve all heard by now, the bounty program is based on injuries in the NFL that were intentional, which scares the bejesus out of the NFL amid all of the concussion lawsuits. In order to disassociate itself with any intent-related injuries, the NFL and its commissioner have taken a hard-line stance. This stance started with new rules, fines, and suspensions, and most recently, has moved to the New Orleans Saints, a team that allegedly had gave bonuses for injuring certain players. The allegations from the commissioner’s office are, essentially, that the Saints had a systematic bonus structure in place where players received bonuses for making big hits or injuring opposing players; hence the term “bounty.” Based on the NFL’s evidence–which it won’t release to the public or even to those accused–the commissioner has suspended four players and two coaches, including head coach Sean Payton and linebacker Jonathan Vilma for the entire 2012 season. But, according to many sources around the league, a “big hit” type of bonus structure is not uncommon on almost all NFL teams. The Saints’ unwritten program just happened to get leaked.
Further, former NFL stars such as Chris Carter have came out and said that bounties are commonly placed on opposing players for protection. Carter, who played wide receiver, often found himself in a “defenseless” position because, at some point, a receiver has to take his eye off defenders in order to catch a pass. So, when Bill Romanowski, the notorious linebacker for the Raiders in the 1980′s, told Carter he was going to “end his career” on the field, Carter put a bounty on his head. In other words, Carter insinuated that whoever took Romanowski out that game got a couple thousand extra bucks. He later backtracked a bit, saying that the bounty was just to keep Romanowski from injuring him, but anyone who saw the interview got the message: bounties are common in the NFL.
With all of this in mind, are Goodell’s extremely harsh suspensions warranted? And if not warranted, can the players do anything about it? In 2005, allegations such as the Saints bounty program may have been swept under the rug with minimal punishments. So, on one hand the NFL is coming off trying to look like the protector of the players, but, in reality, they’re trying to protect themselves. They know players get injured in the NFL–that’s no secret. So why care now? It’s fairly obvious: Because there are 2,146 people claiming the NFL owes them money for not protecting players.
Because of the lawsuits, the bounty program has been thrust into the limelight and the NFL is using it as a sort of scapegoat for the ongoing litigation. No, they’re not saying player injuries are all due to rogue bounty systems, they’re saying “look at us, we try to protect our players” in order to look good in the 74 pending lawsuits.
With millions of dollars on the line, Roger Goodell has chosen to suspend six players and coaches, with little released evidence and no true recourse for those suspended. A viable appeal is out of the question because, as commissioner, Goodell is the person in charge of overseeing the appeal. Accordingly, Goodell could suspend players on a whim with little or no recourse against him. This a product of the most recent collective bargaining agreement (CBA). However, the NFL Players Association is now arguing that since the bounty scheme happened before the most recent CBA, Goodell has no authority to suspend them. A crafty argument that is now in the hands an arbitrator. Yet, this type of grievance is even more evidence that the players know that appealing the suspension directly would be futile.
One player, however, has taken the fight to a different arena: the courts. Vilma filed a defamation suit against Goodell personally in federal court in the U.S. District Court for the Eastern District of Louisiana. Vilma claims that Goodell’s allegations and statements that Vilma intentionally injured opposing players tarnished Vilma’s reputation. Although Vilma will not likely succeed in his defamation suit, it is an interesting alternative to an appeal. Vilma will not likely win the defamation suit because an allegedly defamatory statement against a public figure–such as Vilma who is a well known linebacker that appears on TV regularly–requires that the plaintiff prove “actual malice.” Actual malice requires that Vilma prove that, not only did Goodell say or write things that injured his reputation, but Goodell must have made the statements with the intent to injure Vilma’s reputation. I think most jurors would agree that Goodell’s statements were to
save the NFL’s ass explain the disciplinary actions, not to injure Vilma’s good name.
But, by filing a lawsuit, the players get a little of the power back. Goodell will have to defend a costly lawsuit in federal court which, if kept on track, could take 18-24 months to resolve. Goodell will be subject to the court’s subpoena power and, due to liberal federal court disclosure rules, Goodell will have to disclose all of the evidence that he has against Vilma. That’s right, anything that the NFL has on Vilma–or the lack thereof–will be seen by Vilma and his attorney. And although discovery is not public record, motions and pleadings are. So whenever the motions start flying down the road, you can guarantee that Vilma’s attorney will be citing (and possibly attaching) the discovery that they receive. (For those of you interested in keeping up with the case, you can create a Pacer account and check out all of the court filings here. Once you sign up, just type in case number: 12-cv-1283 and, voila, you receive access to all of the filings in the case. It costs $0.08 cents per page, but it may be worth it if you’re really curious.)
So, what does this do for the players? Now, Goodell will likely think twice before issuing such stiff penalties without releasing evidence or, as the case seems here, without having much evidence. The lawsuit subjects Goodell to an unbiased authority that he has no control over, will cost him a large sum of money to defend (although I’m sure the defense is being paid for by an insurance company somewhere), will be stressfull and time consuming, and will require him to disclose evidence–at least to Vilma and his lawyers–that the NFL wanted to keep private. The latter most reason is likely what Vilma was going after.
The one-year suspension cost Vilma his entire $4.93 million salary. The lawsuit, however, will probably only cost him between $100,000 and $150,000 if he sees it all the way through. At a price of 1/50 of his salary, it may at least give him a little satisfaction in letting his fellow players know that they don’t have to take suspensions lying down and letting Goodell know that he’s not untouchable. As Vilma sees it, not a bad investment.
By: Todd M. Davis – Todd is a business litigation attorney in Miami, Florida that practices primarily in federal courts in Florida and across the United States. He graduated from law school with an emphasis in sports law.