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Conduct Indistingu​ishable From Contracts – A Bountygate Opinion

Jamal Black is a guest writer for TFDS. He is a long time NFL fan and co-host of the Two Tone Crew podcast.  Follow him on Twitter @Jamalisms

Little Guy, meet Big Guy. Big Guy, meet Little Guy’s Attorney. Rinse, repeat.

The NFL’s ongoing legal battle with former Saints players over the alleged misconduct they undertook as part of “Bountygate” made for an interesting offseason story line and, despite that the regular season has finally arrived in all its inherent splendor, Bountygate continues to garner interest around the NFL as it winds a long, weary path to conclusion. Little about this story is mundane. It pits the league against one of its own teams. It represents some of the most stringent penalties ever imposed. Given the brevity of player careers, it masquerades even as a story pitting men seeking to earn a living against an all-powerful and unreasonable superior.

On a macro level bountygate is but a part of the league’s attempt to reconcile a violent game with the legal ramifications of player safety. Roger Goodell’s tenure as league commissioner has been marked by two, somewhat conflicting issues. On the one hand, he has seemed to be genuinely concerned with the matter of reforming the league through crackdowns on player conduct, both on (safety) and off (general misconduct) the field. On the other hand, the league has struggled with finding an acceptable path to come to terms with the human results of a game with such brutal past.

Estimates vary and seem to change daily, rendering any specific count prone to becoming fast outdated, however thousands of retired players claim severe physical consequences of the NFL’s violent nature.  They contend (and the NFL denies) that the league has historically concealed its knowledge of such physical risks and is therefore responsible for the results over time. Whether or not that is true, the fact that the commissioner has taken such a public and unwavering stance on improving player safety has resulted in an interesting balancing act.

In terms of public opinion, the NFL’s actions present the paradox that cumulative injuries suffered by former players were the result of choices reasonably and appropriately made at the individual level, while current players must be protected from themselves. It is a tenuous position at best.

Enter Bountgate.

When the NFL announced penalties on the Saints team and coaches, they were rather severe. They were also accepted. When the NFL announced penalties on various players from the Saints, they were rather severe. They were not accepted. In instituting these penalties, the NFL was partly justified.  If allegations are true, the Saints (and players) were engaged in illegal activities. In instituting these penalties the NFL was partly unjustified. By cracking down on player safety issues and using the Saints organization as a whipping post, the NFL gains legal ammunition against retirees as it claims to take the issue seriously.

During the tenure of one such as Roger Goodell – a man who, by the powers invested in him by the collectively bargained labor deal, is de facto judge, jury, and executioner and whose primary public message is player safety – the Saints allegedly engaged in a dramatic act of hubris by running a bounty program, refusing to shut it down when warned, and then lied about it. Partly this program would be understandable given that bounty programs are in no wise unique to New Orleans and violence is the name of the game in the NFL. Partly a bounty program would represent no less than a clear under-estimation of the man named Roger.

While the NFL has provided inadequate evidence of wrong-doing – in a recent article lawyers for suspended players claimed that less than one percent of evidence has been provided and others have suggested that the NFL needs to provide more clarity and due process – there is much circumstantial evidence that it did exist. The players involved are essentially trying to convince the public that the lack of evidence should outweigh what appears obvious, and in a land where due process sometimes bests the desire for fairness, Goodell’s position is tenuous.

On this issue, little is clear, including the current state of affairs. When the suspensions were lifted by virtue of a three person appeal panel, the players claimed victory and certainly it was a victory of sorts because those with contracts played week one and had salaries guaranteed. There doesn’t appear to be a complete consensus on what the victory entailed, however, and it wasn’t the final word on suspensions. Fans and observers are left to pick over a scatter-shot of assessments as they try to get a handle on what to expect going forward.

Andrew Brandt at ESPN explained the ruling on September 7th:

“The panel has, in essence, made a split decision. It recognizes that there are aspects of the behavior that are cap-related — payments to players outside of their player contracts — thus calling for the jurisdiction of Burbank. The panel also understands, however, that the players' actions also comprise misconduct revolving around "intent to injure," clearly Goodell's domain.

Thus, the panel divided the misconduct into two categories, non-contract payments and intent to injure. The first is Burbank's province; the latter is Goodell's. This decision overrules Burbank's decision, that Goodell had exclusive jurisdiction over this issue under the broad "conduct detrimental" language in the CBA. In that sense, the panel has slightly chipped away at the power of Goodell, a fact that may have some ramifications beyond this case.”

Pro Football Talk, meanwhile, states that:

“…the panel said it wasn’t clear from the documents generated by the NFL whether Goodell imposed discipline for conduct detrimental to the game (which he has the power to do) or salary-cap violations (which he doesn’t have the power to do).”

ESPN News notes that:

“While the panel did not address the merits of the NFL's bounty investigation, it found that Goodell overstepped his authority in hearing the players' appeals of their punishments for participating in the Saints bounty program, which paid cash bonuses for hits that injured opponents.”

The good folks at USA Today also chimed in, explaining that:

“In essence, Goodell will now restart the process of determining punishment. If he finds evidence that the players intended to hurt opposing players, he could suspend them for that violation, not the wide-ranging ones he originally imposed.”

For its own part, the NFL has not remained silent, claiming this as no more than a clarification and in some ways a reaffirming of Goodell’s authority. To hear them tell it, Goodell will simply redraft the wording and the punishments will be reinstated unchanged. Why then, one wonders, are players going to meet with the commissioner?

The answer is that this continues to be in large part a public relations battle. Goodell knows it and so do the players, so they’ll all play along and meet together. Goodell’s stance on things is all about image, not conscience. After all, studies have shown that even if there was a bounty program there were no additional or undue results from it. In fact, the Saints injured fewer players than all other clubs but the Chargers. This is a power struggle and a lot of posturing.

One thing that has been established is that Goodell’s authority was defined, and this is a blow to the NFL regardless of league claims to the contrary because the definition excludes some of the aspects of the original suspension. In making future rulings, the league has to clearly delineate between conduct and contract. Therein lies the rub because that is not simple. In the original suspension announcement the NFL used terms like detrimental conduct, but notes that such conduct was “a result of their leadership roles in the New Orleans Saints’ pay-for-performance/bounty program” which is clearly outside Goodell’s authority.

By the league’s own admission Scott Fujita was suspended because he “pledged a significant amount of money to the prohibited pay-for-performance/bounty pool.” Will Smith was suspended because he “assisted Saints defensive coordinator Gregg Williams in establishing and funding the program” and “pledged significant sums to the program pool.” Jonathon Vilma’s suspension was because “assisted Coach Williams in establishing and funding the program” and allegedly offered specific bounties on Kurt Warner and Brett Favre. Anthony Hargrove would, it seems, have a tougher road as the NFL claims he acknowledged the existence of the program via signed declaration, and his suspension also relates to obstruction of an investigation in 2010.

Perhaps it is best summed in Goodell’s own words:

“In assessing player discipline, I focused on players who were in leadership positions at the Saints; contributed a particularly large sum of money toward the program; specifically contributed to a bounty on an opposing player; demonstrated a clear intent to participate in a program that potentially injured opposing players; sought rewards for doing so; and/or obstructed the 2010 investigation.

“No bounty program can exist without active player participation,” Commissioner Goodell said. “The evidence clearly showed that the players being held accountable today willingly and enthusiastically embraced the bounty program. Players put the vast majority of the money into this program and they share responsibility for playing by the rules and protecting each other within those rules.”

To re-suspend for the vast majority of those things, the NFL will have to claim substantial and meaningful difference between participating in / contributing to or establishing, and the money pool itself which would not exist in the absence of those contributions. Payments beyond contractual amounts are illegal. If the money pool pays out such illegal funds, contributions to that money pool are larger part illegal payment than are they conduct distinct from those payments. The entire premise would be a stretch and borders on double jeopardy. Colloquials about cake come to mind.

As a man who has enjoyed the singular right to punish as he sees fit, and who was unyielding in demands to retain such power during lockout negotiations, Goodell may be tempted to re-suspend the players for amounts of time equal to the overturned suspensions. He does risk losing the PR battle, which is part and parcel with the macro reasons for suspending the players, but not much lasting harm is likely to come to a league so firmly established in the public’s eye. Still, in agreeing to meet with players and taking his time to reissue a ruling, PR is on his mind so one would expect the next salvo in this battle to be a well-thought out one.

Regardless of what the next move is in actuality, if Roger Goodell was humble enough and honest enough he would let go of all matters of participation and establishment of the program. Those matters are too closely linked to such things as should be left to Burbank. If he wants to suspend and truly has the evidence which has not yet been shown to anyone, renewed suspensions should focus only on obstruction of the process. That is conduct distinct from the results of the bounty program, and that is clearly within Goodell’s jurisdiction.