«FINAL DECISION ON APPEAL INTRODUCTION AND SUMMARY The matter before me involves appeals by four present or former New Orleans Saints’ players who ...»
December 11, 2012
In the Matter of New Orleans Saints Pay-for-Performance / “Bounty”
FINAL DECISION ON APPEAL
INTRODUCTION AND SUMMARY
The matter before me involves appeals by four present or former New Orleans Saints’
players who are challenging findings of misconduct and disciplinary actions taken by Commissioner Roger Goodell on October 9, 2012. The players are Anthony Hargrove, Scott Fujita, Will Smith and Jonathan Vilma. The imposed discipline was the result of the National Football League’s (the “NFL”) investigation of allegations concerning a pay-for-performance program (the “Program”) conducted by the Saints during the 2009 through 2011 seasons to reward particular plays by Saints’ defensive players that ultimately incentivized rendering opposing players unable to play, and allegations concerning a specific bounty being placed on Brett Favre to injure him during the NFC Championship game against the Minnesota Vikings in January 2010.
The present appeals are a small piece of a much larger picture. Senior Saints’ coaches conceived, encouraged and directed the Program. While it included performance rewards for recovering fumbles, interceptions and the like, it also came to include higher cash incentives to “cart-off” or “knockout” an opposing player. The Program eventually led to allegations of a bounty being placed on Favre. Making matters far more serious - - as well as challenging for Commissioner Goodell and League investigators - - Saints’ coaches and managers led a deliberate, unprecedented and effective effort to obstruct the NFL’s investigation into the Program and the alleged bounty. Commissioner Goodell found and properly characterized the Program, any bounty and the obstruction to be organizational misconduct by the New Orleans Saints. The Commissioner determined the misconduct to be “particularly unusual and egregious,” “totally unacceptable” and to constitute “conduct detrimental” to the game of professional football and the NFL and to be a violation of the NFL Constitution and Bylaws.
Commissioner Goodell fined the Saints $500,000; forfeited the team’s second-round draft selections in 2012 and 2013; suspended the Saints’ head coach Sean Payton for the entire 2012 NFL season; suspended Saints’ general manager Mickey Loomis for eight games and fined him $500,000; suspended Saints’ assistant head coach Joe Vitt for six games and fined him $100,000;
and suspended the now former Saints’ defensive coordinator Gregg Williams indefinitely. These suspensions thus deprived the Saints of vitally important coaching and leadership talent, and they represented a severe competitive penalty for the Saints’ team, its fans and indirectly for the New Orleans / Gulf Coast region. Commissioner Goodell’s findings and the resulting suspensions of these Saints’ personnel are final and no longer subject to appeal.
Unlike the Saints’ broad organizational misconduct, the player appeals involve sharply focused issues of alleged individual player misconduct in several different aspects of the Saints’ Program. The challenges involving the four players to Commissioner Goodell’s October 9, 2012
decisions can fairly be summarized as follows:
Anthony Hargrove: Commissioner Goodell found that Hargrove falsely answered questions put to him by an NFL investigator during the initial investigation of Saints’ misconduct in March 2010. That investigation was obstructed in multiple ways by the Saints’ head coach, senior coaches and other team officials, including their instructing Hargrove to answer questions falsely, though it remains unclear what exactly Hargrove was asked by investigators regarding the Program. Hargrove was suspended seven games, for which he was credited with having served five games, leaving a suspension of two games.
Scott Fujita: Commissioner Goodell found that Fujita offered his own incentive program to reward big plays, not including rewards for cart-offs and knockouts, and that he failed to report the existence of the Program. Two dozen other Saints’ defensive players were aware of the Program, many participated in it and all were present at defensive team meetings that are central to the events under review here. Fujita was suspended for one game.
Will Smith: Commissioner Goodell found that Smith endorsed, agreed to and financially contributed to the Program. Many other Saints’ defensive players participated in the Program similar to Smith without suspension. He was suspended for four games.
Jonathan Vilma: Commissioner Goodell found that Vilma endorsed, agreed to and financially contributed to the Program and offered a $10,000 bounty reward to any Saints’ player who could knock Vikings’ quarterback Brett Favre out of the SaintsVikings NFC Championship game in January 2010. The evidence as to whether Vilma made such an offer is sharply disputed, but other key points are undisputed: the Saints’ coaches conducted, directed and choreographed all defensive team meetings; in the same defensive team meeting where Vilma allegedly offered a bounty, the Saints’ defensive coordinator, Gregg Williams, admits that he offered a $5,000 bounty reward of his own to knock Favre out of the game; and Williams admitted that he was the responsible team official who unfortunately let the team meeting get out of control. The NFL assessed fines totaling $30,000 against certain Saints’ players after the Vikings game, none of which included any player here, and no Saints’ player was suspended for conduct on the field. Vilma was suspended for the entire 2012 NFL season.
I affirm Commissioner Goodell’s factual findings as to the four players. I conclude that Hargrove, Smith and Vilma - - but not Fujita - - engaged in “conduct detrimental to the integrity of, and public confidence in, the game of professional football.” However, for the reasons set forth in this decision, I now vacate all discipline to be imposed upon these players.
Although I vacate all suspensions, I fully considered but ultimately rejected reducing the suspensions to fines of varying degrees for Hargrove, Smith and Vilma. My affirmation of Commissioner Goodell’s findings could certainly justify the issuance of fines. However, as explained in my discussion below, 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.
Given the three years of investigation, discipline and intense acrimony surrounding the Saints’ Program and the alleged bounty, it is in the best interest of all parties for me to resolve this matter as completely as possible, so that everyone involved with the NFL has this matter put to rest, enabling the League and the NFL Players’ Association (“NFLPA”) to move on to address the many serious issues of player safety that they confront. To be clear: this case should not be considered a precedent for whether similar behavior in the future merits player suspensions or fines; rather, I have decided not to issue fines this time for the reasons stated in this decision and the sake of the best interests of all involved in professional football.
I strongly condemn the misconduct of the Saints’ coaches found by Commissioner Goodell and confirmed in the record developed during this appeal. That severe misconduct played a substantial role in my deciding whether to sustain, in whole or in part, or vacate the discipline to be imposed upon these four players. Equally, in vacating the players’ suspensions I do not in any degree condone their behavior. I do not approve any of the misconduct in which Commissioner Goodell found the players to have engaged, though I do not find Fujita’s conduct equivalent to the other players. But each player made choices that do not reflect favorably on him. Moreover, there is evidence in the record that suggests that Commissioner Goodell could have disciplined a greater number of Saints’ players for the events that occurred here. This sad chapter in the otherwise praiseworthy history of the New Orleans Saints casts no executive, coach or player in a favorable light.
MY APPOINTMENT AND THE APPEALS PROCESS UNDER THE COLLECTIVE
BARGAINING AGREEMENTOn October 19, 2012, Commissioner Goodell designated me to serve as the appeals hearing officer on terms set forth in the August 4, 2011 NFL-NFLPA Collective Bargaining Agreement (“CBA”). He emphasized that I would have “full authority and complete independence to decide this matter.” In addressing the issues here, I am guided by rules and policies embedded in the CBA. I take due note of all its relevant provisions and, as applicable, the provisions of the NFL’s Constitution and Bylaws and related League policies.
I am further guided by clear legal precedents that afford arbitrators appointed under collective bargaining agreements broad authority to determine the procedure and ultimate outcomes on the merits of matters entrusted to them. Such an arbitrator is “to bring his informed judgment to bear in order to reach a fair solution of a problem.” United Steel Workers of Am. v.
Enter. Wheel and Car Corp., 363 U.S. 593, 596 (1960). Arbitrators in union-management disputes have wide latitude in shaping remedies and relief since they may need “flexibility in meeting a wide variety of situations. The draftsmen [of the CBA] may never have thought of what specific remedy should be awarded to meet a particular contingency.” Id. Ultimately, it is the arbitrator’s judgment that matters because that “was bargained for.” Id. at 599. The arbitrator “is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept…. He is rather part of a system of self-government created by and confined to the parties.” United Steel Workers of Am. v. Warrior and Gulf Nav. Co., 363 U.S.
574, 581 (1960).
Under these principles and the terms of Article 46, I am not reviewing Commissioner Goodell’s October 9, 2012 findings and conclusions de novo. If the parties had intended such a review, they would have written it into the CBA. Instead, I am giving appropriate deference to Commissioner Goodell’s reasonable findings and am applying the same standard of review to findings of violation and to findings underlying the level of discipline. I am not substituting my judgment for the Commissioner’s judgment, except insofar as I have received and considered new material information of which the Commissioner was unaware. In this instance, based on both the prior record and additional information, I am reviewing the discipline for consistency of treatment, uniformity of standards for parties similarly situated and patent unfairness or selectivity.
I draw upon forty years of experience with the League both as outside counsel and ultimately seventeen years as Commissioner. As part of my experience and decision making, I am not only authorized but obligated to be cognizant of the “rules of the shop” in the NFL, namely, the patterns of operations and practices of all the thirty-two NFL teams as they have evolved over the years. I am confident that with my experience and the processes I employed in hearing this appeal, the decisions I have reached fully comport with the standards applicable to arbitrators who are obligated to make judgments determining conduct detrimental under Article 46 of the 2011 CBA.
Article 46 of the CBA establishes a carefully structured framework for the resolution of various types of disputes involving the imposition of player discipline by the NFL Commissioner. Section 1(a) addresses fines or suspensions imposed on players for certain conduct on the playing field; and it also deals with “action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” There are vital reasons why all NFL-NFLPA Collective Bargaining Agreements since the 1970s have consistently given the Commissioner the exclusive and broad authority to decide what constitutes conduct detrimental. The integrity of and public confidence in the game of professional football are essential to the playing of the game itself and are critical to public interest in NFL football and to public respect for all those participating in NFL football - owners, coaches, players, officials and executives. Equally important, the matters that can affect such integrity and public confidence evolve and change over time depending on both developments within and external to the League, and the parties to the CBAs have agreed not to operate with a static or frozen definition of conduct detrimental.
Immediately upon my appointment, I began my review of the extensive Record on Appeal. I convened several pre-hearing conferences with the parties’ counsel; received extensive briefs regarding the standard of review and burden of proof, as well as findings of fact from counsel; requested and reviewed hundreds of additional pages of documents obtained from the parties; ordered, received and reviewed certain investigative memoranda to be produced to players’ counsel; and conducted four full days of evidentiary hearings in which twelve witnesses testified and were subject to rigorous cross-examination by counsel. In issuing my decision today, I have carefully and seriously considered all the parties’ contentions, and I have taken fully into account all party submissions, witness testimony and counsel arguments.1
FRAMEWORK FOR CONSIDERING PLAYER DISCIPLINE
Before turning to the specific issues before me, it is important to establish an understanding of how the NFL has approached important turning points related to the culture and safety of the game. In this context, it is critical to recognize that player safety in the NFL is the responsibility of everyone involved in the League. Strict enforcement of safety rules and policies serves the interests of all players and teams and is essential to the integrity of and public confidence in the game. But safety concerns have evolved - - and will continue to evolve - significantly over the years.
For this reason, in a letter to counsel shortly after being appointed, I encouraged the