«FINAL DECISION ON APPEAL INTRODUCTION AND SUMMARY The matter before me involves appeals by four present or former New Orleans Saints’ players who ...»
parties to pursue a negotiated settlement, emphasizing that:
Although I have not annotated every fact stated in my Final Decision, each fact is taken directly from the Record on Appeal and the exhibits and transcripts from the four days of hearings that I conducted as part of this appeals process. All references to specific facts are those fully documented in the Record on Appeal and the appeals hearings.
Unfortunately, settlement efforts proved unsuccessful.2 Nonetheless, player safety remains fundamental, and there are compelling reasons for strict enforcement of safety rules and policies.
But there are equally compelling reasons to think more broadly about the most effective and equitable ways to harmonize the sometimes perceived conflicts of interest among teams, coaches and players in enforcing safety rules.
The evidence before me reflects the realities of NFL team workplaces: sometimes prohibitions and policies that seem clear in the team front office or the League office become blurred in team meeting rooms and on practice fields. Techniques or programs intended to prepare teams to win sometimes ignore or contradict League rules and policies. Teams mimic each other. Coaches, staff and players move from team to team, carrying their techniques and programs with them. Sometimes techniques and programs are misdescribed or become modified or mismanaged. Shortcuts turn out to be dead ends.
As Commissioner Goodell has suggested, part of the player safety and injury challenge in the NFL may be an issue of culture. Presumably, this could mean, at least in part, that there is a pervasive, entrenched and undesirable acceptance of overly aggressive play - - including financial rewards, intimidation tactics and “trash talk” to encourage aggressive play. Such a culture could include dismissive attitudes about player injury risks and player safety.
Commissioner Goodell clearly recognizes that the responsibility for player safety in the NFL starts at the top, with the Commissioner and the entire League office. His recent forceful remarks at the Harvard School of Public Health about the NFL’s role in protecting the health and safety of athletes - - not just in the NFL and football, but in all sports and all levels of play - have received wide attention. Similarly, the League’s long-term initiative with the U.S. Army to enhance the health of U.S. soldiers and NFL players by sharing information, providing education and engaging in discussion on concussion and health-related issues affecting both organizations is unprecedented. And the League has sharply increased its grant funding to organizations such as the Foundation for the National Institutes of Health for research to include accelerating the
pace of discovery to support the most innovative and promising science of the brain, including:
chronic traumatic encephalopathy; concussion management and treatment; and the understanding of the potential relationship between traumatic brain injury and late-life neurodegenerative disorders, especially Alzheimer’s disease.
In this context, confronted with the events here, Commissioner Goodell correctly set out aggressively to address them. But when an effort to change a culture rests heavily on prohibitions, and discipline and sanctions that are seen as selective, ad hoc or inconsistent, then people in all industries are prone to react negatively - - whether they be construction workers, police officers or football players. They will push back and challenge the discipline as unwarranted. As reflected in the record in the present appeals, they will deny, hide behind a code of silence, destroy evidence and obstruct. In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change. This is what we see on the record here.
I note with strong disapproval that one or more parties here improperly leaked confidential information from private settlement negotiations to the public despite the clear agreement of all parties prohibiting such conduct.
For whatever reasons - - entrenched pay-for-performance practices thought to be common in the NFL, bad judgment by coaches or lack of clarity in the rules or their enforcement
- - the Saints’ coaches here resented the League’s investigative / enforcement efforts and improperly resisted and blocked them. As Coach Williams put it, the strategy was to “deny, deny, deny” (New Orleans Saints Article 46 Appeal Proceedings Hr’g Tr. 1105:5-11), possibly in part to avoid tarnishing what everyone saw as an incredibly important and well-earned Saints Super Bowl victory.
As NFL counsel stated at the opening of the hearings here, the “code of locker-room silence is, indeed, strong” in the League. (Hr’g Tr. 167:4-6.) NFL counsel thus noted Jonathan Vilma’s statement to the Commissioner in a September meeting, “What we say in-house is kept in-house.” (Hr’g Tr. 142:2-3.) And NFL counsel continued, comparing this culture to the “blue wall of silence in another context [that] also makes investigating and proving police corruption quite difficult.” (Hr’g Tr. 168:7-10.) Regardless of what caused the Saints’ coaches so strongly to resent and obstruct the League’s investigation, it is critical to focus on and get to the root of these questions because clearly a League policy of “strict compliance and strict enforcement” based on well-grounded concern for player safety has not yielded a constructive outcome here.
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.
There is an important example in the NFL’s own history of using a short-term exemption from discipline as a means of swiftly facilitating an intensified effort to change a negative culture to enhance the safety and health of NFL players. I find persuasive and instructive the lessons to be drawn from a safety-related disciplinary program instituted in the 1980s by then NFL Commissioner, Pete Rozelle.
Commissioner Rozelle faced serious new threats both off-field and on-field to player safety and player health and well-being, as Commissioner Goodell faces today. In Rozelle’s time, the challenges were presented by new illicit chemistries and substances - - called steroids.
Rozelle saw the need for strict standards, strict enforcement and strict compliance - - just as Commissioner Goodell correctly does today. “We now know,” Rozelle emphasized, that steroid abuse “gives a strong competitive advantage and has severe medical effects.” So in the late 1980s Rozelle developed and implemented a set of policies, prohibitions and testing regimens to identify steroid abusers and eliminate the safety and health risks. He included a discipline-free transition year in the new policy. Rozelle warned one-year in advance that a discipline policy suspending players for steroid use would be implemented the following season. Four months prior to the enforcement of the policy, all players were advised by letter of the specific disciplinary actions for steroid use. For that year, Rozelle sharpened the rules and set escalating penalties while withholding player discipline. Rozelle recognized the realities of team operations and sought to ensure uniform compliance and enforcement in several dozen team workplaces. He understood that sometimes it is necessary to clarify the rules - - make sure everyone understands; postpone discipline for a while, not forever, but maybe for a season; and then enforce the rules with strict discipline.
While no one would suggest that incentivizing and rewarding players to harm another player has ever had a place in football, the undeniable fact is that over many years a pattern and practice of abuse of the rules seems to have developed - - a culture has evolved - - that has led to acceptance of pay-for-performance reward programs. These programs mutated into the deeply misguided Program of the New Orleans Saints.
THE HISTORY OF COMMISSIONER GOODELL’S DISCIPLINARY ACTIONS
Commissioner Goodell addressed issues related to the alleged misconduct of Saints’ coaches, personnel or players on four occasions prior to the October 9, 2012 disciplinary actions on appeal here: March 2 (NFL Security Report); March 21 (discipline of the four coaches and other team punishment); May 2 (initial discipline of the four players); and July 3, 2012 (decision on appeals of the four players). On September 7 and October 4, 2012, a Special Appeals Panel under the CBA issued a decision and opinion, respectively, related to the discipline of the four players; and the U.S. District Court for the Eastern District of Louisiana has considered other issues related to the player discipline as the result of legal actions filed in federal court.
It is important to note that Commissioner Goodell has been forced to address the issues of misconduct by some individuals in the Saints’ organization since early 2010 to the present. Due to the indefensible obstruction of justice by Saints’ personnel, which included admitted efforts of coaches to mislead or otherwise deny the existence of a bounty or the Program, a disciplinary process that should have taken weeks is verging on three years. As a result of the many stops and starts in getting to the bottom of the issues - - exacerbated by tactical decisions by the players and counsel at times not to participate in the League proceedings - - Commissioner Goodell has understandably adjusted a number of his findings over time.
The March 2, 2012 NFL Security Report and Public Statement Properly Placed the Onus for the Players’ Conduct with the Saints’ Coaches and Other Non-Player Personnel On March 2, 2012, the NFL’s investigative staff and general counsel submitted a report to Commissioner Goodell on the matters of conduct detrimental involving coaches and other senior officials of the New Orleans Saints, entitled, “Report of NFL Security on Violations of ‘Bounty’ Rule by New Orleans Saints” (the “Report”). In an accompanying media release on March 2, 2012, the NFL reiterated the findings of the Report. In these two documents, the NFL set out a number of conclusions.
With regard to Saints’ coaches and coordinators, the NFL concluded that: (1) assistant coach Gregg Williams designed and administered the Program with the knowledge of other defensive coaches; (2) funds were contributed to the Program on occasion by Williams; (3) the coaches who administered the Program were guilty of conduct detrimental for developing an ongoing program to pay bonuses to players for injuries inflicted on opposing players; and (4) Coaches Joe Vitt and Williams categorically denied the existence of any bounty program or bounty on Brett Favre in early 2010.
With regard to head coach Sean Payton, the NFL concluded that: (1) he was not a direct participant in the funding or administration of the Program but was aware of the allegations; and (2) he did not make any detailed inquiry or otherwise seek to learn the facts and failed to instruct his coaches to stop the Program. The Report concluded that Payton and general manager Mickey Loomis were guilty of conduct detrimental for failing to supervise the actions of their players and assistant coaches, failing to respond to the instructions of the club’s owner and failing to ensure that club personnel fully cooperated during League inquiries.
With regard to the Saints’ organization, the NFL concluded that the club was guilty of conduct detrimental by virtue of the actions of its employees, which continued over a period of years, and by the failure of its senior executives to address the matters here in a responsible way.
Notably, the Report stated that: “The Commissioner has repeatedly held that clubs bear a responsibility for the conduct of their employees, and that misconduct by employees - particularly by employees in responsible leadership positions - - will be attributed to the club for purposes of discipline.” With regard to the Saints’ players, the NFL concluded that: (1) between twenty-two and twenty-seven defensive players on the New Orleans Saints had supported and participated in a bounty program funded primarily by players during the 2009, 2010 and 2011 seasons; (2) Saints’ players received payments as a reward for inflicting injuries on opposing players; and (3) the players who contributed funds and targeted players on opposing teams were guilty of conduct detrimental because their actions undermine both the integrity of competition on the field and public confidence in the NFL.
Commissioner Goodell’s March 21, 2012 Memorandum of Decision and Accompanying Public Statement Further Described the Failure of the Saints’ Coaches and Other Non-Player Personnel In issuing his formal discipline to the Saints’ coaches and other non-player personnel on March 21, 2012, Commissioner Goodell confirmed both the existence of the Program in violation of League rules and a deliberate effort by the Saints’ non-player personnel to conceal the Program’s existence from League investigators. The Commissioner deemed the case to be plagued by a combination of elements that made this matter “particularly unusual and egregious” and further deemed the targeting of players for injury and cash rewards over a three-year period, the involvement of the coaching staff and three years of denials and willful disrespect of the rules to be unacceptable.