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«FINAL DECISION ON APPEAL INTRODUCTION AND SUMMARY The matter before me involves appeals by four present or former New Orleans Saints’ players who ...»

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The March 21, 2012 decision and press release again described misconduct by Coach Payton. For example, the NFL reiterated that Payton had failed to supervise the players and coaches; affirmatively decided in 2010 not to inquire into the Program even though he was aware of the League’s inquiries both in 2010 and 2012; falsely denied that the Program existed; and encouraged false denials by instructing assistant coaches to “make sure our ducks are in a row.” In the March 21, 2012 documents, Commissioner Goodell described the very acts that have made this investigation and discipline so complicated: Coach Williams acknowledged that he intentionally misled NFL investigators in 2010 and made no effort to stop the Program thereafter, continuing it during the 2010 and 2011 seasons. Commissioner Goodell also indicated that Williams acknowledged his central role in the design and implementation of the Program, including record keeping, defining payout amounts, deciding on who received payouts and distributing envelopes with cash to players who “earned” rewards.

The March 21, 2012 documents further concluded that assistant head coach / linebacker coach Joe Vitt acknowledged his awareness of the Program during 2009 through 2011;

acknowledged that he “fabricated the truth” to NFL investigators in 2010 and denied the existence of the Program; that he acknowledged that the defensive meeting preceding the 2010 NFL Championship Game may have “got out of hand” with respect to Brett Favre; and that he claimed to have never advised either Coach Payton or general manager Mickey Loomis of the Program.

Commissioner Goodell’s May 2, 2012 Player Disciplinary Actions Singled Out Four New Orleans Saints’ Players for Discipline and Goodell Affirmed the Discipline on July 3, 2012 In his first rulings related to the four players, Commissioner Goodell found on May 2, 2012 that Anthony Hargrove participated in the Program, including improper cash rewards for injuring opposing players through cart-offs and knockouts, and that Hargrove made a deliberate effort to impede the League’s initial investigation into the Program by being untruthful to investigators. Commissioner Goodell suspended Hargrove for eight games without pay.

Commissioner Goodell found that Scott Fujita pledged a significant amount of money to the Program, including for cart-offs and knockouts, and failed to act to stop the Program. He suspended Fujita without pay for three games.

Commissioner Goodell found that Will Smith, as a Saints’ defensive team captain, had assisted Coach Williams in establishing and funding the Program and that Smith pledged significant sums of money during the 2009 season playoffs towards the Program for cart-offs and knockouts of Saints’ opposing players. Commissioner Goodell suspended Smith without pay for four games.

Commissioner Goodell found that Jonathan Vilma, as a Saints’ defensive team captain, had participated and played a role in establishing and funding the Program; and made offers of bounties against specific players during the 2009 season playoffs, namely Kurt Warner and Brett Favre. Commissioner Goodell suspended Vilma without pay for the entire 2012 season.

The four players appealed, and in a July 3 letter to the players Commissioner Goodell explained that because the players elected not to participate substantively in the appeals process nor to present any mitigating evidence, he was denying the appeals of each player and holding that the suspensions for each were to be enforced as set forth in the notice letters of May 2, 2012.

The September-October 2012 Decision of the CBA Appeals Panel Referred the Player Discipline Back to Commissioner Goodell for Redetermination Following these May 2, 2012 decisions, the players filed non-injury grievances under Article 47 of the CBA, arguing that portions of Commissioner Goodell’s decision involved subjects beyond the Commissioner’s authority to determine.

Ultimately, in a decision issued on September 7 and supplemented on October 4, 2012, the CBA Appeals Panel vacated the May 2, 2012 player suspensions and required Commissioner Goodell to reconsider his disciplinary actions in light of the possibility that some aspects of the Saints’ Program and alleged bounties might have been beyond his jurisdiction and within Article 14 of the CBA, not Article 46. The CBA Appeals Panel concluded that the Program “encompassed both conduct that violates the Article 14 prohibition on undisclosed compensation agreements, and other conduct - - agreements to injure - - that may reasonably be judged to be ‘conduct detrimental’ in violation of Article 46.” The Panel further concluded that Saints’ agreements to injure opposing players do not constitute unsportsmanlike conduct on the playing field that is subject to review outside of the Article 46 hearing process, stating that “an individual player’s conduct on the field is not directly implicated in the present case; rather it is the Players’ participation in a program that sought to injure opposing players that subjects them to the Commissioner’s exclusive [Article] 46 jurisdiction.”

Commissioner Goodell’s October 9, 2012 Redetermination of Player Discipline

Guided by the ruling of the CBA Appeals Panel, Commissioner Goodell reconsidered his discipline of the players in a decision rendered on October 9, 2012. Commissioner Goodell found that in 2010, Hargrove had engaged in conduct detrimental by falsely denying to an NFL Security representative both the existence of the Saints’ Program and the pledge of a bounty on Brett Favre for the NFC Championship Game in January 2010. Commissioner Goodell stated that “[t]he fact that a coach or coaches told you to lie, to make false denials, or to ‘play dumb,’ does not, in my view, excuse your failure to be truthful and responsive.” As a result, Commissioner Goodell suspended Hargrove for seven games, with the first five weeks of the regular season being credited towards his suspension.





Commissioner Goodell decided that Fujita had not pledged monies to the Saints’ Program that included rewards for cart-offs or knockouts, but that Fujita did participate in a separate rewards program, in which he paid or offered to pay teammates for big plays, such as forced fumbles or sacks. Commissioner Goodell found Fujita’s separate rewards program to be in violation of provisions of the NFL Constitution and Bylaws and suspended Fujita for one game.

Commissioner Goodell found that Smith had endorsed, agreed to and contributed substantial sums to the Program that incentivized, encouraged and paid players to cause cart-offs and knockouts. As a result, Commissioner Goodell suspended Smith for four games.

Finally, Commissioner Goodell found that Vilma had pledged a bounty of $10,000 to any Saints’ defensive team member who knocked Brett Favre out of the 2009 NFC Championship Game and had endorsed, agreed to and contributed substantial sums to the Program that rewarded cart-offs and knock-outs. On this basis, Commissioner Goodell suspended Vilma for the 2012 season, including the postseason, with his six weeks on the Player Unable to Play roster being credited towards his suspension.

FINDINGS AND FINAL DETERMINATION REGARDING THE FOUR PLAYERS

Throughout the appeal proceedings, all parties have agreed that the allegedly improper pay-for-performance Program managed by the Saints was conceived and created primarily by Saints’ coaches and came to include rewards for cart-offs and knockouts of opposing players.

There is agreement that any alleged offer or offers of a bounty to be paid to Saints’ players for disabling a specific opposing player were made only at senior team-managed meetings either before the Arizona Cardinals playoff game or the NFC Championship Game against the Minnesota Vikings in January 2010, or both. And there is similarly no dispute that serious obstruction of the original investigation was directed by Saints’ officials to prevent the NFL from conducting an investigation into the alleged wrongdoing.

In challenging the discipline, all four players rely upon Commissioner Goodell’s findings of wrongdoing by the Saints in each of the three respects noted above. But the players urge that there is an insufficient basis - - both evidentiary and legally - - for the imposition of discipline on them, asserting multiple grounds for finding the discipline to be unwarranted. Among other arguments, they contend that these players are victims of inconsistent treatment compared to how the League has disciplined - - or declined to discipline - - other players; that it was the Saints’ coaches and other officials who created and directed the challenged activities in which the players are alleged to have participated; and that there is no evidence of any intent by any of the players to injure any opposing players - - and that such intent is an essential element of any finding of culpability.

Anthony Hargrove

The basis for the discipline of Anthony Hargrove is his participation in obstructing the League’s investigation in 2010. The record before Commissioner Goodell, now supplemented by additional information developed in the appeals hearing process, amply demonstrates that there was a massive effort conceived and implemented by non-player employees and managers of the Saints to obstruct the League’s investigation; to do so by destroying documents relevant to the investigation; and to do so by having the Saints’ coaches, players and other representatives lie to League investigators and otherwise be uncooperative when being interviewed or questioned by the League investigators.

The obstruction occurred in two ways. First, when League investigators began meeting with Saints’ coaches in early 2010, certain Saints’ coaches agreed to destroy documents related to the Program. For example, on both direct and cross examination, former Saints’ defensive assistant Mike Cerullo testified that he deleted from a Saints’ computer the “green money” PowerPoint slides, which related to the payouts to players. (Hr’g Tr. 933:14-934:1, 948:7Coach Williams also confirmed that he instructed Cerullo to destroy documents. (Hr’g Tr. 1173:6-17.) Second, there is ample evidence that several Saints’ coaches deliberately lied to League investigators in early 2010 and that coaches instructed Hargrove to lie as well. Cerullo and Williams both testified that Payton instructed the staff to “get their ducks in a row” or otherwise get their stories straight. (Hr’g Tr. 769:23-770:6, 1104:10-23.) Members of the coaching staff made a conscious decision to “deny everything” or “deny, deny, deny”, and Williams testified that he “denied, denied, denied” the existence of a bounty on Brett Favre. (Hr’g Tr. 1106:5-11.) Hargrove received instructions from coaches to undertake the same set of denials, and, based on those instructions, he denied the existence of bounties or any player-specific bounty program.

Final Determination as to Anthony Hargrove

Commissioner Goodell charged Hargove with providing false information regarding a bounty on Brett Favre or a “pay for performance bounty program,” which is presumably the Program. Although I affirm Commissioner Goodell’s general finding that Hargrove contributed to the obstruction of the investigation by providing denials as instructed by his coaches, a number of factors complicate and mitigate the propriety of his remaining two-game suspension.

The context of previous NFL punishment for obstruction suggests that a seven-game suspension is unprecedented and unwarranted here. 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. There is evidence in the appeals record that NFL investigators may not have asked Hargrove whether the Saints employed any particular program. The investigators focused on the alleged bounty placed on Brett Favre prior to the NFC Championship game in January 2010, which was the impetus for questioning Hargrove, who allegedly told a Vikings player of the Favre bounty. If Hargrove denied only the existence of the alleged bounty on Favre, he is no more guilty of conduct detrimental than the numerous Saints’ defensive team members from the 2009-2010 season who have provided sworn statements or testimony to the same effect and who have not been suspended or otherwise disciplined.

Finally, given the comprehensive, overt and ongoing nature of the obstruction by coaches and their direct instructions to Hargrove to lie, combined with their control over his football career, it is clear that Hargrove was under tremendous pressure to follow the chain of command in order to keep his job.

I have concluded that there is not sufficient evidence to demonstrate in these unique circumstances that Anthony Hargrove’s alleged misconduct is deserving of a suspension. I therefore vacate the suspension imposed on Hargrove.

–  –  –

The basis of the discipline issued to Fujita and Smith centers on their participation in the Program or, in Fujita’s case, creating his own performance pool.

–  –  –



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