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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 League has had prohibitions of pay-for-performance programs and non-contract bonuses for many decades. Some of them (including provisions in the NFL Constitution and Bylaws) have remained unchanged over these many years and have come to lack clarity. They focus primarily on payments by clubs; use terms - - such as “blanket remuneration” - - that do not appear to have any clear current meaning; and now apply to contractual terms and salary / bonus levels that bear little or no relationship to terms prevailing when the prohibitions were originally enacted. Until the early 1990s, many of these prohibitions applied to programs involving both players and teams but were focused on team-sponsored or team-managed programs and payments made by teams to players.

Beginning with the 1994 season, when the collectively-bargained salary cap first became operative in the NFL, the preexisting prohibitions of pay-for-performance payments or bonuses made by clubs were effectively superseded by the “cap circumvention” provisions of the new CBA. This was clearly recognized in the CBA Appeals Panel Decision.

In the years since the establishment of the salary cap and related prohibitions on cap circumvention, the League has focused its directives relative to pay-for-performance programs on payments made by and among players to each other. In 2007 or prior, the League began including in its League Policies for Players the “Bounty Rule,” which prohibits clubs offering or paying non-contract “bonuses” to a player and “also prohibits players and any other club employees from offering or accepting such a bonus.” (Emphasis added.) These references to players paying “bonuses” may not necessarily always communicate to players that the prohibition encompasses modest sums of money contributed to performance pools, because “bonuses” in many player contracts often involve many thousands or hundreds of thousands of dollars. Neither the League nor the NFLPA appears to have developed a fully articulated, concrete set of guidelines or prohibitions related to performance pools that take into account the current realities of signing bonuses, reporting bonuses, performance bonuses and other incentive arrangements often included in NFL player contracts.

Although the four players signed a statement indicating they had read and received the League Policies for Players prohibiting “bonuses” and many other things, these appeal hearings suggest that many players had not read them, and they argue that the League Policies for Players are not binding in any event under the CBA. In addition, the NFL in its policies sends a mixed message by allowing “kangaroo courts” where players are fined for mental lapses and other onfield mistakes but prohibiting any distributions to players via those courts. Most important, no matter what the League rules and policies are or have been, if many teams in the League allow pay-for-performance programs to operate in the locker room, as seems to be the case, and, in the main, the League has tolerated this behavior without punishment of players, then many players may not have a clear understanding that such behavior is prohibited or where the lines are between permissible and impermissible conduct.

The record evidence now shows that the terms “pay-for-performance” program or “pool” can refer to many different types of team or player arrangements relative to rewarding players for performances in particular games or with respect to particular aspects of a game. Some of these programs or pools appear to be viewed as relatively benign by NFL coaches and players, while others appear to be sources of disagreement or even contention among coaches themselves and among players at different positions or on different teams.

In the testimony before me, current NFL executive Troy Vincent, a former outstanding player with the Philadelphia Eagles, confirmed that during his time with the Eagles the defensive backs had created a performance pool that simply covered three types of plays - - interceptions, fumble recoveries and touchdowns - - none of which rewarded the purposeful injury of an opponent. Indeed, Vincent testified that the pool conducted within the Eagles in his career covered both regular season games as well as team practices. Obviously, such a program cannot reasonably be viewed as having been created or managed to injure players.

Other programs on other teams involving greater sums of money were discussed at the appeals hearings. For example, Vincent’s former teammate, Reggie White, while an outstanding player for the Green Bay Packers, can be seen on an ESPN video on Super Bowl Sunday in January 1997 describing the payouts to players for big plays. When asked about White’s description of the Packers’ program, Vincent confirmed that it was considerably broader in scope and funding than any program with which he was familiar. The evidence before me - specifically, the video of the ESPN program - - contains a statement attributable to an NFL

spokesman, who reportedly (and evidently reliably) told ESPN:

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Testimony in the hearing also demonstrated that even the programs created and managed by the Saints’ coaching staff evolved over time, beginning with elements apparently quite common around the NFL and evolving into programs alleged to be unique and not found on other NFL teams.

Saints’ Organizational Responsibility for Programs Involving Cart-offs and Knockouts The record includes PowerPoint slide presentations made by the Saints’ coaching staff to Saints’ players following the Saints’ victories in 2009 season playoff games against the Arizona Cardinals (with quarterback Kurt Warner) and the Minnesota Vikings (with quarterback Brett Favre). Several of these presentations are very graphic and suggest that the aim of the Saints’ defense was to injure these quarterbacks. For example, one slide set following the game against the Cardinals includes a photo of Kurt Warner lying on the ground with a caption: “SO WE


FIELD GENERAL! ONE DOWN TWO QB’S TO GO!” (Record on Appeal, Ex. 80 at 3.) Another slide set from after the NFC Championship game again includes photos of Kurt Warner lying on the field with a caption of “BOO F***ING HOO MISSION ACCOMPLISHED VS.

WARNER AND FAVRE”; and the next slide includes photos of Brett Favre being helped off the field and of his bruised and bandaged ankle and leg, with a caption of “ONE MORE QB TO GO!!!!” (Record on Appeal, Ex. 81 at 5.) The conduct of the Saints’ defensive coaching staff in presenting these materials to Saints’ players in team meetings and in other contexts constitutes persistent and flagrant contempt for clear League rules and policies regarding player safety. All NFL coaches and players know that the NFL Playing Rules not only proscribe many specific types of illegal contact (spearing, etc.), but also provide special protection for players such as quarterbacks who are deemed to be “in a defenseless posture.” Former Minnesota Vikings head coach and now offensive coordinator for the Cleveland Browns, Brad Childress, explained in his testimony before me that these concepts are routinely reviewed on a regular basis and well-known to all players and coaches.

Coaches also know that the playing rules focus on the risk of injury to such vulnerable players when the rules are violated. For example, the 2012 Official Playing Rules and Casebook

of the NFL expressly states that:

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(Rule 12, § 2, Art. 8.) To minimize the risk of injury to quarterbacks, this rule also emphasizes that any doubt about the legality of contact should be resolved in favor of protecting the quarterback: “When in doubt about a roughness call or potentially dangerous tactic against the quarterback, the referee should always call roughing the passer.” All NFL coaches know these rules and are responsible for coaching and managing players in compliance with these rules. In this context, the conduct by the Saints’ defensive coaching staff with the Saints’ players relative to knocking the quarterback out of the game is difficult to comprehend - - and can only be viewed as irresponsible.

In determining player discipline for involvement in performance pools - - whatever form they may take - - that are developed, encouraged and managed by coaches, the coach-player relationship is also material.

NFL players on average have short careers; their careers can end suddenly through injury or declining skills; players want to be good, cohesive members of the team, or unit, not complainers or dissenters; and players accept that they work for coaches, in “programs” conceived by coaches. These are programs for which coordinators and assistant coaches are often specially selected and hired to execute. Here we have a classic example: Head Coach Payton hired Defensive Coordinator Williams with directions to make the Saints’ defense “nasty.” In such circumstances, players may not have much choice but to “go along,” to comply with coaching demands or directions that they may question or resent. They may know - - or believe - - that from the coaches’ perspective, “it’s my way or the highway.” Coaching legends such as George Halas and Vince Lombardi are not glorified or remembered because they offered players “freedom of choice.” While more recent and current coaches may debate whether and how much coaching approaches to “do it my way” have changed over time, it is clear that directions such as those given by the Saints’ coaches in creating the Program are usually followed by most players. NFL head coaches told me in my seventeen years as Commissioner, “If players don’t do it our way, they can find another team to pay them.” I understand these perspectives, and I certainly don’t condemn them. (They are often part of the culture that makes teams successful and team sports a worthwhile learning experience.) But neither can I ignore these realities when I am reviewing the record developed in this proceeding and assessing the suspensions to be imposed here.

Final Determination and Findings as to Discipline of Scott Fujita

The NFL contends that the factual basis for Fujita’s discipline is not in dispute - - Fujita admits offering money to teammates for big plays such as sacks and interceptions and also admits that he was aware of the Program, which he never questioned or took any steps to stop.

Given that the factual basis for Fujita’s discipline is undisputed, I affirm Commissioner Goodell’s findings in that regard.

The League also contends that, in determining whether Fujita engaged in conduct detrimental, it is of no importance that he claims never to have offered money for hits on opponents such as cart-offs or knockouts. The League urges that merely offering rewards for big plays - - in which Fujita engaged “while a respected leader of the Saints’ defense and role model for other players” - - clearly violates the NFL Constitution and Bylaws.

I find the NFL’s contentions lacking in merit. In dealing with pay-for-performance pools that appear comparable to Fujita’s pool, the League has emphasized club responsibility for ensuring player compliance with League policies, and has disciplined clubs - - but not players - for non-compliance. For example, in separate instances involving the Green Bay Packers and New England Patriots in 2007 and 2008, the League fined the clubs $25,000 or less, without

disciplining any player. Notably, the 2007 discipline letter to the Patriots stated that:

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Accordingly, the NFL’s decision to suspend a player here for participating in a program for which the League typically fines a club certainly raises significant issues regarding inconsistent treatment between players and teams.

Given that it is undisputed that Fujita did not participate in the Program including cartoffs and knockouts, and that his participation in a “non-injury” pay-for-performance pool is typically subject only to club discipline, I find that his actions here were not conduct detrimental and vacate his suspension.

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Will Smith’s participation in and contributions to the Program are largely undisputed, and I therefore confirm Commissioner Goodell’s findings.

The Commissioner found that Smith’s assertion that rewards for cart-offs or knockouts in the Program were offered only when an opposing player was disabled for a play or two because he had the wind knocked out of him, and not if he sustained some other type of injury, was not credible. I affirm Commissioner Goodell’s judgment that rewarding players for these categories incentivizes injury of opposing players to a degree that is detrimental to the integrity of and public confidence in the game.

Within the Saints’ defensive unit, Smith was one of approximately two dozen Saints’ defensive players who participated in the Program. Although Commissioner Goodell found Smith’s role as a defensive leader to be a basis, at least in part, for singling Smith out for discipline, this is inappropriate when most or all of the Saints’ defensive unit committed the same or similar acts as those underpinning the discipline of Smith.

In addition, I am not aware of previous League discipline that similarly rested on whether or not a player was a team leader. It may indeed be very constructive, in this and other contexts, to expect team captains, other team leaders, or even players with years of seniority to meet higher standards of responsibility for team conduct, and to take such status into account in imposing fines and other discipline. This is a concept that would require in-depth discussion with coaches and players. (I can foresee many different, legitimate points of view.) But, in any event, this is not an issue for me to decide.

On the present record, selective prosecution of allegations of misconduct and enforcement of discipline relative to Smith cannot be sustained. Whatever the reason for such selective enforcement, it does not satisfy basic requirements for consistent treatment of playeremployees similarly situated. Therefore, I vacate the suspension of Will Smith.

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