~ A Mediator's Musings ~

July 5, 2012 ~ The Saints: The Players Are Tackled for a Loss

Where have we been, you might ask?  Sadly, the press of other affairs has diverted us from our appointed rounds.   We promised some thoughts on the NFL concussion litigation, but meanwhile not one, but two, arbitrators have ruled on the Saints players’ grievance appeals from the penalties the Commissioner imposed for their participation in the “bounty” program. As we predicted on May 9, those appeals were singularly unsuccessful; both arbitrators concluded that the Commissioner had exclusive power to discipline the players for the conduct involved and that they had no power to review his decisions. Let’s briefly look at why. While most of us who aren’t lawyers, arbitrators, the NFL or NFL Players’ Association don’t care much about the details, the rulings do teach us something about arbitration and its role, especially in the sports context.

In the first ruling, Arbitrator Stephen Burbank addressed the players’ claim that the Commissioner’s ruling really rested on the Collective Bargaining Agreement’s provision that prohibits a “Club” (i.e., a team) from having an undisclosed agreement with a player to pay him for his services (“a pay for performance” agreement); jurisdiction to determine a violation of this provision rests with an arbitrator, not with the Commissioner. The Arbitrator quite simply ruled that the Commissioner’s decision rested largely on the players’ funding of the program, not their receipt of payments from it, and thus didn’t involve a player’s agreement to receive “pay for performance.1 He really didn’t even need to address the question of whether the alleged participation of the coaches in the system amounted to the Club’s having an agreement with the participating players regarding the bounty program. He also found, perhaps most logically, that a program of this nature—players’ offering incentives to other players to injure opponents–was not the kind of secret agreement that the CBA provision stressed by the players was intended to cover. It’s hard to imagine that he could have come out any other way, and, indeed, it’s hard to imagine that the Players’ Association felt that they had any realistic chance of success on this one.

The second ruling, by Arbitrator Shyam Das—yes, that Shyam Das2 — was a lot more dense with detail but reached, as far as the players are concerned, the same result. The players argued that a provision in the CBA under which the NFL agreed not to sue the players for conduct occurring before the date of the CBA precluded the Commissioner’s disciplining the Saints for conduct that occurred before that date. Mr. Das ruled that that provision applied only to legal claims and suits and similar actions that the NFL might bring against a player and was not intended to release the powers of the Commissioner to discipline players where conferred by the CBA. And here as well it’s hard to imagine any other result. To find otherwise would mean that, say, a Michael Vick, had his conduct not been discovered before the signing of the new CBA, would have gotten off scot-free as far as NFL discipline was concerned.3 That’s inconceivable.

So, as we said on May 9, these players undoubtedly regret the breadth of authority granted the Commissioner by their union in the CBA in matters like this one. The penalties imposed by the Commissioner, unless he decides to modify them, will surely stand. It has been reported that the Commissioner has offered to meet with the players to hear their side of the case and consider reduction of the penalties, but that the players have rejected that offer. Instead, the players intend to appeal their suspensions and the penalties to federal court. It’s hard to imagine that they will be successful. Their best argument might be that the Commissioner’s conduct demonstrated that he could not be neutral as an arbitrator, but any such lack of neutrality seems to be inherent in the CBA provision that gives him the powers that the union, confirmed by the arbitrators, agreed were his to exercise.  As we’ve said before, it’s a central tenet of the arbitration process that arbitrators’ decisions are almost totally non-reviewable by the courts. Meanwhile, we’ll be watching to see if it comes to light that some other team had a bounty system similar to that of the Saints; it’s hard to believe that the Saints were unique in this regard, but we may never know. Messrs. Vilma, et. al., may just have been the victim of some bad luck that resulted in the discovery of only the Saints’ bounty program—which may have contributed to the vigor with which they and their union have asserted their objections. But it’s pretty clear that Mr. Vilma is done for the 2012 season and that the other players named will miss a number of games.

Next time: really back to the concussion litigation

–Your “I’m still not brain-dead” mediator


1 Mr. Burbank reserved jurisdiction to make a future decision as to one player whose ruling from the Commissioner left open the possibility that he might have been disciplined for receiving a payment from the bounty pool.

2 Readers of “Sportsmanlike Conduct” will recognize Mr. Das as the arbitrator in Major League Baseball’s infamous Ryan Braun drug case who lost job as an MLB arbitrator, presumably over that case.

3 Michael Vick, of course, was a cause celebre who served jail time for staging and promoting illegal dog fights and since his release appears to have resurrected his career in Philadelphia.