~ A Mediator's Musings ~

May 9, 2012 ~ W[h]ither the NFL and the Future of Football?
A Mediator’s Thoughts

The National Football League is always in the news.That’s what you’d expect of the sport that is generally viewed as our most popular. And usually the publicity is good, at least as far as the NFL and its players are concerned—yes, we’ve seen labor conflicts, but they get settled; attendance and ticket prices rise; TV contracts get more lucrative; players’ salaries go up as revenues increase; everyone in the business seems happier and richer (or at least richer).

But now the NFL has become the target of some serious, risky and what promises to be expensive litigation. Something over 70 lawsuits, encompassing over 1800 named ex-player plaintiffs (numbers that are constantly increasing) or their families or both, have been filed against the NFL and making essentially the same claims:   that while playing football in the NFL, these players suffered concussions that caused permanent injuries to their brains; their ability to function has been severely impaired and in some cases death has resulted. The ex-players assert a number of bases on which they claim the NFL is liable for the resulting damage. Most of these cases have been consolidated into the federal district court in Philadelphia.

At the same time, the atmosphere seems to have been poisoned by the “bounty” system maintained by the New Orleans Saints and the NFL’s resulting sanctions against the team and some of the team’s coaches and other personnel. It appears that the members of the Saints’ defensive squad, in a system led by their coaches, received financial rewards (“bounties”) for tackles or other collisions with opposing players that injured those players and knocked them out of the game. The NFL Commissioner, Roger Goodell, imposed extremely harsh penalties upon the franchise and the coaches, including the suspension of head coach Sean Payton for one year. And then, more recently, he penalized several players:  one player, Jonathan Vilma, was suspended without pay for the entire 2012 season, and three other players were suspended for, respectively, three, four and eight games. The players have appealed their suspensions.

So what does all this mean for the NFL?

That’s complicated, and we may not know the real answer for a long time, maybe years. But we can speculate, which is a lot of the fun of being a fan (and self-proclaimed commentator).

Let’s start with the Saints (how ironic that that’s their name). In the first place, while the Commissioner had to act more or less as he did in the Saints’ case, that’s really not the main event. In a business where winning games gets people bigger paychecks and major other financial rewards, we shouldn’t be surprised that the players and coaches of a defensive squad would prefer to play a team that is missing its offensive stars because of injury. The Saints may have been foolish in rewarding with money the players who caused those injuries, but let’s not be deceived into thinking that the attitude that led to the “bounty” system was unique to them. The “bounty” amounts were not so great that their receipt would affect a player’s lifestyle; on the contrary, the coaches and players simply wanted the players to earn “bragging rights” rewards, symbols of respect for a player who achieved the desired results. And we don’t know—and may never know—whether other teams had “bounty” systems similar to that of the Saints. The NFL clearly cannot tolerate an overt system that pays players for injuring others, even if the payment amounts are relatively trivial, so the Commissioner had to impose serious penalties upon the sponsors and leaders of such a system. But the attitude that injuring the opponent at least enough to take him out of the game is desirable hasn’t disappeared—and won’t. It’s inherent in a game of collision where the rewards of winning are so great. Teams will just have to be sure that the rewards for injuring the opposition aren’t as tangible as in the Saints’ case—which won’t be difficult and won’t affect the game very much at all.

Now, what about the suspensions. Are the players likely to win their appeals?

In a word, no. The penalties might possibly be reduced somewhat, but almost certainly not by enough that the players could see their appeals as successful.

We don’t know exactly what grounds the players intend to assert for overturning their suspensions. The provisions of the collective bargaining agreement (CBA) that the NFL and the Players Union entered into last summer are pretty clear; the NFL and the Union gave the Commissioner the power to act as judge and jury in a case like this one, no matter how unfair that might seem. Under the CBA, the Commissioner has the exclusive power to punish players for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”  He found that the Saints’ bounty system fell within that category of conduct, and it’s hard to disagree. The CBA also gives him the power to choose to refer appeals of those penalties to an independent panel or to hear and decide those appeals himself. There is a provision of the CBA that requires that penalties for unnecessary roughness or similar on-field conduct directed at an opponent be decided by an independent arbitrator. The Commissioner, though, hasn’t punished the Saints for hitting their opponents too hard or otherwise misbehaving on the field, but for formulating a system off the field to reward players for certain on-field results. No one has said that the Saints were planning to sprinkle dollar bills on the field for the players who earned their bounties. So it’s likely that the appeals will be decided by the Commissioner, and in view of the comments he’s made, it’s hard to imagine that he’ll change the penalties very much.

So what are the players likely to argue? We really don’t know. It appears that at least one argument they and the union plan to assert is that the disciplinary process should be governed by the provisions of the collective bargaining agreement that was in effect when the acts for which they are being punished occurred, not the current CBA; if the earlier agreement prevailed, presumably an independent arbitrator, not the Commissioner, would decide the matter. That argument doesn’t sound very promising. While the players probably can’t be punished for acts that weren’t punishable when they did them, it seems hard to argue that a collective bargaining agreement that has expired and been superseded sets the process for deciding what the punishments should be. Nothing in the current CBA suggests that the NFL and the union had any intention of preserving the process provided in the prior agreement; indeed, there are provisions of the CBA that refer specifically to matters that would be governed by the expired agreement, but the provisions at issue here aren’t among them. So the parties are probably stuck with current CBA provisions and thus the advantages and disadvantages of an arbitration process that we discussed in our March 6 post on the Ryan Braun drug case: the process is quick and decisive and also confidential, but the substance of the arbitrator’s decision is, as a practical matter, not appealable or reviewable and accordingly he has enormous discretion regarding application of the law and any governing agreement like the CBA. And here the arbitrator is the Commissioner himself. Messrs. Vilma et al may ultimately regret their Union’s agreement to this kind of process.

Next time: the concussion litigation.

–Your “hoping he’s not brain-damaged” mediator