Received a number of questions about the former Saints defensive coordinator Gregg Williams' declaration about so-called "Bountygate." (A "declaration" is similar to an affidavit as it is legally binding but not notarized). This blog post hopes to answer these questions.
What is The Content of The Gregg Williams Statement?
Here's a copy of the Gregg Williams' declaration that you can read for yourself. Declarations and affidavits are typically written by lawyers to reduce a person's recollection/views to written form. They are often written in a self-serving way, to avoid saying things that look bad for a person, and the Gregg Williams' statement is no different.
Most of the declaration states that the Saints did NOT have an institutionalized bounty program or pay to injure program but rather a pay for performance program. This is an important point because the Bountygate appeals panel summary decision [copy of decision here] said that NFL commissioner Roger Goodell did not have jurisdictional authority to discipline players on pay for performance pools.
Interestingly, there's almost an add-on concession near the end of the Williams declaration that notes that even though there was no intent to injure as a part of his system, he acknowledges that having such a program could actually result in hurting people. This is NFL commisioner Roger Goodell's position. He believes that the player's and coach's intent behind the program doesn't matter. That rewarding clean hard hits results in injury so therefore it is a bounty.
Gee, NFL football can injure people. Alert the media.
The appeals panel summary decision is sort of loopy in that it suggests that punishment for bounties/intent to injure goes to a different decision maker than pay for performance pools. They also acknowledge that this is an issue of first impression so they recognize that everyone may be confused as to the right procedure/jurisdiction. (Notably, some have suggested that the punishment was harder on the players than it should have been because the players followed the advice of the union and their attorneys on such a novel situation).
Even so, does Roger Goodell get to decide that something constitutes a bounty because he says so, thus giving jurisdiction to this matter to himself?
What is Odd About the Jonathan Vilma Part of the Declaration?
Though most of the declaration supports what Sean Payton and on down have been saying, that there was no bounty program/pay-to-injure, the part about Jonathan Vilma does suggest pay to injure. In relevant part:
"The Saints reached the playoffs during the 2009 season and ultimately won the Super Bowl in February 2010. The pay-for-performance pool continued to operate during the 2009 NFL season playoffs. During a team meeting the night before the 2009 NFC Championship Game against the Minnesota Vikings that was played in January 2010, Mr. Vilma addressed the defensive players and coaches (including me) who were present and pledged $10,000 to any player who knocked Brett Favre out of the game. I was never given any money because of a pledge related to the injury of a particular player, because I only administered funds related to the pay for performance pool. Brett Favre was not knocked out of our game against the Vikings, so I assume the money was not paid to anyone."
A couple of things are peculiar to me about this statement:
1. One of the things that the NFL has emphasized about the alleged $10,000 pledge by Vilma is that he "waved stacks of bills" around. If I'm putting together a statement like this together for Gregg Williams, that is a detail that if remembered should be a part of the statement because it is obviously a big deal. It makes the "pledge" less abstract and more real.
2. Some media reports said that the $10,000 pledge was for a hit on Kurt Warner. Here's an excerpt from a New York Times report from June 2012 entitled "Ex-Prosecutor Presents N.F.L.’s Findings in Bounty Case:"
"Mary Jo White, a former federal prosecutor brought in by Goodell to review the evidence as a third party, presented the N.F.L.’s case. In one instance, she read a text from a person who provided league investigators with an account of linebacker Jonathan Vilma raising his hands, with stacks of bills in each, offering “two five stacks” — believed to be $10,000, according to the person — for anyone who knocked Kurt Warner out of the Saints’ January 2010 playoff game against the Arizona Cardinals."
Read that article from June, and note how many different things in it turned out not to be true. Like the Anthony Hargrove lips moving thing, for example.
Perhaps the New York Times was wrong in its reporting then about Warner versus Favre? Maybe people are remembering events differently, making mistakes? Maybe it didn't happen, and people are making stuff up to save themselves or because they harbor a grudge. For example, former Saints assistant coach Mike Cerullo also submitted a declaration that some reports, including from Vilma, say contradicts Williams.
Will update this blog post with a copy when I see it UPDATE 9/18 3:30 pm: Here's the Mike Cerullo Declaration. Allegations are that this whistleblower isn't really a whistleblower but rather holds a grudge against the Saints organization.
With dueling declarations and affidavits, there's no real way to see what is accurate because there's no cross-examination procedure in the NFL's process. There is however in the Federal Court Vilma defamation case, where both Cerullo and Williams have been subpoenaed.
UPDATE 9/18 3:30 pm: Comparing and contrasting the Cerullo and Williams' statements. The Cerullo document provides a much different account on key points than Williams'. Timing wise, it is signed after the coaches were disciplined, so it is likely that the coaches did not see the declaration nor could defend against what it said. It was also signed right after the Jonathan Vilma defamation suit. Hmm.
The Williams statement, done after the Cerullo statement, does NOT mention allegations mentioned by Cerullo: 1. The "two five stacks." (Would that commonly be thought of as $10,000? No idea); 2. That the money was collected by Cerullo and kept by Williams; 3. That the offer with stacks of money was made before the Cardinals game for Warner; 4. The origins of the pay for performance pool and who was involved with it; 5.The timing for payments into the program.
As I noted before I read the declaration is that the problem with statements is that you can't cross-examine them. To discuss obvious bias or indiscrepancies. Or just how solid the memory of the person is on a subject. You know, the "Are you sure about that" question. You can see parts of the declaratiion where Cerullo isn't exactly sure of his memory, such as "to the best of my recollection and in substance" as it related to Anthony Hargroves' alleged statements.
Seems to me that you would need to be very cautious making public, reputation statements and significant punishments based on inconsistent information from sources who have their own reputational issues.
Which leads to the next point….
The NFL Needs To Get Out of the Law Business and Back Into the Football Business.
As I mentioned even before the player punishments, conducting accurate investigations is hard. Even for people who do that as an essential and everyday part of their job. It is particularly difficult in an atmosphere of lack of trust and with PR, labor, and legal implications. I predicted problems with the process, and problems occurred.
This bounty investigation is particularly bad because unlike other personal conduct situations, there is no police investigation that the NFL could rely upon. They are making up their procedures as they go along, such as hiring a former federal prosecutor as cover.
Roger Goodell is not a lawyer. Yet he's taken an increased role in discipline given his changes in the personal conduct policy, and his increased appetite to discipline players. It becomes a mess the more he has to rely on his own investigations and less on just judicial actions with more due process protections.
What's With the Timing of the Gregg Williams' Declaration?
A number of people have raised questions about the Gregg Williams' declaration being signed September 14th, just a few days before the hearing. Jonathan Vilma on Twitter noted:
"You obviously want me to be guilty if you cant see that gregg was bullied to sign the affidavit. He signed 3days ago!
To me it isn't that unusual for a declaration to be signed right before you need it. Gregg Williams already gave his statement to the league a while back. It is unclear what form it is in: A recording, just written notes from investigators, etc. Often when you don't want to provide your source material, or if it is in a form that makes it difficult to give to someone, the earlier information is reduced to a declaration or affidavit with the key points relevant to what you need the affidavit for. It sometimes takes time to put that together so that it satisfies both the person making the statement, that person's lawyer, and often the folks who benefit from the statement, (in this case, the NFL).
Gregg Williams certainly has pressure on him by the NFL to make a statement that the NFL likes. To have even a chance to coach again in the NFL is completely dependent on the NFL granting him that permission. His declaration dumps Vilma in the grease, but self-servingly explains how his form of money pool was solely a player performance pool and not a bounty pool, but Vilma did a bounty that he had nothing to do with but didn't stop even though he allegedly saw the bounty offer happen.
What's The Best Result….Using Reason Over Ego and Power.
Nobody is defending bounties. No one. Not the NFL, coaches or players. The players and coaches deny a bounty happened and repudiate them. Bounties and pay to injure is dead dead dead in the NFL except for old NFL Films that glorified such things with a wink and a nudge. So-called "Bountygate" may be a result of just different recollections of different events, and nothing I have seen or heard would be provable to any standard that would ever hold up in court.
Of course, Roger Goodell thinks he doesn't have to abide by standards of the rule of law, but it sure doesn't look good for the integrity of the NFL to make decisions based on conflicting, questionable evidence.
The best result would be to walk back all punishment of players, and craft a joint statement that says that both the NFL and the players are committed to player safety and no performance pools of any nature. That would be the reasoned, sensible thing to do for an organization that is supposed to be focused on football and not on legal whatnot. Which means it won't happen.
Problem with that is the Saints are 0-2, and their Head Coach Sean Payton, Assistant Coach Joe Vitt and GM Mickey Loomis have suspensions of varying lengths and no practical legal protections against Goodell's actions. Goodell believes Payton lied, and Payton said he honestly believes he didn't.
Their only hope is of benevolence. Of Goodell rolling back his actions. And every public statement he has made to date makes it pretty clear he has no interest in doing anything like that.
Related NFL Articles:
Saints Bountygate Litigation and The Death of Reason, August 6, 2012, Argues for a Sensible End to Bountygate that Won't Happen. (Makes a good case for why I should be NFL Commissioner though Roger Goodell looks like a more central casting-looking sort of choice).
Roger Goodell Moves the Goal Line: Part 2 Saints Bountygate Q&A, July 7, 2012, Answers More Common Questions about Bountygate Issues
Saints Bountygate is Now Saints Litigate: Common Q&As July 5, 2012, Contains Key Litigation Documents, Part 1 of My Q&A on Bountygate Issues
NFL Exit Strategy for Saints Bountygate Mess? July 3, 2012, Written Before Goodell's Final Decision on Player Discipline
Why the New Orleans Saints Bounty Penalties are Too Harsh March 27, 2012, Written After Coach/Team Penalty Announced by Before Player Discipline; Highlights Difficulty of Doing NFL Investigations
‘Presumption of Innocence’ or ‘Everybody Knows They’re Guilty?’ September 28, 2011, Discusses Whether Goodell's Use of Personal Conduct Policy Is a Reflection of America or Has Changed America. Written in Response to a Journalist's Question on the Subject.
Have any additional questions, comments? Put them below. It's sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have questions of a more or less detailed nature than above, please let me know.