Litigation

The Ezekiel Elliott Case Shows How Ruinous NFL Policy Is

September 5, 2017 by Steph Stradley 1 Comment

If you were to design and execute the worst possible domestic violence policy you could think of, it would likely look like how the NFL is handling the Ezekiel Elliott case.

I’ve read all the public legal documents on this case.

Hundreds of pages. It is difficult to convey how nauseated with anger and disgust I am with how the NFL has handled this matter.
Most of the writing on about the Ezekiel Elliott case involves the legal issues. Or the sordid details. Understandable, as the NFL decided to make this news.

Very little of it focuses on the real and sick harm the NFL is doing to many people with their everything is a hammer approach.
The only way this ends up getting changed is if the NFL and its owners decide to change it, and so I am writing this specifically for that audience first. The NFL is made up of many, many people, and I am hoping to appeal to ones that can change this.

As an attorney for many years, I have worked to craft policies for large corporations, and I know that can be hard to do well. I am also very familiar with domestic violence as a subject from the prosecution, defense, and real-world perspectives. I’ve written about NFL discipline issues since 2006, as fans have many questions about these types of cases.

The NFL is committed to holding the players to “a higher standard” than the legal process but what they are doing is ruinous to all.

Fully predictable that the Ezekiel Elliott case would be awful for all.

Before you read the following, I strongly suggest reading the previous piece I wrote for some additional context:
Ezekiel Elliott and the NFL Domestic Violence Policy, August 11, 2017
I wrote this the day the Ezekiel Elliott suspension was announced by the NFL’s “confidential letter,” which of course, wasn’t. The NFL personal conduct policy has always been problematic because how poorly the NFL churns one-sided investigations, issues punishment.
That the NFL is terrible at doing investigations makes it worse when they do them for sensitive topics like domestic violence.
In the piece, I noted that the relatively new way the NFL handles domestic violence issues is expensive, overly-long, privacy-invading, deterrent to reporting, and provides no real and fair mechanism for the player to show innocence.
I then explained why and how the Ezekiel Elliott case would end up as a disaster.
Just the description in the letter of the process was an obvious sham to me. Sounded official and legal and neutral to a non-legal person but was just a thrown together PR-focused process. With more information available now, the process is far worse than the original letter suggested.
The following is why the NFL Domestic Violence policy is counterproductive and ruinous to pretty much every stakeholder involved using the Ezekiel Elliott case as the latest example. Here is a link to Elliott’s Petition to Vacate Arbitration Award and related documents. (Update 9/6/17: All document links are updated to the excellent The Sports Esquires website)
Being able to see these details allows for a further exploration of how terrible the NFL’s handling of this has been.

Bad for Survivors of Domestic Violence.

Hostile Questioning.
If I were representing an abused person, I would not have them cooperate with the NFL. Why?
How does it help that person to cooperate? Does an NFL suspension of a player help them at all? Does offering privacy-invading details of their life help them?
Apparently, in the Ezekiel Elliott case, the woman claiming abuse was interviewed by the NFL investigator two times formally, with recording and transcript, and four times with follow-ups.
(Though her name is widely and publicly shared, including by her, I do not care to do that here because it is not necessary for my points. There are two people who know for sure what happened. Even if her account is inconsistent and not credible and threatening to Elliott, it is also possible that she was abused. Whatever is the situation, I feel bad that the NFL policy even means I am discussing this).
Usually, those of us on the outside do not see the type of questioning. This time we can.
I found the nature of the questioning of the woman to be hostile and privacy invading. I don’t think it was intended that way but people do all sorts of things in life they don’t intend to be abusive but are. It certainly wasn’t as hostile or thorough as it would be from a defense perspective, but that doesn’t mean it wasn’t awful in every respect.
The woman’s credibility in the case is an essential point to Elliott’s discipline. So the NFL questioned her.
For no benefit to her.
In previous NFL discipline cases, non-lawyers being questioned by lawyers have found the experience to be very intimidating. In both Deflategate and Bullygate, non-lawyers expressed how intimidating the questioning was, how they felt like they were being treated like liars and that the lawyers ignored important context if it didn’t fit what the NFL’s narrative.
As a lawyer, I’ve been made available for questioning in legal proceedings and even with nothing at stake, the process isn’t particularly comfortable.
Privacy Invading.
As I noted, because suspension is the punishment, Ezekiel Elliott’s case and the credibility of the witnesses is now news to teams, fans, fantasy football, betting.
The woman who is the subject of this action revealed extremely personal information about herself. More personal than I know about pretty much anybody. Ezekiel Elliott and other witnesses revealed private information about himself and her as well.
The NFL has tried to shift responsibility to the NFLPA for “victim blaming.” No, the entirety of this debacle of a policy is fully and completely on the NFL.
The NFLPA’s sole purpose is to serve its members. The ethical obligation for the NFLPA lawyers is to zealously represent their clients. They are doing that.
The NFL’s job is to football. They do have PR concerns, and the hastily put together domestic violence policy was created as part of a series of PR disasters. Unfortunately, PR-driven policies coming from crisis usually are bad. Like this is.
In the real legal cases instead of this sham procedure, there are ways where privacy-invading information can be shielded from wide view. Sometimes a resolution can be crafted that avoid tough questioning.
Takes Away Agency of Domestic Violence Accusers.
You might find it surprising that the woman accusing Ezekiel Elliott of abusing her wants him to get help, and told the NFL investigator that she did not want him suspended. Elliott at various points in his testimony suggests that he wanted the woman to get help.
In the legal system, each situation can be tailored for the specific dynamics of the people involved. Some jurisdictions do it better than others, and that legal and other experts struggle with these topics would suggest that sports leagues would likely do worse.
Punitive-focused approaches are typically not recommended for employers as they take away control of the abused and may deter reporting.
If you look at every single public discipline the NFL has got involved with relating to domestic violence, their actions have made it worse in significant ways to the person abused.
Do they not care? Do they not see this?

Bad for Players.

The NFL has spent millions of dollars and a great deal of time trying to buttress their conclusions in the Ezekiel Elliott case. The NFL argued in the Deflategate case that they are entitled by the process to do whatever the commissioner wants.
There is no way within the system to prove innocence. If the NFL lessens sentences or doesn’t invoke discipline, it is largely random and at their choice.
Some people want to put the blame and onus for fixing the discipline system on the players. To me, that is absurd. The NFL adopted the domestic violence policy unilaterally and then ignored the words of the policy. Does it matter what the specific words of the CBA and the rules are if Goodell at the end of the day claims he can do whatever?
Health. Safety. Fair process. Sensitive handling of issues like addiction and domestic violence. Following specific rules that apply to specific situations.
Why is it that the NFLPA has to fight so hard for these things that the NFL should want for themselves?
The NFL CBA had its general commissioner-strong structure for a long time. And though there were disputes over the years, there has been nothing like the strong use of power that started after the 2011 CBA. Prior to that CBA, though Goodell expanded the use of his powers, it was mostly for criminal actions with extreme cases. After it was signed, he started using his powers in far more expanded ways. Unilaterally. Making up new rule violations nobody had ever known were an issue. Suspending players indefinitely with no guidance for reinstatement.
I have suspected for a long time that the NFL has intentionally been unreasonable and unfair with their discipline as a bargaining chip to make more money in the next CBA. If you have studied their NFL’s actions over the years as it relates to labor, their general practice is to use maximum power and leverage, even if in the short term it hurts the product on the field.

Elliott Process Is Bad for Teams and Owners and Fans.

If you have a process that makes it impossible to prove innocence, then every player and team is at risk of an intentionally compromised product that fans pay for.
In a normal legal process, you do not have the thrown together procedure that the NFL has. Each time they make an ad hoc process that has its own faults. Behold my 2015 graphic I made to illustrate this:

In the Ezekiel Elliott case, the ad hoc process appears to be as follows:
One Main Investigator Taking Info Not Under Oath. Former prosecutor women who have prosecuted sex crimes are running the program so somehow that makes some sort of cover for a bad process.
Prosecutors tend to see things a prosecutors do, and also what they are being asked to do for the NFL is not typically what prosecutors do in their day-to-day work. It is a pretend legal process.
A former prosecutor, NFL employee Kia Roberts questioned the witnesses. The woman who is the subject of the abuse claim was interviewed two times formally, four times in follow-up questions.
Notably, Roberts did not find the woman claiming abuse to be a credible witness. And this isn’t even with opponent questioning. This conclusion was not in the final report. Nor was that shared in the suspension letter that was made available publicly.
In an actual legal system, more than one person hears the complainant’s testimony. If it ends up going to trial, an entire jury hears it.
In an actual legal system, more than one person cross-examines the complainant.
Kia Roberts, the only person who interacted with Elliott’s accuser recognized her significant credibility problems and would not have recommended discipline. She had in her notes an entire document with inconsistent statements. And notably, none of this was under oath testimony, like it would be in a real legal setting.
Report Manufacturing. Both Kia Roberts and another former prosecutor working for the NFL, Lisa Friel jointly wrote a report. The report left out a lot of information that favored Elliott. The report did not state Roberts’ concern with the credibility of the accuser nor did it contain her recommendation based on that for no discipline.
The NFL hired experts to opine on things that would not be persuasive testimony in a court room, despite all the discussions of metadata. That you see pictures of injuries does not say how and when and who if any caused the injuries. The NFL experts noted the limitation of their testimony.
This is typical of how the NFL puts their reports together. They put a lot of shaky information together and then decide the quantity of it makes it somehow persuasive.
Panel of Advisors. Then there was a meeting with Lisa Friel and the panel of four advisors. I’m not sure what the panel of advisors was supposed to do. How do you judge the credibility of evidence if you don’t see and hear the witnesses? They just read a report written in the attempt to withstand the inevitable litigation. Kia Roberts was not invited to this meeting despite being the person who did the actual investigation and would not have recommended discipline.
Goodell Drops the Hammer. The only direct witnesses are the parties involved. There are some manufactured claims that this or that shows something happened, but after reading all the information, it all equals zero. The threats she made to his career do not mean it didn’t happen, nor does it mean it did. There is no way with the evidence that Goodell had at his disposal that he should be able to say there was credible evidence that abuse occurred. By the nature of his own process where the only person who talked to the key witness thought she wasn’t reliable. Or in any process.
NFL Flunky Handles Arbitration Appeal. The NFL does not use a neutral arbitrator. When they have, they usually lose so they avoid that. For those who think a neutral arbitrator could fix this horrible process, they can’t. A neutral arbitrator can’t fix intrusive investigations, deterring reporting, the time and money and destructive power of the NFL process. Maybe it would overrule the worst of it but not before it hurt peoples’ lives without care.
The hearing officer, Harold Henderson rubber stamped Goodell’s decision, indicating in a relatively cursory way, “the record contains sufficient credible evidence to support whatever determinations he made.”

The Domestic Violence Policy is Bad for the NFL and Basic Decency.

The NFL is good at football. The further they get from football, the worse they tend to get. Employers are much better at directing employees to helpful resources and education. That’s not very satisfying to those looking to exact vengeance for players they don’t like, but I’m not sure how six game suspensions do that either.
I wrote this with the intention of expressing my disgust for the entire record and NFL process being used in the Ezekiel Elliott case. As that is something I think is lost when people are talking about how many games he plays and when and legal arguments between lawyers.
I loathe all the unintended messages and lessons the NFL is amplifying with how poorly they have handled this. It makes me sick.
My intended message: Fair processes that treat people like human beings matter, even if you don’t care about the people involved this time. Sometime it may matter to you.

All that said, if you have questions about this or legal questions on how this is going to be handled, please put questions or comments below. It is better for everyone if I do this here versus trying to do it on Twitter. Please, nothing abusive to anyone or I will not approve it through moderation. I like my comment section to be a resource to others and typically it is. Sometimes there is a delay in approval because I do it all manually. Thanks.

Is Roger Goodell an 'Unthinking Moralist?'

September 9, 2015 by Steph Stradley 1 Comment

The following is a re-typed version of a NFL discipline column I wrote about Roger Goodell for the now defunct sports blog, FanHouse. Originally, when AOL sold the name, we were told that the links would remain live. That turned out to be not true.
While it was still live, I printed off quickly a few of my favorite pieces I wrote. This is one of them. I’ve re-typed the piece in its original form without the original links that explained extra context. [the text was too small for an accurate pdf conversion]
Is Roger Goodell an ‘Unthinking Moralist’
(originally written by Stephanie Stradley, April 1, 2008 for FanHouse)
Jeffrey Standen, a professor of law at Williamette University writes a blog called The Sports Law Professor. His most recent entry, entitled “Roger Goodell and the Cheating Scandal,” I think is worth a read, even if I don’t agree with all of it.
His argument is nuanced and is best read in its non-summarized form, but he’s a blogger so he knows how these things work. His contention is that the most profitable sports league in the world could have chosen someone more educated, reasoned and accomplished to be its commissioner. That so far in his job, Roger Goodell is “starting to look like an unthinking moralist.”
A moralist, as Professor Standen explains, is “the kind of person who prefers to arrive at the facile, stark ethical conclusion than to perform the heavy mental exercise of making fine distinctions that might produce a better answer.”
From this POV, Goodell has painted himself into a corner with the severity of the rhetoric and punishment he’s used to respond to the ~~Patriotgate~~ Spygate and player discipline scandals.
“A commissioner only has so much moral capital to expend,” he writes, and Goodell has spent his in awkward, to high profile ways.
I’m not sure I agree with his conclusions relating to Spygate. (I believe Goodell is responding in part to the pressure he is feeling from Senator Arlen Specter). However, I do have significant concerns about Goodell turning the commissioners office into nothing more than an arbitrary and capricious police, jury and judge.
In 2008, fans spend as much time trying to figure out punishments and their possible effects as they debate who will be draft picks or how their team will do next year. Here are some examples:
Player Discipline: Who knows how long PacMan Jones will be suspended? His suspension ended up being worse because Jones decided to go to a strip club the night before meeting with Goodell. NFL sports talk now involved how to structure a deal for a player when you have no idea when his suspension will be lifted. (Which is very different from talking about when his criminal cases are resolved.)
When you have an extremely vague standard for when someone will be suspended and how long that punishment will last, it creates media and fan debate on punishment issues. These debates in the mass media will always fall along moralistic lines.
What is going to happen to Vikings left tackle Bryant McKinnie? He pled not guilty to charges of aggravated battery, disorderly conduct, and resisting arrest. It sure would be nice for the Vikings and their fans to know what the extent of his punishment will be, if any, going into the draft.
And what is going to happen to Steeler Pro Bowl linebacker James Harrison, if anything/ He was accused of breaking down his girlfriend’s door, slapping her across the face and breaking her cell phone. (The Steelers cut ties with wide receiver Cedric Wilson immediately after he was accused of something similar, but he is a worse player than Harrison, so as FanHouser J.J. Cooper explains, the Steeler standard for his behavior is higher).
Harrison’s situation doesn’t involve repeated bad acts, but it does look a little strange when former Atlanta quarterback Michael Vick is likely going to be suspended for years no matter when he gets out of jail for the abuse of his dogs. Vick sits in limbo, but it’s possiblethat there will be no suspension for a player who hits a woman. When you throw the book at some things but not with others, it can look a little incongruous, even if you have good reasons for it.
Spygate. Goodell gave the Patriots the harshest NFL sanction ever, and some believe he did it before even having all the evidence. If former Patriot employee Matt Walsh ever gets to talking and has evidence of crimes that are worse than the punishment was originally, is Goodell going to double down?
Professor Standen believes:
“The ever-widening cheating scandal that now plagues the NFL would never have happened under Paul Tagliabue’s watch. He would have quietly fined the Patriots and moved on.”
Hard to say this with certainty, but Goodell embracing the role of grandstanding sheriff creates an expectation of additional sanctions and public pronouncements. Nothing can be handled quietly anymore.
Tampering. The 49ers get draft picks taken away for doing what most all the other teams do, and they didn’t even get the tampered player. Chicago gets to benefit from the tampering charge, even though they weren’t really harmed, by switching third round picks with the 49ers.
If this is moralism, it may be a highly ineffective strain. Who knows what the long term effects of this punishment will be other than maybe changing the way that teams handle their interoffice emails/
Strangely enough, the way that Goodell’s punishment came down, he seems to conclude that violating the rule against spying on another team is 11 times worse than tampering.
Overall. Recently, Goodell put his sheriff’s hat on again, and in a memo announced that the league wants to conduct unannounced searches of locker rooms and press boxes, and to inspect in-game communications devices. After a string of alarmingly arbitrary rulings, he’s stated that he wants to lower the standard of proof needed for him to impose penalties on a coach, executive or team.
Does that really make you feel better about the integrity of the game?
Last summer I discussed my concerns that Goodell’s player personal conduct policy had the unintended consequence of increasing the attention that fans pay to bad actions. It causes fans and media to debate what potential penalties will occur because there is no real standards, and Goodell has put himself in the spotlight as the decider of everything.
Interestingly, Michael David Smith in his work for the New York Times states that the most underreported story in the NFL is the resentment that some players feel toward the commissioner. And why not? The penalties are unprecedented, the standards for punishment vague with little due process, and the publicity from this tends to bring more attention to NFL bad acts.
Thought many fans have been generally supportive of Goodell’s crackdown, you’ll hear a different tune if you ask a fan of a team trying to navigate the draft under an utterly opaque cloud of uncertainty.
Whether or not Roger Goodell is guided by an inflated sense of morality is frankly secondary to the fact that, whatever is guiding him, it isn’t consistent. For all anyone can tell, he’s just making stuff up as he goes along.
-End-
________________________________

This blog post is a bit back to the future.
Harsh, arbitrary punishments combined with no concern for fair process means that the cycle will repeat with different topics, names, processes, teams.
We will hear the headline version of events given to us by the NFL. The people investigated often cannot defend themselves publicly due to pending litigation and fears that speaking out will anger the commissioner more and be seen as lies and obstruction. Confession and remorse are often required by Goodell, and is not an option for those who maintain actual innocence.
Unfair process means that fans often don’t hear anything close to the real truth about a controversy. And we know that the process is unfair because there is no reasoned way for a targeted player, staff member, team to maintain a claim of actual innocence.
After the Brady case is done, the NFL will likely tweak their processes without looking at their overall philosophy of punishment. And the cycle will continue.

Please note: These comments below are moderated by me. I know people are angry about this subject, but I’d prefer no personal attacks of people and a focus on NFL discipline system issue questions and answers.

Saints Bountygate Litigation and The Death of Reason

August 6, 2012 by Steph Stradley 20 Comments

Sadly, sensible legal maneuvers are often incompatible with common sense. That is likely reason 2,366,254,863 people don't like lawyers.

The posturing involving Saints "Bountygate" makes little real sense, but settlement of the lawsuit is very difficult due to issues of ego, power, opposite viewpoints, and lawyering. I have a hard time figuring out what the NFL's goals are other than a demonstration of power over the NFL Player's Association. For example….

Increasing Punishment Based on Retaliation?

This weekend Jason Cole wrote on Twitter that NFL sources suggested Jonathan Vilma's suspension would have been reduced to maybe 4 games instead of the entire season had the NFLPA cooperated with the NFL. Really? How is that a reasoned, non-arbitrary system to retaliate against players due the advice of their union and lawyers?

The idea is that had Vilma and other players cooperated with the NFL, they would have got a reduced punishment. Don't think there is any evidence of that.

The Saints coaches participated in the flawed, secret evidence, bizarre due process appeal to the Comissioner, and got zero reduction of their suspension. NFL Commissioner Roger Goodell believed that the coaches lied. Both Saints head coach Sean Payton in his sole public statement, and interim head coach Joe Vitt in sworn court testimony suggested that they didn't lie. If Goodell doesn't believe Payton after speaking to him in person, and Vitt after he has testified under threat of prosecution of perjury, I'm not sure what evidence is sufficient for Goodell.

Goodell Could Get Closure Right Now.

Goodell in his appeals decision noted: "While this decision constitutes my final and binding determination under the CBA, I of course retain the inherent authority to reduce a suspension should facts be brought to my attention warranting the exercise of that decretion."

Well, what is stopping him now? That the players didn't go to NFL Headquarters in New York to kiss his ring?

There's been court testimony in support of the players' position. There's plenty of information shared about the facts in the litigation documents the NFL's attorneys have and are available publicly from many sources, including one of my previous blog posts.

The Federal Court, like in most cases, is requiring the parties to engage in confidential settlement talks. For an appropriate magistrate-mediated settlement, you have to have parties with authority to settle. If Goodell wants his face-to-face meeting to look into the players' souls, heart, spleen or whatnot , that is more than an appropriate setting.

And now Jonathan Vilma's lawyer has filed documents with the Court complaining that the NFL is violating the confidentiality of settlement talks.

Misunderstandings Happen. Why Common Sense Dictates A Shared Resolution.

I've made the point before that Goodell keeps moving the goal line of what the Saints are being punished for as clearer evidence comes out. Goodell claimed this weekend that pay to injure is not a semantic issue, but the Saints players and coaches have a vehement, reasoned disagreement with him. Is there evidence of bounties, pay-to-injure, pay-for-performance? There's solid evidence on pay-for-performance, but the players and coaches are being punished for intent to injure and lying.

I think Saints QB Drew Brees has the most sensible point of view on this. From his interview with NFL Network as reported by ProFootballTalk:

“Do I trust the Commissioner? I think that Commissioner Goodell has done a lot of great things for this league. It just happens to be that, in this instance, with the bounty, I think that the league and he have gotten this one wrong. And we all have the opportunity to re-evaluate this and make it right, come to a positive resolution and do it together. And be very open and transparent about it.”

“The most disturbing thing is the process, the process by which this whole thing was unveiled. The intentions were never made clear from the very beginning. I think coaches and players alike were kind of brought in to talk to the Commissioner and the league under false pretenses, and all of a sudden it’s just like a media firestorm and evidence and things are getting leaked to the media, things are being reported that are proven to be untrue in a lot of cases. And yet it’s out there. The perception has been created nationally for fans and all those that love our game that there was something illegal going on here. And that’s everything against what we stand for. And that’s why we fought so vehemently to prove that’s not the case.”

Instead of using the punishment model for this matter, the NFL instead should have used the prevention model.

In Vitt's testimony in court, he noted that he didn't know that payments for performance were against league rules though he also noted that he should have known. The NFL has said that in 2009, the Saints were warned against this behavior. Were the players warned? Certainly, it wasn't made a league wide point of emphasis like illegal hits have been in recent years. If the NFL was intent in getting rid of the "culture of bounties," perhaps they should have done more to make that happen back when they had suspicions in 2009.

When punishment and grandstanding seem to be the NFL's intent by their actions and public statements, it doesn't create an atmosphere of trust with players and coaches to try to have reasoned discussions with the Commissioner.

The NFL suggests there is evidence that hasn't been revealed which demonstrates this goes beyond a misunderstanding. Perhaps this is the case, but when players' reputations, careers and money are at stake, they are not likely going to want a resolution without putting that evidence to the test.

Goodell as "Judge, Jury and Executioner" Under the CBA: This View Misses the Point.

Even those who believe that Commissioner Goodell's decision was wildly excessive, point to the view that the players shouldn't have agreed to the system in the CBA that gives Goodell the power to make unfair decisions based on secret evidence with no neutral appeals body.

This view misses the players' viewpoint that they believe the CBA does have protections built in it both explicitly and implied through just the general protections workers receive in collectively bargained rights in discipline matters.

Goodell has already noted that these are unprecidented sanctions. And I believe, there was substantial uncertainty on what the appropriate CBA procedures were to handle suspensions like this, after an arbitration appeal was pending.

To give harsher punishments to players due to uncertainties in the CBA discipline procedures seems unfair on its face. I think the NFL and the NFLPA have a reasoned disagreement on how the CBA is interpreted. Why should players with finite careers receive harsher punishment because of that?

Giving the Parties a Do-Over.

The handling of this situation has been a blackeye to both the NFL and the Saints. It has destroyed reputations. If the goal of the NFL is to defend its integrity, it's bizarre to do it in a way where the NFL says they are being fair, but they reserve the right to be unfair and to do things whatever way they want.

The reasoned, sensible thing to do would be to make all the suspensions go away. The Saints draft punishment and fines are significant enough, and the public attention to this situation clearly would deter further similar conduct.

It would be reasonable to agree that the Saints and the NFL have a different point of view of what transpired. That often people can honestly have two different points of view of the same events. And have all the parties work together to make sure that no pay for performance system of any sort ever happened in the NFL again. And everybody lives happily ever after.

That makes too much sense so it won't happen. And reason dies like it has since the beginning of time.

Roger Goodell Moves the Goal Line: Part 2 Saints Bountygate Q&A

July 7, 2012 by Steph Stradley 10 Comments

Before reading this Q&A, please read Part 1, "Saints Bountygate is Now Saints Litigate: Common Q&As." Documents relevant to the "Bountygate" issue are located there, along with answers to a lot of talk radio type questions.

Please read the documents yourself and draw your own conclusions. Here are my answers of additional questions received from NFL fans:

Will the failure of the players to participate in the June 18th hearing in front of Roger Goodell work against them?

That's the question posed by the Pro Football Talk Mike Florio's blog post, "Failure to participate in appeal process could come back to haunt players."

I'm not sure the players had any good choices to make by the time the June 18th meeting happened. Legally, they are playing defense. They were faced with making the better of bad choices.

I suggest reading the June 18th transcript of the hearing to hear both the NFL's and the players' point of view on why player participation didn't happen. Will also note that there's some factual question whether the players had a meaningful opportunity to meet with the commissioner before he ruled on the player's fate.

Here are some reasons why the players may not have chosen to participate:

1. It may undermine your future lawsuit to participate in a process you know is a sham. Participation can equal validation.

2. Roger Goodell is moving the goal line. The NFL keeps changing the reasoning for why the punishments are the way that they are. So maybe a player denies bounties, then maybe the player is getting the same strong punishment for something else–lies, pay for performance, leadership role in pay for performance, not discussing things quickly with the commissioner?

With most NFL punishments, it is very clear what the player is getting punished for–usually some sort of criminal event or drug use in violation of rules. In this situation, it is an evolving offense. For example, the note "Cart-offs" may not mean actual hits intended to hurt players so they have to get carted off the field, but then the NFL argues that terminology is still very bad because it incentivizes actions more likely to hurt people.

Goodell has strongly condemned payments to injure, and has accused players of funding this, but the evidence relating to player performance pools (rewarding normal positive/negative plays) seems stronger than the pay to injure, pay to hurt a particular player evidence.

3. Given what Goodell said before the hearing, how can you fathom he'd change his mind about anything? Goodell says part of the punishment of Sean Payton is that Payton lied to him, and in Payton's brief statement after the punishment he said that he did everything in his power to answer the questions honestly. Both parties can believe they are right, but only Goodell's point of view matters.

How do you prove a negative? To the degree Goodell wants it. Swear on stack of Bibles? Lie detector test? See if you are a witch and float? If they keep changing the evidence that they are relying on, how do you refute it if you can't talk to witnesses, know who saying stuff against you, give reasons why that evidence is bad?

The players already are in a position where they are refuting things not given to them in the evidence from the NFL, but refuting things they've heard in the media that might be the things the NFL is relying on. The players are being asked to question the investigators, but have a hit or miss opportunity to question the people with first-hand knowledge.

One moment the NFL is claiming that the video of Anthony Hargrove is a key part of the case, and the next moment they say they aren't relying on that for the punishment, but they are keeping Hargrove's punishment exactly the same as when they thought they had incriminating video. What other evidence is not reliable?

To participate in this environment, given the player's view, is a sham. For them it isn't a fair hearing but more akin to asking your executioner where exactly you need to put your head on the block.

Why don't the players ditch all the lawyering and take Roger Goodell up on his offer to listen to their evidence outside the structure of the CBA?

Theoretically, Goodell could have an open mind about this case. But there is no reason, facts, history for the players to believe that talking to the Commissioner would lead to any better results than when Saints Head Coach Sean Payton spoke with Goodell.

The only time that Goodell has been lenient to players in the past is if they demonstrate contrition, do some sort of treatment, keep their nose clean. What could the players do to change Goodell's mind with the shifting sands allegations and evidence? I can't think of any proof that would be sufficient enough for Goodell to change his mind on punishment.

How can Roger Goodell protect whistleblowers from repercussions while still penalizing the players he believes paid to injure other players?

There is a difference using whistleblower information to identify a practice or stop a practice from continuing versus using it to discipline players, hurt their income and careers and publicly harm their reputation.

Certainly, the NFL has an interest in encouraging people with knowledge of bad acts to come forward without fear of reprisals. The NFLPA argues in its complaint that once that information is used to discipline an employee, the law requires those witnesses be available for further examination. (Pp. 70-71 of NFLPA v NFL).

On a slightly different point, Mike Florio at Pro Football Talk eviscerates the NFL's contention that secret witnesses help maintain "the integrity of, and public confidence in, the game of professional football." That is worth a read.

Fair shmair, this is the process that the players agreed to. Why all this talk of fairness?

I answered this question some in the last post. There is a difference of opinion between the NFL and the NFLPA on what is required by the CBA as far as the level of due process and who the arbiter can/should be. The players are not arguing that the CBA is unfair but rather that Roger Goodell and the NFL are not following the procedures that are explicit and implicit in the CBA.

I strongly suggest reading the final disposition of the matter signed by Roger Goodell (but certainly not written by him because of all the legal blah blah in it). It makes the compelling yet awkward argument that this is a fair procedure, trust me I'm fair, but too bad if I'm not fair because the players agreed to this. Not sure that argument adds to integrity and public trust of the NFL, especially after all the public questions that have been raised about much of the Bountygate evidence revealed so far.

Certainly Saints fans aren't feeling that integrity, public trust thing.

What should be expected from the settlement conference in front of the Magistrate scheduled July 23rd?

A Federal magistrate can be described as a Federal court helper judges–they help with a lot of judgely administrative tasks. Some magistrates have more ability in mediating situations than others. Mediating is just a fancy way of saying help voluntarily settle.

Early settlement conferences in courts are standard procedure because courts would prefer for parties to work things out themselves instead of the courts having to do it. It's cheaper, faster than full boogie trials, and settlements can often lead to resolutions that are better for the parties than what the judge decides.

Usually settlement conferences don't amount to much. But this isn't a usual, normal money damage case. There is a great deal of public interest in quick closure in a way that works to the benefit of both the NFL and players.

Some magistrates are better than others in trying to engage the parties in real settlement discussions. It may be that there is such a profound lack of trust, middle ground, that any settlement discussion just can't happen.

That being said, if Goodell wanted a mechanism to talk to the players outside the CBA context to get real information in the case, this could be a face saving way for each party to share information. The court is the party forcing the discussion, not either side caving in.

Do you see Saints penalty = SMU death penalty? Overly severe, but never used again?

I think it depends on the outcome of this litigation.

If you read the Roger Goodell final appeals letter, it stands for the proposition that Roger Goodell can basically do whatever he wants with whatever fairness standards he deems as it relates to "conduct detrimental to the intrigrity of, public confidence in, the game of football."

If you read the NFLPA complaint, it suggests that there are fairness protections that are both spelled out and implicit in this CBA and in any CBA.

As I've noted before, just because you have the power to do something, doesn't mean that it is a wise thing to do. Bringing a punishment that goes beyond deterrence into vengence hurts fans that had nothing to do with the original problem.

Bountygate is an example of the Commissioner bringing a severe, unprecidented punishment for something 1. More important to the NFL now than it was in the past. 2. He believed he was deceived and ignored about. If that set of circumstances happens in the future, I don't see why he wouldn't drop the vengeance hammer on another fanbase, team, player. Maybe not on this specific issue, but some other thing that becomes a pet issue.

I've written about the rise of the Commissioner's power since 2007, and the emphatic, emperial use of that power in 2009. Clearly Roger Goodell is not afraid to assert his authority, especially now that he has a new CBA in place and doesn't have to negotiate with the NFLPA. There's no reason to believe absent court/arbitrator rulings to the contrary that Goodell won't use overwhelming punishment in the future with whatever fairness standards he feels are appropriate.

Related Articles:

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

Saints Bountygate is Now Saints Litigate: Common Q&As

July 5, 2012 by Steph Stradley 5 Comments

This week in dysfunctional labor relations pits the NFL Players Association (NFLPA) against the NFL. Unsurprisingly, after the NFL came out with their final determination in the so-called Saints Bountygate bounty/pay for performance issue, the NFLPA filed suit against the NFL on behalf of all the penazlied players except Jonathan Vilma.

This is after Saints player Vilma had already sued Roger Goodell for defamation, and Goodell and the NFL to stop his punishment.

If you are a NFL fan who wants to have an informed opinion about these matters, I suggest reading the actual legal documents.

Some people believe that this is something that only Saints fans should have interest in, but if you are a NFL fan, you should have a concern about these troubling detailed allegations. If Roger Goodell can do draconian punishment with unusual due process protections to the Saints and their players, they can do this to any team.

And if you are not interested in this matter, the documents double as a cure for insomnia.

Also want feedback from lawyers who might have expertise in this area or have practiced in front of the Eastern District of Louisiana to leave their comments here for sort of a roundtable discussion.

All of the following are Scribd links.

Common Bountygate Litigation Q&As.

Maybe you've read the legal documents, maybe not. Here's some common questions/misconceptions I've been asked about and the answers as I see them:

If the NFLPA agreed to a Collective Bargaining Agreement (CBA) process involving the NFL Commissioner as judge, jury, executionor, isn't it way too late for the players to be complaining about it now?

In any negotiation, each side has to give on things. The NFLPA tried to get the role of Goodell changed in the CBA but was unable to negotiate that.

That being said, Vilma and the NFLPA aren't arguing against the CBA procedures. They are arguing that the NFL failed to follow the new CBA as written.

Vilma is arguing that the decision making and document sharing wasn't done timely.

The NFLPA is making a more sweeping argument saying that both the fairness procedures in the CBA and just basic "industrial due process" weren't followed. That is, the NFLPA didn't have to build in a lot of detailed technical fairness procedures into the process because they are just a part of normal fairness procedures in other CBA contexts. Industrial due process is that bare minimum standards of due process that are allowed all disciplined employees in arbital proceedings.

How are the courts going to rule on this stuff?

In general, do not try to predict what federal judges are going to do. They have a job for life as long as they don't do anything completely criminal. And even then, it is hard to get rid of them.

More specifically to this case, this is a bizarre situation. As both the NFL and the NFLPA state, the punishment in Bountygate was unprecedented.

Not only is the punishment unusually harsh, but it is an odd circumstance. With many of his off-the-field punishments, Goodell has access to police investigation records. And it is obvious that the player did something bad and dumb even if they haven't been criminally prosecuted fully yet. And often there are enough carrots with his stick punishment, that players know they can get on the field quicker if the player is sufficiently contrite, does some sort of therapeutic penance and stays out of trouble. These are usually one-off situations that affect one player's particular criminal event.

Or in Spygate, the punishment was swift, sure, punitive, but didn't overly effect people's long range careers.

In Bountygate, the players have a very limited playing career, feel punished for an organizational issue and are very much contesting the allegations made against them. Whether the players did this or not, Bountygate affects every aspect of league punishment and stands for the proposition that players can be penalized for things organized and promoted by their teams based on secret evidence.

I'm guessing that if the investigation had been finalized prior to the signing of the CBA, the NFL may have used a fairer procedure and may have done lesser punishment. I'm guessing, if the NFLPA knew that the NFL would provide sanitized limited evidence in an untimely fashion and call it fair, they would have fought the NFL harder to make employee protections more explicit.

Doesn't the NFL need to protect the whistleblower(s) in Bountygate?

Whistleblower laws in the United States are a patchwork of different laws for different circumstances. Usually those circumstances are very limited. Most whistleblower laws protect employees against retaliation from their employers in very narrow situations, not from other employees finding out what you told your employer.

Do think the NFL has an interest in keeping whistleblower information secret. However that interest seems to diminish when they use that information to take a disciplinary action that deprives an employee of money, harms his limited playing time career, damages his professional reputation.

What are the odds of Jonathan Vilma's defamation case in winning?

Public figures who have false allegations made against them that causes them harm are often urged to sue for defamation. Few do. Why?

It's expensive. And public figures have a higher hurdle to prove than non-public figures. They have to prove "actual malice," which means that the person making the statement knew it to be false or said it with reckless disregard for the truth. In addition, if it is a matter of public interest, often those statements can be protected from defamation claims.

And in this particular case, Goodell is arguing that the courts don't have the jurisdiction to handle defamation matters related to things in the CBA. This point is the important one. If a court has no jurisdiction, means that broad judicial lawsuit discovery doesn't happen at all. The NFL wants to say their information is solid, their process is fair, but they don't want to share any of the information without it being heavily sanitized. If Vilma gets passed this first procedural hurdle, federal court discovery is very broad in scope, and just about everything will be out in the open.

So aren't these lawsuits just about getting discovery information?

That's a part of the Vilma defamation complaint. I wouldn't just reduce it to just that because it is bad thing to have your reputation tarnished in a way that you believe is false in a way that affects your ability to make a living. Defamation suits are an expensive, emphatic, often futile way of saying, "I didn't do this."

Defamation suits are serious business. Typically, most human resource lawyers for companies advise supervisors not to make public statements about company investigations of employees or former employees for defamation concerns. Of course, those situations usually do not involve things of public interest nor public figures.

If you look at both the Vilma and the NFLPA cases, it goes beyond just figuring out what the NFL's evidence is instead of relying on "just trust us." This involves larger important matter of: If Goodell is making career altering decisions, what is the minimum level of due process that he needs to do and what protections do players have against false accusations?

That is a big deal, a 10-year-length of the CBA big deal.

Why didn't the players talk to Goodell and defend themselves? Why don't they talk to Goodell now since Goodell said he'd think about reconsidering the punishment?

If you read the complaints and the public statements about this, there are differing accounts of whether the players and/or their attorneys had the ability to meet with Goodell.

There's a dispute on the nature of the evidence that the NFL needed to provide the players and the timing of that evidence.

Ultimately, the players are put in a very bad situation. They are the subject of general accusations against them coming from a secret source. It is difficult to prove a negative, particularly when you can't examine the evidence against you and may have limitations in accessing and questioning witnesses.

Goodell is holding out the carrot of some sort of outside of the CBA reprieve if the players talk to him, but I'm not sure there is any middle ground. If someone believes you are lying, and are punishing you partially because he thinks you are lying, it is pretty hard to convince someone to the contrary.

This is dumb. I am sick of hearing about it. Why can't the NFL and NFLPA get along?

Best question of all.

I hereby agree to mediate this disagreement for 1/10th of what the lawyers are getting paid to litigate this and fund my childrens' college educations.

Mediation actually is a way that parties in litigation can come up with a result that everyone can live with. When courts order this, and make the parties do this, it allows both sides to save face by forcing them to talk without harming their litigation cases.

The NFL would likely want no part of that because they don't want the courts to have the ability to tell them to do anything. The NFLPA/players would likely think it is futile given the NFL's public statements to make the Saints an example. It's very hard to mediate when each side perceives no middle ground.

The NFL and the players could do a mediation outside of being a court ordered one. A time out. I've used these in disputes even before litigation has occurred and resolved things in a face-saving way for everyone.

High stakes power, PR, money and ego issues make any sensible, quick resolution difficult. Would not be unexpected for this matter to evolve a bit like the Star Caps one, where the punishments are deferred until process issues have time to be sorted in the courts.