The NFL Players Association has taken legal action challenging the authority of NFL Commissioner Roger Goodell to suspend four players for their alleged involvement in a so-called pay-for-performance/bounty program during the 2009-2011 Saints seasons. Earlier this week, Goodell issued suspensions to Jonathan Vilma, Anthony Hargrove, Will Smith and Scott Fujita.
Pro Player Insiders learned that late Thursday night the union filed a grievance with the NFL’s vice president of labor arbitration and litigation, Buckley Briggs, and a System Arbitration with the System Arbitrator, Professor Stephen Burbank of the University of Pennsylvania Law School. The complete filings are available below.
In the filings, the NFLPA argues that the punishments issued to the players for their alleged actions “violated the [league’s] duty of fairness to the players” because the process violated various procedural requirements of the Collective Bargaining Agreement, including limits on Goodell’s authority over the matter and failure to disclosure sufficient evidence of the violations
The system arbitration filing argues that, under the CBA, authority for any punishments to players for a pay-for-performance program rests with the System Arbitrator, not with the Commissioner.
In connection with entering into the 2011 CBA, the NFL agreed to release players of all pre-CBA conduct, which would mean that only events during the 2011 season could even be considered. The NFLPA’s grievance filing states that Goodell is “prohibited from punishing NFL players for any aspect of the ‘pay-for-performance/bounty’ conduct occurring before August 4, 2011.”
Vilma, still with the Saints, is suspended immediately for the full year without pay, and will be reinstated following the 2012 season’s Super Bowl. Fujita, now with the Browns, is suspended for the first three games of the 2012 season without pay. Anthony Hargrove, now with the Packers, is suspended for the first 8 games of the season without pay. Will Smith, still with the Saints, is suspended for the first four games of the season without pay.
System Arbitration Proceeding
With the filing of the System Arbitration, the union argues that under the 2011 NFL-NFLPA Collective Bargaining Agreement, the exclusive jurisdiction over the alleged conduct rests with the System Arbitrator Stephen Burbank rather than Goodell.
The key to this argument is that the alleged actions for which the players are being disciplined are violations of the rule against non-contract bonuses, according to the security reports and the Commissioner’s letters to the players. Therefore jurisdiction over these actions is with the System Arbitrator not the Commissioner.
As noted above, the NFL Security Report Stated that the alleged “pay-for-performance/bounty” program violated the CBA’s prohibition against non-contract bonus payments (Ex. A), at 1, 3 and the decision disciplining the Saints coaches stated that the “first” principle guiding the discipline was the “longstanding rule against non-contract bonuses” (Ex. B), at 4…
The NFL Security Report – upon which the discipline was based – is 100% accurate in describing the alleged conduct at issue as being governed by the CBA’s prohibition against non-contract payments to players. See, e.g. (Ex. A), at 1 (“The NFL has long had in place rules prohibiting ‘Non-Contract Bonuses.’ Such provisions violate both the NFL Constitution and By-Laws and the Collective Bargaining Agreement.”)…
As to violations of these provisions by the Club’s and players’ participation in an alleged undisclosed payment scheme, the exclusive jurisdiction for such issues rests with the System Arbitrator. See CBA, Article 15, Section 1…
Furthermore, the CBA provides that only the System Arbitrator is authorized to penalize players for alleged violations of the undisclosed payments provisions. See CBA, Article 14, Section 6(a).
Essentially, the System Arbitration filing states that Commissioner Goodell has neither the authority nor the power to issue punishments to players under these circumstances.
Non-Injury Grievance (Release of Pre-CBA Player Conduct)
The NFLPA, in its non-injury grievance, argues that the league is prohibited from punishing the players for any conduct that occurred before August 4, 2011.
The NFLPA’s grievance letter to Vice President of Labor Arbitration and Litigation W. Buckley Briggs, of the NFL Management Council, states:
In connection with entering into the 2011 CBA, however, the NFL released all players from conduct engaged in prior to execution of the CBA…
As a result of the release, the letter argues that Commissioner Goodell is “prohibited from punishing NFL players for any aspect of the alleged “pay-for-performance/bounty” conduct occurring before August 4, 2011.”
Additionally, the grievance states that if any alleged acts by players took place following August 4, 2011, those acts would fall under the “on-field conduct” policy, not off-field behavior, which is governed by a different set of guidelines.
In that case, the matter would go to a designee of the commissioner—not the commissioner himself—and Ted Cottrell and Art Shell would hear any potential appeal. Cottrell and Shell are hearing officers who are jointly appointed by the league and union to hear appeals for on-field player conduct.
In Thursday’s letter to the league, union general counsel Richard Berthelsen wrote that the grievance should be heard by Shyam Das, the non-injury grievance arbitrator, on Wednesday, May 16, as Das “has a hearing date available” that day.
The NFLPA argues that the Goodell-issued punishments were imposed in a manner wholly inconsistent with the CBA because the Commissioner lacks the power to inflict discipline for the alleged behavior. Moreover, the filings state that if the league elects to pursue discipline against the four players, “it must initiate a proceeding” in front of the proper independent adjudicators (Burbank and Das) to present any evidence against Vilma, Hargrove, Smith and Fujita.
The documents obtained by Pro Player Insiders are available below:
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