Florio: Checks and balances are necessary in NFL

Florio discusses why check and balances have now become a necessity in the NFL disciplinary process.  Our forefather’s foresight lives on.

Goodell dismisses perception of bias in bounty appeals

Posted by Mike Florio on July 7, 2012, 10:55 AM EDT
Roger GoodellAP[Editor’s note:  The eight-page, single-spaced letter from Commissioner Roger Goodell affirming the suspensions of the four players accused of involvement in the Saints’ bounty program raises several intriguing points, arguments, and circumstances.  We’re breaking them up into separate posts, because after all a cow can’t milk itself.]

Accused of not being an impartial arbitrator in the Saints bounty case, Commissioner Roger Goodell has responded by explaining that he merely has implemented the procedures for which the players collectively bargaining.

The lawsuits challenging Goodell’s final ruling as to the suspensions of Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Packers defensive end Anthony Hargrove, and Browns linebacker Scott Fujitafocus on the claim that Goodell wasn’t capable of being a fair and impartial judge, because he had his mind made up before the June 18 appeal hearing — as evidenced by his public comments defending the discipline he imposed.

“[T]hat is precisely what the Union agreed to,” Goodell writes in the July 3 letter upholding the suspensions.  “It did so following extensive discussion and negotiation.  The Players Association and the League agreed not to interject a third-party into the review process, but instead to leave in place the longstanding practice of review by the Commissioner of ‘[a]ll disputes involving’ Commissioner action regarding conduct detrimental” to the game.

Goodell also explains that “prior announcement of the basis for discipline cannot render the Commissioner incapable of hearing an appeal due to the appearance of bias or any other reason.”

“In short,” Goodell explains, “I was no less capable of hearing these appeals in an unbiased manner than I have been of hearing, under this CBA and its predecessor, numerous other appeals involving conduct detrimental.  Nor, given the review process to which the parties agreed in the CBA, was there any basis for asserting an appearance of bias.”

While a federal judge eventually may agree that Goodell was impartial, there definitely is a good-faith basis for making the assertion that he wasn’t.  The league’s justifiable objective of “maintaining the integrity of, and public confidence in, the game of professional football” requires among other things a public relations strategy that pulls the public’s strings in a way that causes them to have confidence in the game of professional football.

So in cases where the Commissioner serves as the face of the effort to ensure public confidence in response to the league’s pre-appeal belief that the players were involved in a bounty program, it necessarily becomes harder to the Commissioner to serve as a truly impartial arbitrator.  If he changes his mind, the prior statements regarding his unequivocal belief that the players are guilty would have to be massaged and rectified and explained.

And if Goodell can’t pull that off without coming off as a flip-flopping politician or the ultimate leader of an investigation that turned out to be deeply flawed, public confidence in the game of professional football could be significantly shaken.

The procedure to which the parties agreed in the CBA gives Goodell a way to juggle situations in which his P.R. and/or investigative duties possibly have cemented his position as to player guilt.  Under Article 46, Section 2(a) of the CBA, the Commissioner appoints “one or more designees” to serve as hearing officers.  And so, in a case like this one, he could have (and the NFLPA will argue that he should have) handed the baton to someone who had no role in the investigation or in the effort to ensure that the league could disclose its belief that the Saints maintained a pay-for-performance/bounty system without shaking public confidence in the game.

The fact that Goodell was personally involved in the investigation (Mike Ornstein told PFT last month that he personally met with Goodell as part of the probe) potentially strengthens the argument that Goodell should have appointed someone who was more likely to come to the appeal process untainted by, for example, the mountain of evidence that was never introduced at the June 18 hearing by the league.  As the NFLPA will surely contend, how can anyone forget everything they learned during the investigation and focus only on the presentation from former prosecutor Mary Jo White as the sole record of evidence on which the appeals would be decided?

And so, while the NFLPA has agreed to a procedure that allows the Commissioner to resolve appeals involving cases of conduct detrimental to the game, federal law entitles all players to a truly impartial arbitrator — not an arbitrator who, consciously or not, feels compelled to defend the statements he has made and/or the investigation over which he has presided.

Put simply, the NFL wants an in-house appeal process that allows the league to treat as the top priority “maintaining the integrity of, and public confidence in, the game of professional football.”  The Federal Arbitration Act contemplates a process that provides fairness to those who have something tangible to lose as a result of an eventual arbitration ruling.  Even if the NFLPA agreed to the current process, a process that fundamentally is unfair to and/or biased against one side should not survive judicial scrutiny.

In the end, that’s the issue the court system faces.  The NFLPA will claim that Goodell wasn’t impartial, Goodell will claim that he was, and a federal judge will have to break the tie.