As the Saints returned to the field last Sunday in the Hall of Fame Game, noticeably absent from the sideline were head coach Sean Payton and linebacker Jonathan Vilma, both serving one-year suspensions for their involvement in the bounty scandal.
Unlike Payton, who has accepted his suspension, Vilma and the other players involved -- Scott Fujita, Anthony Hargrove, and Will Smith -- have contested the discipline by bringing suit against commissioner Roger Goodell and the NFL in federal court in New Orleans. The players have requested their suspensions be overturned; Vilma has also individually sought a preliminary injunction to block his.
A preliminary hearing was held on July 26, but Judge Helen Berrigan -- presiding over the case -- has declined to rule until she hears further arguments on Friday, when the NFL will try to persuade her to dismiss the lawsuit. Let's go inside the issues:
Superseding the commissioner
The collectively bargained NFL conduct policy grants Goodell full authority to discipline players for "conduct detrimental." Pursuant to the policy, Goodell suspended Vilma and the others and, predictably, affirmed their suspensions on appeal.
In going to court, Vilma appeared to be waging a futile, albeit spirited, battle.
Courts show great deference to procedures outlined in collectively bargained agreements, as well as to arbitrations. (Two earlier arbitrations on this matter ruled for the NFL.)
Vilma, however, may have found a judge unwilling to rubber-stamp Goodell's decision. At the July hearing, Judge Berrigan firmly stated: "The issue here is whether the commissioner complied with the requirements of the collective bargaining agreement in imposing the sanctions, and obviously I have a serious question as to whether he did." Berrigan stridently questioned NFL attorney Gregg Levy about Goodell’s jurisdiction to discipline here.
The NFL argues the case should be dismissed, as 1) Vilma's state law claims are pre-empted by federal labor law, 2) Vilma’s suit is an improper circumvention of procedures set forth in the CBA, 3) Vilma cannot prove "actual malice" by Goodell, as required in defamation actions, and 4) Goodell's freedom of speech is protected by Louisiana law.
The NFL will further argue that Vilma failed to use his CBA rights by not actively participating in the appeal process. Also, the NFL will contend that the NFLPA’s appeal of an earlier arbitration ruling on this matter is still pending in front of the NFL's newly constituted appeals panel, as per the CBA. The NFLPA continues to claim that cap arbitrator Stephen Burbank, not Goodell, is the appropriate individual to discipline the players. And, surprisingly, Judge Berrigan showed signs of agreeing with them.
With reports -- though strongly denied -- that there have been settlement discussions, Friday's hearing serves as a soft deadline for such talks.
Pros and cons of settlement
Settlement offers advantages and disadvantages to both sides.
For Goodell, a settlement becomes viable if Judge Berrigan’s initial sympathy to Vilma’s arguments becomes more evident. A settlement could prevent the uncertainly of her injecting herself into the disciplinary process.
A settlement by Goodell, however, is problematic, as it would set a harmful precedent of providing suspended players a roadmap to circumventing the CBA and weaken one of the key tenets of Goodell’s tenure, the policy’s power to player conduct.
For Vilma, a settlement would allow him to 1) play in 2012 and earn potentially half of his $1.6 million salary, and 2) become known as the player who fought the power of the commissioner and forced him to compromise his position.
A settlement by Vilma, however, would undermine his vehement and passionate public denials and stated goal of completely clearing his name, as it would be a tacit admission that he was involved in bounty misconduct.
While Judge Berrigan could conceivably rule from the bench on Friday, it’s more likely that she will take the matter “under advisement” and rule within a week or two. Vilma may attend the hearing as a spectator, but only the attorneys are expected to speak.
As Friday's hearing approaches, all eyes turn (again) to New Orleans.