NFLPA Book On Bounty

EXHIBIT A
Case 2:12-cv-01283-HGB-DEK Document 118-5 Filed 09/04/12 Page 1 of 604

BEFORE THE CBA APPEALS PANEL

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Re: New Orleans Saints Pay-For-
Performance/Bounty Program

NATIONAL FOOTBALL LEAGUE PLAYERS
ASSOCIATION,

Appellant,

v.

NATIONAL FOOTBALL LEAGUE,

Appellee.

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NFLPAS BRIEF IN SUPPORT OF ITS APPEAL

August 7, 2012
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TABLE OF CONTENTS
Page(s)
PRELIMINARY STATEMENT .....................................................................................................1
JURISDICTION ..............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................4
FACTUAL BACKGROUND ..........................................................................................................5
The Salary Cap System ..............................................................................................................5
The Ban On Undisclosed Consideration To Players..................................................................7
The System Arbitrators Jurisdiction .........................................................................................8
The Commissioners Limited Arbitral Jurisdiction Under the CBA .......................................10
The NFL Investigation Of The Saints Pay-for-Performance/Bounty Program ....................11
The Commissioner Disciplines the Saints ...............................................................................12
The Commissioner Disciplines the Players .............................................................................13
The System Arbitration ............................................................................................................15
The Commissioner Affirms The Player Discipline .................................................................17
The Federal Court ....................................................................................................................18
ARGUMENT .................................................................................................................................19
I. THE ALLEGED PLAYER CONDUCT AT ISSUE IS WITHIN THE
BROAD SCOPE OF ARTICLE 14, SECTION 1, WHICH MAKES NO
DISTINCTION BETWEEN UNDISCLOSED COMPENSATION THAT
IS CONTRIBUTED VERSUS RECEIVED BY PLAYERS ................................19
II. IT WAS LEGAL ERROR FOR THE SYSTEM ARBITRATOR TO
IGNORE THE LAW OF THE SHOP, AND OVERRULE THE PLAIN
LANGUAGE OF ARTICLE 14, SECTION 1 BASED ON HIS
PERCEIVED ANIMATING PURPOSE OF THE PROVISION ......................26
III. EVEN IF IT WERE PROPER TO CONSIDER PURPOSE OVER THE
PLAIN LANGUAGE OF THE CBA (IT IS NOT), INTERPRETING
ARTICLE 14, SECTION 1 TO APPLY, REGARDLESS OF WHETHER
THE PLAYER RECEIVED OR CONTRIBUTED FUNDS, IS
CONSISTENT WITH THE CBA PURPOSE OF PROHIBITING
UNDISCLOSED PLAYER COMPENSATION ...................................................29
ii

IV. THE NFLS POLICY ARGUMENTS AGAINST THE SYSTEM
ARBITRATOR HAVING JURISDICTION ARE BOTH LEGALLY
IRRELEVANT AND MERITLESS ......................................................................33
V. ALL OF THE DISCIPLINE MUST BE SET ASIDE ...........................................35
CONCLUSION ..............................................................................................................................36

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TABLE OF AUTHORITIES
Page(s)
CASES
Avis Rent A Car Sys. v. Garage Emps. Union, Local 272,
791 F.2d 22 (2d Cir. 1986).......................................................................................................35
In re Bills, Jets, Panthers,
slip op. (Feb. 14, 2007) ............................................................................................................27
Denver Broncos v. Lelie,
slip op. (Apr. 23, 2007) ............................................................................................................27
McNeil v. NFL,
790 F. Supp. 871 (D. Minn. 1992) .............................................................................................6
Morris v. New York Football Giants,
575 N.Y.S.2d 1013 (Sup. Ct. 1991) .........................................................................................11
NFLPA v. NFL,
slip op. (June 4, 2012) (Burbank) .................................................................................... passim
Reape v. N.Y. News, Inc.,
504 N.Y.S.2d 469 (App. Div. 1986) ........................................................................2, 20, 27, 28
Reggie White v. NFL,
No. 4-92-906 (D. Minn.) .................................................................................................. passim
SEIU, Local 32BJ v. Coby Grand Concourse, LLC,
No. 04 Civ. 9580(CSH), 2006 WL 692000 (S.D.N.Y. Mar. 16, 2006) ...................................35
White v. NFL,
No. 4-92-906 (D. Minn.) ................................................................................................. passim
White v. NFL (30% Rule),
899 F. Supp. 410 (D. Minn. 1995) .............................................................................................4
White v. NFL (49ers Undisclosed Agreements),
Civ. No. 4-92-906(DSD), slip op. at 5-6 (D. Minn. Mar. 30, 2000) ........................................27
White v. NFL (Broadcast Contracts),
766 F. Supp. 2d 941 (D. Minn. 2011) ........................................................................................4
White v. NFL (Circumvention),
92 F. Supp. 2d 918, 926 (D. Minn. 2000) ..................................................................................5
White v. NFL (Grbac-Hobert),
972 F. Supp. 1230 (D. Minn. 1997) ................................................................................. passim
iv

White v. NFL (In re Kyle Richardson),
149 F. Supp. 2d 858 (D. Minn. 2001) ............................................................................4, 27, 34
White v. NFL (In re Vick),
533 F. Supp. 2d 929 (D. Minn. 2008) ........................................................................................4
White v. NFL (Lelie),
slip op. (Nov. 16, 2006) ...........................................................................................................24
White v. NFL (Salary Cap Valuation Issues),
slip op. (Sept. 28, 2005) .....................................................................................................24, 34
White v. NFL (Sauerbrun),
slip op. at 4 (Apr. 18, 2006) ...............................................................................................27, 29
White v. NFL (Wally Williams),
slip op. (Mar. 9, 1998) .........................................................................................................5, 28
OTHER AUTHORITIES
Elkouri & Elkouri, How Arbitration Works 172 (Alan Miles Ruben ed., 6th ed. 2003) ...............35
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PRELIMINARY STATEMENT
In the decision below, the System Arbitrator issued a decision based on a theory that had
never been briefed or argued by the parties, and that is contrary to the express terms of the
governing Collective Bargaining Agreement (CBA) language. This case concerns whether
Article 14, Section 1 of the CBA applies to the alleged participation of four NFL players in a
secret pay-for-performance/bounty system developed and administered by the New Orleans
Saints, and funded by both coaches and players, to incentivize the on-field performance of Saints
defensive players. If this provision applies to the players alleged conduct, then any punishment
for that conduct is exclusively within the jurisdiction of the System Arbitrator, not the NFL
Commissioner, who has claimed the right to discipline these players for conduct detrimental to
the NFL.
Article 14, Section 1 was drafted in extremely broad terms, providing that [a] Club . . .
and a player . . . may not, at any time, enter into undisclosed agreements of any kind . . . or
understandings of any kind . . . involving consideration of any kind to be paid, furnished or made
available or guaranteed to the player . . . by the Club . . . either prior to, during, or after the term
of the Player Contract. The System Arbitrator correctly held that the alleged pay-for-
performance/bounty program constituted an undisclosed understanding under which monies
were made available to Saints players by the club. NFLPA v. NFL, slip op. at 6 (June 4, 2012)
(Burbank) (hereinafter Opinion), submitted herewith as Ex. A. However, the System
Arbitrator also held, in clear error, that Article 14, Section 1 somehow contained a distinction,
as to players, between funding the pool or making offers or pledges to contribute sums to it, on
the one hand, and accepting (or agreeing to accept) distributions from it, on the other. Id. at 7.
Specifically, the System Arbitrator held that accepting or agreeing to accept monies from the
program would be covered by Article 14, Section 1, but agreeing to help fund the program, and
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contributing or pledging to contribute monies into it, would somehow be excluded from the
coverage of Article 14, Section 1. This interpretation which has no basis in the language of the
provision was in error.
First, the alleged player conduct at issue clearly falls within the scope of Article 14,
Section 1, which applies when there is an alleged undisclosed agreement or understanding,
outside of a Player Contract, that consideration will be made available to a player by a Club. The
provision makes no distinction between undisclosed consideration that is contributed versus
received.
Second, the System Arbitrator erroneously overruled the plain language of Article 14,
Section 1, based on what he perceived to be the animating purpose of the provision, i.e., to
prohibit undisclosed compensation. Ex. A, Opinion at 6-7. However, the System Arbitrator
ignored the governing law of the shop principle that the CBA is to be interpreted based upon its
plain language, without any second-guessing by the arbitrator as to whether that plain language is
consistent with the perceived purpose of the CBA. See White v. NFL (Grbac-Hobert), 972 F.
Supp. 1230 (D. Minn. 1997). This is in part due to the fact that the CBA contains an
unequivocal bar on the use of parol evidence in interpreting these provisions (Article 70, Section
2), in contrast to the New York case upon which the System Arbitrator inappropriately relied;
that case used parol evidence to reach the opposite result (see Reape v. N.Y. News, Inc., 504
N.Y.S.2d 469, 470 (App. Div. 1986)).
Third, even if an animating purpose could override the plain language of the CBA (it
may not), the System Arbitrator failed to consider that player contributions or pledges of money
are part of the exact same agreement concerning undisclosed compensation that is exclusively
subject to the System Arbitrators jurisdiction. In other words, a player contribution and a player
receipt are two sides of the same coin, and the System Arbitrator provided no textual or other
reasoned basis for treating them differently under Article 14. Under the salary cap system, NFL
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players are often requested by clubs to renegotiate their Player Contracts to give up money in a
particular season so the club may use that room to sign other players. Indeed, the NFL itself
contended in a prior proceeding that a player violated Article 14, Section 1 by secretly agreeing
that his compensation in a particular contract year would not be paid to him. Player
contributions of money to other players, at the behest of a Club, are thus not unmoored from
the function of this provision, as the System Arbitrator mistakenly believed. And, in this case, it
is alleged that the exact same pay-for-performance/bounty program both funded and paid
players, outside of their contracts, to incentivize them to play as the club desired.
Fourth, the end of the world, slippery slope policy arguments made by the NFL are
meritless. As already noted, the plain language of the CBA must control, and the System
Arbitrator has no authority to second-guess the compromises struck in that language. Moreover,
the System Arbitrators exercise of jurisdiction over these undisclosed payments would not
supplant any authority the Commissioner may have to discipline players for actual conduct
detrimental, such as throwing games, taking bribes from gamblers, etc. In contrast, the NFLs
theory that the Commissioner can punish a player for any behavior so long as the Commissioner
chooses to label it conduct detrimental, regardless of whether the conduct is covered by the
exclusive jurisdiction of the System Arbitrator (and the Appeals Panel), would eviscerate the
CBA and the bargained-for procedural protections for the players. The parties carefully
negotiated a system in which neutral arbitrators like the System Arbitrator rather than the chief
executive of the NFL owners decide any potential punishment in those matters that have been
specifically assigned to those neutral arbitrators, including the alleged conduct at issue in this
case, payments outside players contracts.
Finally, given the indisputable NFL documentary evidence that the Commissioner
punished the players for their participation in a program under which they were paid non-
contract bonuses which is clearly within the scope of Article 14, Section 1 and the exclusive
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jurisdiction of the System Arbitrator all of the discipline at issue must be overturned. It is well
established that employer discipline must be vacated in its entirety when the person imposing the
discipline had no authority to impose it in the first place.
JURISDICTION
The System Arbitrator had subject matter jurisdiction over this proceeding pursuant to
Article 15, Section 1 of the CBA. Currently, Professor Stephen B. Burbank, of the University of
Pennsylvania Law School, serves as System Arbitrator. This Panel has appellate jurisdiction
over the System Arbitrators Opinion, pursuant to Article 15, Sections 7 and 8 of the CBA.
STANDARD OF REVIEW
The Opinion of System Arbitrator Burbank is based upon an incorrect interpretation of
the CBA language. Review by this Panel is thus de novo, and the Opinion is entitled to no
deference. White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858, 860 (D. Minn. 2001);
White v. NFL (Grbac-Hobert), 972 F. Supp. at 1235; White v. NFL (30% Rule), 899 F. Supp.
410, 413 (D. Minn. 1995); White v. NFL (In re Vick), 533 F. Supp. 2d 929, 932 (D. Minn. 2008)
(citing White v. NFL, 899 F. Supp. 410, 413 (D. Minn. 1995) (Because the appeal concerns the
interpretation of the terms of the CBA, the parties agree that the standard of review is de
novo.)).
The Appeals Panels appellate jurisdiction corresponds to that of Judge David S. Doty
under the Stipulation and Settlement Agreement in White v. NFL, No. 4-92-906 (D. Minn.)
(SSA) and the corresponding provisions of the prior CBAs. Nearly one-half of the Special
Master decisions appealed to Judge Doty from 1993 to 2011 were reversed on appeal, including
in proceedings concerning fundamental issues relating to the interpretation of the SSA and CBA,
and the scope of the undisclosed compensation rules of the SSA and CBA. See, e.g., White v.
NFL (Broadcast Contracts), 766 F. Supp. 2d 941 (D. Minn. 2011) (billions of dollars in lockout
5

insurance in network TV contracts violated various provisions of the SSA and CBA); White v. NFL
(Grbac-Hobert), 972 F. Supp. at 1239 (contract provisions in literal compliance with salary cap
provisions could not be found to violate the anti-circumvention provisions of the SSA and CBA);
White v. NFL (Circumvention), 92 F. Supp. 2d 918, 926 (D. Minn. 2000) (player agents subject
to penalties under undisclosed compensation rules); White v. NFL (In re Michael Vick), 533 F.
Supp. 2d 929, 933-34 (D. Minn. 2008) (refusing to order the return of certain bonuses due to a
prominent NFL player who had been disciplined by Commissioner, and imprisoned, for conduct
relating to dog fighting). There is no basis for the Appeals Panel to defer in any way to the System
Arbitrators legal interpretation of the CBA language.
As to the substantive law to apply in this appeal, the CBA provides that except to the
extent federal law governs the implementation of the CBA, which is not at issue here the CBA
is construed and interpreted under, and shall be governed by, New York law. See CBA, Article
70, Section 1. The CBA also stipulates that, [t]he parties shall not, in any proceeding or
otherwise, use or refer to any parol evidence with regard to the interpretation of Articles 1, 4, 6-
19, 26-28, 31, or 68-70 . . . . CBA, Article 70, Section 2. Moreover, evidence of activities of
the parties subsequent to the CBA cannot be used or referred to in determining the meaning of
[the listed Articles, including Article 14] of the CBA. White v. NFL (Wally Williams), slip op.
at 5-6 (Mar. 9, 1998) (Friedenthal, Special Master), submitted herewith as Ex. B.
FACTUAL BACKGROUND
The Salary Cap System
Prior to 1993, NFL players did not have any meaningful right to choose their employer
after their contracts expired. Instead, player contract rights were essentially held in perpetuity by
an NFL club after the player entered the league, and virtually all skilled players could not
choose the first team they signed with i.e., they were drafted by the team that would hold
6

their rights for the entirety of the players career, or until the club decided the player was no
longer of use.
This restraint on competition, which substantially lowered the wages that NFL clubs paid
to players, led to many years of antitrust litigation and labor strife between NFL players and NFL
owners. In 1992, in McNeil v. NFL, 790 F. Supp. 871 (D. Minn. 1992), the players won a jury
verdict in an antitrust suit filed by a number of individual NFL players challenging the NFLs
restrictions. That victory was followed by a class action entitled Reggie White v. NFL, No. 4-92-
906 (D. Minn.) (Doty, J.), in which the players sought injunctive and, subsequently, monetary
relief on a class basis against the NFLs restrictions which had been adjudged illegal.
However, the NFL made it clear that, notwithstanding the jury verdict in McNeil and the
filing of the White class action, the owners would appeal and continue to resist any meaningful
free agency for players for many years to come. Ultimately, the owners and the players
compromised, under the SSA in the White class action, which was followed by the corresponding
CBA between the NFLPA and the owners incorporating the terms of the SSA. In that historic
settlement, the players for the first time achieved meaningful free agency, with almost all players
able to choose their NFL club after being employed in the NFL for an initial period of three or
four years. However, as part of that compromise, the players also had to agree to a so-called
salary cap, in which the player free agency market would operate within a cap system
whereby each team is subject to limits on how much it may spend on player salaries each year,
after complex accounting rules are applied (e.g., taking into account the need for cap flexibility
and multi-year payment provisions such as signing bonuses). The salary cap is thus a
fundamental part of the parties compromise.
In order to enforce the salary cap, the parties agreed upon various provisions that address
the possibility that players might be paid compensation through means intended to circumvent
the salary cap. These include provisions addressing contracts for non-playing services (e.g.,
7

promotional appearances), and provisions requiring that all agreements between a club and any
player involving consideration paid, furnished, guaranteed or made available by a club or one of
its related entities must be disclosed to the NFL (and the NFLPA) so the payment arrangements
can be subject to the salary cap rules.
The Ban On Undisclosed Consideration To Players
The CBA provision that is at issue which has been unchanged from 1993 to the present
day is Article 14, Section 1:
Section 1. Undisclosed Terms: A Club (or a Club Affiliate) and a player
(or a Player Affiliate or player agent) may not, at any time, enter into
undisclosed agreements of any kind, express or implied, oral or written, or
promises, undertakings, representations, commitments, inducements,
assurances of intent, or understandings of any kind: (a) involving
consideration of any kind to be paid, furnished or made available or
guaranteed to the player, or Player Affiliate, by the Club or Club
Affiliate either prior to, during, or after the term of the Player Contract;
and/or (b) concerning the terms of any renegotiation and/or extension of
any Player Contract by a player subject to a Franchise Player or Transition
Player designation.
CBA, Article 14, Section 1 (emphasis added). As the provision unequivocally states, the CBAs
ban on undisclosed terms covers not just money directly paid to a player by a team or its related
entity, but consideration of any kind to be made available to a player by a team or its related
entity.
In addition to this express prohibition, the CBA also requires that all agreements between
players and clubs concerning terms and conditions of employment be set forth in a Player
Contract, and that the contract include a certification with the same broad language set forth in
Article 14, Section 1:
Each of the undersigned hereby confirms that (i) this contract, renegotiation,
extension or amendment sets forth all components of the players remuneration
for playing professional football (whether such compensation is being furnished
directly by the Club or by a related or affiliated entity); and (ii) there are not
undisclosed agreements of any kind, whether express or implied, oral or
written, and there are no promises, undertakings, representations,
commitments, inducements, assurances of intent, or understandings of any kind
8

that have not been disclosed to the NFL involving consideration of any kind to
be paid, furnished or made available to Player or any entity or person owned or
controlled by, affiliated with, or related to Player, either during the term of this
contract or thereafter.
CBA, Appendix A (NFL Player Contract), Paragraph 24(a) (emphasis added); see also id.,
Article 18, Section 1(a) (Every Player Contract . . . shall contain a certification . . . that there
are no undisclosed agreements of any kind, express or implied, oral or written, or promises,
undertakings, representations, commitments, inducements, assurances of intent, or
understandings of any kind: (a) involving consideration of any kind to be paid, furnished or made
available or guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate either
prior to, during, or after the term of the Player Contract . . . .); id., Article 4, Section 5(a) (Any
agreement between any player and any Club concerning terms and conditions of employment
shall be set forth in writing in a Player Contract as soon as practicable.).
1

Moreover, club personnel must certify at the end of each year that, after reasonable
inquiry of all owners and all employees with authority to negotiate Player Contracts, no
undisclosed agreements contrary to these various provisions occurred. Id., Article 18, Section
2(a); id., Article 18, Section 2(b) (similar certification for agents).
The System Arbitrators Jurisdiction
Under the CBA, the System Arbitrator one of seven different arbitrators assigned
different jurisdictions by the CBA has the exclusive jurisdiction to enforce Article 14s ban
against undisclosed, non-Player Contract, pay-for-performance agreements. See CBA, Article
15, Section 1 (The parties agree that the System Arbitrator shall have exclusive jurisdiction to
enforce the terms of Articles 1, 4, 619, 2628, 31, or 6870 of this Agreement (except as

1
The CBA contains a separate set of provisions regarding the procedures to be followed when a club or its related
entity makes a payment to a player for non-football services (e.g., promotional appearances), to ensure that the
payment is at fair market value for those services, and thus is not a disguised payment to the player for his football
services. See, CBA, Article 4, Section 5(b); id., Article 13, Section 4(b). The alleged payments at issue here,
however, were clearly for football-related services i.e., performance on the field.

9

provided in those Articles with respect to disputes determined by the Impartial Arbitrator, the
Accountants, or another arbitrator).).
It was extremely important to the players that the provisions regulating undisclosed
agreements are subject to neutral arbitration before the System Arbitrator, as opposed to NFL
Commissioner conduct detrimental discipline and Commissioner arbitral review. The express
terms of the CBA reflect this concern as demonstrated by the fact that the Commissioner has
very limited authority only to void non-contractual player agreements, and may do so only after a
finding of a violation by the System Arbitrator, not the Commissioner, of this Article. See
Article 14, Section 6(a) (In the event that the System Arbitrator finds a violation of Subsections
l(a) or 1(b) of this Article, for each such violation: (i) (1) the System Arbitrator may impose a
fine of up to $500,000 on any player or player agent found to have committed such violation, and
(2) shall, unless the parties to this Agreement otherwise agree, order the player to disgorge any
undisclosed compensation found to have been paid in violation of Section 1 of this Article unless
the player establishes by a preponderance of the evidence that he was unaware of the violation;
and (ii) the Commissioner shall be authorized to void any Player Contract(s) that was (or were)
the direct cause of such violation.).
This formulation of the Commissioners authority stands in stark contrast to penalties
against club employees, where the CBA does provide that the Commissioner is authorized to
impose fines and suspensions on non-player employees, up to specified maximum limits, but
even then only after the System Arbitrator has first found a violation of the CBA rule. See
Article 14, Section 6(b). Indeed, the concluding sentence of the club employee discipline
provision makes absolutely clear that the Commissioners disciplinary authority to suspend and
fine club employees for engaging in a non-contractual pay-for-performance program does not
extend to players, whose discipline for such conduct lies solely in the hands of the System
Arbitrator: For purposes of this Subsection 6(b), the term Club personnel shall not include
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players. Id. This language clearly evidences the intent of the parties to limit severely the
authority of the Commissioner to impose any discipline in this area, which is subject to the
exclusive enforcement jurisdiction of the System Arbitrator. Id.
Further, under the CBA, the penalties for a player who violates Article 14, Section 1 do
not include a suspension (in contrast to non-player club employees, who are authorized to be
suspended by the Commissioner under these provisions), and the maximum monetary fine is
$500,000. Article 14, Section 6(a)-(b).
The adjudication process for alleged conduct encompassed by Article 14 substantively
differs than that for alleged conduct that properly falls under the purview of Commissioner
discipline. The application of Article 14, Section 1 to a players alleged conduct requires that a
neutral arbitrator, using the procedural protections of the System Arbitrator provisions adjudicate
the alleged conduct, and any discipline imposed by the arbitrator is defined by the clear terms of
Article 14. The discovery rights in a System Arbitrator proceeding are much more expansive
than those in a Commissioner discipline arbitration.
The Commissioners Limited Arbitral Jurisdiction Under the CBA
In certain very limited circumstances, the CBA provides that the NFL Commissioner,
who is the chief executive hired by the NFL owners, may serve as an arbitrator of certain
disputes. In contrast to the broad jurisdiction of the System Arbitrator, the Commissioners
arbitral powers under Article 46 of the CBA are limited to conduct detrimental arising under a
single CBA provision:
All disputes involving a fine or suspension imposed upon a player for
conduct on the playing field (other than as described in Subsection (b)
below) or involving action taken against a player by the Commissioner for
conduct detrimental to the integrity of, or public confidence in, the game
of professional football, will be processed exclusively as follows: the
Commissioner will promptly send written notice of his action to the
player, with a copy to the NFLPA. Within three (3) business days
following such written notification, the player affected thereby, or the
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NFLPA with the players approval, may appeal in writing to the
Commissioner.

CBA, Article 46, Section 1(a).
2

The standard NFL Player Contract, which is an Appendix to and thus part of the CBA,
contains examples of conduct detrimental. See CBA, Appendix A (NFL Player Contract) 15
(player subject to Commissioner conduct detrimental discipline if he accepts a bribe or agrees
to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix
an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity;
uses or provides other players with stimulants or other drugs for the purpose of attempting to
enhance on-field performance). None of these examples are even remotely close to the conduct
at issue here.
The CBA also carves out, from conduct detrimental discipline that the Commissioner
may arbitrate, unnecessary roughness or unsportsmanlike conduct on the playing field with
respect to an opposing player. CBA, Article 46, Section 1(b). Appeals of discipline imposed
for the latter conduct (such as a violent hit) are heard by neutral Hearing Officers selected by the
parties. Id., Article 46, Section 2(a).
The NFL Investigation Of The Saints Pay-for-Performance/Bounty Program
On March 2, 2012, NFL Security, an internal office under the authority of the NFL
Commissioner, issued a report summarizing the findings of [its] lengthy investigation into an
alleged pay-for-performance/bounty program claimed to have existed at the New Orleans
Saints during each of the 2009, 2010 and 2011 seasons. NFL Security Report, dated March 2,
2012, submitted herewith as Ex. C, at 1.
3
The NFL Security Report stated that the

2
In the Article 46 context, the Commissioner serves as an arbitrator. See Morris v. New York Football Giants, 575
N.Y.S.2d 1013 (Sup. Ct. 1991) (disqualifying NFL Commissioner as arbitrator). This is undisputed.

3
While the NFLPA does not accept the accuracy of the report, it provides the alleged factual basis for the
Commissioners punishments and contains repeated admissions by the NFL concerning the applicability of the
undisclosed agreements provisions of the CBA to the alleged conduct at issue.
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Commissioners investigation uncovered a Pay-for-Performance program, developed and
administered by Saints coaches. Id. at 2.
More importantly, the Security Report contains repeated statements by the NFL that the
alleged conduct at issue is inconsistent with the CBAs ban against undisclosed, non-contractual
payment agreements:
[E]mployees of the New Orleans Saints repeatedly violated the Bounty Rule by
establishing cash pools, funded primarily by players, along with occasional
contributions from two assistant coaches . . . . The players then received cash
payments from those pools . . . . Id. at 1.

Such conduct is punishable because [t]he NFL has long had in place rules
prohibiting Non-Contract Bonuses. Such provisions violate . . . the Collective
Bargaining Agreement. Id.

During the 2009, 2010, and 2011 seasons, Saints players and coaches
developed and administered a Pay for Performance program . . . . All such
payments violate league rules prohibiting non-contract bonuses. Id. at 2.

There is no question that a bounty program of this type violates long-standing
league rules. Payments of the type made here even for legitimate plays such as
interceptions or fumble recoveries are forbidden because they are inconsistent
with the Collective Bargaining Agreement and well-accepted rules relating to
NFL player contracts. Id. at 3.

(Emphases added.)
The Security Report does not distinguish between contributions by players to the so-
called pay-for-performance/bounty pool, and payments received by players from the pool.
Rather, it is clear that the establishment and participation in the pool by Saints players was
contrary to the CBAs prohibition on undisclosed non-contract bonuses.
The Commissioner Disciplines the Saints
On March 21, 2012, Commissioner Goodell suspended various members of the Saints
management and coaching staff for design[ing], implement[ing], operat[ing],
contribut[ing] to, facilitating, and deliberately concealing the alleged pay-for-performance/
bounty program. See Memorandum of Decision, dated March 21, 2012, submitted herewith as
13

Ex. D, at 1-2. The Commissioners discipline decision expressly stated that the NFLs
investigation revealed that Saints defensive players and at least certain defensive coaches
operated a pay for performance (or non-contract bonus) program. Id. at 1 (emphases added).
The decision disciplining the Saints coaches could not be clearer that the first principle
allegedly violated by the pay-for-performance/bounty program was its alleged inconsistency
with the prohibitions against undisclosed, non-contract bonus payments to players: In
determining discipline, I am guided by a number of policies and principles. The first is the
longstanding rule against non-contract bonuses set forth in the Constitution and Bylaws. Id. at
4 (emphasis added). Moreover, the Commissioner concluded his analysis by issuing a new
directive to each NFL owner to confirm after due inquiry that his club does not operate any
program of pay for performance, bounties, or other non-contract bonuses . . . [as] any such
program violates league rules . . . and is impermissible. Id. at 7.
4

As to the origin and operation of the pay-for-performance/bounty system, the
Memorandum of Decision is clear that it originated and was administered by the club: Coach
Williams acknowledged that he designed and implemented the pay for performance/bounty
program with the assistance of certain defensive players . . . Coach Williams described his role
as overseeing recordkeeping, defining payout amounts, deciding who received payouts, and
distributing envelopes containing cash to players who earned rewards. Id. at 2.
The Commissioner Disciplines the Players
On May 2, 2012, the NFL imposed discipline on four current and former Saints players
Scott Fujita, Anthony Hargrove, Will Smith, and Jonathan Vilma. Each player was disciplined

4
While the Commissioners decision disciplining the Saints coaches refers to the NFL Constitution and Bylaws and
other NFL rules, with respect to players, those provisions are superseded by the CBA provisions in Article 14,
which, as discussed herein, are exclusively within the jurisdiction of the System Arbitrator, not the Commissioner.
See CBA, Article 2, Section 1 (The provisions of this Agreement supersede any conflicting provisions in the
Settlement Agreement, NFL Player Contract, the NFL Constitution and Bylaws, the NFL Rules, or any other
document affecting terms and conditions of employment of NFL players, and all players, Clubs, the NFLPA, the
NFL, and the Management Council will be bound hereby.).
14

for [his] role in the pay-for-performance/bounty program that operated at the New Orleans
Saints during the 2009-2011 seasons. Letter from Roger Goodell to Scott Fujita, dated May 2,
2012, submitted herewith as Ex. E, at 1; Letter from Roger Goodell to Anthony Hargrove, dated
May 2, 2012, submitted herewith as Ex. F, at 1; Letter from Roger Goodell to Will Smith, dated
May 2, 2012, submitted herewith as Ex. G, at 1; Letter from Roger Goodell to Jonathan Vilma,
dated May 2, 2012, submitted herewith as Ex. H, at 1. The letters purported to discipline the
players for conduct detrimental to the integrity of and public confidence in the game of
professional football. Exs. EH at 2.
The Commissioner suspended Mr. Fujita for the first three games of the 2012 regular
season, Mr. Hargrove for the first eight games of the 2012 regular season, Mr. Smith for the first
four games of the 2012 regular season, and Mr. Vilma for the entire 2012 NFL season (i.e., 16
regular season games). The lost salary to the Players would be approximately $644,000 for
Mr. Fujita, $388,000 for Mr. Hargrove, $194,000 for Mr. Smith, and $1.6 million for Mr. Vilma.
The monetary loss for Mr. Fujita and Mr. Vilma would be substantially more than the $500,000
maximum monetary penalty permitted under Article 14, Section 6(a). Moreover, as noted above
(supra pp. 9-10), under the CBA, a player may not be suspended for violations of Article 14,
Section 1.
Each suspension letter states that the NFL Security Report and the Memorandum of
Decision disciplining the Saints Coaches set forth the key facts relating to the bounty program.
Exs. EH at 1. As noted above, the NFL Security Report states that the alleged pay-for-
performance/bounty program violated the CBAs prohibition against undisclosed, non-contract
bonus payments (Ex. C at 3), and the Memorandum of Decision disciplining the Saints coaches
states that the first principle guiding the discipline was the longstanding rule against non-
contract bonuses (Ex. D at 4).
15

Each letter also confirms that the Commissioners purported imposition of discipline was
based on the alleged participation of the players in a program that included improper cash
rewards for legitimate plays (such as fumble recoveries, interceptions, and the like) and
improper cash rewards for injuring opposing players through cart-offs and knock-outs; and
that on multiple occasions specific cash bounties were placed on opposing players. Exs. EH at
1 (emphasis added).
The suspension letters also confirm that the discipline was based upon each players
alleged particular involvement in the program. As to Mr. Fujita, the suspension letter states
the record establishes that you pledged a significant amount of money to the pool during the
2009 NFL Playoffs. Ex. E at 1. As to Mr. Hargrove, the suspension letter claims, among other
things, that the record establishes that you actively participated in the program while a member
of the Saints. Ex. F at 1. As to Mr. Smith, the suspension letter alleges that the record
establishes that you assisted Coach Williams in establishing and funding the program and
pledged significant sums during the 2009 playoffs toward the program pool for cart-offs and
knockouts of Saints opposing players. Ex. G at 1. Finally, as to Mr. Vilma, the suspension
letter states that the record establishes that you assisted Coach Williams in establishing and
funding the program and allegedly pledged money under the program for knockouts of certain
quarterbacks during the 2009 playoffs. Ex. H at 1.
The System Arbitration
The day after Commissioner Goodell issued the Player Discipline Letters, the NFLPA
initiated a proceeding before System Arbitrator Burbank. The NFLPA demonstrated that, even
taking the Commissioners discipline at face value for the purposes of the System Arbitration, it
was expressly based on pay-for-performance conduct within the exclusive arbitral jurisdiction
of the System Arbitrator. See Letter from Jeffrey Kessler to Stephen Burbank, dated May 3,
2012, submitted herewith as Ex. I. The NFLPA also argued that the NFL may not usurp the
16

System Arbitrators exclusive jurisdiction over pay-for-performance behavior merely by
calling it conduct detrimental to the league. See Letter from Jeffrey Kessler to Stephen
Burbank, dated May 25, 2012, submitted herewith as Ex. J. Otherwise, the Commissioners
narrow authority to serve as an arbitrator which the parties confined to Article 46, Section 1(a)
of the CBA could become unbounded simply by the Commissioner recasting any behavior he
wishes to arbitrate as conduct detrimental. Oral argument before the System Arbitrator was
heard on May 30, 2012.
On June 4, 2012, System Arbitrator Burbank held that the Players alleged roles in the
Saints pay-for-performance/bounty program were outside of his jurisdiction. See Ex. A,
Opinion at 7. In his opinion, he acknowledged that Article 14, Section 1 contemplates and
prohibits an undisclosed agreement or understanding between a player and a Club concerning the
players compensation. Id. at 6. The System Arbitrator also found that the Saints franchise was
involved if not in paying, then in ma[king] available amounts from the pool. Id. And, in
rejecting one of the NFLs primary arguments, the System Arbitrator held that the involvement
of multiple players does not insulate the scheme at issue here from Article 14s prohibition, if it
is otherwise applicable, since the prospect of and criteria for receiving distributions from the
pool could be deemed an undisclosed . . . inducement[] . . . or understanding[] for all players
regarding payments that would be made available by the Club, acting through coaches. Id.
However, System Arbitrator Burbank decided that the conduct for which the
Commissioner imposed discipline on the Players is not covered by Article 14, Section 1 and thus
. . . the System Arbitrator lacks jurisdiction. Id. at 7. He concluded that there is an important
distinction . . . . as to players, between funding the pool or making offers or pledges to contribute
sums to it, on the one hand, and accepting (or agreeing to accept) distributions from it, on the
other, but he did not point to any language in the provision in propounding this distinction. Id.
at 7. In short, he concluded that he had exclusive jurisdiction over players receiving or agreeing
17

to receive money from the alleged pay-for-performance/bounty pool, but not over those same
players for allegedly paying or pledging money into such a pool as part of the same alleged
program. See id. at 7-9. System Arbitrator Burbank based his decision not on any point briefed
or argued by the parties, but upon a distinction of his own creation that appears nowhere in the
language of the CBA.
System Arbitrator Burbank did hold that Mr. Hargroves discipline was not clearly based
on any agreement or offer to fund the pool, and invited the Commissioner to issue a
supplemental decision stating the basis of the discipline. The System Arbitrator held that, if it
were determined that receipt of (or agreement to accept) payments from the pool plays any part
in the revised decision (or decision on appeal), the NFLPA may return to seek relief from the
System Arbitrator. Id. at 9. The Commissioner then issued a letter that Mr. Hargroves
discipline was based on active participation in the program, and that his discipline would stand
unchanged. See Letter from Commissioner Goodell to Anthony Hargrove, dated June 8, 2012,
submitted herewith as Ex. K.
The Commissioner Affirms The Player Discipline
On July 3, 2012, the Commissioner rubber-stamped his original discipline imposed on the
Players. See Letter from Roger Goodell to Messrs. Vilma, Smith, Hargrove and Fujita (July 3,
2012 Appeal Decision), dated July 3, 2012, submitted herewith as Ex. L. The Commissioner
stated at the outset that [t]he reasons for imposing your respective suspensions are set forth in
letters to each of you dated May 2, 2012 (as clarified, in the case of Mr. Hargrove, by letter dated
June 8, 2012). Id. at 1. The Commissioners arbitral decision did not extensively review the
conduct for which the players were being disciplined. However, the decision reiterates the
Commissioners reliance on the Security Report and Memorandum of Decision which find
violations of the CBAs non-contract bonus prohibitions (supra pp. 12-14) and otherwise
makes clear that the conduct being penalized was the players alleged overall participation in the
18

pay-for-performance/bounty program as a whole. See, e.g., Ex. L, July 3, 2012 Appeal
Decision at 7 (punishments for incentivizing players and for putting an incentive in place).
The NFLPA argued that the Commissioner was required to wait for a ruling by this Appeals
Panel before rendering his arbitral decision, but the Commissioner declined to do so. Transcript
Commissioner Arbitration Hearing, dated June 18, 2012 (Goodell Hearing), submitted
herewith as Ex. M, 16:24-17:21 (We have filed a notice of appeal of System Arbitrator
Burbanks decision . . . [and] [w]e believe its not appropriate for the Commissioner to proceed
with any discipline in light of that lack of jurisdiction. Its certainly not appropriate to proceed
with this hearing while that appeal is pending.).)
After ruling on various procedural issues not relevant to the present appeal, the
Commissioner concluded that the appeals are denied and the suspensions are to be enforced as
set forth in the notice letters of May 2, 2012. Ex. L, July 3, 2012 Appeal Decision at 8.
The Federal Court
On July 5, 2012, the NFLPA and Messrs. Fujita, Hargrove and Smith filed an action in
the U.S. District Court for the Eastern District of Louisiana seeking to vacate the
Commissioners arbitration decision on various grounds. Mr. Vilma had earlier filed a separate
action against the Commissioner in the same court alleging claims related to the discipline and
public comments the Commissioner made regarding Mr. Vilma. The two actions were
consolidated before Judge Helen G. Berrigan. The petition to vacate the Commissioners award
is pending and scheduled for oral argument on August 10, 2012. During the course of the
proceedings to date, Judge Berrigan made the following observations about the decision of the
System Arbitrator below:
I think the basis of Mr. Burbanks conclusions are questionable. He concluded
that the commissioners punishment was not covered under Article 14 because it
was a distinction as to players between funding the pool or making the offers or
pledges to contribute sums to it on the one hand and accepting or agreeing to
accept distributions from it on the other. Accepting payments clearly comes
19

under the exclusive jurisdiction of the system arbitrator . . . . Mr. Burbank
concluded that Mr. Goodell was punishing the players for funding the pool.
I think that's kind of slicing the salami very thin to avoid the mandatory
jurisdiction of the system arbitrator and not that persuasive a distinction.

Transcript of Jonathan Vilma TRO Hearing (TRO Hearing), dated July 26, 2012, submitted
herewith as Ex. N, 187:7-188:16; see also id. at 191:19-22 (I think its worth noting that none of
the [examples of conduct detrimental set forth in all NFL players contracts] bribery, fixing
games, betting, associating with gamblers, using or providing performance-enhancing drugs
are involved in this case.); id. at 192:2-5 (I think 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.) (emphases added
throughout).
ARGUMENT
I. THE ALLEGED PLAYER CONDUCT AT ISSUE IS WITHIN THE BROAD
SCOPE OF ARTICLE 14, SECTION 1, WHICH MAKES NO DISTINCTION
BETWEEN UNDISCLOSED COMPENSATION THAT IS CONTRIBUTED
VERSUS RECEIVED BY PLAYERS
Article 14, Section 1 broadly provides that a club and a player may not, at any time,
enter into [1] undisclosed agreements of any kind, express or implied, oral or written, or
promises, undertakings, representations, commitments, inducements, assurances of intent, or
understandings of any kind . . . [2] involving consideration of any kind [3] to be paid, furnished
or made available or guaranteed to the player, or Player Affiliate, [4] by the Club or Club
Affiliate either prior to, during, or after the term of the Player Contract. CBA, Article 14,
Section 1. In considering this language, System Arbitrator Burbank properly stated that
(i) Article 14, Section 1 contemplates and prohibits an undisclosed agreement or understanding
between a player and a Club concerning the players compensation; (ii) the Saints were
involved if not in paying, then in ma[king] available amounts from the pool, and (iii) the
involvement of multiple players does not insulate the scheme at issue here from Article 14s
20

prohibition, if it is otherwise applicable, since the prospect of and criteria for receiving
distributions from the pool could be deemed an undisclosed . . . inducement[] . . . or
understanding[] for all players regarding payments that would be made available by the Club,
acting through coaches. Ex. A, Opinion at 6.
However, System Arbitrator Burbank also concluded that as a matter of contract
language, the alleged activities that give rise to the Commissioners disciplinary action do not fit
comfortably within the ambit of Article 14, Section 1. Id. He did so on the basis that the
animating concern of the provision is undisclosed compensation that could be used to avoid
the Salary Cap or the rules governing Rookie Compensation and the Rookie Compensation Pool,
thereby disturbing the competitive conditions to which they are thought to contribute. Id.; see
also id. (The concern about the integrity of the Salary Cap and the Rookie Compensation Pool
is inferable from the placement of Article 14 in the CBA nearby salary cap and related
provisions); id. (That the animating concern is undisclosed compensation is also confirmed by
the fact that disgorgement of any undisclosed compensation found to have been paid in violation
of Section 1 is a mandatory penalty for a violation found by the System Arbitrator, unless the
parties to the CBA otherwise agree or the player establishes by a preponderance of the evidence
that he was unaware of the violation.).
5

Thus, the System Arbitrator held that [e]ven if Article 14, Section 1 is properly
interpreted to prohibit players from accepting (or agreeing to accept) undisclosed payments from
a pool, primarily funded by players, for on-field performance (of whatever sort), to extend its
terms to player contributions (or pledges) to the pool is not linguistically compelled and would
wholly unmoor the language from its animating purposes. See Reape v. New York News, Inc.,
504 N.Y.S.2d 469, 470 (App. Div. 1986) (Since the intent of the parties in entering an

5
Since 1993 the CBA has had, in addition to a salary cap, a separate set of rules on how much money clubs may pay
or agree to pay to its rookie players in any NFL season. Those rules in effect are a separate salary cap that applies
only to rookies on each club, with distinct rules applicable only to rookie contracts. See CBA, Article 7.
21

agreement is a paramount consideration when construing a contract, even the actual words
provided therein may be transplanted, supplied or entirely rejected to clarify the meaning of the
contract.). Ex. A, Opinion at 7.
The System Arbitrators conclusion that the alleged player conduct at issue, for which
they were disciplined, is not within the scope of Article 14, Section 1, is incorrect and itself is
unmoored from the CBAs text. Indeed, the distinction has no basis at all in the language of the
provision which says nothing about distinguishing between players funding or pledging such
payments at the direction of the Club, and players receiving or agreeing to receive such
payments.
System Arbitrator Burbanks hesitancy to find jurisdiction in this controversial dispute
lost sight of the text of Article 14, Section 1. The prohibition in this provision is not focused at
all on the players receipt of consideration versus any other part of an undisclosed agreement.
Instead, the essential predicate for a violation of the provision is whether a club and one or more
of its players (or one of their related parties) have enter[ed] into undisclosed agreements of any
kind, express or implied, oral or written, or promises, undertakings, representations,
commitments, inducements, assurances of intent, or understandings of any kind . . . . This
language, which focuses on the prohibited undisclosed agreement, is completely disconnected
from any distinction based on whether the player is on the receiving or giving end of the
undisclosed consideration at issue. Instead, the focus of the plain language is whether there is an
undisclosed agreement, understanding or other covered representation between the player
and the club in which non-contract consideration is made available to any players. Here, as the
System Arbitrator recognized, there can be no question that the alleged pay-for-performance/
bounty program, and the alleged participation of the players in it, constituted an alleged
understanding between the players and the club that satisfied this requirement of the provision.
22

The next step in the language of the provision is the subject of the undisclosed agreement
or understanding.
6
Here, the provision also made a deliberate choice. Once again, it does not
even mention the receipt of anything by the player, or any distinction based on payment or
receipt. Instead, the provision states that the covered agreement or understanding must be one
involving consideration of any kind that must then satisfy the other prerequisites that follow.
The parties used broad language consideration, not just money and prohibited agreements
or understandings are any that involve[ed] the consideration. Thus, so long as the undisclosed
agreement or understanding between the club and player is one involving consideration, then
this requirement of the provision has been met.
The next step in the language of the provision is that the consideration involved in the
agreement or understanding must be consideration to be paid, furnished or made available or
guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate. Here, if the
provision had stopped at paid, then the NFL might have ground to stand on, since then there
would be a sole qualifying path that would be limited to consideration paid by the club to the
player. But as even the System Arbitrator noted, this is not what the provision says. Instead, the
provision goes on to cover also consideration that is made available to the player by the club,
regardless of who pays or agrees to pay the consideration. On this point, System Arbitrator
Burbank correctly concluded that the pay-for-performance/bounty program is covered by this
language, because the program involved the Saints making available the money in the program
to the players through the involvement and direction of the coaches in the development and
administration of the program.

6
For purposes of this brief, the discussion will focus on the agreement or understanding regarding the program, as
opposed to the other potential communications described by Article 14, Section 1, since there can be no serious
question that an understanding or agreement to participate in the program was alleged by the NFL and the main
basis of the discipline.
23

In short, the System Arbitrator failed to adhere to the actual language of the provision
itself, which by its terms contains no distinction at all nor even a hint of it on whether the
consideration is received or contributed by the player. To implicate Article 14, the alleged
undisclosed agreement or understanding must involve consideration made available to the player
or players by the club. Nothing more is required. The System Arbitrator committed clear error.
The lack of any distinction between money paid to or received by players also makes
logical sense as applied to this case. Once the alleged agreement to participate in the non-
contractual bonus program was made, one cannot separate out the different portions of the
alleged agreement since all players who are claimed to have agreed to participate in the program
allegedly agreed to participate in one program in which they might be a net contributor or payer
on any given week, depending on their performance or the performance of other players on the
team. There is no way to break up the overall agreement that is the predicate for the application
of Article 14, Section 1, and the text of Article 14, Section 1 does not contemplate coverage of
only part of the agreement.
In this same vein, the System Arbitrator also erred when he failed to recognize that,
where the parties wished to write provisions that focused on the consideration that a player
received, the parties did so expressly, in contrast to the broader language used in Article 14,
Section 1. For example, the CBA has an express provision that deals with payments to players
for non-football services by a club or its related parties, a similar issue involving potential
payments that could circumvent the salary cap system. There, the CBA provision specifically
refers to consideration received by the player in excess of fair market value, and provides a
mechanism to deal with the circumstance (i.e., counting the excess amount against the clubs
salary cap limit). See CBA, Article 4, Section 5(b); id., Article 13, Section 4(b) (A players
Salary shall also include any and all consideration received by the player or his Player Affiliate
from a Club or Club Affiliate . . . .) (emphasis added). By contrast, Article 14, Section 1 does
24

not contain any language to limit its scope to a player who receives undisclosed consideration
from a club or one of its related parties; instead, the provision includes much broader terms
covering agreements or understandings between a club and player involving consideration
made available to a player by a club or one of its related parties.
It is black letter law under the CBA that the parties use of different language in different
provisions of the CBA indicates a different result was intended. See, e.g., Grbac-Hobert, 972 F.
Supp. at 1239 (By employing different language in different sections of the SSA, it is clear that
the parties recognized and understood the difference between sole control and likely to be
earned. Had the parties intended likely to be earned to be the test for the proration of Signing
Bonuses over voidable contract years, they could have so agreed.); White v. NFL (Salary Cap
Valuation Issues), slip op. at 6 (Sept. 28, 2005) (Burbank) (If the parties to the (SSA and) CBA
had intended to tie acceleration to the exercise of a right to terminate, they could have provided
that voidable contract years shall count . . . for purposes of proration until the player exercises
the right to terminate. They did not do so. Moreover, one can imagine language in a players
contract that might make the existence of a right to terminate depend, among other things, on
sending effective notice, but that is not the language in Mr. Walkers contract.), submitted
herewith as Ex. O; White v. NFL (Lelie), slip op. at 4 (Nov. 16, 2006) (Burbank) (If the parties
had intended to restrict salary escalators to contract provisions that directly escalate Paragraph
5 Salary, they could easily have so provided . . . .), submitted herewith as Ex. P. Here, the
parties could have drafted Article 14, Section 1 to limit its scope to agreements by players to
receive the consideration at issue, or they could have limited the provision to consideration
paid by the Club to the player. But those language formulations were not used and the parties
did not adopt the concept of player receipt to limit the scope of Article 14, Section 1 in favor of
Commissioner jurisdiction.
25

The applicability of the provision to the player conduct at issue is also evident in the
discipline letters, which did not issue discipline based on any perceived distinction between
player receipt or contribution of monies to the alleged pay-for-performance/bounty pool, and
instead found participation in the overall agreement to be a basis of discipline.
For example, each of the players discipline letters described the establishment of the
entire program in identical fashion, drawing no distinction between payments made versus
payments received. Exs. EH at 1 (The record, based on numerous witness interviews and
substantial documentary evidence, clearly shows that Saints defensive players and coaches
organized, administered and funded a pay-for-performance/bounty program for three seasons;
that the program included improper cash rewards for legitimate plays (such as fumble recoveries,
interceptions, and the like) and improper cash rewards for injuring opposing players through
cart-offs and knockouts; and that on multiple occasions specific cash bounties were placed on
opposing players.). Similarly, the descriptions of the players particular involvement in the
program referenced participation in the program as a grounds for discipline. See, e.g., Ex. H at
2 (imposing discipline based on alleged general participation in the program) (emphasis
added); Ex. G at 2 (imposing discipline based on alleged active participation in the program)
(emphasis added); Ex. F at 1 (discipline imposed because player allegedly actively participated
in the program and knew about and participated in the alleged program).
7

In short, the Commissioner disciplined the Players for allegedly participating in an
undisclosed in the pay-for-performance/bounty program. But that alleged conduct is covered

7
After the System Arbitrator ruled in his Opinion that Mr. Hargroves suspension letter was not clear as to whether
Mr. Hargrove was being disciplined for alleged payment or receipt of money in the program (a distinction the NFL
did not make in disciplining any of the players), and invited the NFL to clarify the basis of the discipline, the
Commissioner sent Mr. Hargrove a letter that, unsurprisingly, stated that Mr. Hargroves discipline was not for any
receipt or agreement to receive money in the program. See Letter from Gregg Levy to System Arbitrator Burbank,
dated June 8, 2012, submitted herewith as Ex. Q. We respectfully submit that this after-the-fact reformation of the
discipline, after it had already been issued, is entitled to absolutely no weight, and the discipline should be assessed
based on the reasons provided when it was issued.
26

by plain and unambiguous terms of Article 14, Section 1, and thus within the exclusive
jurisdiction of the System Arbitrator.
II. IT WAS LEGAL ERROR FOR THE SYSTEM ARBITRATOR TO IGNORE THE
LAW OF THE SHOP, AND OVERRULE THE PLAIN LANGUAGE OF
ARTICLE 14, SECTION 1 BASED ON HIS PERCEIVED ANIMATING
PURPOSE OF THE PROVISION
Unwilling to give effect to the plain language of Article 14, Section 1, System Arbitrator
Burbank held that the provision should instead be interpreted based upon what he perceived to be
its animating purpose. Ex. A, Opinion at 6-7. This interpretation was contrary to the most
fundamental principles and law of the shop that govern the interpretation of the CBA, which,
unlike many other contracts, is subject to a strict bar on any parol evidence, even when a
provision is deemed ambiguous.
Specifically, ever since the Grbac-Hobert proceeding, it has been the law of the NFL
CBA that the language of the CBA must govern and cannot be overridden by the arbitrators
view of the parties purpose. In Grbac-Hobert, the NFL had argued that certain contract
renegotiations, while within the terms of the CBAs salary cap provisions, circumvented the
intent of the CBA. See 972 F. Supp. at 1235 (The broad issue before the court is whether
conduct which is permitted by the SSA can violate the Circumvention rule?). Special Master
Friedenthal had determined that the contract provisions at issue had circumvented the intent of
the parties, based on his belief that the circumvention provision was a salary cap requirement,
notwithstanding that no such language appeared in the provision. Id. at 1237.
Applying New York law, Judge Doty squarely rejected this approach to interpreting the
SSA and CBA (which mirrored the SSAs terms in this regard):
The Special Master characterized the Hobert renegotiation and Grbac contract as
technical ploys. However, the SSA is a product of lengthy and detailed negotiations. It
is a carefully crafted document that contains numerous compromises, trade-offs and
intricate rules. Sometimes the language of the SSA seems to favor one party to a
substantial degree. It is not for the Special Master or the court to alter the results of the
parties compromise, however.
27

In conjunction with the rule barring the use of parol evidence, the Circumvention
provision allows the parties to rely on the plain meaning of the SSA when structuring
their contractual relationships. To reach his decision, the Special Master went outside of
the agreement and substituted his judgment for the unambiguous language of the SSA. It
is the Special Masters and the courts obligation to enforce the SSA as written.
Id. at 1239 (emphasis added); see also id. at 1237-38 (It goes without saying that the parties to
the SSA may justifiably rely on its terms to maximize their respective economic and competitive
interests. It is neither the role of the Special Master nor the court to sit in judgment of the
economics of professional football, nor to second-guess the wisdom of the bargain the parties
struck.) (citation omitted).
This principle that the language of the CBA controls as opposed to animating purpose
has been applied in numerous CBA arbitral decisions since the decision in Grbac-Hobert. See,
e.g., White v. NFL (Sauerbrun), slip op. at 4 (Apr. 18, 2006) (Burbank), submitted herewith as
Ex. R; White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858, 862-63 (D. Minn. 2001);
White v. NFL (49ers Undisclosed Agreements), Civ. No. 4-92-906(DSD), slip op. at 5-6 (D.
Minn. Mar. 30, 2000), submitted herewith as Ex. S. It thus is the law of the shop and binding
in all future CBA arbitrations. See, e.g., Denver Broncos v. Lelie, slip op. at 24 (Apr. 23, 2007)
(Das), submitted herewith as Ex. T (Absent a controlling court decision compelling a finding
that the analysis and rationale [in a prior arbitration award] is legally indefensible, it is the law of
the shop.); In re Bills, Jets, Panthers, slip op. at 19 (Feb. 14, 2007) (Das), submitted herewith as
Ex. U (the CBA contemplates a uniform law of the shop).
Despite the above authority, System Arbitrator Burbank failed to adhere to this binding
rule of construction for the CBA. Indeed, the System Arbitrators reliance on and quotation of
the Reape v. New York News case demonstrates that he wildly departed from the interpretive
rules required by the Grbac-Hobert decision and all subsequent CBA authority. The System
Arbitrator quoted Reape for the proposition that even the actual words provided [in a contract]
may be transplanted, supplied or entirely rejected to clarify the meaning of the contract. Ex.
28

A, Opinion at 7 (emphasis added) (quoting Reape, 504 N.Y.S.2d at 470). But the Grbac-Hobert
decision, which the System Arbitrator was obliged to follow, stands for exactly the opposite
principle: In conjunction with the rule barring the use of parol evidence, the Circumvention
provision allows the parties to rely on the plain meaning of the SSA when structuring their
contractual relationships. 972 F. Supp. at 1239 (emphasis added).
The System Arbitrator also erroneously applied the rule of construction adopted in Reape
even though that rule was formulated in the context of considering parol evidence contrary to the
terms of the actual contract, an interpretive approach that is absolutely barred under the express
terms of the CBA. Compare Reape, 504 N.Y.S.2d at 470 (it would be unreasonable to conclude
that the defendant intended to assume a net loss for each copy delivered by the plaintiff, as the
record indicates would have happened if the plaintiffs interpretation was adopted) and id. at
470-71 (the plaintiff set forth several reasons for terminating the agency relationship in his letter
of resignation, none of which mentioned the dispute over the amount of the fee which was being
paid to him) with Grbac-Hobert, 972 F. Supp. at 1238 (In conjunction with the rule barring the
use of parol evidence, the Circumvention provision allows the parties to rely on the plain
meaning of the SSA when structuring their contractual relationships.) and CBA, Article 70,
Section 2 (The parties shall not, in any proceeding or otherwise, use or refer to any parol
evidence with regard to the interpretation or meaning of Articles . . . 6-19 . . . .) and Ex. B,
White v. NFL (Wally Williams), slip op. at 5-6 (evidence of activities of the parties subsequent
to the CBA cannot be used or referred to in determining the meaning of [among others, Article
14] of the CBA.).
The System Arbitrators relegation of the CBAs text to secondary status behind a
perceived animating purpose, and his consequent creation of a distinction between monies
received by players versus monies allegedly pledged or contributed, is thus wrong as
matter of law. See Grbac-Hobert, 972 F. Supp. at 1236 ([A] court may not rewrite into a
29

contract conditions the parties did not insert or, under the guise of construction, add or excise
terms.); id. at 1237 n.5 (It is our obligation to enforce the SSA, not rewrite it.); see also Ex. R,
White v. NFL (Sauerbrun), slip op. at 4 (Burbank) (I lack the power to rewrite the SSA by
substituting my view about what it should mean given the equities of a particular case for what,
according to its plain and unambiguous language, it does mean.).
III. EVEN IF IT WERE PROPER TO CONSIDER PURPOSE OVER THE PLAIN
LANGUAGE OF THE CBA (IT IS NOT), INTERPRETING ARTICLE 14,
SECTION 1 TO APPLY, REGARDLESS OF WHETHER THE PLAYER
RECEIVED OR CONTRIBUTED FUNDS, IS CONSISTENT WITH THE CBA
PURPOSE OF PROHIBITING UNDISCLOSED PLAYER COMPENSATION
System Arbitrator Burbank based his decision on the supposition that interpreting
Article 14, Section 1 to apply to money both pledged or contributed and received by players in
the alleged pay-for-performance/bounty program would unmoor the language of the
provision from its animating purposes of prohibiting undisclosed player compensation. Ex. A,
Opinion at 7. Had the System Arbitrator asked the parties for any briefing and/or argument on
this purported distinction, he would have quickly found out that player contributions to
undisclosed compensation arrangements formulated by the coaches on a team are very much
moored to CBA purposes of prohibiting undisclosed compensation agreements and the
enforcement of the salary cap and rookie compensation rules.
To place this issue in context, it must be recognized that because of the salary cap, which
is a dollar ceiling that limits how much each team in the NFL may pay its players for a given
year, a team that seeks to improve itself by signing new players or retaining players frequently
asks other players already on the teams roster to restructure their contracts to create more salary
cap room in a particular year. In these circumstances, the player effectively is asked to
contribute a portion of his salary in a given year so the team can use the salary cap room that is
freed up to sign other players. The decision in Grbac-Hobert involved a permitted compensation
renegotiation for this very purpose. See 972 F. Supp. at 1235.
30

In contrast to these permitted ways for players to restructure their contracts to contribute
money for the team to spend more on other players to improve team performance, which are
disclosed and accounted for under the salary cap and the rookie compensation rules, an
undisclosed agreement to contribute salary to be paid to another player outside of that players
contract would be a salary cap enforcement issue that goes to what the System Arbitrator stated
to be the animating purpose of Article 14.
In fact, the NFL has previously alleged that a player who secretly agrees to give up
compensation so other players may be paid more has violated Article 14, Section 1. The NFL
itself has thus previously rejected any distinction between a player who receives or a player who
contributes money at the clubs behest in alleging an Article 14 violation, which is not surprising
as it is the undisclosed agreement that violates both the language and purpose of this provision.
Specifically, in 1999, the NFL alleged that the San Francisco 49ers entered into
numerous undisclosed agreements with players in the 1997 season as the 49ers sought to win one
more Super Bowl: The NFL Management Council is initiating a proceeding to address apparent
violations of the Collective Bargaining Agreement by the San Francisco 49ers . . . . In particular,
we have reason to believe that some or all of the foregoing may have engaged in efforts to
circumvent the Salary Cap, including through undisclosed agreements and commitments barred
by [Article 14, Section 1]. Letter from Neil Roman to Special Master Friedenthal, dated June
24, 1999, submitted herewith as Ex. V, at 1.
8

Among its assertions, the NFL alleged that the 49ers had a secret agreement with a player
pursuant to which one of the years in his player contract was added for salary cap reasons only
(i.e., it would cause the players signing bonus to be amortized over an additional year, thereby
reducing the contracts salary cap count for each year of the contract), and would not be

8
Prior to the 2011 extension of the CBA, the provisions of Article 14 were set forth in Article XXV of the prior
CBAs and Article XV of the SSA.
31

honored.
9
The player would thus never receive the money under the final year of the contract,
even though it was agreed to by the team and the player. See Memorandum dated August 11,
1997, submitted herewith as Ex. W (In addition, it is understood that the sixth year of the
contract was added for cap reasons only and that the player will not be asked to honor that
year.).
10
In short, the NFL contended that an undisclosed agreement with a club by a player to
contribute money i.e., not to receive money he was entitled to under his Player Contract that
could then be used to pay other players, was in violation of Article 14, Section 1.
This prior position by the NFL underscores the similar salary cap concerns posed by the
conduct at issue in the instant proceeding, i.e., the club allegedly secretly agreed with players
that certain players would give up money that would be redirected to other players whom the
club wished to incentivize for their performance on the field, without any of this transferred
money disclosed in a player contract. The payment of such secret incentives would clearly fall
under both the language and purpose of Article 14, Section 1, since the monies allegedly paid
would be in violation of the salary cap accounting rules as they would not be disclosed.
Under the System Arbitrators erroneous view that there is no such salary cap
circumvention concern when the player is paying, as opposed to receiving, undisclosed money,
the provision would not apply to a teams quarterback who makes a secret $1 million non-
contract payment at the specific request of the teams coach to a free agent wide receiver that
the team wants to sign to try to win the Super Bowl (and who the quarterback wants the team to
sign to further his own career). This makes no sense as the quarterbacks conduct of funding the
secret payment would clearly involve an undisclosed agreement to pay secret compensation to

9
See Transcript of NFLs Deposition of Member of 49ers Management, dated March 15, 2000, submitted herewith
as Ex. Y, 30:17-23 ([Question from NFL Counsel to Member of 49ers Management]: Did you understand at the
time you entered into the contract on July 31, 1997 that the sixth year of [the players] contract was added for cap
reasons only and that the player would not be asked to honor that year?). The exhibit provided to the Appeals
Panel redacts the name of the player and the relevant 49ers personnel since this information is not relevant to this
proceeding, and the 49ers proceeding was ultimately settled without public disclosure of the specific facts at issue.

10
This exhibit also redacts the name of the player and the relevant 49ers personnel. See supra note 9.
32

another player outside of the Player Contract at the specific request of the team. This would be
the very core of an Article 14 violation, within the exclusive jurisdiction of the System
Arbitrator.
The same analysis demonstrates that applying Article 14, Section 1 of the CBA to the
Saints alleged pay-for-performance/bounty program would be consistent with both the
language and the purpose of the Article, regardless of whether a particular player was a payer or
receiver of money at any particular time under the program. Since the money to be secretly
contributed and paid under the program was, under even the NFLs allegations, at least in
substantial part for legitimate plays such as interceptions or fumble recoveries (Ex. C, NFL
Security Report at 3), this is indistinguishable from a secret agreement to have players help fund
secret individual incentives not reported in any Player Contract. It is hard to identify an
understanding that would be more clearly covered by both the language and purpose of Article
14, Section 1s prohibition of such undisclosed agreements. Cf. CBA, Article 13, Section 6(c)
& Exhibit B (listing seven allowed individual incentives which may be contained in a Player
Contract and thus accounted for under the salary cap, two of which are interceptions and
opponent fumble recoveries). The alleged payments of money into the pay-for-
performance/bounty program effectively allowed Saints players to receive additional incentives
that otherwise would have to have been reported to the NFL and the NFLPA in accordance with
the salary cap rules. This is no different than if the contributing players contracts had been
secretly renegotiated to reduce their salaries by the amounts contributed, and all of the players
had their contracts secretly renegotiated to include the additional incentive clauses. In either
case, the provisions of Article 14, Section 1 apply and the System Arbitrator, not the
Commissioner, has exclusive jurisdiction over such alleged conduct.
33

IV. THE NFLS POLICY ARGUMENTS AGAINST THE SYSTEM ARBITRATOR
HAVING JURISDICTION ARE BOTH LEGALLY IRRELEVANT AND
MERITLESS
The NFL made dire warnings to the System Arbitrator that denying the Commissioner
jurisdiction over the alleged pay-for-performance/bounty program of the Saints would afford
players immunity for all types of nefarious conduct, like throwing games. These scare tactics are
a total red herring.
To begin with, as reviewed above (supra pp. 26-29), the governing arbitral case law
between the parties is unequivocal that the terms of the CBA, as written, must apply regardless
of whether one side or the other believes that it would yield an unpalatable result. See, e.g.,
Grbac-Hobert, 972 F. Supp. at 1237-38 (It goes without saying that the parties to the SSA may
justifiably rely on its terms to maximize their respective economic and competitive interests. It
is neither the role of the Special Master nor the court to sit in judgment of the economics of
professional football, nor to second-guess the wisdom of the bargain the parties struck.)
(citation omitted).
However, even if the System Arbitrator did have the power to rewrite the parties bargain
to address legitimate policy concerns (he does not), no such concerns would apply here.
Specifically, the decision to apply the exclusive jurisdiction of the System Arbitrator in this case
would in no way undermine the ability of the Commissioner to apply discipline in those cases in
which his conduct detrimental authority over player behavior actually applies. For example, if
a coach paid a player to throw a game, the Commissioner could take conduct detrimental
disciplinary action against the player for throwing the game but not for the non-contractual
payment, which would be within the exclusive jurisdiction of the System Arbitrator. Here,
however, the NFL explicitly seeks to punish players for participating in an alleged pay-for-
performance bounty system a subject that the parties delegated exclusively to the System
Arbitrator. When actual player conduct detrimental is involved, the Commissioners disciplinary
34

authority is unimpaired. But, as Judge Berrigan noted, conduct detrimental as described in the
NFL Player Contract is not at issue here. Ex. N, TRO Hearing Tr. 191:19-22 ([N]one of the
[examples of conduct detrimental set forth in all NFL players contracts] bribery, fixing games,
betting, associating with gamblers, using or providing performance-enhancing drugs are
involved in this case.).
This Panel should not accept the NFLs argument that conduct detrimental
encompasses whatever conduct Commissioner Goodell says it does. To use the NFLs parlance,
the Commissioners function as an arbitrator is an office of limited jurisdiction. See Letter
from Gregg Levy to Stephen Burbank, dated May 18, 2012, submitted herewith as Ex. X, at 3
n.1. The Commissioner does not have unchecked discretion under the CBA to supplant the
System Arbitrators jurisdiction or that of any other neutral arbitrator assigned specific dispute
resolution responsibilities under the CBA simply by slapping a conduct detrimental label on
the alleged player conduct. The CBA offers no textual support for any such unconstrained grant
of power to the Commissioner. Indeed, to conclude otherwise would effectively eviscerate the
exclusive jurisdiction granted to the System Arbitrator (and, ultimately, the Appeals Panel) over
subjects like non-contractual payments. Governing principles requires that such an interpretation
of the CBA, which would undermine one CBA provision at the expense of another, be avoided.
See White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d at 860 (Further, the court must give
effect and meaning to every term of the contract, making every reasonable effort to harmonize all
of its terms. The contract must also be interpreted so as to effectuate, not nullify, its primary
purpose.) (citation omitted); Ex. O, White v. NFL (Salary Cap Valuation Issues), slip op. at 4
(Sept. 28, 2005) (Burbank ) (In [interpreting the SSA and CBA], I must try to avoid an
interpretation that either would create conflict between contractual provisions or render any such
provision a nullity.).
35

V. ALL OF THE DISCIPLINE MUST BE SET ASIDE
Finally, in view of the unambiguous written record establishing that the Commissioner
punished the Players for participating in an agreement with the Saints to pay non-contract
bonuses, all of the discipline must be overturned because the Commissioner was without
jurisdiction to impose it in the first place. See Avis Rent A Car Sys. v. Garage Emps. Union,
Local 272, 791 F.2d 22, 25-26 (2d Cir. 1986) (reversing arbitration award and remanding for
new hearing where arbitrator had no jurisdiction to interpret provisions in one of two collective
bargaining agreements between the parties: [A]rbitration depends on the consent of the parties
to the contract. . . . Courts generally enforce such [arbitration] clauses strictly, vacating awards
entered by arbitrators whose qualifications or method of appointment fail to conform . . . .);
SEIU, Local 32BJ v. Coby Grand Concourse, LLC, No. 04 Civ. 9580(CSH), 2006 WL 692000,
at *5 (S.D.N.Y. Mar. 16, 2006) (vacating arbitration award because one party decided to ignore
the . . . arbitrator specified in the CBA, and instead unilaterally selected a different arbitrator to
hear the . . . dispute); Elkouri & Elkouri, How Arbitration Works 172 (Alan Miles Ruben ed.,
6th ed. 2003) ([Where] an arbitrators appointment did not conform to the agreement on which
he based his jurisdiction, the defect was held to have rendered him powerless to act.). The
Panel should thus rule that the conduct at issue is within the exclusive jurisdiction of the System
Arbitrator and the discipline imposed by Commissioner Goodell is null and void. If the NFL
then wishes to initiate an Article 14 proceeding before System Arbitrator Burbank, it would be
free to do so.

36

CONCLUSION

For all of the foregoing reasons, the Players respectfully request that the decision of the
System Arbitrator be reversed and that the discipline of Commissioner Goodell, which was
without jurisdiction, be set aside in its entirety.

Dated: August 7, 2012 /s/ Jeffrey L. Kessler _
Counsel for National Football League
Players Association

NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION
Thomas DePaso
Heather M. McPhee
1133 20th Street, NW
Washington, DC 20036
(202) 756-9136
tom.depaso@nflplayers.com
heather.mcphee@nflplayers.com

WINSTON & STRAWN LLP
Jeffrey L. Kessler
David G. Feher
David L. Greenspan
200 Park Avenue
New York, NY 10166
(212) 294-6700
jkessler@winston.com
dfeher@winston.com
dgreenspan@winston.com


EXHIBIT A

__________________
PLAYERS ASSOCIATION,

Claimant,

v.


Respondent
__________________

BEFORE ACTING SYSTEM ARBITRATOR
STEPHEN B. BURBANK

Re: New Orleans Saints Pay-For-Performance/Bounty Program

OPINION

APPEARANCES:

FOR THE NFL PLAYERS ASSOCIATION:
By: Jeffrey L. Kessler, Esq.
200 Park Avenue
New York, N.Y. 10166

FOR THE NFL:
COVINGTON & BURLING LLP
By: Gregg H. Levy, Esq.
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2401


2

By a demand for arbitration dated May 3, 2012, the National Football League Players
Association (NFLPA) commenced this proceeding against the National Football League
(NFL) pursuant to the Collective Bargaining Agreement between the NFLPA and the NFL dated
August 11, 2011 (CBA). The NFLPA challenges the authority of the Commissioner of the NFL
(Commissioner) to impose discipline on four current and former New Orleans Saints (Saints)
players Scott Fujita, Anthony Hargrove, Will Smith, and Jonathan Vilma (collectively, the
Players) -- growing out of their alleged involvement in a pool from which Saints players were
allegedly paid both for legitimate football activities (e.g., interceptions) and for conduct that
incapacitated opponents, either temporarily (cart-offs) or for the duration of a game
(knockouts). The NFL responded on May 18; the NFLPA replied on May 25, and a hearing was
held on May 30.

Claiming authority under the standard Player Contract
1
and Article 46 of the CBA,
2
the
Commissioner found that the Players had engaged in conduct detrimental to the integrity of, and
public confidence in, the game of professional football, and suspended each of them without pay
for a number of games during the 2012 regular season. The Commissioners May 2, 2012 letters to
the Players each included the following paragraph describing in general the facts revealed by the
record before him:

1
The standard Player Contract provides in pertinent part:
Player recognizes the detriment to the League and professional football that
would result from impairment of public confidence in the honest and orderly
conduct of NFL games or the integrity and good character of NFL players.
Player therefore acknowledges his awareness that if he accepts a bribe or agrees
to throw or fix an NFL game or is guilty of any other form of conduct
reasonably judged by the League Commissioner to be detrimental to the
League or professional football, the Commissioner will have the right, but
only after giving Player the opportunity for a hearing at which he may be
represented by counsel of his choice, to fine Player in a reasonable amount;
to suspend Player for a period certain or indefinitely and/or to terminate this
contract.
CBA, App. A at 15. See id., Art. 4, 1(requiring standard Player Contract to be used for
all signings).
2
Article 46 provides in pertinent part:
All disputes involving action taken against a player by the Commissioner
for conduct detrimental to the integrity of, or public confidence in, the game
of professional football, will be processed exclusively as follows: the Commissioner
will promptly send written notice of his action to the player, with a copy to the
NFLPA. Within three (3) business days following such written notification, the
player affected thereby, or the NFLPA with the players approval, may appeal in
writing to the Commissioner.
CBA, Art. 46, 1(a).

3

The record, based on numerous witness interviews and substantial
documentary evidence, clearly shows that Saints defensive players and
coaches organized, administered and funded a pay-for-performance/bounty
program for three seasons; that the program included improper cash rewards
for legitimate plays (such as fumble recoveries, interceptions, and the like)
and improper cash rewards for injuring opposing players through cart-offs
and knockouts; and that on multiple occasions specific cash bounties were
placed on opposing players.
3

In addition, the letters contained different paragraphs describing the individuals alleged
participation in the pool, as prelude to statements concerning the basis for the discipline imposed.
The relevant portions of those letters are:

Fujita

With respect to your particular involvement, the record establishes that
you pledged a significant amount of money to the pool during the 2009
Playoffs. While the evidence does not establish that you pledged money
toward a specific bounty on any particular player, the pool to which
you pledged that money paid large cash rewards for cart-offs and
knockouts.
It is my determination that your actions constitute conduct detrimental .
4

****
Hargrove

With respect to your particular involvement, the record establishes that
you actively participated in the program while a member of the Saints. Your
declaration makes clear that the program existed at the Saints, and establishes that
you knew about and participated in it. In addition, although you later denied it,
the circumstances strongly suggest that you told at least one player on another club
about the program, and confirmed that Vikings quarterback Brett Favre was a target
of a bounty.
Moreover, and perhaps most important, you admitted that you intentionally
obstructed the leagues investigation into the program by being untruthful to
investigators. Your declaration acknowledges that you lied, but claims that you
were instructed to do so by the coaching staff. Assuming that to be the case, it
in no way absolved you from your obligation to cooperate with the investigation,
particularly with respect to matters involving player safety and the integrity of

3
NFLPA Initiating Letter Brief, Exh. C at 1, Exh. D at 1, Exh. E at 1, and Exh. F at 1.
4
Id., Exh. C at 2. The Commissioner suspended Mr. Fujita for the first three games of the
2012 regular season. See id.

4

the game.
It is my determination that your participation in the bounty program and
deliberate effort to impede the leagues investigation both constitute conduct
detrimental .
5

****
Smith

With respect to your particular involvement, the record establishes that\
you assisted Coach Williams in establishing and funding the program during a
period in which you were a captain and leader of the defensive unit. More
disturbing, multiple sources confirm that you pledged significant sums during the
2009 playoffs toward the program pool for cart-offs and knockouts of Saints
opposing players.
It is my determination that your active participation in the bounty program,
role in its establishment and funding, and the offer of significant sums toward the
program pool, all constituted conduct detrimental .
6

****
Vilma

With respect to your particular involvement, the record establishes that,
as a captain of the defensive unit, you assisted Coach Williams in establishing
and funding the program. More disturbing, several independent sources confirm
that during the 2009 NFL Playoffs you offered a $10,000 bounty to any player who
knocked quarterback Kurt Warner out of the Divisional Playoff game and later
pledged that same amount to anyone who knocked Brett Favre out of the NFC
Championship game.
It is my determination that your general participation in the bounty
program, your role in its funding, and the specific offer of bounties against specific
players, all constituted conduct detrimental .
7

****

The NFLPA contends that the conduct for which the Players were suspended is covered by
Article 14, Section 1 of the CBA, the enforcement of which is within the exclusive jurisdiction of

5
Id., Exh. D at 2. The Commissioner suspended Mr. Hargrove for the first eight games of
the 2012 regular season. See id.

6
Id., Exh. E at 2. The Commissioner suspended Mr. Smith for the first four games of the
2012 regular season. See id.

7
Id., Exh. F at 2. The Commissioner suspended Mr. Vilma for the entire 2012 season,
effective immediately. See id.


5

the System Arbitrator under Article 15, Section 1.
8
Article 14, Section 1 provides in pertinent part:

A Club (or a Club Affiliate) and a player (or a Player Affiliate or player
agent) may not, at any time, enter into undisclosed agreements of any
kind, express or implied, oral or written, or promises, undertakings,
representations, commitments, inducements, assurances of intent, or
understandings of any kind: (a) involving consideration of any kind to
be paid, furnished, or made available or guaranteed to the player, or
Player Affiliate, by the Club or Club Affiliate either prior to, during,
or after the term of the Player Contract .
CBA, Art. 14, 1.

In addition, the NFLPA seeks to enforce Article 14, Section 6(c), under which suspensions
are not permitted penalties for conduct in violation of Section 1 of this Article. The sole
penalties permitted for such conduct (as to players) are set forth in Section 6(a), as follows:

In the event that the System Arbitrator finds a violation of Subsections
1(a) or 1(b) of this Article, for each such violation: (i) (1) the System
Arbitrator may impose a fine of up to $500,000 on any player or player
agent found to have committed such violation, and (2) shall, unless the
parties to this Agreement otherwise agree, order the player to disgorge any
undisclosed compensation found to have been paid in violation of Section 1
of this Article unless the player establishes by a preponderance of the evidence
that he was unaware of the violation; and (ii) the Commissioner shall be
authorized to void any Player Contract(s) that was (or were) the direct cause
of such violation.
CBA, Art. 14, 6(a).

The NFLPA argues that the discipline that the Commissioner imposed on the Players was
predominantly based on the undisclosed pay for performance feature of the alleged bounty
system. NFLPA Reply at 1. Central to that argument is the view that two documents to which the
Commissioner referred in his letters to the Players informing them of their suspensions are of equal
probative value in determining the gravamen of the discipline as are the explanations in the letters
themselves. The two documents are the March 2, 2012 Report of NFL Security on Violations of
Bounty Rule by New Orleans Saints (NFL Security Report), NFL Initiating Letter Brief, Exh.
A, and the March 21, 2012 Memorandum of Decision: In the Matter of Bounty Violations by
New Orleans Saints (Memorandum of Decision). Id., Exh. B. As counsel for the NFLPA
acknowledged at the May 30 hearing, however, it should make no difference which feature of the

8
The NFLPA also invokes Article 4, Section 5(a) of the CBA, which provides that [a]ny
agreement between any player and any Club concerning terms and conditions of employment shall
be set forth in writing in a Player Contract as soon as practicable, but does not impute to it any
significance independent of Article 14, Section 1 for these purposes.

6

conduct in question was paramount for the Commissioner if, as the NFLPA contends, all of that
conduct is within the prohibition of Article 14, Section 1. See May 30, 2012 Tr. at 76 (Article 14
does not say that it matters for what purpose [i.e., legitimate plays or cart-offs] the payments are
being made.).

Simply as a matter of contract language, the alleged activities that gave rise to the
Commissioners disciplinary action do not fit comfortably within the ambit of Article 14, Section
1, whether one focuses on the pay for performance (legitimate football activities) or the
bounty (cart-offs or knockouts) feature of the pool. Section 1 evidently contemplates and
prohibits an undisclosed agreement or understanding between a player and a Club concerning the
players compensation. Undisclosed compensation terms could be used to avoid the Salary Cap or
the rules governing Rookie Compensation and the Rookie Compensation Pool, thereby disturbing
the competitive conditions to which they are thought to contribute. The concern about the integrity
of the Salary Cap and the Rookie Compensation Pool is inferable from the placement of Article 14
in the CBA immediately following the articles that prescribe the Salary Cap and the accounting
rules for the Salary Cap linkage that is confirmed by Article 14, Section 3 (authorizing System
Arbitrator proceedings for alleged violations of the Salary Cap and Rookie Compensation Pool
provisions, as well as for alleged violation of the ban on circumvention) and by Article 18
(prescribing certifications, including certification that Player Contract sets forth all components of
the players remuneration). That the animating concern is undisclosed compensation is also
confirmed by the fact that disgorgement of any undisclosed compensation found to have been
paid in violation of Section 1 is a mandatory penalty for a violation found by the System
Arbitrator, unless the parties to the CBA otherwise agree or the player establishes by a
preponderance of the evidence that he was unaware of the violation.

Article 14, section 1 clearly does not reach an agreement among players to reward on-field
conduct (of any sort) out of a pool funded and maintained by players without involvement of Club
personnel. Yet, as the NFLPA points out in reply to arguments made by the NFL, the allegation
that coaches were involved in the activities that prompted the Commissioners discipline of the
Players indeed that one of them established and managed the pool and that their superiors were
aware of and did little if anything to stop them, suggests that the Club was involved for purposes
of Article 14, Section 1, if not in paying, then in ma[king] available amounts from the pool.
9

Moreover, the involvement of multiple players does not insulate the scheme at issue here from
Article 14s prohibition, if it is otherwise applicable, since the prospect of and criteria for receiving
distributions from the pool could be deemed an undisclosed inducement[] or
understanding[] for all players regarding payments that would be made available by the Club,
acting through coaches.

Although it is thus possible to bring some the conduct alleged in the NFL Security Report

9
The NFL Security Report found that, although players primarily funded the pool, two
assistant coaches occasionally contributed to it (as on one occasion did one individual from
outside the club). NFLPA Initiating Letter Brief, Exh. A at 1.

7

within the reach of Article 14, Section 1, I need not decide that question, since I have concluded
that, with one possible exception, the conduct for which the Commissioner imposed discipline on
the Players is not covered by Article 14, Section 1 and thus that the System Arbitrator lacks
jurisdiction.

For this purpose, the important distinction is not between pay-for-performance
distributions and bounties. It is rather the distinction, as to players, between funding the pool or
making offers or pledges to contribute sums to it, on the one hand, and accepting (or agreeing to
accept) distributions from it, on the other. Even if Article 14, Section 1 is properly interpreted to
prohibit players from accepting (or agreeing to accept) undisclosed payments from a pool,
primarily funded by players, for on-field performance (of whatever sort), to extend its terms to
player contributions (or pledges) to the pool is not linguistically compelled and would wholly
unmoor the language from its animating purposes. See Reape v. New York News, Inc. 504
N.Y.S.2d 469, 470 (App. Div. 1986) (Since the intent of the parties in entering an agreement is a
paramount consideration when construing a contract, even the actual words provided therein may
be transplanted, supplied or entirely rejected to clarify the meaning of the contract.).

It is important that the System Arbitrator insist upon exclusive jurisdiction when the CBA
confers it. It is also important, however, that the System Arbitrator not usurp jurisdiction that is
conferred on other decision makers. See CBA, Article 15, Section 2(e) (limiting System
Arbitrators jurisdiction to terms of enumerated articles). Counsel for the NFLPA acknowledged
that the same nucleus of operative facts may give rise to conduct that violates both Article 14,
Section 1 and the prohibition against conduct detrimental, and that the appropriate disciplinary
process depends upon which aspect is sought to be punished.
10
So here.

Unlike the NFLPA, I do not regard the NFL Security Report, the Memorandum of
Decision, and the Commissioners May 2, 2012 letters as equally probative of the gravamen of the
discipline imposed on the Players. In his letters to the Players, the Commissioner indicated that the
NFL Security Report and the Memorandum of Decision set forth the key facts regarding the
bounty program.
11
As counsel for the NFL observed at the hearing, only two of the Players are
mentioned by name in the NFL Security Report, one of them only in connection with his denial
that a bounty program existed, and no player is mentioned by name in the Memorandum of

10
[I]f a player threw a game, that aspect of the conduct would be punishable by the
Commissioner, not noncontract payments. If he was given a noncontract payment, that would still
be for [the System Arbitrator], but the fact that a game was thrown? Thats conduct detrimental.
May 30, 2012 Tr. at 27. See also id. at 27-28 (Same thing if someone had a firearm. It doesnt
matter that there was a noncontract payment. There would be an aspect that could be punished, but
theyre very limited in [ ] terms of [the] type of behavior that is not given to others.).
11
NFLPA Initiating Letter Brief, Exh. C at 1, Exh. D at 1, Exh. E at 1, and Exh. F at 1.
The Commissioner did not rely on, and is not bound by, any legal analysis or legal conclusions in
the NFL Security Report.


8

Decision. See May 30, 2012 Tr. at 48. Moreover, in the concluding section of the former, the
author(s) determined that the evidence appears to establish conduct detrimental in violation of
the Constitution and Bylaws and specifically that [t]he players who contributed funds and
targeted players on opposing teams are guilty of conduct detrimental. NFLPA Initiating Letter
Brief, Exh. A at 4. Finally, the Memorandum of Decision concerned, and concerned only, the
appropriate discipline for the Club and Club personnel, reserving the question of discipline, if any,
for players. See id., Exh. B at 4, 6.

It makes little if any difference, however, once one has the relevant distinction in mind.
With the possible exception of Mr. Hargrove, there is no reason to believe that the Commissioner
proceeded because of undisclosed payments to the Players (or their undisclosed agreement to
accept payments). The Commissioners letter to Mr. Hargrove leaves open the possibility that the
participation for which (in part) discipline was imposed involved receipt of (or agreement to
accept) payments from the pool.
12
His letters to the other three individuals state clearly that he
imposed discipline because of the various roles that they allegedly played in establishing and/or
funding a pool that rewarded on-field conduct calculated to injure opponents, and that also
included bounties on specific opponents.

In that regard, it is not the case, as suggested by counsel for the NFLPA, that the
Commissioners only interest with respect to the bounty part is to punish for unsportsmanlike
conduct on the playing field. See May 30, 2012 Tr. at 25. Under the NFLPAs view of the CBAs
jurisdictional architecture, punishment of players who, with minimal involvement by Club
personnel, provided financial incentives for -- as opposed to themselves engaging in -- on-field
conduct that was designed to cause injury would be possible, if at all, only under a provision
(Article 14, Section 1) that is animated by concern about undisclosed payments to players and that
does not distinguish between payments for legitimate plays and those intended to incapacitate
opponents. If the language of the CBA required that result, I would be bound to implement it. But,
as discussed above, with the possible exception of Mr. Hargrove, I do not believe that Article 14,
Section 1 reaches the behavior of the Players that the Commissioner has sought to punish. In
addition, if there were doubt on that score, I would regard this as a situation appropriate for giving
a practical and reasonable interpretation to the language employed and the parties' reasonable
expectations with respect thereto, by reconciling Article 14, Section 1 and the Commissioners
power to impose discipline for conduct detrimental under Article 46. Malleolo v. Malleolo, 731
N.Y.S.2d 752, 753 (App. Div. 2001). See also National Conversion Corp. v. Cedar Bldg. Corp., 23
N.Y.2d 621, 625 (N.Y. 1969) (All parts of an agreement are to be reconciled, if possible, in order
to avoid inconsistency.).

12
See supra text accompanying note 5. But see May 30, 2012 Tr. at 69 (counsel for the
NFLPA observing, [a]ll that [the Commissioner] has on Mr. Hargrove is that he gave money into
the program. He doesnt link him to giving any hits, he doesnt link him to saying Im going to
particularly do something for cart-offs.). The Commissioner also (and, apparently, primarily)
imposed discipline on Mr. Hargrove for intentional obstruction of the leagues investigation. See
supra text accompanying note 5.

9

The NFLPA is understandably concerned that the Commissioners claims of power to
discipline for conduct detrimental not be permitted to subvert protections for players won in the
collective bargaining process. Alert to that risk, I have nonetheless concluded that Article 14
cannot reasonably be interpreted to address the phenomenon of players providing or offering to
provide financial incentives to injure opponents and thus that, when alleged to have done so, they
are not entitled to the bargained-for protections (as to process and permissible penalties) that
Article 14 provides.
13

In sum, with respect to Mr. Fujita, Mr. Smith and Mr. Vilma, I conclude that the System
Arbitrator lacks jurisdiction. I will retain jurisdiction as to Mr. Hargrove pending further action by
the Commissioner either in a revised letter or in connection with Mr. Hargroves appeal. The
action called for -- if the Commissioner continues to believe that discipline is appropriate and
again chooses to rely on Mr. Hargroves alleged participation in the pool in addition to his
obstruction of the leagues investigation -- is to specify the nature of that alleged participation. If
receipt of (or agreement to accept) payments from the pool plays any part in the revised decision
(or decision on appeal), the NFLPA may return to seek relief from the System Arbitrator.

In light of the pendency of appeals from the Commissioners decisions, it is appropriate to
emphasize -- with respect to all of the Players -- that nothing in this opinion is intended to convey a
view about the underlying facts or the appropriateness of the discipline imposed.

s/Stephen B. Burbank
Stephen B. Burbank
June 4, 2012

13
Even though counsel for the NFL was careful not to suggest that he was speaking for the
Commissioner in this respect, his answers to questions probing the limits of the Commissioners
power were measured. See May 30 Hearing Tr. at 56 ([M]y own view is that the
Commissioner could not discipline a player for exercising free agency rights to which the league
had agreed in the [CBA]); see also id. at 54-55.


EXHIBIT B
REGGIE 'WHITE, et al.,
P 1 air. tiffs,
v.
NA FOOTBALL LEAGL"E, et al.,
Defendants.

APPEARA..'iCES:
FOR THE WHJTE CLASS:
'WElL, GOTSHAL & MANGES
BY: Jeffrey L. Kessler
767 Fifth Avenue
New York, N.Y. 10153-0119
FOR THE PLAYERS
'!\'FL PLAYERS
BY: R.ic.hard A. Bert!J.elsen, Esq.
2021 L Street, N.W.
Was.bi.ngton, D.C 20036
FOR THE NFL MA.'-:AGEMENT
COu");CIL:
COVD;GTON & BURLING
BY: Neil Roman
P.O. Box 7566
Washlngton, D.C. 20044
JHF; OEC
1
SION NO. 8
BEFORE SPECIAL MASTER
JACK H. FRIEDENTHAL
RE: WALLY WILLIAMS
NFLCASE#8
..\,

.----
. -. -- ' . "'"""' ''
NU.bii::IC 1"",.:1/t::l
I. THE BACKGROUND OF THE DISPUTE:
By agreement of the National Football League Players Association (NFLPA) and the
National Football League Management G'I"FLMC). the deadline for a team to declare one
of its playas as a. Franchise Player for the 1998 League Yea! was on or before February 12,
1998. The Baltimore Ravens Club designated Wally Williams as its Franchise Player at
approximately 8:15P.M. on Febnwy 12, 1998. The NFLPA claims that the designation was
ineffective because of a tacit agreement of long standing between the NFLMC and the NFLPA
tl1at imposed a deadline of 4:00P.M. on the last day of the designation period after which no
designation would take effect. There is no dispute that without such an agreement as to a
specific deadline, a Franchise Player could be designated up until midnight of the final date for
such designations.
II THE NATURE OF THE ISSUES:
Tt.o:e are two basic issues involved in tlus dispute:
1. Does the last sentence of Section 19 of Article LV of the Collective
Bargaining Agreement (CBA) require that to be effective, an agreement to impose a 4:00P.M.
deadline under Article XX, Section 1, must be in "Wl'iting?
2. If the answer to 1, above is "no,'' does the available evidence establish an
Ul'lv.Titte.n agreement between the and the to set a deadline of4.00 P.M.?
III THE ARGUMENTS:
A. THE Of A AGREE.ME."'lT
The last sentence of Section 19 of CBA Article LV reads, "None of the Articles of this
Agreement be changed, altered or amended other than by a written agreement." Section 1,
of Article XX reads in part, "any ... (Franchise Player) designation must be made between
February 1 and February lS of each League Year or during such other period as may be agreed
on by the NFL and the NFLPA."
The argues that any change in the date or imposition of a time deadline must be
in writing under Section 19 above. The NFLPA argues that the imposition of a deadline does not
result in a "changed, altered or amended" CBA because Section 1 of Article XX already contains
within il the words "as may be agreed upon by the NFL and the NFLPA." Of eow-se, any
alteration of the CBA is permitted if the: parties agree. But the NFLPA's argument implies that
this cannot be considered an ordinary change, alteration or amendment because that would render
the quoted words in Section 1 superfluous. Therefore it follow that Section 19 of Article
LV is inapplicable. And since Section 1 of Article XX docs not specify that the agreement needs
to be in writing, an oral agreement would be proper and enforceable.

I
r
GWU
NO.Eoi::!l::
F',4/8
Tite exact meaning of the quoted of Article XX, Section 1 is not spelled out. If
read to permit a non-'W'ritten agreement it would conflict directly with the policy as expressed in
Article LV. Section 19. One cannot use parol evidenu to interpret the CBA contract, including
what it means to "agree" in Article XX, Section 1. but t.p tlte language of other
provisions of the CBA itself to determine just what is meant. (See CBA Article LV, Section 19,
and the couri;s decision in the Hobert\Grbacll matter, White, et Illy. National FootbeJlleague, et
4-92-906, slip opinion dated 30, 1997, pp. 12-13: "Special Master's decision .
. . (is] restricted to interpreting lenguage used in the ... (CBA] as a matter of law without
recomse to extrinsic evidence regardin& the parties' intent.'')
The overriding policy as estabLished by Section 19 is clenr; alterations of the specific
terms oft.lle CBA a.."e to be in writing. Article XX, Section 1 does not ilnply that a change of the
date or time for a Franchise Player designation is not to be considered an alteration of specified
provisions. And Section 1 itself does not specify that such a change of' terms can be oral or by ,
other than an agreement in writing. The statement that the parties can to alter the period of
the desigDation can, and shouldl be tt\ken only to emphasize the fact that the dates spelled out in
Section 1 are not to be considered carved in stone. A requireme11t that an agreement between the
:";FLY!C and the be in writing does no violence to Section 1 and aeates harmony
betweer: that Section and Section 19 of Article LV.
In addition, Section 1 specifies dates, i.e., "between February 1 and February lS of each
League Year l" not times of day. TI1e provision for change reads, "or such other period as may
be agreed on by the NFL and the By including the word "sw:.h, "the proviso appears
to relate only to a different period of days, not times. Thus, it can fairly be said that a time
designation (other than ll'lldnight) is an alteration of Section l that falls within Section 19 of
Article LV.
Therefore, in looking at the CBA as a whole) and in particular the policy expressed by
Section 19 of Article LV, I find that the alleged imposition of a 4:00 P.M. deadline could not be
effective unless there was a Mitten agrec::m.ent to that effect.
B TKE F AlLURE TO EST ABUSH TU EXISTENCE OF AN AGREEMENT TO IMPOSE A
4:00P.M. DL\DiJ1'"E:
Class Counsel is comet in stating that the ban on parol evidence in Article LV
1
Section
19, to interpnt the CBA does not bar evidenoe to establl&h the existence or nonexistence of a
subsequent UD'M'itten agreement, assuming that such an agreement is not barred by the last
sentence of Section 19. However, even asSLu:ning that imposition of a 4:00P.M. deadline did
not require a written agreement by the pl,l'ticsi the facts set forth on behalf of the NFLPA do not
establish by a preponderance of the evidence the existence ofa.ny agreement to that effect.
2
......
-:=:::: f; ICt::!"'f"l bWW L..H"" \..t..N I t..r< Ut..I-IN
f'oi0.5B0 P.S/9
1. Counsel relies on a series of internal NFL documents, provided each year
during the existence of the CBA, that infonn the individual Clubs that they have until4;00 P.M.
on the last day of the designation period to tnake a designation. Obviously, this alone does not
an agreement with the See Waterways Ltd. v. Barelays Bank, 202 A.D.2d
64,74, 615 8986, 892-93 (1994), There is no evidence that the NFLPA was asked to
agree to the contents of these communications or that it did so in any positive way. The same is
true of the fact that newspaper stories sometimes have stated that such a deadline exists. The
failure of the NFLPA somehow to raise the issue is not enough to establish an agreement. This is
not a situation v.'here agreement can be determined by silence; indeed the ever to raise the
issue Wltil now ca.o be taken as went to the fact that it is up to the to do as it wishes
with regard to establishing a.n4 Mving a time deadline.
2. Class Counsel4rgUeS that an agreement on the 4:00P.M. deadline
between the NFLPA and the is shown by an oral exchange among Mr. Levy, the
attorney for the N'FLMC, the Special Master, and Mr. Kessler, Class Counsel fof'lhe Players, in a .:"
case heard on February 15, 1994, Neither the language nor the cireums1ances bear that out.
As quoted by Class Counsel in its brief in the current matter (see Letter of Class
Counsel, Jeffrey Kessler, dated March 2, 1998 to Special Master Friedcnthal, pp. 3-5), Mr. Levy
begins the 1994 exchange by stating:
Yes. In that regard, I might note that the League has for its own
administrative convenience a deadline for clubs to notify the
Mangemcnt Council of their franchise playc.T designations. And
our plan, we assume no one hB.S any problem with that. is to
suspend that deadline for purposes of this proceeding to allow you
whatever time you think is necessary to resolve the issue.
(Emphasis supplied by Class Counsel.)
The discussion then continued as follows:
SPECIAL MASTER:
MR. LEVY:
MR. KESSLER:
In other words, even beyond midnight?
No. We don't plan beyond midnight. (Emphasis supplied by
Class Counsel.)
'I'M agreement says the 15th. I don't think we have the power to
suspend Chat. What the LeaiDJe is saying. tMy internally
set 4:00p.m. as their deadline. but they are wiUing to gjye you
time. obviously to decide today. (Emphasis supplied by Class
Counsel.)
3
'
' '' ......... --... -
The above hardly establish the existence of an agreement between the
and the NFLPA as to a 4:00 P.M. deatUine. The phrase ''we assume no one has any
problem with that" can simply be regarded as a statement that it was within the prerogative of the
NFL to waive the and that no one else had a right to object. Moreover, the failure of Class
Co\lll.Sel directly to address the matter em just as weU be considered as an admission of Class
Counsel that it has no right to interfere with Class Counsel specifically recognizes as the
League's "ir.ternally set ... deadline." Class Counsel goes on to say, "they [the NPLMC] are
willing to give you the time." This appears to be a firm recognition that the power is solely
within the power of the NFLMC. At oo point does Class Counsel say to the effect that
"We conC'Ul'" or "We give our permission."
There is an additional argument arising from Class Counsel's statement in regard
to going beyond midnight: ''The agreement says the 15th. I don't have the power to
suspend beyond that" [Emphasis d.] The reason for this statement must be that there was .
no agreement to alter the time for making a Franchise Player designation set.forth in Article ,
XX, Section 1 of the CBA (and, incide.ntally, a belief' that they could not alter it by an oral
agreement on the spot). A! noted above, Class Counsel then went on to speak of the suspension
ofth.e 4:00P.M. deadline as follows, "they (the NFL] are willing to give you the time."
[Emphasis added.] The use of the word "we" with regard to the suspension past midnight
contrasted with the word "they'' with regard to the suspension of the 4:00P.M. deadline shows
that the A did not believe that it had an agreement as to the laner.
Finally, in Mr. Levy's initial statement, he states that the NFLMC suspends the
deadline "for purposes ofllria proceeding." [Emphasis added.] In his brief Class CoWlSel refers
to the fact that another player, on a different team, who was not involved in a proceeding of any
kind, was, on the sam.e evening after 4:00P.M., designated a Franchise Player. (See Letter from
Class Counsel to Jack dated, March 2, 1998, p. 6 n.l, Alld Exhibit J to that Letter.)
The suspension for "this proceeding" obviously did not cover the designation of the second
playc:r and Class Counsel provides no evidence whatsoever that the NFLP A agreed in advance to
that designation or objected to it or raised an issue as to its propriety. If silent acq,u.iescence is to
be considered to establish an agreement, then Class Counsel could be said to have
agreed that the could waive any 4:00P.M. deadline on it.s own.
3. There b additional evidence to contradict of Class counsel's evidence of
the existence of a subsequent agreement to establish the 4:00P.M. deadline.
In a brief submitted on behalf of the Baltimore Ravens (See Letter from Ralph S.
Tyler to Jack Friedenthal, dated March 2, 1998, p. 3 and Exhibit 2) there is a \Witten letter
agreement prepared by the NFLMC and signed by counsel for the NFLPA that, among other
things, sets February 12, 1998 as the last day on which a Franchise Player can be ciesignated.
Th.erc can be no doubt that this written agreement is a valid alteration of the date ofFebruary 15
set out in Article XX. Section 1 of the CBA. It does not, however, specify a 4:00P.M. deadline
or any other time deadline.
4
\
P,?/8
To overcome any implication that a written agreement pursuant to Article XX,
Section 1 that changes the day, but does not include a time deaciline, would obviate a previous
time: dea..dlin.e (assuming one Col.Ulsel notes that a preamble paragraph states: "ln
order to maintain a schedule similar to prcvio\1$ years, we recommend the following dates for the
1998 League Year." Class Counsel relies on the word "similar" to imply the continuation of the
alleged deadline. Of course "similar', does not mean "identical." On the other hand, the
document refers only to "dates" and would not by itself entirely preclude the existence of a time
deadline if there was strong evidence that a separate agreement such a deadline existed.
The NFLMC also refers to a summer 1997-1998 NFLPA Player Planner,
provided to the players and including A calc:n4a.r of important dates. In the calendar reference to
Febr.1ary 12, 1998, it states that that is the last date by which a player can be designated a
Franchise Player, but it says nothing about a 4:00P.M. deadline. However, regarding other
dates on the calendar, specific time detuilines are set forth, e.g., on August 24 club rosters must
be cut to no more than 53 players by 4:00P.M. Eastern Time, on 25th clubs
must establish their practice squads by 4:00 P.M. Eastem Daylight Time and on August 29 clubs
are required to name their 49 player active list by 7:00P.M. Ee.stern Daylight Tilne. Not only
does t..'l;is list of dates and times indicate that the NFLP A does not believe that thae is an
agreement to a 4:00P.M. deadline for designating Franchise Players, b1.tt it is also significant to
establish that players have sound reason to discount newspaper reports that such a 4:00P.M.
deadline exists.
4. Class Counsel also argues that even if no agreement \\'aS reached by the
panies as to an alternate 4:00P.M. Qeadline P\.lrsuant to Artcie XX, Section l, parol evidence is
permitted to shaw a course of subsequent to a contract (in this case the CBA itself)
to establish an understanding of the parties as to that contract. He cites a number of authorities
for this proposition. (See Letter from Class Counsel, Jeffny Kessler, to Jack Friedentbal, dated
March 2, 1998, p. 6.) A number of these authorities support the proposition that pnrol evidence
em establish a subsequent agreement between parties, and as to that fact we agree, as we said at
the outset. However, that is irrelevant to the argument made here that even in the absence of a
subsequent agreement, parol evidence of subsequent conduct can be used to show the meaning of
the initial contract itself, which seems to be the thesis of Class Counsel as supponed by Viae om.
lnt'l. Inc. y. Lorimax Production&. Inc., 486 F. Supp. 95, 98 n.3 (S.D.N.Y. 1980).
The problem with the is that it ignores the difference between "parol
evidence" aud the "parol evidence rule." Parole evidence is eyjdcnce outside the foW' comers cf
the a document to est&blih the meaning oftbe document. The parol evidence rule is a legal
determination of when pwl evidence can or cannot be utilized. The parol evidence rule permits,
i:l certain cases, the admission of parol evidence to establish subsequent conduct by the parties to
a contract in order to prove what the parties meant by the terms of the contract. However, under
Section 19 of Article LV of the CBA, application of the parol rule is by a
flat prohibition of the use of parol evidence. Section 19 reads "the parties shall not, in any
proceeding or otherwise, use or refer to w parol evidence with regard to the interpretation or
s
08/16/2005 12 35 FAX 2028570673
litJ 008/008
mnanlng ... [of spoci:Q.cd Articlea includin& Article 'XX) oftbia Agtctmumt." [E.t:nphmiia added.]
A., Jud.Re Ooty bas held in prior matters in the Wbltw gMO, this provilion bar11bc UICI of ... IllY
evldencc rcprdina tba pftltic3' intmlt.'' (See. e.g., the liPlctlWb!l@ Matter. Whim ct
Bl. Y.&.Nnt!onal Football L"''QQ. et uL. alip opinion deed July 30, 1997. pp. 12 .. 13.) lhus,
evidence qf activities of the panics aubequcnt to tlK: CBA cannot be U&Cd or R:ibn'ed to in
detm:minl.og the melllling of Article X:X of the CBA.
EYen if parol cvidr:noo could bo Q.'!ed to establiJlh, by Mlbsequent con.cfuc;t. an
of Section 1 of Article XX. th.e:rc is no cvid.ence to ahow that a 4:00P.M. dt:adline
could be read into Section I. The NFLPA itaclfM&tak'mno smps that wouldremlt in mowing
its operalions are ln line with such - pra.ctioe and the NFL ' coobadiot the pru.etice in
seven.I ways. 'l1u:l t 994 excbangc bet'Ol'C the matter as quoted in pamgraph 2. abaw:
show clearly that tb.e NFLMC oond.dmd thtJ matter as OM of administrative convcn.iiiiiiCC fur the
Lcagt.te aod said so openly. And we have alroady notsd that Ute: NFL on II!WeT8l ocouioaa.
Including the prcaent one, unUatcrally the role.
FiDally, Clus CoUDBel rai3cs an rhe Playen are thirdpw:ty
btmcticlarica, preiJUIDAbly to a oon1ract between the NFLMC uad its telllUI. The 4:00
P.M. dcadline was IH't by 1he NFLMC. Them is oo indication t1w th14 was the result of a
oontraot between the NFLMC and the Clubs. The deadline was simply impoiiCd by the NFLMC.
The it was DOl considcrl:d a bindina con1:1'8G1 between them is by the fact that the
Baltimore Ravons roqucstcd to ao bayond the 4:00P.M. dcsadli.aa IIDd d1e requeet wa,g eriiJlted.
And n dhcuased Jn paragmph 2, above, in 1994. the NFLMC alao unilaterally ponnittcd a. Clttb
to m.a.lc.e a desjpnrion after 4:00 P.M. In nctit:hl!r cue is any indicttloa that t:M other
invol-ved CluhA were ukcd fbr permission whioh would haw been the: cue if they were pqrtica to
a ogreemcut.
v
to CAB Artiele LV. Section 19 and the policy there l'Citlccted, an Agrcoment
under Sodion l of Article XX tn establish 11. time for the qcaignatl.on of FranchirJe Pla)'ft" mUJt
be in writing. Since no MJCh written qreem.entexim M to B4:00 P.M. deadline, a deBiQDIIdon
up until xnidnight on february 12. 1998, was appropriate and effecdve,
Even if P. written DiJtlement WIIB not requited. the prepondenmoe of tho evidence fiilla to
establish tfurt the pmlies enta;ed Into any rha1 provided for the 4;00 P.M. dcadlint or
that the Pl&yets arc otherwise entitled to rely upon 5llllh a
Therefore the designation of Wally Williams u a Franchise Player WB& timely, valid, and
effc:cti'lfe.
6
R Fricdanthal
ial Muter
March 9, 1998

EXHIBIT C

EXHIBIT D
CONFIDENTIAL
NOT FOR PUBLIC DISTRIBUTION

March 21, 2012
MEMORANDUM OF DECISION
IN THE MATTER OF BOUNTY VIOLATIONS BY NEW ORLEANS SAINTS
On March 2, 2012, my office released the findings of a lengthy investigation into the payment of non-
contract bonuses to defensive players of the New Orleans Saints. As summarized in the Confidential
Report issued by NFL Security, our investigation revealed that Saints defensive players and at least
certain defensive coaches operated a pay for performance (or non-contract bonus) program during
the 2009, 2010, and 2011 NFL seasons.
League rules have long prohibited payment of non-contract bonuses. This is true whether such bonuses
are referred to as pay-for-performance a cash reward for a big play, such as an interception,
fumble recovery, or goal-line stop or a bounty a payment for actions directed at an opposing
player. There is a thin line between the two, and our investigation disclosed that the Saints players and
coaches crossed that line. Their pay for performance program became a bounty system under which
players were rewarded with cash for knock-outs and cartoffs
plays on which an opposing player was forced to leave the game. At times,the bounties even targeted
specific players by name.
In my March 2 memorandum to owners and club presidents, I advised that I intended tohold further
proceedings before imposing discipline on those involved with this program. In the intervening weeks,
our office has conducted further investigation, and I have met, sometimes on multiple occasions, with
many of the key individuals involved. I have also discussed this matter with the leadership of the NFL
Players Association, as well as with individual players.
The additional investigation confirmed in all respects the findings set forth in the Security Departments
report. This memorandum will first summarize the principal findings as they relate to the club and the
non-player employees. It will then address the disciplinary and remedial steps that I am directing today.
The investigation has conclusively established the following:
1. The Saints defensive team operated a pay-for-performance/bounty program during the 2009-11
seasons. Under that program, players regularly made cash donations to a pool, sometimes in the form
of fines for mental errors, loafing, penalties, and the like. At least one assistant coach (defensive
coordinator Gregg Williams) occasionally contributed to the pool.
2. Payments were made from the pool for plays such as interceptions or fumble recoveries. Payments
were also made for plays resulting in opposing players having to leave the game due to injury. In
addition, specific players were sometimes targeted. Our investigation confirmed that bounties were
placed on four quarterbacks of opposing teams Brett Favre, Cam Newton, Aaron Rodgers, and Kurt
Warner. Multiple sources have confirmed that several players pledged funds toward bounties on
specific opposing players. For example, defensive captain Jonathan Vilma offered $10,000 to any player
who knocked Brett Favre out of the NFC Championship game in 2010.
3.
Coach Williams acknowledged that he designed and implemented the pay for performance/bounty
program with the assistance of certain defensive players. Coach Williams did so after being told by
Saints Head Coach Sean Payton that his assignment was to make the Saints defense nasty. Coach
Williams described his role as overseeing recordkeeping, defining payout amounts, deciding who
received payouts, and distributing envelopes containing cash to players who earned rewards.
4.
In each of the 2009-2011 seasons,New Orleans was among the top five teams in the league in roughing
the passer penalties. In 2009 and 2011, the Saints were also among the top five teams in unnecessary
roughness penalties; in 2010, the Saints ranked sixth in this category. In the January 16,2010 divisional
playoff game against the Arizona Cardinals, Saints defensive players were assessed $15,000 in fines for
fouls committed against opposing players. The following week, in the NFC Championship game against
the Minnesota Vikings, Saints defensive players were assessed $30,000in fines for four separate illegal
hits, several of which were directed against quarterback Brett Favre.
5.
Coach Williams now acknowledges that when he was first questioned about this matter in early 2010,
he intentionally misled NFL investigators. In addition, he has acknowledged that he made no effort to
stop the bounty program after he became aware of the leagues investigation.
6.
Coach Williams furtherconfirmed that the program continued during the 2010 and 2011 seasons, and
that he occasionally contributed funds to the pool in both of those seasons.
7.
Assistant Head Coach Joe Vitt acknowledged that he was aware of theprogram in 2009-2011. He
admitted that, when interviewed in early 2010, he fabricated the truth to NFL investigators and
denied that any payfor performance or bounty program existed at the Saints.
8.
Coach Vitt said that one of his primary roles was to monitor the activity of Coach Williams. He did so at
the direction of Coach Payton, who apparently had less than full confidence in Coach Williams. Despite
Coach Vitts knowledge of the bounty program, his understanding of the terms knockout
and cart-off, his witnessing Coach Williams handing out envelopes that he believed to contain cash,
and hisacknowledgement that the defensive meeting preceding the 2010 NFC Championship game may
have got out of hand with respect to Brett Favre, Coach Vitt claimed that he never advised Coach
Payton or General Manager Mickey Loomis of the pay for performance/bounty program.
9. A summary prepared following a Saints preseason game included the statement, 1 Cart-off Crank
up the John Deer Tractor in reference to a hit on an opposing player. Similar statements are reflected in
documents or slides prepared in connection with other games. A review of the game films confirms that
opposing players were injured on the plays identified in the documents.
10.When interviewed in 2012, Head Coach Payton claimed to be entirely unaware ofthe pay-for-
performance/bounty program, a claim contradicted by others. Further, prior to the Saints opening
game in 2011, Coach Payton received an email from a close associate that stated in part, put me down
for $5000 on Rodgers. When shown the email during the course of the investigation, Coach Payton
stated that it referred to a bounty on Green Bay quarterback Aaron Rodgers.
11.In early 2010, Mr. Loomis advised Coach Payton that the league office was investigating allegations
concerning a bounty program at the Saints. Coach Payton said that he met with his top two defensive
assistants, Coach Williams and Coach Vitt, in advance of their interviews with league investigators and
told them, Lets make sure our ducks are in a row. Remarkably, Coach Payton claimed that he never
inquired of Coach Williams and Coach Vitt as to what happened in their interviews, never asked them if
a pay for performance or bounty program was in fact in place, and never gave any instructions to
discontinue such a program.
12.In January 2012, Coach Payton was advised by Mr. Loomis that the league office had reopened the
investigation. (This likely occurred following a meeting in New Orleans on January 6, 2012, between
league staff and Saints owner Tom Benson, at which the reopened investigation was discussed with Mr.
Benson.) Coach Payton made a cursory inquiry, but took no action to ensure that any bounty program
was discontinued.
13.General Manager Mickey Loomis was not present at meetings of the Saints defense at which
bounties were discussed and was not aware of bounties being placed on specific players. Mr. Loomis
became aware of the allegations regarding a bounty program no later than February 2010, when he was
notified of the investigation into the allegations during a meeting with NFL Executive Vice President-
Football Operations Ray Anderson. He was directed to ensure that any such program ceased
immediately. By his own admission, Mr. Loomis did not do enough to determine if a pay for
performance/bounty program existed or to end any such program that did exist.
14.Mr. Benson notified Mr. Loomis in January 2012 that the leagues investigation had been reopened.
Mr. Benson reiterated his position that a bounty program was unacceptable and instructed Mr. Loomis
to ensure that if a bounty program existed at the Saints, it stop immediately. By his ownadmission, Mr.
Loomis responded to this direction by making only cursory inquiries of Coaches Payton and Williams. He
never issued instructions to end the bounty program to either the coaching staff or the players.
15.There is no evidence that Saints ownership had any knowledge of the pay for performance or bounty
program, and no evidence that any club funds were used for the program. Ownership made clear that it
disapproved of the program, gave prompt and clear direction that it stop, and gave full and immediate
cooperation to league investigators.
Taken as a whole, the record establishes the existence of an active bounty program during the 2009,
2010, and 2011 seasons in clear violation of league rules and principles, a deliberate effort to conceal
the programs existence from league investigators, and a clear determination to maintain the program
notwithstanding express direction from club ownership that it stop as well as ongoing inquiries from my
office.
Set forth below is the disciplinary action that I have decided to take in respect of the Saints organization
and the non-player employees whose conduct I have determined to be in violation of league rules and
operating principles. I have not yet decided on what, if any, disciplinary action to take regarding players
who were involved in the bounty program. Those decisions will be made in accordance with the
procedures set forth in our Collective Bargaining Agreement with the NFLPA.
In determining discipline, I am guided by a number of policies and principles. The first is the
longstanding rule against non-contract bonuses set forth in the Constitution and Bylaws. Because of the
importance of this rule, clubs are reminded of its provisions every year prior to the start of the season.
For example, before the2011 season, clubs received a memo citing Sections 9.1 (C)(8) and 9.3 (F) and (G)
of the Constitution and Bylaws, and were expressly advised that:
No bonus or award may directly or indirectly be offered, promised, announced,or paid to a player for
his or his teams performance against a particular team or opposing player or a particular group thereof.
No bonuses or awards may be offered or paid for on-field misconduct (for example, personal fouls to or
injuries inflicted on opposing players.) (Emphasis added.)
In addition, a 2007 amendment to the Constitution and Bylaws obligated coaches and supervisory
employees to communicate openly and candidly with the principal owner and/or his designated
representative; to ensure that club ownership is informed on a complete and timely basis of all matters
affecting theclubs operations; . . . and to avoid actions that undermine or damage the clubs
reputationor operating success. (Section 9.3(A)(3)). It is apparent that neither the clubs Head Coach
nor the General Manager has complied with the terms of this resolution.
The obligation to supervise the staff is also expressly set forth in Coach Paytons employment
agreement. Coach Paytons contract states that his duties expressly include the supervision and
direction of the players and coaches. In light of hiscontractual authority and responsibility, Coach
Payton either knew or should have known of the pay for performance/bounty program, as his public
statement of March 7 acknowledged. The findings of our investigation show he failed to discharge his
contractual responsibilities.
The actionsset forth above clearly violate the Constitution and Bylaws and other league operating
principles and constitute conduct detrimental to the league and professional football. The existence of a
pay for performance/bounty program undermined the integrity of the game. These violations were
compounded by the failure of Coach Payton to discharge his responsibility to supervise the players and
coaches and his effort to maintain a posture of plausible deniability by (a) failing to inquire into the
facts concerning the pay for performance/bounty program even though he was aware of the leagues
inquiries in both 2010 and 2012; (b) falsely denying that the program existed; (c) countenancing and
encouraging the false denials by instructing assistants to make sure our ducks are in a row; and (d)
ignoring instructions from the league office and club ownership to ensure that no such program existed.
Mr. Loomis, as he acknowledged, did not respond in an effective way to either the inquiries from my
office or the direction of the clubs ownership. Instead, he satisfied himself with only limited inquiries
that neither sought nor obtained an accurate understanding of the facts. As he correctly recognized
when I met with him, he let his club and ownership down.
In addition to the clear and continuing violations of league rules, operating agreements, and principles,
and the decision of club staff to lie to league investigators (or as Coach Vitt putit, to fabricate the
truth), bounty programs are squarely contrary to one of the most important initiatives in the league
the protection of player health and safety. Our game is undeniably a physical one. There are collisions
on every play. Every player and coach understands that injuries are a part of professional football, as
they are in all contact sports. But there is no
place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doing
so. And while I do not address player conduct today, I am profoundly troubled by the fact that players
including player leaders assisted in the development of thisprogram and so enthusiastically embraced
and participated in it. A bounty program is irreconcilable with our commitment to create a culture of
sportsmanship, fairness and safety, and has no place in our game.
Finally, and consistent with prior decisions I have made, I believe that it is appropriate to impose
discipline on the club, even though ownership was not aware of the bounty program, made clearthat it
disapproved of any such program and gave clear direction that it stop, and gave full cooperation to our
investigation. I believe, and have frequently expressed the view, that clubs meaning ownership are
responsible for the conduct of their employees, particularly when, as here, those employees are at the
highest levels of the organization.
Based on this record, I have determined to impose the following discipline:
1. The New Orleans Saints are fined $500,000. A check in this amount is to be sent to the attention of
Joe Siclare, the league CFO, no later than March 31, 2012. In addition, although our investigation has not
disclosed evidence that would permit a definitive finding of competitive effects, because the
violationinvolves a competitiverule, the Saints will also forfeit their selections in the second round of the
2012 and 2013 NFL drafts.
2.
Saints HeadCoach Sean Payton is suspended without pay for the 2012 NFL season, effective April 1,
2012.
3.
Saints General Manager Mickey Loomis is suspended without pay for the first eight regular season
games of the 2012 NFL season and fined an additional amount such that the fine and forfeited pay will
together total $500,000. Unless other arrangements satisfactory to me are made, this additional amount
will be withheld in equal installments from Mr. Loomiss pay beginning on April 1, 2012, with the full
amount to be paid no later than the end of the 2012 season.
4.
Former Saints (and current St. Louis Rams) defensive coordinator Gregg Williams is suspended
indefinitely from further employment in the NFL, effective immediately. I will review Coach Williams
status at the conclusion of the 2012 NFL season, and will consider at that time whether, and if so on
what terms, to reinstate him.
5.
Saints assistant head coach Joe Vitt is suspended for the first six games of the 2012 season and fined an
additional amount such that the fine and forfeited pay will together total $100,000. This additional
amount will be withheld in equal installments from Mr. Vittspay beginning on April1, 2012, with the full
amount to be paid no laterthan the end of the 2012 season.
6.
Each of these individuals, as well as the Saints organization, will be expected to cooperate with my office
in respect of any further proceedings in this matter. In addition, each is expected to participate in efforts
led by my officeto develop programs that will instruct players and coaches at all levels of the game on
the need for respect for the game and those who participate in it, on principles of fair play, safety, and
sportsmanship, and to ensure that bounties will not be part of football at any level.
I am also directing that each principal owner meet with his head coach and
(i) confirm after due inquiry that his club does not operate any program of pay for performance,
bounties, or other non-contract bonuses, (ii) instruct his coach that any such program violates league
rules and operating agreements and is impermissible, and (iii) ensure that if such a program exists, it is
terminated immediately. Each principal owner and head coach shall file this certification byMarch 30,
2012, using the form provided for that purpose. Going forward, the annual certifications required of
each club under the Integrity of the Game Policy will be modified to include specificreferences to non-
contract bonuses, including bounties and pay for performanceprograms. This prohibition of pay for
performance programs includes not simply bounties of the kind identified here, but any form of non-
contract bonus payment. We are all accountable for ensuring adherence to these rules and for
promoting integrity and safety in our game.
I do not presently intend to impose sanctions on other clubs where Coach Williams was employed and
where bounty allegations have been made. While our staff has interviewed people in connection with
allegations of bounty programs at other clubs, we have not established evidence showing that the
programs at other clubs involved targeting opposing players or rewarding players for injuring an
opponent. The inability to determine the precise nature of the conduct at other clubs and the
responsibility of the individuals involved, combined with the significant sanction imposed today on the
common actor (Coach Williams), make it unnecessary presently to consider discipline on other clubs or
employees. If additional information comes to my attention that discloses specific bounties offered for
injuring specific opposing players, I will revisit this matterand consider whether additional discipline is
warranted.
The Saints and each of the disciplined individuals may appeal this decision by advising me in writing of
their wish to do so. Any notice of appeal must be received no later than April 2, 2012. If a timely appeal
is noticed, Iwill schedule a hearing at which I will preside and the club or individual may present
evidence or argument in support of the appeal.
At a later time, I will address the question of sanctions for players and others involved in the Saints
bounty program. Any sanctions will be imposed consistent with the provisions of the Collective
Bargaining Agreement. Whatever decision is ultimately made, I remain deeply troubled by what
occurred here. While all club personnel play to win the game, they must not let the quest for victory so
cloud their judgment that they willingly and willfully engage in conduct on the field intended to injure
fellow players.
ROGER GOODELL Commissioner

EXHIBIT E
Mr. Scott Fujita
c/o CLEVELAND BROWNS
76 Lou Groza Boulevard
Berea, Ohio 44017
Dear Mr. Fujita:
May 2, 2012
ROGER GOODELL
Commissioner
This will set forth my decision regarding discipline for your role in the "pay-for-
performance/bounty" program that operated at the New Orleans Saints during the 2009-2011
seasons. You were a member ofthe Saints' playing squad during the 2009 and 2010 seasons.
We have shared with the NFLPA the March 2 report of our Security Department and the
March 21 Memorandum of Decision, both of which set forth the key facts relating to the bounty
program. We have also met with representatives of the NFLPA on several occasions and have
reviewed additional details with them in the course of those meetings.
We offered you an opportunity to be interviewed prior to any decision being made
concerning possible discipline. Through your counsel at the NFLP A, you declined this
opportunity. We then asked the NFLPA to facilitate a meeting and interview with you, which
the NFLPA declined to do as well. Accordingly, I will address the issue of discipline based on
the record that is before me.
The record, based on numerous witness interviews and substantial documentary evidence,
clearly shows that Saints defensive players and coaches organized, administered and funded a
pay-for-performance/bounty program for three seasons; that the program included improper cash
rewards for legitimate plays (such as fumble recoveries, interceptions, and the like) and improper
cash rewards for injuring opposing players through "cart-offs" and "knockouts"; and that on
multiple occasions specific cash bounties were placed on opposing players.
With respect to your particular involvement, the record establishes that you pledged a
significant amount of money to the pool during the 2009 NFL Playoffs. While the evidence does
not establish that you pledged money toward a specific bounty on any particular player, the
"pool" to which you pledged that money paid large cash rewards for "cart-offs" and
"knockouts."
3 ~ 5 Park Avenue, New York, New York 1 0 1 5 ~ Tel (212} ~ 5 0 2 0 0 0 Fax {212} 681 7574
Mr. Scott Fujita
May2, 2012
Page2
It is my determination that your actions constitute conduct detrimental to the integrity of
and public confidence in the game of professional football. Accordingly, pursuant to my
authority under Article 46 of the Collective Bargaining Agreement and your NFL Player
Contract, you are suspended without pay for your club's first three games of the 2012 regular
season. This suspension will take effect upon the final roster reduction on August 31, 2012: until
that time, you may participate in all off-season activities, including preseason games.
If you wish to appeal this decision, you may do so by sending written notice to Adolpho
Birch at (212) 84 7 0819 within three business days of this letter. If a timely appeal is noticed, I
will promptly hold a hearing at which you may be represented by counsel and present evidence
in support of your appeal.
cc: Tom Heckert
Adolpho Birch
DeMaurice Smith

ROGER GOODELL
Commissioner

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I
CONFIDENTIAL
NOT FOR PUBLIC DISTRIBUTION

March 21, 2012
MEMORANDUM OF DECISION
IN THE MATTER OF BOUNTY VIOLATIONS BY NEW ORLEANS SAINTS
On March 2, 2012, my office released the findings of a lengthy investigation into the payment of non-
contract bonuses to defensive players of the New Orleans Saints. As summarized in the Confidential
Report issued by NFL Security, our investigation revealed that Saints defensive players and at least
certain defensive coaches operated a pay for performance (or non-contract bonus) program during
the 2009, 2010, and 2011 NFL seasons.
League rules have long prohibited payment of non-contract bonuses. This is true whether such bonuses
are referred to as pay-for-performance a cash reward for a big play, such as an interception,
fumble recovery, or goal-line stop or a bounty a payment for actions directed at an opposing
player. There is a thin line between the two, and our investigation disclosed that the Saints players and
coaches crossed that line. Their pay for performance program became a bounty system under which
players were rewarded with cash for knock-outs and cartoffs
plays on which an opposing player was forced to leave the game. At times,the bounties even targeted
specific players by name.
In my March 2 memorandum to owners and club presidents, I advised that I intended tohold further
proceedings before imposing discipline on those involved with this program. In the intervening weeks,
our office has conducted further investigation, and I have met, sometimes on multiple occasions, with
many of the key individuals involved. I have also discussed this matter with the leadership of the NFL
Players Association, as well as with individual players.
The additional investigation confirmed in all respects the findings set forth in the Security Departments
report. This memorandum will first summarize the principal findings as they relate to the club and the
non-player employees. It will then address the disciplinary and remedial steps that I am directing today.
The investigation has conclusively established the following:
1. The Saints defensive team operated a pay-for-performance/bounty program during the 2009-11
seasons. Under that program, players regularly made cash donations to a pool, sometimes in the form
of fines for mental errors, loafing, penalties, and the like. At least one assistant coach (defensive
coordinator Gregg Williams) occasionally contributed to the pool.
2. Payments were made from the pool for plays such as interceptions or fumble recoveries. Payments
were also made for plays resulting in opposing players having to leave the game due to injury. In
addition, specific players were sometimes targeted. Our investigation confirmed that bounties were
placed on four quarterbacks of opposing teams Brett Favre, Cam Newton, Aaron Rodgers, and Kurt
Warner. Multiple sources have confirmed that several players pledged funds toward bounties on
specific opposing players. For example, defensive captain Jonathan Vilma offered $10,000 to any player
who knocked Brett Favre out of the NFC Championship game in 2010.
3.
Coach Williams acknowledged that he designed and implemented the pay for performance/bounty
program with the assistance of certain defensive players. Coach Williams did so after being told by
Saints Head Coach Sean Payton that his assignment was to make the Saints defense nasty. Coach
Williams described his role as overseeing recordkeeping, defining payout amounts, deciding who
received payouts, and distributing envelopes containing cash to players who earned rewards.
4.
In each of the 2009-2011 seasons,New Orleans was among the top five teams in the league in roughing
the passer penalties. In 2009 and 2011, the Saints were also among the top five teams in unnecessary
roughness penalties; in 2010, the Saints ranked sixth in this category. In the January 16,2010 divisional
playoff game against the Arizona Cardinals, Saints defensive players were assessed $15,000 in fines for
fouls committed against opposing players. The following week, in the NFC Championship game against
the Minnesota Vikings, Saints defensive players were assessed $30,000in fines for four separate illegal
hits, several of which were directed against quarterback Brett Favre.
5.
Coach Williams now acknowledges that when he was first questioned about this matter in early 2010,
he intentionally misled NFL investigators. In addition, he has acknowledged that he made no effort to
stop the bounty program after he became aware of the leagues investigation.
6.
Coach Williams furtherconfirmed that the program continued during the 2010 and 2011 seasons, and
that he occasionally contributed funds to the pool in both of those seasons.
7.
Assistant Head Coach Joe Vitt acknowledged that he was aware of theprogram in 2009-2011. He
admitted that, when interviewed in early 2010, he fabricated the truth to NFL investigators and
denied that any payfor performance or bounty program existed at the Saints.
8.
Coach Vitt said that one of his primary roles was to monitor the activity of Coach Williams. He did so at
the direction of Coach Payton, who apparently had less than full confidence in Coach Williams. Despite
Coach Vitts knowledge of the bounty program, his understanding of the terms knockout
and cart-off, his witnessing Coach Williams handing out envelopes that he believed to contain cash,
and hisacknowledgement that the defensive meeting preceding the 2010 NFC Championship game may
have got out of hand with respect to Brett Favre, Coach Vitt claimed that he never advised Coach
Payton or General Manager Mickey Loomis of the pay for performance/bounty program.
9. A summary prepared following a Saints preseason game included the statement, 1 Cart-off Crank
up the John Deer Tractor in reference to a hit on an opposing player. Similar statements are reflected in
documents or slides prepared in connection with other games. A review of the game films confirms that
opposing players were injured on the plays identified in the documents.
10.When interviewed in 2012, Head Coach Payton claimed to be entirely unaware ofthe pay-for-
performance/bounty program, a claim contradicted by others. Further, prior to the Saints opening
game in 2011, Coach Payton received an email from a close associate that stated in part, put me down
for $5000 on Rodgers. When shown the email during the course of the investigation, Coach Payton
stated that it referred to a bounty on Green Bay quarterback Aaron Rodgers.
11.In early 2010, Mr. Loomis advised Coach Payton that the league office was investigating allegations
concerning a bounty program at the Saints. Coach Payton said that he met with his top two defensive
assistants, Coach Williams and Coach Vitt, in advance of their interviews with league investigators and
told them, Lets make sure our ducks are in a row. Remarkably, Coach Payton claimed that he never
inquired of Coach Williams and Coach Vitt as to what happened in their interviews, never asked them if
a pay for performance or bounty program was in fact in place, and never gave any instructions to
discontinue such a program.
12.In January 2012, Coach Payton was advised by Mr. Loomis that the league office had reopened the
investigation. (This likely occurred following a meeting in New Orleans on January 6, 2012, between
league staff and Saints owner Tom Benson, at which the reopened investigation was discussed with Mr.
Benson.) Coach Payton made a cursory inquiry, but took no action to ensure that any bounty program
was discontinued.
13.General Manager Mickey Loomis was not present at meetings of the Saints defense at which
bounties were discussed and was not aware of bounties being placed on specific players. Mr. Loomis
became aware of the allegations regarding a bounty program no later than February 2010, when he was
notified of the investigation into the allegations during a meeting with NFL Executive Vice President-
Football Operations Ray Anderson. He was directed to ensure that any such program ceased
immediately. By his own admission, Mr. Loomis did not do enough to determine if a pay for
performance/bounty program existed or to end any such program that did exist.
14.Mr. Benson notified Mr. Loomis in January 2012 that the leagues investigation had been reopened.
Mr. Benson reiterated his position that a bounty program was unacceptable and instructed Mr. Loomis
to ensure that if a bounty program existed at the Saints, it stop immediately. By his ownadmission, Mr.
Loomis responded to this direction by making only cursory inquiries of Coaches Payton and Williams. He
never issued instructions to end the bounty program to either the coaching staff or the players.
15.There is no evidence that Saints ownership had any knowledge of the pay for performance or bounty
program, and no evidence that any club funds were used for the program. Ownership made clear that it
disapproved of the program, gave prompt and clear direction that it stop, and gave full and immediate
cooperation to league investigators.
Taken as a whole, the record establishes the existence of an active bounty program during the 2009,
2010, and 2011 seasons in clear violation of league rules and principles, a deliberate effort to conceal
the programs existence from league investigators, and a clear determination to maintain the program
notwithstanding express direction from club ownership that it stop as well as ongoing inquiries from my
office.
Set forth below is the disciplinary action that I have decided to take in respect of the Saints organization
and the non-player employees whose conduct I have determined to be in violation of league rules and
operating principles. I have not yet decided on what, if any, disciplinary action to take regarding players
who were involved in the bounty program. Those decisions will be made in accordance with the
procedures set forth in our Collective Bargaining Agreement with the NFLPA.
In determining discipline, I am guided by a number of policies and principles. The first is the
longstanding rule against non-contract bonuses set forth in the Constitution and Bylaws. Because of the
importance of this rule, clubs are reminded of its provisions every year prior to the start of the season.
For example, before the2011 season, clubs received a memo citing Sections 9.1 (C)(8) and 9.3 (F) and (G)
of the Constitution and Bylaws, and were expressly advised that:
No bonus or award may directly or indirectly be offered, promised, announced,or paid to a player for
his or his teams performance against a particular team or opposing player or a particular group thereof.
No bonuses or awards may be offered or paid for on-field misconduct (for example, personal fouls to or
injuries inflicted on opposing players.) (Emphasis added.)
In addition, a 2007 amendment to the Constitution and Bylaws obligated coaches and supervisory
employees to communicate openly and candidly with the principal owner and/or his designated
representative; to ensure that club ownership is informed on a complete and timely basis of all matters
affecting theclubs operations; . . . and to avoid actions that undermine or damage the clubs
reputationor operating success. (Section 9.3(A)(3)). It is apparent that neither the clubs Head Coach
nor the General Manager has complied with the terms of this resolution.
The obligation to supervise the staff is also expressly set forth in Coach Paytons employment
agreement. Coach Paytons contract states that his duties expressly include the supervision and
direction of the players and coaches. In light of hiscontractual authority and responsibility, Coach
Payton either knew or should have known of the pay for performance/bounty program, as his public
statement of March 7 acknowledged. The findings of our investigation show he failed to discharge his
contractual responsibilities.
The actionsset forth above clearly violate the Constitution and Bylaws and other league operating
principles and constitute conduct detrimental to the league and professional football. The existence of a
pay for performance/bounty program undermined the integrity of the game. These violations were
compounded by the failure of Coach Payton to discharge his responsibility to supervise the players and
coaches and his effort to maintain a posture of plausible deniability by (a) failing to inquire into the
facts concerning the pay for performance/bounty program even though he was aware of the leagues
inquiries in both 2010 and 2012; (b) falsely denying that the program existed; (c) countenancing and
encouraging the false denials by instructing assistants to make sure our ducks are in a row; and (d)
ignoring instructions from the league office and club ownership to ensure that no such program existed.
Mr. Loomis, as he acknowledged, did not respond in an effective way to either the inquiries from my
office or the direction of the clubs ownership. Instead, he satisfied himself with only limited inquiries
that neither sought nor obtained an accurate understanding of the facts. As he correctly recognized
when I met with him, he let his club and ownership down.
In addition to the clear and continuing violations of league rules, operating agreements, and principles,
and the decision of club staff to lie to league investigators (or as Coach Vitt putit, to fabricate the
truth), bounty programs are squarely contrary to one of the most important initiatives in the league
the protection of player health and safety. Our game is undeniably a physical one. There are collisions
on every play. Every player and coach understands that injuries are a part of professional football, as
they are in all contact sports. But there is no
place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doing
so. And while I do not address player conduct today, I am profoundly troubled by the fact that players
including player leaders assisted in the development of thisprogram and so enthusiastically embraced
and participated in it. A bounty program is irreconcilable with our commitment to create a culture of
sportsmanship, fairness and safety, and has no place in our game.
Finally, and consistent with prior decisions I have made, I believe that it is appropriate to impose
discipline on the club, even though ownership was not aware of the bounty program, made clearthat it
disapproved of any such program and gave clear direction that it stop, and gave full cooperation to our
investigation. I believe, and have frequently expressed the view, that clubs meaning ownership are
responsible for the conduct of their employees, particularly when, as here, those employees are at the
highest levels of the organization.
Based on this record, I have determined to impose the following discipline:
1. The New Orleans Saints are fined $500,000. A check in this amount is to be sent to the attention of
Joe Siclare, the league CFO, no later than March 31, 2012. In addition, although our investigation has not
disclosed evidence that would permit a definitive finding of competitive effects, because the
violationinvolves a competitiverule, the Saints will also forfeit their selections in the second round of the
2012 and 2013 NFL drafts.
2.
Saints HeadCoach Sean Payton is suspended without pay for the 2012 NFL season, effective April 1,
2012.
3.
Saints General Manager Mickey Loomis is suspended without pay for the first eight regular season
games of the 2012 NFL season and fined an additional amount such that the fine and forfeited pay will
together total $500,000. Unless other arrangements satisfactory to me are made, this additional amount
will be withheld in equal installments from Mr. Loomiss pay beginning on April 1, 2012, with the full
amount to be paid no later than the end of the 2012 season.
4.
Former Saints (and current St. Louis Rams) defensive coordinator Gregg Williams is suspended
indefinitely from further employment in the NFL, effective immediately. I will review Coach Williams
status at the conclusion of the 2012 NFL season, and will consider at that time whether, and if so on
what terms, to reinstate him.
5.
Saints assistant head coach Joe Vitt is suspended for the first six games of the 2012 season and fined an
additional amount such that the fine and forfeited pay will together total $100,000. This additional
amount will be withheld in equal installments from Mr. Vittspay beginning on April1, 2012, with the full
amount to be paid no laterthan the end of the 2012 season.
6.
Each of these individuals, as well as the Saints organization, will be expected to cooperate with my office
in respect of any further proceedings in this matter. In addition, each is expected to participate in efforts
led by my officeto develop programs that will instruct players and coaches at all levels of the game on
the need for respect for the game and those who participate in it, on principles of fair play, safety, and
sportsmanship, and to ensure that bounties will not be part of football at any level.
I am also directing that each principal owner meet with his head coach and
(i) confirm after due inquiry that his club does not operate any program of pay for performance,
bounties, or other non-contract bonuses, (ii) instruct his coach that any such program violates league
rules and operating agreements and is impermissible, and (iii) ensure that if such a program exists, it is
terminated immediately. Each principal owner and head coach shall file this certification byMarch 30,
2012, using the form provided for that purpose. Going forward, the annual certifications required of
each club under the Integrity of the Game Policy will be modified to include specificreferences to non-
contract bonuses, including bounties and pay for performanceprograms. This prohibition of pay for
performance programs includes not simply bounties of the kind identified here, but any form of non-
contract bonus payment. We are all accountable for ensuring adherence to these rules and for
promoting integrity and safety in our game.
I do not presently intend to impose sanctions on other clubs where Coach Williams was employed and
where bounty allegations have been made. While our staff has interviewed people in connection with
allegations of bounty programs at other clubs, we have not established evidence showing that the
programs at other clubs involved targeting opposing players or rewarding players for injuring an
opponent. The inability to determine the precise nature of the conduct at other clubs and the
responsibility of the individuals involved, combined with the significant sanction imposed today on the
common actor (Coach Williams), make it unnecessary presently to consider discipline on other clubs or
employees. If additional information comes to my attention that discloses specific bounties offered for
injuring specific opposing players, I will revisit this matterand consider whether additional discipline is
warranted.
The Saints and each of the disciplined individuals may appeal this decision by advising me in writing of
their wish to do so. Any notice of appeal must be received no later than April 2, 2012. If a timely appeal
is noticed, Iwill schedule a hearing at which I will preside and the club or individual may present
evidence or argument in support of the appeal.
At a later time, I will address the question of sanctions for players and others involved in the Saints
bounty program. Any sanctions will be imposed consistent with the provisions of the Collective
Bargaining Agreement. Whatever decision is ultimately made, I remain deeply troubled by what
occurred here. While all club personnel play to win the game, they must not let the quest for victory so
cloud their judgment that they willingly and willfully engage in conduct on the field intended to injure
fellow players.
ROGER GOODELL Commissioner

EXHIBIT J
WINSTON Sz STRAWN ELP
BEIJING
CHARLOTTE
CHICAGO
GENEVA
HONG KONG
HOUSTON
LONDON
LOSANGELES
200 PARK AVENUE
NEWYORK, NY 10166
+1 (212) 294-6700
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www.winston.com
MOSCOW
NEWYORK
NEWARK
PARIS
SANFRANCISCO
SHANGHAI
WASHINGTON, DC
Jeffrey L. Kessler
Pa rt n er
212-294-4698
jkessler@win st on .com
Ma y 25, 2012
VIA EMAIL
Syst em Arbit ra t or St ephen Burba n k
Un iversit y of Pen n sylva n ia La w School
3400 Chest n ut St reet
Phila delphia , PA 19104
Dea r Professor Burba n k:
The NFL's Ma y 18 let t er brief ("Opposit ion ") ca n n ot overcome t wo in disput a ble poin t s
t ha t compel gra n t in g t he request ed relief: (i) t he Commission er's purport ed disciplin e is, on it s
fa ce, predomin a n t ly ba sed on t he un disclosed "pa y for performa n ce" fea t ure of t he a lleged
boun t y syst em; a n d (ii) pen a lt ies for such un disclosed "pa y for performa n ce" a greemen t s
in volvin g Clubs a n d pla yers fa ll squa rely wit hin t he exclusive provin ce of t he Syst em Arbit ra t or
a n d, t hus, out side of t he Commission er's jurisdict ion t o disciplin e pla yers for con duct
det rimen t a l. An y ot her con clusion would ren der t he exclusive jurisdict ion of t he Syst em
Arbit ra t or mea n in gless a s t he Commission er could simply decla re a n yt hin g a ssign ed t o a n ot her
CBA a rbit ra t or t o be "con duct det rimen t a l" wit hin t he Commission er's jurisdict ion a l rea ch. The
Commission er, however, does n ot ha ve such un boun ded jurisdict ion .
In a fut ile effort t o a void t he a bove con clusion , t he NFL's Opposit ion a t t empt s a n a bout -
fa ce from t he Commission er's st a t ed rea son s for suspen din g Messrs. Fujit a , Ha rgrove, Smit h,
a n d Vilma . But it is t he NFL's Securit y Report , Memora n dum of Decision , a n d t he four Pla yer
Disciplin e let t ers n ot Mr. Levy's Opposit ion brief t ha t defin e t he groun ds for t he
Commission er's suspen sion s. Those govern in g documen t s, which set fort h t he ba sis for t he
Commission er's a ct ion s, lea ve n o doubt , a s shown below, t ha t t he a lleged n on -con t ra ct ua l
pa ymen t s were t he cen t ra l ba sis of t he disciplin e imposed.
Those sa me Lea gue documen t s a lso a ckn owledge t ha t a lleged "[p]a ymen t s of t he t ype
ma de here . . . a re forbidden beca use t hey a re in con sist en t wit h t he Collect ive Ba rga in in g
May 25, 2012
Page 2
Agreement and well-accepted rules relating to NFLplayer contracts." (NFLSecurity Report at 3
(Ex. A to NFLPA May 3, 2012 Ltr. to System Arbitrator ("NFLPA Moving Br.")).) The NFL's
Opposition improperly tries to retreat from this concession, too. Among other things, the NFL
argues based on a protracted discussion of the meaning of the word "the" that Article 14,
Section 1 prohibits undisclosed payments involving a Club and "the player" (singular), but that a
Club-organized system involving undisclosed payments to many players (plural), would
somehow be permissible under the CBA. This reading of Article 14, Section 1 is absurd, belied
by the NFL's own admission, and should be rejected out of hand.
So too should the System Arbitrator dismiss the NFL's dire warnings of Your Honor
affording players immunity from nefarious conduct, like throwing games, if the NFLPA prevails
in this proceeding. The NFL's hyperbole misses the point. If a coach paid a player to throw a
game, the Commissioner could certainly take disciplinary action against the player for throwing
the game but not for the non-contractual payment, which would be within the exclusive
jurisdiction of the System Arbitrator. Here, however, the NFLexplicitly seeks to punish players
for the "pay for performance" aspect of the alleged "bounty" system a subject that the parties
delegated exclusively to the System Arbitrator. An order from the System Arbitrator declaring
that the NFLcannot punish the alleged non-contractual payments is therefore warranted.
Further, the System Arbitrator should set aside the discipline the Commissioner proposed
because it is predominantly and inextricably based on the alleged "pay for performance" system.
This proceeding does not seek a "get-out-of-jail free card." (Opp'n at 6.) The NFLcould
seek to punish the alleged non-contractual bonus payments by initiating a proceeding against the
players before the System Arbitrator. And, to the extent that there is any remaining conduct
outside the exclusive jurisdiction of the System Arbitrator that the NFLseeks to punish
namely, the alleged unsportsmanlike conduct against other players on the field such allegations
could be pursued before Hearing Officers Shell and Cottrell under CBA Article 46, Section
1(b). 1 But, as described below, what the Commissioner cannot do is expand the reach of his
limited Article 46 authority by re-labeling non-contractual payments and/or on-the-field
unsportsmanlike conduct as constituting "conduct detrimental," subject to a Commissioner
arbitration.
The CBA lays out a carefully bargained-for structure in which all arbitrations are before a
neutral arbitrator except for the narrow category of conduct delegated to the Commissioner in
Article 46. The allegations here do not, by the NFL's own account, fit within that category.
Rather, this is a matter within the exclusive jurisdiction of the System Arbitrator, and the NFL
cannot avoid that result simply because the Commissioner declares the conduct alleged to be
"conduct detrimental."
Any System Arbitrator or Hearing Officer Shell/Cottrell discipline would, however, be bound by the
Non-Injury Grievance Arbitrator's forthcoming determination about the scope of the NFL's release of
pre-August 2011 player conduct. (See May 3, 2012 NFLPALtr. Initiating Non-Injury Grievance, at 2-3
("NFLPANon-Injury Ltr.") (attached hereto as Ex. 1).)
WINSTON & STRAWN ELP
Ma y 25, 2012
Pa ge 3
I. The Commissioner's Purported Discipline Is Unquestionably
Based On Alleaed "Non-Contract Bonuses"
At t empt in g t o rewrit e recen t hist ory, t he NFL cla ims in it s Opposit ion t ha t t he
Commission er did n ot in t en d t o ba se his pun ishmen t s on n on -con t ra ct ua l pa ymen t s. (Opp'n a t
5.) This con t en t ion is 100% con t ra ry t o t he writ t en record t ha t t he NFL crea t ed t o est a blish t he
ba sis of t he purport ed disciplin e. The NFL Securit y Report , Memora n dum of Decision a n d
Pla yer Disciplin e let t ers con firm t ha t , a bove a ll else, t he Commission er sought t o pun ish pla yers
for t he a lleged "improper ca sh rewa rds" rega rdless of t he n a t ure of t he performa n ce bein g
compen sa t ed.
For exa mple, in it s Securit y Report , where t he NFL a lleges wha t it describes a s t he "key
fa ct s" un derlyin g t he disciplin e (Opp'n a t 5), t he Lea gue un a mbiguously st a t es t ha t t he
Commission er's disciplin e is prin cipa lly ba sed on a greemen t s bet ween t he Club a n d pla yers t o
ma ke n on -con t ra ct ua l pa ymen t s a va ila ble t o pla yers:
"[E]mployees of t he New Orlea n s Sa in t s repea t edly viola t ed t he 'Boun t y Rule' by
est a blishin g ca sh pools, fun ded prima rily by pla yers, a lon g wit h occa sion a l
con t ribut ion s from t wo a ssist a n t coa ches. . . . The pla yers t hen received ca sh
pa ymen t s from t hose pools . . . ." (NFL Securit y Report a t 1.)
Such con duct is pun isha ble beca use "Nile NFL ha s lon g ha d in pla ce rules
prohibit in g 'Non -Con t ra ct Bon uses.' Such provision s viola t e bot h t he NFL
Con st it ut ion a n d By-La ws a n d t he Collect ive Ba rga in in g Agreemen t ." (Id.)
"Durin g t he 2009, 2010, a n d 2011 sea son s," Sa in t s pla yers a n d coa ches
"developed a n d a dmin ist ered a Ta y for Performa n ce' progra m . . . . All such
pa ymen t s viola t e lea gue rules prohibit in g n on -con t ra ct bon uses." (Id. a t 2.)
"There is n o quest ion t ha t a boun t y progra m of t his t ype viola t es lon g-st a n din g
lea gue rules. Pa ymen t s of t he t ype ma de here even for legit ima t e pla ys such a s
in t ercept ion s or fumble recoveries a re forbidden beca use t hey a re in con sist en t
wit h t he Collect ive Ba rga in in g Agreemen t a n d well-a ccept ed rules rela t in g t o
NFL pla yer con t ra ct s." (Id. a t 3.)
(Empha ses a dded t hroughout .)
The NFL's Memora n dum of Decision imposin g disciplin e a ga in st t he Club, it s Gen era l
Ma n a ger, a n d it s coa ches, is a lso replet e wit h a ssert ion s t ha t t he core con duct a t issue is t he
"pa ymen t of n on -con t ra ct bon uses":
WINSTON & STRAWN LEP
Ma y 25, 2012
Pa ge 4
6 "[O]ur in vest iga t ion revea led t ha t Sa in t s defen sive pla yers a n d a t lea st cert a in
defen sive coa ches opera t ed a 'pa y for performa n ce' (or n on -con t ra ct bon us)
progra m . . ." (NFL Memora n dum of Decision a t 1 (Ex. B t o NFLPA Movin g
Br.).)
"In det ermin in g disciplin e, I a m guided by a n umber of policies a n d prin ciples.
The first is t he lon gst a n din g rule a ga in st n on -con t ra ct bon uses . . . ." (Id. a t 4.)
(Empha ses a dded t hroughout .)
Ea ch of t he four Pla yer Disciplin e let t ers serves a s yet furt her con firma t ion t ha t t he focus
of t he Commission er's disciplin e is t he n on -con t ra ct ua l pa ymen t a spect of t he "boun t y" progra m:
6 The "Sa in t s defen sive pla yers a n d coa ches orga n ized, a dmin ist ered a n d fun ded a
pa y for performa n ce/boun t y progra m for t hree sea son s . . . t he progra m in cluded
improper ca sh rewa rds for legit ima t e pla ys (such a s fumble recoveries,
in t ercept ion s, a n d t he like). (See Pla yer Disciplin e Let t ers a t 1 (Exs. C-F t o
NFLPA Movin g Br.) (empha ses a dded).)
In deed, t he Commission er's explicit a ckn owledgemen t t ha t pa ymen t s even "for
legit ima t e pla ys" un derlie his purport ed disciplin e la ys ba re t he fut ilit y of t he NFL's a t t empt t o
sever t he n on -con t ra ct ua l pa ymen t s from t he so-ca lled "boun t y" disciplin e. Beca use t he
Commission er's disciplin e rest s, un equivoca lly, on t hese a lleged n on -con t ra ct ua l pa ymen t s, t he
Syst em Arbit ra t or must set it a side.
II. It Is The NFL's Theory Of Unbounded Commissioner Discipline That Is Absurd
As t he NFL's Opposit ion ma kes clea r, t he Lea gue's posit ion a bout t he rea ch of
Commission er Goodell's jurisdict ion is, in a n ut shell, t ha t "con duct det rimen t a l" en compa sses
wha t ever con duct Commission er Goodell sa ys it does. The NFL's posit ion is un t en a ble,
especia lly in t he fa ce of CBA provision s t ha t specifica lly delega t e t he con duct t ha t t he NFL
seeks t o pun ish a Club-direct ed syst em of "pa ymen t s for perfoima n ce" t o t he exclusive
jurisdict ion of t he Syst em Arbit ra t or. (See CBA, Art . 15, 1 (gra n t in g t he Syst em Arbit ra t or
exclusive jurisdict ion over Art icle 14, Sect ion 1).)
To use t he NFL's pa rla n ce, t he Commission er's fun ct ion a s a n a rbit ra t or "is a n office of
limit ed jurisdict ion ."2 (Opp'n a t 3 n .1) But , un der t he view t he NFL is t a kin g in t his proceedin g,
2 In t he Art icle 46 con t ext , t he Commission er serves a s a n a rbit ra t or. See Na t 'l Hockey Lea gue Pla yers
Ass'n v. Bet t ma n , No. 93 Civ. 5769, 1994 WL738835, a t *27 (S.D.N.Y. Nov. 9, 1994) ("It is t rue t ha t
t he rela t ion ship bet ween [Commission er] Bet t ma n a n d [pla yer] Sa t her wa s, in on e respect , differen t from
t he ordin a ry a rbit ra t or-pa rt y rela t ion . . . . Non et heless t his rela t ion ship does n ot un dermin e
[Commission er] Bet t ma n 's ca pa cit y t o sit a s a n a rbit ra t or in t hese disput es . . . ."). The NFLha s a lrea dy
Ma y 25, 2012
Pa ge 5
t he Commission er would ha ve un checked discret ion t o suppla n t t he Syst em Arbit ra t or's
jurisdict ion or t ha t of a n y ot her n eut ra l a rbit ra t or a ssign ed specific disput e resolut ion
respon sibilit ies un der t he CBA simply by sla ppin g a "con duct det rimen t a l" la bel on t he a lleged
pla yer con duct . The CBA offers n o t ext ua l support for a n y such un con st ra in ed gra n t of
discret ion t o t he Commission er, a n d a n y such result would be a bsurd a n d clea rly wa s n ot
in t en ded by t he CBA pa rt ies. In deed, t o con clude ot herwise would effect ively eviscera t e t he
exclusive jurisdict ion gra n t ed t o t he Syst em Arbit ra t or over subject s like n on -con t ra ct ua l
pa ymen t s a n d free a gen cy. See Whit e v. NFL (In re Kyle Richa rdson ), 149 F. Supp. 2d 858, 860
(D. Min n 2001) ("Furt her, t he court must give effect a n d mea n in g t o every t erm of t he con t ra ct ,
ma kin g every rea son a ble effort t o ha rmon ize a ll of it s t erms. The con t ra ct must a lso be
in t erpret ed so a s t o effect ua t e, n ot n ullify, it s prima ry purpose."); Whit e v. NFL (Sa la ry Ca p
Va lua t ion Issues), slip op. a t 4 (Sept . 28, 2005) (Burba n k ) ("In [in t erpret in g t he SSA a n d CBA], I
must t ry t o a void a n in t erpret a t ion t ha t eit her would crea t e con flict bet ween con t ra ct ua l provision s
or ren der a n y such provision a n ullit y.").
For exa mple, un der t he NFL's t heory of un limit ed Commission er power, t he Commission er
could decide t ha t a pla yer exercisin g free a gen cy right s in a pa rt icula r sit ua t ion is "con duct
det rimen t a l" t o t he Lea gue beca use it upset s "compet it ive ba la n ce" in t he Commission er's view. It
would, however, be ridiculous t o con clude t ha t t he Syst em Arbit ra t or could n ot set a side a n y
purport ed Commission er disciplin e in t ha t sit ua t ion beca use t he Commission er ha s n o a ut horit y
over free a gen cy right s a n d prot ect ion s un der t he CBA. Yet t ha t is precisely t he a rgumen t t he
NFL a dva n ces here in cla imin g t ha t t he Commission er ca n decla re n on -con t ra ct ua l pa ymen t s t o
con st it ut e con duct det rimen t a l.
The Commission er's con duct det rimen t a l powers simply do n ot ext en d t o sit ua t ion s in
which t he a lleged beha vior fa lls squa rely wit hin a CBA provision (or provision s) delega t ed t o a
differen t CBA a rbit ra t or (or a rbit ra t ors). 3 For exa mple, t he combin a t ion of a lleged n on -
con t ra ct ua l pa ymen t s (wit hin t he exclusive jurisdict ion of t he Syst em Arbit ra t or) a n d
un sport sma n like on -t he-field con duct a ga in st ot her pla yers (wit hin t he exclusive jurisdict ion of
a ckn owledged t his. (Tr. of Non -In jury Grieva n ce Hr'g a t 42:20-22, In re New Orlea n s Sa in t s (Ma y 16,
2012) (NFLcoun sel referrin g t o t he Commission er a s a n "a rbit ra t or" in t he disciplin e con t ext ) (a t t a ched
heret o a s Ex. 2).)
3
Here, put t in g a side t he n on -con t ra ct ua l pa ymen t s, t he on ly rema in in g con duct t ha t could t heoret ica lly be
a t issue is t he a lleged un sport sma n like con duct on t he field a ga in st ot her pla yers. (NFLSecurit y Report
a t 1.) If t he NFLseeks t o disciplin e t he pla yers for such con duct , t he NFLPA a grees wit h t he Lea gue t ha t
t he Syst em Arbit ra t or does n ot ha ve jurisdict ion t o decide whet her t o impose t ha t disciplin e, n or t o decide
who ma y impose it . In st ea d, it would be wit hin t he jurisdict ion of t he Non -In jury Grieva n ce Arbit ra t or t o
det ermin e t ha t t he on -t he-field un sport sma n like con duct a t issue is wit hin t he exclusive purview of t he
Art icle 46, Sect ion 1(b) Hea rin g Officers, who ha ve jurisdict ion t o disciplin e pla yers for
"un sport sma n like con duct " a n d "un n ecessa ry roughn ess." (CBA, Art . 46, 1(b) ("Win es or suspen sion s
imposed upon pla yers for un n ecessa ry roughn ess or un sport sma n like con duct on t he pla yin g field wit h
respect t o a n opposin g pla yer or pla yers" "sha ll be" det ermin ed by t he Commission er's design ee a n d is
t hen a ppea la ble t o hea rin g officers Art Shell a n d Ted Cot t rell))
Ma y 25, 2012
Pa ge 6
Hea rin g Officers Shell a n d Cot t rell) does n ot somehow shift t hose clea rly delin ea t ed
jurisdict ion a l powers from t he a ppoin t ed CBA a rbit ra t ors t o t he Commission er. Put a n ot her
wa y, on e plus on e does n ot equa l t hree. Such a result would ren der mea n in gless t he jurisdict ion
of t hose a rbit ra t ors t o whom t he pa rt ies ha ve un a mbiguously gra n t ed a ut horit y over specified
ma t t ers.
Your Hon or is n o st ra n ger t o t he possibilit y t ha t a common set of circumst a n ces ca n give
rise t o pa ra llel proceedin gs before mult iple CBA a rbit ra t ors, ea ch of whom ha s jurisdict ion over
a differen t a spect of t he disput e. For exa mple, in t he ca se of Ashley Lelie, t he Specia l Ma st er
exercised jurisdict ion over Cla ss Coun sel's a n d t he NFLPA's con t en t ion t ha t t he Den ver
Bron cos viola t ed t he "forfeit ure" provision s un der t he CBA wit h respect t o Lelie's opt ion bon us
pa ymen t , while t he Non -In jury Grieva n ce Arbit ra t or exercised jurisdict ion over t he NFL's a n d
Bron cos' a llega t ion s t ha t Lelie wa s required t o ret urn port ion s of his sign in g bon us a n d pa y fin es
levied a ga in st him for fa ilin g t o report t o t he Bron cos' ma n da t ory min ica mp a n d t ra in in g ca mp.
Bron cos v. Lelie (Apr. 23, 2007) (Da s); Whit e v. NFL (Lelie) (Nov. 16, 2006) (Burba n k).
Clea rly, t he Commission er could n ot ha ve decla red t ha t Mr. Lelie's "hold out " wa s con duct
det rimen t a l t o t he Lea gue a n d t hereby ha ve t a ken t he det ermin a t ion s a bout his opt ion bon us,
sign in g bon us, a n d Club fin es out of t he ha n ds of t he Specia l Ma st er a n d Non -In jury Grieva n ce
Arbit ra t or. But t ha t is wha t t he NFL seeks t o do here.
Aga in st t his ba ckdrop, it should be clea r t ha t t he NFL's hypot het ica ls a pa ra de of
purport ed horribles a re red herrin gs. (See Opp'n a t 6.) As n ot ed a t t he out set of t his
Memora n dum, t he NFLPA does n ot den y t he Commission er's a ut horit y t o pun ish for con duct
det rimen t a l (subject t o, e.g., CBA a n d Pla yer Con t ra ct requiremen t s a n d limit a t ion s) a pla yer
who t hrows a ga me or sells wea pon s in a Club locker room. In such circumst a n ces, however, t he
Commission er could n eit her pun ish t he pla yer for a n y "pa y for performa n ce" a spect of t he
con duct , n or could he usurp t he Syst em Arbit ra t or's exclusive jurisdict ion over such beha vior.
Moreover, t he NFL's hypot het ica ls hold n o curren cy in t he ca se a t ba r, in which t he NFL ha s
st a t ed repea t edly t ha t t he Commission er's disciplin e rest s on a n d is n ot merely t a n gen t ia lly
rela t ed t o n on -con t ra ct ua l pa ymen t s.
III. There Is No Quest ion Tha t The Alleged Non -Con t ra ct ua l
Pa ymen t s At Issue Implica t e Art icle 14, Sect ion 1 Of The CBA
Despit e previously a ssert in g t ha t "[p]a ymen t s of t he t ype ma de here . . . a re forbidden
beca use t hey a re in con sist en t wit h t he Collect ive Ba rga in in g Agreemen t " (NFL Securit y Report
a t 3), t he NFL n ow a rgues t ha t t he a lleged n on -con t ra ct ua l bon us pa ymen t s a t issue do n ot come
wit hin t he purview of Art icle 14, Sect ion 1. The NFL ha d it right t he first t ime.
Ma y 25, 2012
Pa ge 7
A. The Club Was A Chief Participant In The "Undisclosed
Agreements Involving Consideration To Be Paid" To Players
The NFL con t en ds t ha t Art icle 14, Sect ion 1 does n ot cover a scheme in which pla yers
"pledge or con t ribut e mon ey," "orga n ize]] or fun d[1" a boun t y scheme, or "offer[] or con t ribut [e]
mon ey t o rewa rd ot her pla yers for in jurin g oppon en t s." (Opp'n a t 4 (empha sis omit t ed).) But
t ha t is n ot t he "pa y for performa n ce/boun t y" syst em t ha t t he NFL a lleged. Ra t her, t he "key
fa ct s" purport edly un ea rt hed in t he NFL's "len gt hy in vest iga t ion " result ed in t he a llega t ion t ha t
t he pa ymen t s a t issue were orga n ized, det ermin ed, pa rt ia lly fun ded, a n d a ct ua lly pa id by t he
Club.
In disciplin in g t he Sa in t s Club ($500,000 fin e a n d dra ft pick forfeit ures), Sa in t s Gen era l
Ma n a ger Mickey Loomis (8-ga me suspen sion a n d fin e such t ha t t he fin e a n d forfeit ed pa y will
t ot a l $500,000), Sa in t s Hea d Coa ch Sea n Pa yt on (on e-yea r suspen sion ), Sa in t s Assist a n t Hea d
Coa ch Joe Vit t (6-ga me suspen sion a n d fin e such t ha t t he fin e a n d forfeit ed pa y will t ot a l
$100,000), a n d former Sa in t s Defen sive Coordin a t or Greg Willia ms (in defin it e suspen sion ), t he
Lea gue st a t ed t ha t :
O The "pa y for performa n ce/boun t y" syst em wa s "developed," "opera t ed," a n d
"a dmin ist ered" by Sa in t s coa ches. (NFL Securit y Report a t 2 (st a t in g t ha t it wa s
"coa ches who a dmin ist ered t he progra m" a n d "develop[ed] a n on goin g progra m
t o pa y bon uses t o pla yers"); NFL Memora n dum of Decision a t 1, 4.)
O Coa ch Willia ms "design ed a n d implemen t ed t he pa y for performa n ce/boun t y
progra m" a ft er bein g t old by Coa ch Pa yt on t ha t "his a ssign men t wa s t o ma ke t he
Sa in t s' defen se 'n a st y." (NFL Memora n dum of Decision a t 2.)
O Coa ch Willia ms wa s respon sible for "overseein g recordkeepin g, defin in g pa yout
a moun t s, decidin g who received pa yout s, a n d dist ribut in g en velopes con t a in in g
ca sh t o pla yers who 'ea rn ed' rewa rds." (Id.) Coa ch Willia ms a lso person a lly
ma de con t ribut ion s t o t he pool. (Id.)
Coa ch Vit t a ckn owledged t ha t he wa s a wa re of t he progra m in 2009-2011 a n d he
wit n essed Coa ch Willia ms "ha n din g out en velopes t ha t he believed t o con t a in
ca sh." (Id. a t 3.)
O Despit e t he "obliga t ion t o supervise t he st a ff," which is "expressly set fort h in
Coa ch Pa yt on 's employmen t a greemen t ," he did n ot hin g t o st op t he pa ymen t s.
(Id. a t 5.) He a lso person a lly received a n ema il from a "close a ssocia t e" offerin g
a $5,000 boun t y on qua rt erba ck Aa ron Rodgers. (Id. a t 3.)
Ma y 25, 2012
Pa ge 8
Gen era l Ma n a ger Mickey Loomis likewise "did n ot do en ough t o det ermin e if a
pa y for performa n ce/boun t y progra m exist ed or t o en d a n y such progra m t ha t did
exist ." (Id. a t 4.) He "n ever issued in st ruct ion s t o en d t he boun t y progra m t o
eit her t he coa chin g st a ff or t he pla yers" a n d "sa t isfied himself wit h on ly limit ed
in quiries t ha t n eit her sought n or obt a in ed a n a ccura t e un derst a n din g of t he fa ct s."
(Id. a t 4, 6.)
The NFL n ow st resses t he Commission er's det ermin a t ion "t ha t t here wa s n o eviden ce
t ha t Club own ership wa s even a wa re of t he pool, or t ha t a n y Club fun ds were used in it ." (Opp'n
a t 4.) Tha t a rgumen t misses t he poin t . As a ma t t er of la w, t he a bove-described con duct by high-
level Sa in t s coa ches a n d execut ives is t he respon sibilit y of, a n d must be a t t ribut ed t o, t he Club.
The Lea gue ha s a lrea dy a ckn owledged a s much in imposin g Club disciplin e:
While it is clea r t ha t own ership wa s un a wa re of t he boun t y progra m . . . ,
t he club n on et heless is guilt y of con duct det rimen t a l by virt ue of t he
a ct ion s of it s employees, which con t in ued over a period of yea rs, a n d t he
fa ilure of it s sen ior execut ives t o a ddress t he ma t t er in a respon sible wa y.
The Commission er ha s repea t edly held t ha t clubs bea r a respon sibilit y for
t he con duct of t heir employees, a n d t ha t miscon duct by employees
pa rt icula rly by employees in respon sible a n d lea dership posit ion s will
be a t t ribut ed t o t he club for purposes of disciplin e.
(NFL Securit y Report a t 4; NFL Memora n dum of Decision a t 6 ("I believe, a n d ha ve frequen t ly
expressed t he view, t ha t clubs mea n in g own ership a re respon sible for t he con duct of t heir
employees, pa rt icula rly when , a s here, t hose employees a re a t t he highest levels of t ha t
orga n iza t ion .").) Accord Am. Soc'y of Mech. En g'rs, In c. v. Hydrolevel Corp., 456 U.S. 556,
566 (1982) ("prin cipa ls a re lia ble when t heir a gen t s a ct wit h a ppa ren t a ut horit y a n d commit t ort s
a n a logous t o t he [wron gful con duct ] presen t ed by t his ca se"); Elkouri & Elkouri, How
ARBITRATION WoRKs 548, 551 (Ala n Miles Ruben ed., BNA Books 6t h ed. 2003) ("A prin cipa l
ma y be held respon sible for t he a ct of it s a gen t wit hin t he scope of t he a gen t 's gen era l a ut horit y
even t hough t he prin cipa l ha s n ot specifica lly a ut horized t he a ct in quest ion ; it is en ough if t he
prin cipa l empowered t he a gen t t o represen t it in t he gen era l a rea wit hin which t he a gen t a ct ed;"
"[a ]n a rbit ra t or will hold a pa rt y boun d by t he a ct of it s a gen t , t hough un a ut horized, if t he pa rt y is
foun d t o ha ve clot hed t he a gen t wit h 'a ppa ren t ' or 'ost en sible' a ut horit y t o a ct ."); see a lso, e.g.,
Rocks & Jea n s, In c. v. La keview Aut o Sa les & Serv., In c., 584 N.Y.S.2d 169, 170 (App. Div.
1992) (employer lia ble for wron gful con duct of employee a ct in g wit h a ppa ren t a ut horit y); Ha t t on
v. Qua d Rea lt y Corp., 473 N.Y.S.2d 827, 830 (App. Div. 1984) (sa me).
The NFL ca n n ot credibly den y t he fa ct t ha t t he a lleged "pa y for performa n ce/boun t y"
progra m in volved a greemen t s bet ween t he Club a n d pla yers in volvin g con sidera t ion t o be pa id t o
pla yers. To t he con t ra ry, t he Club, by t he NFL's own con t en t ion s, is prin cipa lly respon sible for
t he con duct in quest ion .
Ma y 25, 2012
Pa ge 9
B. According To NFL Allegations, The Players Who Agreed
With The Club To Operate Under A "Bounty" System Are
The Same Players Who Received The Payments At Issue
In a n ot her a t t empt t o a void Art icle 14, Sect ion 1, t he NFL cla ims t ha t t his provision
a pplies on ly t o a n un disclosed a greemen t bet ween a Club a n d a pla yer con cern in g compen sa t ion
t o be pa id by t he Club "t o t ha t pla yer." (Opp'n a t 4.) In ot her words, "t he defin it e a rt icle 't he'
obviously refers ba ck t o t he sa me pla yer who en t ered in t o t he a greemen t ." (Id.)
Tha t is precisely wha t t he NFL ha s a lleged here. Accordin g t o t he NFL's own
descript ion of t he "pa y for performa n ce/boun t y" progra m, t he pla yers who pa rt icipa t ed in t he
a greemen t wit h Club represen t a t ives t o "est a blish ca sh pools" a re t he sa me pla yers who t hen
"received" or were eligible t o receive "ca sh pa ymen t s" from Coa ch Willia ms. (See, e.g., NFL
Securit y Report a t 2 ("[D]efen sive pla yers a n d coa ches developed a n d a dmin ist ered a Pa y for
Performa n ce' progra m un der which t he pa rt icipa t in g pla yers regula rly ma de ca sh 'don a t ion s' t o
a pool," a n d t hose sa me pa rt icipa t in g defen sive pla yers t hen "received improper ca sh pa ymen t s
of t wo kin ds.").) There is n o a lt ern a t ive wa y t o in t erpret t he NFL's a llega t ion s. An d, t here is n o
a llega t ion , for exa mple, t ha t on e set of pla yers purport edly a greed t o opera t e un der a "boun t y"
progra m a n d t he Club t hen ma de pa ymen t s t o some differen t or sepa ra t e group of pla yers.
Un der t he NFL's very n a rrow view, Art icle 14, Sect ion 1 would be in effect ua l in
sit ua t ion s where a group of pla yers (a s opposed t o a sin gle pla yer) a greed wit h t he Club t o ma ke
ext ra -con t ra ct ua l con sidera t ion a va ila ble t o t ha t sa me group of pla yers. (See Opp'n a t 4 (a rguin g
t ha t t he provision a pplies on ly t o a n "un disclosed a greemen t bet ween a Club (or Club Affilia t e)
a n d a pa rt icula r pla yer con cern in g compen sa t ion t o be pa id by t he Club (or Club Affilia t e) t o t ha t
pla yer").) The NFL's posit ion would crea t e t he n on -sen sica l result of n ullifyin g Art icle 14,
Sect ion 1 in a va riet y of n on -con t ra ct ua l bon us sit ua t ion s just beca use more t ha n on e pla yer is
a llegedly in volved. There is n o doubt , however, t ha t t he CBA pa rt ies in t en ded ot herwise, i.e.,
for t he pla in la n gua ge of Art icle 14, Sect ion 1 t o a pply wit h full force in sit ua t ion s where (a s
here) a Club a n d pla yers a llegedly en t er in t o un disclosed a greemen t s in volvin g con sidera t ion t ha t
is ma de a va ila ble t o t hose sa me pla yers.
In deed, t he NFL it self a rgues t ha t t he pa rt ies in t en ded Art icle 14, Sect ion 1 t o a ddress t he
"fa ilure t o disclose pa ymen t s from a Club t o a specific pla yer, which could ha ve t he effect of
a voidin g a cha rge t o t he Sa la ry Ca p." (Opp'n a t 6 (empha sis omit t ed).) Accept in g t his premise,
it would ma ke a bsolut ely n o sen se for t he pa rt ies t o ha ve in t en ded t o pun ish a n un disclosed
pa ymen t t o a pa rt icula r pla yer, but t o lea ve un pun ished a syst em in volvin g un disclosed pa ymen t s
t o mult iple pla yers.
Ma y 25, 2012
Pa ge 10
IV. The System Arbitrator Should Set Aside All Of The Discipline
Given t he writ t en record est a blishin g t ha t t he Commission er prin cipa lly pun ished pla yers
for t he "n on -con t ra ct bon uses," a ll of t he disciplin e must be overt urn ed beca use t he
Commission er wa s wit hout jurisdict ion t o impose it in t he first pla ce. See Avis Ren t A Ca r Sys.
v. Ga ra ge Emps. Loca l 272, 791 F.2d 22, 25-26 (2d Cir. 1986) (reversin g a rbit ra t ion a wa rd a n d
rema n din g for n ew hea rin g where a rbit ra t or ha d n o jurisdict ion t o in t erpret provision s in on e of
t wo collect ive ba rga in in g a greemen t s bet ween t he pa rt ies: "[A]rbit ra t ion depen ds on t he con sen t
of t he pa rt ies t o t he con t ra ct . . . . Court s gen era lly en force such [a rbit ra t ion ] cla uses st rict ly,
va ca t in g a wa rds en t ered by a rbit ra t ors whose qua lifica t ion s or met hod of a ppoin t men t fa il t o
con form . . . ."); SEIU, Loca l 32BJ v. Coby Gra n d Con course, LLC, No. 04 Civ. 9580(CSH),
2006 WL 692000, a t *5 (S.D.N.Y. Ma r. 16, 2006) (va ca t in g a rbit ra t ion a wa rd beca use on e pa rt y
"decided t o ign ore t he . . . a rbit ra t or specified in t he CBA, a n d in st ea d un ila t era lly select ed a
differen t a rbit ra t or t o hea r t he . . . disput e"); Elkouri & Elkouri a t 172 ("[Where] a n a rbit ra t or's
a ppoin t men t did n ot con form t o t he a greemen t on which he ba sed his jurisdict ion , t he defect wa s
held t o ha ve ren dered him powerless t o a ct .").
As we st a t ed up fron t , t his proceedin g is n ot in t en ded t o secure a "get -out -of-ja il free
ca rd." The NFL is free t o in it ia t e a proceedin g before t he Syst em Arbit ra t or over t he a lleged
n on -con t ra ct ua l pa ymen t s a n d, t o t he ext en t t he Lea gue wishes t o pun ish a n y a lleged
un sport sma n like con duct compon en t of t he a lleged "boun t y" syst em, it ma y in it ia t e a proceedin g
before Hea rin g Officers Shell a n d Cot t rell. The curren t proposed disciplin e, however, ca n n ot
st a n d.
For a ll of t hese rea son s, a n d for t hose set fort h in t he NFLPA's Ma y 3, 2012 Movin g
Brief, t he Syst em Arbit ra t or should order t ha t t he Commission er's disciplin e a ga in st t he pla yers
be set a side a n d t ha t he is wit hout a ut horit y t o issue n ew disciplin e a ga in st t he pla yers ba sed on
t he "pa y for performa n ce" a spect of t he a lleged con duct .
Respect fully submit t ed,
cc: Gregg Levy, Esq.
Ben ja min Block, Esq.
DeMa urice Smit h, Esq.
Richa rd Bert helsen , Esq.
Tom DePa so, Esq.
Hea t her McPhee, Esq.
Pet er Gin sberg, Esq.
EXHIBIT 1
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IN RE:
NEW ORLEANS SAINTS
----------------------------------------X
(A R B I T R A T I O N)
May 16, 2012
1:00 p.m.
345 Park Avenue
New York, New York
BEFORE: SHYAM DAS, ARBITRATOR
Joseph Charles, Court Reporter
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42
jurisdiction and that is the issue that I
will start with.
As you know, your jurisdiction is
defined in Article 43. That is on page
187 of the CBA. Jeffrey read it to you.
I think he read it to you incorrectly
including the limitation on your
jurisdiction. There were a few times
where Jeffrey described your authority,
and the authority of the non-injury
grievance arbitrator, as the broadest
possible authority, I think, and one of
general authority. I may not exactly
have what he said, precise, but I think
that was the gist.
The gist was that you are the
broadest Arbitrator under the CBA and we
submit, obviously, that for the purposes
of the dispute that is at issue in this
grievance, you are not. The broadest
arbitrator under the CBA for this is
Commissioner Goodell. And that is made
clear in Article 46. And that's first of
all made clear in the definition. It
says definition in Article 43, of the

EXHIBIT K

EXHIBIT L
July 3, 2012
Via Electronic Mail & Overnight Delivery
Mr. Jonathan Vilma
c/o Peter Ginsberg, Esq.
Peter R. Ginsberg Law, LLC
12 East 49
1
h Street, 30
1
h Floor
New York, NY 10017
Mr. Will Smith
c/o Heather McPhee, Esq.
NFL Plalers Association
1133 20 Street, NW
Gentlemen:
Mr. Anthony Hargrove
NFL P l a ~ e r s Association
1133 20
1
Street, NW
Mr. Scott Fujita
NFL Plalers Association
1133 20 Street, NW
ROGER GOODELL
Commissioner
Pursuant to Article 46 of the Collective Bargaining Agreement, this sets forth my
decision on your appeals of the suspensions imposed for your respective roles in the pay-for-
performance/bounty program operated at the New Orleans Saints during the 2009-2011 seasons.
The reasons for imposing your respective suspensions are set forth in letters to each of you dated
May 2, 2012 (as clarified, in the case of Mr. Hargrove, by letter dated June 8, 2012).
1
Article 46, which governs this proceeding, reflects the agreement of the NFLPA and the
NFL to maintain the Commissioner's longstanding authority to determine whether a player has
engaged in conduct detrimental to the integrity of, or public confidence in, the game of
professional football and to determine the appropriate discipline for such conduct. That authority
is also reflected in your respective Player Contracts at paragraph 15.
Article 46 also reflects the agreement that appeals from discipline for conduct detrimental
would be heard and resolved exclusively by the Commissioner, as well as agreement on the
procedures that govern any such appeal. And, in both Article 46 and Article 3 2 of the CBA,
the Players Association and League agreed that the Commissioner's determinations on appeal in
1
The appeal hearing was held on June 18,2012. Messrs. Fujita, Hargrove and Smith, represented by NFLPA
outside counsel Jeffrey Kessler, attended the hearing. Mr. Vilma, represented by Peter Ginsberg, attended a
portion of the hearing. The hearing record was left open through June 22,2012, to afford you and your
representatives an opportunity for further submissions.
345 Park Avenue, New York, New York 10154 Tel (212) 450-2000 Fax (212) 6817574
Messrs. Vilma, Hargrove
Smith & Fujita
July 3, 2012
Page 2
such matters would be final. None of this is new: the process has been in place for more than
thirty years.
In evaluating your appeals, my responsibilities include interpreting and implementing
Article 46 and other relevant provisions of the CBA. Bearing in mind those responsibilities, I
have taken into account a number of items including (1) the two confidential investigation
reports provided to you; (2) the exhibit binder materials provided to you; (3) the corresponding
presentation by Mary Jo White at the appeal hearing; and (4) any additional materials that you,
your lawyers and/or the Players Association offered. In particular, I have evaluated, in the
context of Article 46, the objections and arguments that your lawyers made at the hearing and by
written submission.
For the reasons that follow, I find no basis for altering your suspensions.
Throughout this entire process, including your appeals, and despite repeated invitations
and encouragement to do so, none of you has offered any evidence that would warrant
reconsideration of your suspensions. Instead, you elected not to participate meaningfully in the
appeal process. As Mr. Kessler stated at the hearing: "The NFL[PA] and the players [Messrs.
Fujita, Hargrove and Smith] have reluctantly concluded that they will not participate in any
proceedings regarding the merits at this hearing today. (Hrg. Tr. 16:12-19.)
2
Although you claimed to have been "wrongfully accused with insufficient evidence,"
your lawyers elected not to ask a single question of the principal investigators, both of whom
were present at the hearing (as your lawyers had requested); you elected not to testify or to make
any substantive statement, written or oral, in support of your appeal; you elected not to call a
single witness to support your appeal; and you elected not to introduce a single exhibit
addressing the merits of your appeal. Instead, your lawyers raised a series of jurisdictional and
procedural objections that generally ignore the CBA, in particular its provisions governing
"conduct detrimental" determinations. I address these ppints in turn.
JURISDICTION
Your lawyers have argued that I lack jurisdiction to resolve your appeals. That argument
is flatly inconsistent with the CBA. Article 46 1 (a) provides:
"All disputes involving ... action taken against a player by the Commissioner for conduct detrimental
to the integrity of, or public confidence in, the game of professional football, will be processed
exclusively as follows: the Commissioner will promptly send written notice of his action to the player,
with a copy to the NFLPA. Within three (3) business days following such written notification, the
player affected thereby, or the NFLPA with the player's approval, may appeal in writing to the
Commissioner."
Two recent decisions confirm that the CBA vests such authority exclusively in the
Commissioner. First, by decision dated June 4, 2012 (and supplemented by decision dated June
12, 2012), System Arbitrator Stephen Burbank rejected the argument that the System Arbitrator,
2
Mr. Vilma's counsel joined in that position. (Hrg. Tr. 27:10-11 ("Mr. Kessler speaks for me as well.")).
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
Page 3
rather than the Commissioner, has jurisdiction over discipline for conduct of the kind at issue
here. The Players Association has sought review of the System Arbitrator's decision, but that
decision is binding unless stayed, reversed or modified by the Appeals Panel. See CBA Art. 15
2(d).
Second, the Players Association separately challenged my jurisdiction in a non-injury
grievance, arguing (1) that the CBA prohibited suspensions for any conduct occurring prior to
August 4, 2011; and (2) that Art Shell or Ted Cottrell, my designees who are responsible for
reviewing fines or suspensions for "unnecessary roughness or unsportsmanlike conduct on the
playing field," have exclusive jurisdiction over this matter. Arbitrator Das denied that grievance
on June 8, 2012. That decision is final and binding. See CBA Art. 43 8.
I understand that you continue to maintain that this appeal must be heard by Mr. Shell or
Mr. Cottrell. There are two reasons why that position is wrong. First, the Players Association
abandoned this argument after raising it before Arbitrator Das. But more to the point, as I have
made clear, you were not disciplined for unnecessary roughness or unsportsmanlike conduct on
the playing field, the only subjects on which Messrs. Shell and Cottrell hear appeals. You were
instead disciplined for conduct detrimental to the integrity of, or public confidence in, the game
of professional football. The conduct for which you were disciplined took place in locker rooms
and meeting rooms, not on the playing field. Thus, as provided by the CBA, this appeal is within
my exclusive jurisdiction.
RECUSAL
Mr. Kessler also argued that "since the union has not agreed to the Commissioner hearing
these matters and because the Commissioner has publicly appeared on television and in other
fora defending the discipline prior to this arbitrable hearing, we don't believe under the
governing law that he can serve as an arbitrator without the appearance of bias rendering the
proceedings a nullity." (Hrg. Tr. at 18:22-19:6.)
To the contrary, that is precisely what the Union agreed to in Article 46 1 of the CBA.
It did so following extensive discussion and negotiation. The Players Association and the League
agreed not to inteiject a third-party into the review process, but instead to leave in place the long-
standing practice of review by the Commissioner of "[a]ll disputes involving" Commissioner
action regarding conduct detrimental.
The CBA also makes clear that any appeal to the Commissioner will come only after
notice to the player and the Players Association setting forth the basis for his disciplinary action.
Accordingly, prior announcement of the basis for discipline cannot render the Commissioner
incapable of hearing an appeal due to the appearance of bias or for any other reason.
In short, 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.
The request for recusal is therefore denied.
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
Page4
PROCEDURAL OBJECTIONS
Mr. Kessler questioned whether "these proceedings have afforded the essence of the
CBA requirements for industrial due process and a fair hearing." (Hrg. Tr. at 19: 15-18.) In his
view, while the CBA explicitly affords each player a right to (i) notice of the action that
constitutes conduct detrimental and a hearing on his appeal; (ii) disclosure of exhibits to be relied
on at the appeal hearing; (iii) representation by counsel; and (iv) a right to call witnesses and
introduce evidence in support of the appeal, it implicitly also requires (a) that each player have an
opportunity to confront and cross-examine wituesses; (b) that club employees and others with
knowledge of the events be compelled by the Commissioner to attend the appeal hearing; and (c)
that each player have access to the NFL's internal investigatory records (here, materials reviewed
by NFL Security in preparing the report summarizing its findings).
None of these arguments is based on the text of Article 46 or any other provision of the
CBA. Nor is there any basis for these arguments in the parties' prior course of dealing. While the
parties to the CBA could have provided for rights and procedures of the kind that Mr. Kessler
suggests, they instead opted for a different process of dispute resolution-one that ensures
expeditious resolution of issues affecting the integrity of, and public confidence in, the sport, and
that does so by vesting in the Commissioner the authority to take decisive action to preserve that
integrity and public confidence.
As to wituesses, each of you was, in fact, free "to present, by testimony or otherwise, any
evidence relevant to the hearing." CBA Art. 46 2(b). I would have welcomed and considered
any such evidence. But you chose not to testify and not to call any witnesses, including the lead
investigators who were present and available for questioning throughout the appeal hearing. If
you believed that testimony from one or more of the Saints coaches or your teammates would
have supported your appeal, you were free to ask them to attend and testify without concern for
any adverse consequences for testifying truthfully.
The complaint that I did not compel current or former Saints coaches or other witnesses
to testify is not well-taken. Nothing in the CBA requires such an order. Indeed, the parties have
had multiple collectively bargained systems of dispute resolution in place for decades, but none
of those systems, which have been restated and ratified on several occasions, has provided for
compulsory process of that kind. Moreover, I am not aware of any club employee, player or
other witness ever having been compelled to attend or testify at an appeal hearing under Article
46 or its collectively bargained predecessors.
Nor does the CBA provide for discovery of the NFL's investigatory records in
proceedings involving "conduct detrimental." Rather, a party is only entitled to "exhibits upon
which [the NFL or the NFLPA or player] intend[s] to rely" at the appeal hearing. Art. 46
2(f)(ii). In contrast, I invite your attention to the more extensive discovery procedures with
respect to non-injury grievances; in those proceedings, for example, each party must submit to
the other "copies of all documents, reports and records relevant to the dispute." Art. 43 5(b).
See also Art. 21 8(b)(i) (requiring production of "all tape, film, other recorded evidence or
other documentation any representative deems relevant to a possible violation"). The rights and
obligations under Article 46 for appeals of Commissioner discipline are much narrower,
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
PageS
reflecting a dispute resolution process that is more focused and expedited than others under the
CBA.
3
Without regard to the terms of the CBA, I find no basis whatsoever for the assertion that
"exculpatory evidence" was withheld by the NFL.
4
Aside from being unfounded, the suggestion
that the NFL would withhold exculpatory documents-or that I would tolerate the withholding of
such documents-is irrational. My responsibilities as Commissioner include ensuring the integrity
of, and public confidence in, the game of professional football. From a public confidence
perspective, I would very much have preferred for the investigation to find evidence
demonstrating that there was no pay-for-performance/bounty program in which you had a role;
there was no such evidence uncovered in the investigation. Moreover, none was offered by any
of you at any point during the investigation or appeals process.
Finally, there should be no issue about the investigation's reliance on one or more
confidential sources in addition to the multiple sources identified for you and your counsel.
Affording confidentiality to players or others seeking to remain anonymous in these and similar
circumstances-and securing their candid assessment of the issues, free from peer pressure and
other impediments-serves the interest of maintaining the integrity of, and public confidence in,
the game of professional football; failure to provide such confidentiality would discourage future
potential whistleblowers from coming forward.
5
This concern is especially acute when the
conduct at issue has the potential to increase the likelihood of player injuries or to undermine the
integrity of competition on the field. It bears emphasis, however, that no element of my findings
or discipline was based solely on information obtained from a source whose identity was not
disclosed to you and your lawyers.
MOTION TO EXCLUDE EXHffiiTS
Messrs. Kessler and Ginsberg sought to exclude sixteen exhibits discussed at the hearing
on the ground that their production was untimely, i.e., that the NFL had produced the exhibits
some 68 or 69 hours-rather than 72 hours-prior to the hearing's start.
3
Your decision not to participate in the appeals process apparently was based on the belief that you have a
continuing right to challenge your discipline until you receive all relevant materials generated by the
investigation. The CBA makes clear that there is no such right; the Commissioner's ruling on any appeal of a
conduct detrimental finding is final.
4
To the contrary, prior to the appeal hearing and in response to the Players Association's request, the NFL
provided your lawyers with materials obtained from Duke Naipohn, who was with the Saints for part of the
2011 season. I have taken into account the fact that Mr. Naipohn, whom you were free to call to testify at the
hearing, informed NFL investigators that he does not believe that there was a pay-for-performance/bounty
program in place at the Saints in 2011, the only year with which he would be familiar. Even with regard to the
2011 season, Mr. Naipohn's statement does not cause me to believe that my findings, which were based on
multiple sources and corroborating documents, were unfounded or erroneous.
5
In fact, I note that the League's original investigation of this matter in early 2010 was stymied by the failure
of witnesses, including Mr. Hargrove, to respond candidly. The investigation was reopened only after a
confidential source came forward.
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
Page6
Article 46 2(t)(ii) of the CBA provides that any exhibits on which a party intends to
rely be produced no later than "three (3) calendar days prior to the hearing,'' not 72 hours before
the hearing commences. (When the parties to the CBA intended for a 72-hour rule to apply, such
as in Article 15 5, they did so expressly.) The parties' course of dealing under Article 46 and
its predecessors has never reflected an understanding that 72-hours' advance production was
required, and your lawyers have not cited any prior instance in which exhibits produced or
identified on the calendar day three days prior to the hearing were deemed untimely.
Mr. Ginsberg argued that, under New York law, a three-day requirement must be read to
require 72 hours' notice, but that does not appear to be the Jaw. I am advised that the New York
Court of Appeals, for example, has held that notices served on the afternoon of June 6 timely
provided five days' notice for a hearing scheduled for 11:00 a.m. on June 11. In re Niel, 106
N.Y.S. 479,479-80 (1907). And New York courts generally have rejected the notion that one
day's notice must equate to 24 hours' notice. See, e.g., Lehman Bros. Holding, Inc. v. Melton,
2010 WL 1293783, at *2-3 (N.Y. Dist. Ct. Apr. 10, 2010).
In any event, there could be no reasonable claim of prejudice due to the timing of the
disclosure. When your counsel raised the objection, the hearing was adjourned for several hours;
none of the exhibits was introduced or discussed until more than 72 hours after they had been
provided.
INVOLVEMENT OF CLUB OFFICIALS
On the merits of the appeal, Mr. Kessler argued that the suspensions should be overturned
because you "simply followed what [your] supervisors directed [you] to do." (Hrg. Tr. at 24:22-
23.) No evidence was offered at the hearing to support that assertion, and it was contradicted by
multiple individuals interviewed during the investigation. Even so, I took into account the
actions of the coaches in reaching my findings and determining appropriate discipline.
Mr. Hargrove submitted a declaration stating that he was directed by coaches to deny the
existence of the program when questioned by NFL Security. Coach Vitt denied that assertion
despite its having been corroborated by other witnesses; indeed, one of those witnesses stated
that, in agreeing to deny the existence of the program, Mr. Hargrove had said: "I can lie with the
best of them." I need not resolve that conflict to decide Mr. Hargrove's appeal. Assuming for the
moment that he was given such a direction, it does not excuse Mr. Hargrove from being truthful
to NFL investigators when asked specifically about the existence of the program. Mr. Hargrove's
conduct was all the more troubling because if he had been forthcoming when questioned in 2010,
the program-and the enhanced risk of injury that it entailed-could have been stopped much
sooner.
SUPPLEMENTAL SUBMISSION BY THE NFLPA
On June 22, 2012, Mr. Kessler submitted a supplemental letter asserting that following
the June 18 appeal hearing, Coach Vitt and Mr. Ornstein made public statements contradicting
aspects of the League's evidentiary presentation. I have read and considered the materials
referenced in Mr. Kessler's letter.
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
Page 7
The statements attributed to Coach Vitt are consistent with the view that he expressed to
NFL investigators and at his appeal hearing: that "cart-offs," "whacks" and "knockouts" referred
only to "clean" hits. But whether a hit was ultimately subject to a penalty for unsportsmanlike
conduct or unnecessary roughness is irrelevant for these purposes: incentivizing players for hits
that injure or increase the risk of injury to opposing players undermines the integrity of, and
public confidence in, the game of professional football.
I also took into account the statement attributed to Coach Vitt that he had "never heard a
player talk about putting Favre out of the game or injuring another player." While Coach Vitt
failed to offer any details to the League regarding the meeting at issue, three other witnesses each
independently told NFL investigators that Mr. Vilma had, in fact, made such a pledge.
Mr. Kessler also argues that because Coach Vitt reportedly denied having "pledged
money for any type of incentive program for the Saints NFC Championship game against the
Vikings," the reliability of Hearing Exhibit 10 is in doubt. That exhibit reflects the handwritten
notes of an eyewitness to the meeting at which Mr. Vilma made the pledge regarding Mr. Favre;
it is fully consistent with what three witnesses told NFL Security about Mr. Vilma's statements
at the meeting.
Moreover, the video from that game corroborates other evidence that there was such a
pledge: a Saints player-whom NFL Security reasonably concluded was Mr. Hargrove but
whom others believe may have been a different player-said "Give me my money" immediately
after Coach Vitt reported (incorrectly) that Mr. Favre had been knocked out of the game with a
broken leg. For purposes of addressing Mr. Hargrove's appeal, I need not resolve the issue of
who made the statement. Instead, I am prepared to assume-as he apparently stated publicly-
that he did not make it. But that statement is relevant because, regardless of which player said it,
it corroborates other evidence that there was an incentive in place for knocking Mr. Favre out of
the game and that the members of the Saints defense, including Mr. Hargrove, were well aware
of that fact. The identity of the player who made the statement was immaterial to my decision on
your appeals and did not affect the level of discipline imposed on Mr. Hargrove.
Mr. Ornstein's public comments provide no basis for reconsidering the suspensions.
Indeed, the referenced report states that Mr. Ornstein "admits that the Saints had a pay-for-
performance program in 2009." And while the report indicates that he now denies corroborating
the evidence that Mr. Vilma had offered $10,000 for a hit that knocked Mr. Favre out of the
game, at least two other credible witnesses confirmed that Mr. Vilma made such an offer. And
Mr. Ginsberg's denial on behalf of Mr. Vilma does not constitute evidence that would offer a
persuasive basis for overturning his suspension.
Finally, I am aware of public statements by both the Players Association and Mr. Vilma's
attorney to the effect that they have performed their own comprehensive investigations into the
pay-for-performance/bounty program. Despite numerous requests that they share the findings or
other information from those investigations, nothing has ever been provided to me.
* * *
ROGER GOODELL
Commissioner
Smith & Fujita
July 3, 2012
Page 8
In sum, I did not make my determinations here lightly. At every stage, I took seriously
my responsibilities under the Collective Bargaining Agreement. I determined the discipline for
each of you (1) only after a long, detailed and professional investigation by NFL Security's
experienced investigators; (2) only after the results of that investigation were carefully reviewed
by an independent expert, former United States Attorney Mary Jo White; (3) only after I heard
the appeals of the Saints' coaches and staff regarding discipline for their roles in the program; (4)
only after representatives of NFL Security, along with Mr. Pash and Mr. Birch, spoke with
Players Association attorneys at length regarding the investigation; and (5) only after giving each
of you multiple opportunities to meet with the NFL investigators and to share with them your
version of the events surrounding the program. The suspensions imposed were reasonable action
taken to preserve public confidence in, and the integrity of, the game of professional football.
Under the CBA, an Article 46 appeal is the exclusive means for any player against whom
conduct detrimental action is taken by the Commissioner to present evidence or reasons as to
why the discipline should not be imposed, or to present mitigating circumstances or hardship
arguments for why the discipline should be set aside or reduced. You had every opportunity and
incentive to put forth any and all reasons why you believe that you were "wrongfully accused."
Nonetheless, you refused to cooperate at all with the investigation and, although you noticed
appeals and attended the appeal hearing, you elected neither to address the record reviewed at the
hearing nor to present any evidence to support altering the discipline imposed. As a result, there
is nothing that would warrant a modification of your suspensions.
Accordingly, the appeals ar" denied and the suspensions are to be enforced as set forth in
the notice letters of May 2, 2012. 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 discretion. The record
confirms that each of you was given multiple chances to meet with me to present your side of the
story. You are each still welcome to do so.
cc: Jeffrey Kessler, Esq.
DeMaurice Smith, Esq.
Sincerely,
~ ~
ROGER GOODELL
ROGER GOODELL
Commissioner

EXHIBIT M
1
2 ------------------------------------x
3 PLAYERS ASSOCIATION,
4 Claimant,
5 v.
6 NATIONAL FOOTBALL LEAGUE,
7 Respondent.
8 -------------------------------------x
9
10 Monday, June 18, 2012
11
12
13 Hearing held before Commissioner Roger Goodell,
14 345 Park Avenue, New York, New York, commencing
15 at 10:12 a.m., before Eileen Mulvenna,
16 CSR/RMR/CRR, Certified Shorthand Reporter,
17 Registered Merit Reporter, Certified Realtime
18 Reporter and Notary Public of the State of New
19 York.
20
21
22
23
24
25
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VERITEXT REPORTING COMPANY
212-279-9424 www.veritext.com 212-490-3430
1
2 A P P E A R A N C E S:
3
4
WINSTON & STRAWN, LLP
5 Attorneys for the
200 Park Avenue
6 New York, New York 10166-4192
BY: JEFFREY KESSLER, ESQ.
7 jkessler@winston.com
JONATHAN AMOONA, ESQ.
8 jamoona@winston.com
ANGELA A. SMEDLEY, ESQ.
9 asmedley@winston.com
10
11 PETER R. GINSBERG LAW, LLC
Attorneys for Jonathan Vilma
12 12 East 49th Street, 30th Floor
New York, New York 10017
13 BY: PETER R. GINSBERG, ESQ.
pginsberg@prglaw.com
14 CHRISTOPHER DEUBERT, ESQ.
cdeubert@prglaw.com
15
16 NATIONAL FOOTBALL LEAGUE
Attorneys for the NFL
17 345 Park Avenue
18 BY: ADOLPHO A. BIRCH, III, ESQ.
adolpho.birch@nfl.com
19
20 DEBEVOISE & PLIMPTON, LLC
Attorneys for the League
21 919 Third Avenue
22 BY: MARY JOE WHITE, ESQ.
mjwhite@debevoise.com
23 PHIL FORTINO, ESQ.
pafortino@debevoise.com
24 SEAN HECKER, ESQ.
shecker@debevoise.com
25
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1
2 A P P E A R A N C E S (Continued):
3
4 AKIN GUMP STRAUSS HAUER & FELD, LLP
Attorneys for the League
5 Robert S. Strauss Building
1333 New Hampshire Avenue, N.W.
6 Washington, DC 20036-1564
BY: DANIEL L. NASH, ESQ.
7 dnash@akingump.com
8
9 A L S O P R E S E N T:
10 JEFFREY PASH, Executive Vice President
National Football League
11
12 HEATHER McPHEE, Associate General
Counsel NFLPA
13
14 TOM DePASO, NFLPA
15 WILL SMITH, Player
16 JONATHAN VILMA, Player
17 SCOTT FUJITA, Player
18 ANTHONY HARGROVE, Player
19 JEFFREY MILLER, NFL Security
20 JOE HUMMEL, NFL Security
21
22
23
24
25
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2 COMMISSIONER GOODELL: Thank you all
3 for coming. I want to be respectful of
4 your time, so we'll get started quickly
5 here.
6 As you know, the purpose of today's
7 hearing is to hear from the players. And
8 contrary to the reports and some of the
9 statements, I do want to hear from the
10 players. So I respectfully hope that you
11 will speak up.
12 In order to make this an orderly
13 process, I'm going to ask Jeff Pash, our
14 general counsel, to make sure that he lays
15 out the ground rules here and makes sure
16 that any of the -- what I'll call
17 procedural issues that may be raised he
18 will resolve as we go through this.
19 And as a hearing officer, I'll
20 listen carefully, but I will also take the
21 opportunity to ask questions because that's
22 what we are here for.
23 MR. PASH: Okay. Thanks,
24 Commissioner.
25 Good morning, everyone.
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2 I think many of you have
3 participated in hearings of this type
4 before so you understand the process. And
5 just to outline what we'll do this morning,
6 because this is the first opportunity that
7 we've had to meet with the players, we've
8 asked Mary Jo White, who is at the far end
9 of the table, to make a presentation and
10 review for you and your counsel the
11 evidence and summarize what the evidence is
12 that underlies the disciplinary decisions
13 that the Commissioner handed down about six
14 weeks or so ago.
15 And I think many of you know who
16 Mary Jo is, but just briefly, she was
17 retained by our office to assist in the
18 investigation, review the evidence. She's
19 currently a partner and the chairman of the
20 litigation department in a law firm in
21 New York called Debevoise & Plimpton.
22 And for about a decade, she served
23 as the US Attorney for the Southern
24 District of New York where she was in
25 charge of that office and, before that, was
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2 also the chief assistant and acting
3 US Attorney in the Eastern District of
4 New York.
5 We've sent to everyone last week the
6 exhibits and have provided some other
7 material at earlier stages, including the
8 report of the security department and the
9 Commissioner's Memorandum of Decision in
10 March of this year when discipline was
11 issued regarding coaches, the general
12 manager, and the club, the Saints itself.
13 And we've also sent, I think, some
14 material that we got from Mr. Niphon.
15 We'll just ask to have marked as
16 Exhibit A -- I guess, Adolpho, it's this
17 binder; is that correct?
18 MR. KESSLER: Before we actually
19 proceed, I think Peter might want to put a
20 few things on the record, if that's all
21 right, as a preliminary matter --
22 MR. PASH: Before we proceed to any
23 actual --
24 MR. KESSLER: Before we do anything,
25 yes. Before we go to --
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2 MR. PASH: Okay. I'll put that
3 aside for a moment, and let me just finish
4 these comments.
5 MR. KESSLER: Sure.
6 MR. PASH: What we'll do after
7 Jeffrey and Peter then make their comments
8 is we'll ask Mary Jo to go through the
9 evidence with you. She'll be putting
10 things up on the screen. And I'm not quite
11 sure how long her presentation will be, but
12 I would just ask that you let her go
13 through her presentation, review the
14 evidence with you, and then we'll give
15 people an opportunity for opening
16 statements, call witnesses, whatever you'd
17 like to do at that point.
18 So you wanted to --
19 MR. GINSBERG: My name is Peter
20 Ginsberg. I'm here on behalf of Jonathan
21 Vilma.
22 As two preliminary matters, we've
23 already set forth in some detail, and I
24 know Mr. Kessler will address after me in
25 detail, the fact that, Commissioner, you do
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2 not have jurisdiction to entertain this
3 proceeding. And for all the reasons that
4 we have previously set forth, Commissioner,
5 we don't believe this is a proper
6 proceeding.
7 Second of all, Commissioner, by
8 today's date, we are making a motion to
9 preclude the introduction or description of
10 any of the supposed evidence that was
11 provided to us under Article 46 of the CBA.
12 Your office, Commissioner, was
13 required to have provided us with any
14 evidence or any documents that would be
15 used in today's proceedings within three
16 calendar days under New York law. And we
17 have case law to support refutably under
18 New York law three calendar days means
19 72 hours.
20 Today's proceeding was scheduled for
21 10 a.m. We were served with these
22 documents at 1:33 p.m. That's not
23 72 hours. So pursuant to the CBA and
24 New York law, we are making a motion to
25 preclude the introduction of any evidence
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2 or the description of any of the supposed
3 evidence at today's proceedings.
4 I'm handing to the Commissioner and
5 Mr. Pash a letter dated June 18, 2012, an
6 affirmation of Christopher Deubert in
7 support of the motion to preclude.
8 Commissioner Goodell, on behalf of
9 Mr. Vilma, I think it's important for us to
10 address in these proceedings before we
11 close the record.
12 We have been willing to meet with
13 you for months now if you, sir, were
14 prepared to exchange fairly and thoroughly
15 in a process in which we could have a
16 discourse and you, Commissioner, could come
17 to a better understanding of what, in fact,
18 occurred with the New Orleans Saints.
19 If you had presented us with a
20 modicum of due process, if you had elicited
21 or evidenced any willingness to share the
22 evidence with us, we were more than
23 prepared to exchange in a full dialog.
24 Instead, Commissioner, you have deprived us
25 of the most fundamental rights.
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2 You have provided us with no
3 evidence, either in a timely fashion or
4 otherwise, to support any of the horrific
5 accusations and allegations that you have
6 made about Mr. Vilma. You have been
7 unwilling to exchange in any fair dialog or
8 any fair exchange.
9 You have made serious allegations.
10 And in light of those allegations, in light
11 of what you claim to be important to the
12 NFL and in light of you, sir, your supposed
13 concern for the integrity of this sport and
14 in light of the consequences to Jonathan
15 Vilma, both personally and professionally,
16 we have, as you know, found this process
17 and these proceedings to be shocking and
18 shameful.
19 From the very beginning, Mr. Vilma
20 asked you to do two things, Commissioner
21 Goodell. One was to investigate as
22 thoroughly as I could what lay behind your
23 supposed accusations. And the other thing
24 Mr. Vilma asked you to do was to listen to
25 him. Because he was prepared to tell the
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2 whole truth about your supposed -- about
3 your accusations.
4 We have, in fact, engaged in a
5 thorough investigation. It has been
6 stymied in part, sir, because you having
7 issued gag orders to people with evidence,
8 former coaches, people with New Orleans
9 Saints, you have made threats to keep them
10 from talking to us. You have refused to
11 have them even participate in today's
12 proceedings.
13 But, nonetheless, Commissioner
14 Goodell, we have talked to dozens of
15 people, literally dozens of people
16 regarding your allegations. We have spent
17 months gathering information. And we have
18 compared that information to your
19 descriptions, your public descriptions as
20 well as your descriptions that you took
21 pursuant to your authority pursuant to the
22 CBA, and those are two very different
23 things.
24 But in comparing what you have
25 accused Mr. Vilma of with the information
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2 that we have gathered, we have found the
3 following, Commissioner Goodell:
4 First of all, you have distorted
5 publicly and in your submissions the facts.
6 As just a few of the examples, let's focus
7 on the Ornstein e-mails. In one of the
8 Ornstein e-mails that you have previously
9 described, Mr. Ornstein told you directly,
10 sir, that that e-mail was a joke and had no
11 substance.
12 The other e-mail, Commissioner
13 Goodell, that you had included in this
14 untimely package of information, as
15 Mr. Ornstein told you specifically, related
16 to a Gregg Williams' charity. It had
17 nothing to do with the bounty program. Yet
18 you have chosen to describe that e-mail as
19 some sort of evidence that Mr. Ornstein was
20 participating in the bounty program.
21 You have still included that e-mail,
22 notwithstanding Mr. Ornstein's direct
23 statement to you to the contrary, as
24 supposed evidence of this bounty program.
25 We have already seen the way you
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2 have distorted Anthony Hargrove's
3 declaration in the media. You have taken
4 words that Gregg Williams used, colorful
5 words like "cart-offs" and "whacks" and
6 "killed ahead," and have chosen publicly to
7 distort the meaning of those words,
8 notwithstanding the fact that Mr. Williams
9 and others had told you that those terms in
10 no way relate to illegal hits or any bounty
11 program; that you have decided, sir, to
12 misrepresent what those words, in fact,
13 mean.
14 There is also substantial evidence
15 that both Mike Cerullo and Gregg Williams
16 have retracted directly and affirmatively
17 and without equivocation any claims they
18 have previously made about a bounty
19 program. You have not disclosed to us
20 those retractions. You have certainly not
21 included it in any of your untimely
22 evidence.
23 And that, sir, is yet another piece
24 of evidence of your willingness to distort
25 this entire investigation.
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2 Your office leaked to the press a
3 couple weeks ago a supposed ledger which
4 theoretically provided evidence of a bounty
5 program. And when the media analyzed this
6 supposed ledger, it became clear,
7 apparently even to the NFL office, that
8 since no players were identified in that
9 supposed ledger, there was no tying of that
10 ledger in any way to a bounty program.
11 You have chosen, after airing it out
12 publicly, not even to include that ledger
13 in the documents you provided in an
14 untimely fashion with regard to this
15 proceeding.
16 Sir, we have looked at the objective
17 evidence as well as looked at the Gregg
18 Williams videos as well as spoken to
19 people. And we have looked at the
20 statistics. We have looked at game film.
21 We have looked at penalties. We have
22 concluded, and I think it is irrefutable,
23 that there is nothing objective that can
24 support what you have accused Mr. Vilma of
25 having done publicly.
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2 Commissioner Goodell, Jonathan Vilma
3 has never participated in a bounty program.
4 He has never put up any money designed to
5 hurt an opposing player. He has never
6 received any money for hurting another
7 player. He has never intended to hurt
8 another player. And he has never in any
9 way provided any incentive for any of his
10 teammates to have hurt another player.
11 Commissioner Goodell, what you have
12 done is to make some horrible accusations
13 about Mr. Vilma's person, about his
14 integrity and about his professionalism.
15 You have imposed a misplaced punishment
16 and, sir, you have cast a shadow not only
17 on Mr. Vilma personally and professionally,
18 but, I dare say, on the NFL and on the
19 office of the Commissioner in engaging in
20 these proceedings.
21 There's just one, and just one, just
22 result in this proceeding, and that is for
23 you to rescind any punishment against
24 Mr. Vilma and to apologize in public for
25 what you have done.
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2 Thank you. With that, I move to
3 close the record.
4 MR. PASH: Mr. Kessler, do you want
5 to comment?
6 MR. KESSLER: Yes.
7 Jeffrey Kessler appearing on behalf
8 of the National Football League Players
9 Association and also in particular on
10 behalf of Scott Fujita and Anthony Hargrove
11 and Will Smith.
12 The NFLPA and the players that I
13 identified have reluctantly concluded that
14 they will not participate in any
15 proceedings regarding the merits at this
16 hearing today. This was not an easy
17 decision for them because they believe they
18 have been wrongly accused with insufficient
19 evidence; but, for a number of reasons,
20 which I will now go through, which we would
21 like on the record in formal motions, we
22 don't believe it's appropriate to proceed
23 with this hearing today.
24 First of all, as the Commissioner
25 knows, we have already filed a proceeding
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2 contesting the Commissioner's jurisdiction
3 over this discipline because we believe the
4 discipline is based in this case in
5 significant part on its pay-for-performance
6 aspects, which we believe are within the
7 exclusive jurisdiction of the System
8 Arbitrator pursuant to Articles 14 and 15
9 of the collective bargaining agreement.
10 We have filed a notice of appeal of
11 System Arbitrator Burbank's decision to the
12 contrary on that point. We believe it's
13 not appropriate for the Commissioner to
14 proceed with any discipline in light of
15 that lack of jurisdiction. It's certainly
16 not appropriate to proceed with this
17 hearing while that appeal is pending, as we
18 believe that there is a reasonable
19 likelihood that the appeal's panel will
20 reverse the System Arbitrator's decision on
21 that matter.
22 Secondly, we also believe there is
23 no jurisdiction because, to the extent that
24 discipline was based on matters concerning
25 unsportsmanlike conduct that was being
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2 allegedly induced on the playing field,
3 that that jurisdiction would be covered
4 under Article 46, Section 1(b), not
5 Section 1(a), and that means the
6 appropriate hearing should be before the
7 hearing officer, such as Mr. Shell, and not
8 before Commissioner Goodell on either of
9 these matters.
10 The bottom line is, this type of
11 behavior is not within the scope that the
12 NFLPA believes it agreed to to be subject
13 to Commissioner review. We believe this is
14 within the scope and was bargained for for
15 a neutral arbitrator review, either before
16 System Arbitrator Burbank or before the
17 hearing officers pursuant to Article 46.
18 As a result, we also are making a
19 formal motion at this time for the
20 Commissioner to recuse himself from these
21 proceedings. And the reason for that is,
22 since the union has not agreed to the
23 Commissioner hearing these matters and
24 because the Commissioner has publicly
25 appeared on television and in other fora
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2 defending the discipline prior to this
3 arbitrable hearing, we don't believe under
4 the governing law that he can serve as an
5 arbitrator without the appearance of bias
6 rendering the proceedings a nullity.
7 To prevent that from happening, we
8 would ask that the Commissioner step down,
9 to the extent that these proceedings
10 continue, as the decision-maker and that a
11 neutral decision-maker be appointed in his
12 place.
13 The next point is, apart from the
14 jurisdiction and appearance for bias
15 issues, we do not believe these proceedings
16 have afforded the essence of the CBA
17 requirements for industrial due process and
18 a fair hearing.
19 The reason for this is that both
20 Article 46 and the player contract,
21 paragraph 15 clearly provide for a right to
22 a hearing with counsel present. And we
23 believe the essence of that hearing
24 contains certain matters that are being
25 denied to the players here.
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2 In particular, we're not being given
3 the opportunity to confront and
4 cross-examine the actual witnesses who have
5 evidence on this. We understand that we're
6 going to hear from security people who
7 interviewed others, or we might be hearing
8 a presentation from counsel, outside
9 counsel for the NFL, we learned, but we're
10 not going to have a right to confront the
11 witnesses, the coaches, who we've asked
12 for, and we're not being given the right to
13 look at all of the evidence that was
14 reviewed by even the security officials in
15 preparing the report, and we're not being
16 given the right to be given access to what
17 might be exculpatory evidence regarding
18 this.
19 We have asked in prior
20 correspondence for the following:
21 On June 11, we sent a letter asking
22 for the following witnesses to be present:
23 Sean Payton, Gregg Williams, Joe Vitt,
24 Mickey Loomis, Blake Williams, Michael
25 Cerullo, Joe Hummel and Jeff Miller.
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2 I believe out of that group, the
3 only one I -- the only two I understood are
4 here today are Mr. Hummel and Mr. Miller.
5 I believe that's correct. And they only
6 would have hearsay knowledge based on their
7 investigations, as they obviously are not
8 participants in any of the alleged events.
9 The failure to produce the other
10 coaches, who we believe, under the
11 direction of the NFL, could be compelled to
12 be here, we believe denies the players the
13 right to confront anything other than
14 hearsay evidence without any opportunity to
15 cross-examine the people who could actually
16 respond to cross-examination, since
17 Mr. Hummel and Mr. Miller would not be
18 capable of responding other than reporting
19 on whatever hearsay they have gathered from
20 others.
21 Second, in that same letter, we
22 asked for copies of all evidence that is
23 relevant. 18,000 documents have been
24 identified by the NFL in their security
25 report. We've been given less than 200.
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2 We assume that much of that evidence may be
3 helpful to the players, yet we have not
4 been given access to any of it.
5 We have no idea how much of that was
6 given to Commissioner Goodell in making his
7 initial disciplinary record about this. He
8 was certainly given the security report,
9 which purports to be based on those 18,000
10 documents. We believe we're entitled to
11 get access to that.
12 We also believe we're entitled to
13 any exculpatory information that might be
14 there. In that regard, in a letter dated
15 June 14, 2012, the NFLPA asked for
16 materials provided from Mr. Duke Niphon,
17 who was interviewed by the NFL in
18 connection with this matter.
19 We understand Mr. Niphon has
20 provided exculpatory information, and we do
21 not believe all that information, at least
22 according to Mr. Niphon, that was given to
23 the NFL has been turned over to us despite
24 our request.
25 We have also asked in that same
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2 letter for the notes from the witness
3 interviews that were done. We have a few
4 transcribed notes. We don't know how those
5 were selected, but certainly not all the
6 notes that were done. And we don't know
7 who made those notes, so we don't
8 understand that. But we have no way of
9 doing this.
10 We also assume all the coaches had
11 notes taken of their interviews. To the
12 extent they were done, none of those have
13 been produced despite our request. We
14 don't know if there was a transcript of a
15 hearing, of an appeal hearing that the
16 coaches went to, Mr. Payton and others.
17 That has not been produced to us.
18 Basically, other than the less than
19 200 documents, we have not received
20 anything else from the NFL that decides on
21 that.
22 We join in the motion filed by
23 Mr. Vilma regarding the failure to produce,
24 but the little that was produced, within
25 72 hours, and note that we asked for an
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2 adjournment of this hearing for a scant
3 three days and were denied that request as
4 well despite the fact that the documents
5 were provided late.
6 We also would note that to the
7 extent that counsel for the NFL is going to
8 make some presentation based on evidence
9 that we've not been given, we will move to
10 preclude that presentation because, under
11 the CBA, that should be provided as well.
12 Finally, I would note that despite
13 the fact that the NFL reports recognize
14 that the actions here were a result of a
15 program that was -- alleged program that
16 was designed by Coach Williams, was
17 directed by Coach Williams, was known to
18 the senior executives of the team and was
19 at best condoned, if not actually promoted,
20 by those senior executives, that the idea
21 of imposing any discipline on employees who
22 simply followed what their supervisors
23 directed them to do is also contrary to
24 established legal principles, and that we
25 don't see any recognition of that in terms
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2 of the discipline that's been imposed.
3 In that regard, I would refer the
4 NFL to Elkouri & Elkouri, How Arbitration
5 Works, and in particular to look at
6 pages 1,000 to 1,001 and some of the case
7 law that is cited in Elkouri, and what you
8 will find is that even when there is only
9 prior tolerance or prior knowledge or prior
10 approval or failure to supervise, it is
11 routinely decided that employees should not
12 bear the disciplinary responsibility.
13 Because if their employer is
14 directing them to do something, it ill
15 behooves the employer to punish them for
16 what someone else has done. And in your
17 report on the team and the managers, you
18 already found that this was designed and
19 directed there.
20 So we believe that for that reason
21 as well, the discipline is legally
22 defective.
23 For all those reasons, it is our
24 reluctant conclusion that in order to
25 preserve all of our rights and our ability
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2 to challenge this and also in order --
3 because we don't believe this proceeding
4 should proceed fairly, that we will not be
5 able to participate in the merits portion
6 of the hearing, which is why we wanted to
7 make these comments at the very outset.
8 So I thank you for taking this time.
9 I apologize for the length it took to go
10 through this, but I did feel the need to
11 make this record at the outset.
12 So thank you very much.
13 Now, I guess you should proceed as
14 you intended to.
15 MR. PASH: Do either Adolpho or Dan
16 Nash, either one of you want to make any
17 comment in response to what either
18 Mr. Ginsberg or Mr. Kessler have said?
19 MR. NASH: I have a question. I
20 guess the question would be, when you say
21 you're not participating in the merits,
22 does that mean you're going to leave?
23 MR. KESSLER: We'll sit here, but
24 we're not going to participate in any way.
25 We won't ask any questions. We're not
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2 going to do any cross-examination. We're
3 not going to present any evidence or
4 witnesses of our own.
5 We're doing what we believe is
6 consistent with preserving all of our
7 jurisdictional and procedural things
8 without accepting the validity of
9 participating in the merits process.
10 MR. GINSBERG: Mr. Kessler speaks
11 for me as well.
12 MR. BIRCH: Let me address one
13 technical point.
14 Subsequent to sending over the
15 Niphon information, we were able to find
16 that he had submitted a declaration through
17 one of the coaches at the hearing. And
18 that declaration, we have it, we're happy
19 to give you copies, it actually included
20 the material that was -- that was sent, but
21 I sent over two pages and summarized that
22 same point.
23 So we found that -- because it was
24 not part of anything that security did, it
25 was ultimately found through the appeal of
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2 Coach Vitt, so the fact is that it is
3 succinct.
4 MR. KESSLER: Thank you. We
5 appreciate that. We'll take whatever you
6 want to give us.
7 MR. BIRCH: (Handing documents to
8 Mr. Kessler.)
9 MR. PASH: Did you have anything
10 else?
11 MR. BIRCH: With respect to the
12 question regarding whether Article 46 1(a)
13 or (b) applies, I believe that matter was
14 resolved and the Commissioner was
15 determined to have authority to hear the
16 appeals on this case under Article 46.
17 I believe that's all I have I would
18 say as to direct response.
19 MR. PASH: I think what we'll do
20 now, in deference to the concern that
21 Mr. Ginsberg raised and was echoed by
22 Mr. Kessler, is we'll adjourn the hearing,
23 and we will reconvene at 1:45 p.m.
24 MR. GINSBERG: Mr. Pash, I can't do
25 it at 1:45 today. We're scheduled for
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2 today at 10 o'clock.
3 MR. PASH: Well, you can preserve
4 your objection to the delivery of the
5 documents, and we'll meet it and make sure
6 you have the full 72 hours that you have
7 said you're entitled to. We'll respect
8 your position. We're trying to meet it.
9 If you want to waive your objection
10 to the delivery of the documents at
11 1:33 p.m., we'll proceed now. We're trying
12 to satisfy and trying to address your
13 position.
14 MR. GINSBERG: Mr. Pash, you had a
15 legal obligation to have produced these
16 documents by 10 a.m. on Friday morning.
17 You, sir, have abrogated that
18 responsibility. We're not prepared to
19 adjourn these proceedings.
20 This is the time scheduled. You had
21 a legal obligation to satisfy what the NFL
22 was legally obligated to satisfy. No
23 documents, no evidence was produced in a
24 timely fashion.
25 MR. PASH: Mr. Ginsberg --
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2 MR. BIRCH: There is one other point
3 I wanted to raise, was that, while you --
4 while Mr. Ginsberg has suggested that
5 New York law applies as to the calculation
6 of the time period, we operate under the
7 collective bargaining agreement.
8 Under that agreement, there's
9 absolutely no basis to suggest even that
10 the provision of those documents at 1:45 on
11 the date specified and indeed on the date
12 that the Players Association requested
13 those documents is in any way -- there's
14 not a single case precedent or appeal that
15 would even remotely suggest that that is a
16 requirement that we face.
17 MR. PASH: And, again, we're
18 prepared to adjourn the hearing until 1:45
19 to ensure that, even if the position that's
20 been articulated is legally appropriate,
21 that there's a full 72 hours.
22 If you're saying that you're
23 unavailable and you would like us to
24 proceed with the appeal now, we'll do so;
25 but I want to make it clear that we're
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2 prepared to adjourn until that time to make
3 sure that the full 72 hours that you have
4 said is required would be available.
5 MR. GINSBERG: Mr. Pash, I think my
6 position is clear. Anything that was not
7 produced by 10 a.m. Friday cannot be used
8 in this hearing, nor can there be any
9 description or illusion to anything that
10 was not produced within the 72 hours.
11 (Discussion held off the record.)
12 MR. PASH: We'll go back on the
13 record.
14 With respect to the pending motion
15 that has been offered on behalf of
16 Mr. Vilma, that motion will be denied
17 because his collective bargaining agreement
18 has never imposed a strict 72-hour rule.
19 It's operated along these lines for quite
20 some time, and that there are no decisions
21 of arbitrators or other hearing officers
22 that would impose that requirement.
23 However, as an accommodation, we
24 will adjourn the hearing until 1:45 p.m.
25 and resume at that time. That will satisfy
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2 the 72-hour requirement if, in fact, it
3 exists.
4 And I would simply note that we said
5 there would be a beginning at 10 o'clock,
6 but we didn't say anything about finishing
7 at noon or one or two or any other
8 particular time. And we had set aside
9 considerable time today in order to have
10 this hearing and allow all four players an
11 opportunity to make their points to the
12 Commissioner.
13 We didn't know if you were going to
14 be bringing in witnesses. We didn't know
15 what evidence you might be bringing in. So
16 we had set aside a considerable amount of
17 time to allow for the hearing today.
18 And we're going to go ahead and
19 adjourn till 1:45, and we will resume the
20 hearing at that point, with Mrs. White's
21 summary of the evidence.
22 MR. GINSBERG: Mr. Pash, our
23 position regarding the legality of the
24 appropriateness of the adjournment I
25 believe is clear.
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2 Just as a point of observation, my
3 understanding, Mr. Pash, is that you are
4 here, sir, as an adviser to the
5 Commissioner. The idea that we had
6 adjournment to discuss the procedural
7 infirmity in the proceedings and then, as
8 the Commissioner's adviser, to then confer
9 with the witnesses who are being presented,
10 I respectfully submit that that presents
11 additional evidence of the bias in these
12 proceedings that Mr. Kessler and I did
13 address.
14 The Commissioner, you purportedly
15 are here as neutral arbitrators. And I
16 think that is procedurally inappropriate.
17 So I'd like the record also to
18 reflect that that's how this matter was
19 resolved, by you conferring with the
20 witnesses who you're representing for this
21 to present evidence in the proceeding.
22 MR. PASH: Well, I conferred with
23 people who have been identified and I
24 believe your co-counsel referred to as our
25 outside counsel. So I don't think there's
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2 anything inappropriate in that at all; but
3 this will not be the first thing that you
4 and I disagree on, Mr. Ginsberg.
5 Okay. So we're adjourned until
6 1:45.
7 (Hearing adjourned at 10:53 a.m.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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2 A F T E R N O O N S E S S I O N
3 (1:25 p.m.)
4 MR. PASH: Okay. We'll resume.
5 And for the record, everyone who was
6 here for the morning session is still here,
7 other than I think Mr. Ginsberg and
8 Mr. Vilma. I think everyone else who was
9 here in the morning is still here.
10 MR. KESSLER: I think that's
11 correct. And I guess, Jeff, we'd like, for
12 the record, to rule one way or the other on
13 the request of the recusal before
14 proceeding.
15 MR. PASH: Actually --
16 MR. BIRCH: Actually, before that,
17 it does look like some people from
18 Mr. Ginsberg's office are still here.
19 MR. DEUBERT: Correct.
20 MR. BIRCH: In what capacity are you
21 still here?
22 MR. DEUBERT: We're here simply to
23 observe.
24 MR. PASH: I think with respect to
25 the pending motion, that we're going to
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2 take those motions under submission and
3 make a ruling on them at a later time.
4 MR. KESSLER: If you want any
5 briefing on the recusal issue, let us know.
6 So we can submit something at your
7 discretion or whatever you require, we'll
8 give you.
9 MR. PASH: Okay. Before we begin, I
10 just confirm that positions are where they
11 were.
12 Is there anything that, Mr. Kessler,
13 you would like to say on behalf of the
14 players your office is representing or
15 Mr. Ginsberg's office would like to say on
16 behalf of Mr. Vilma at this time, or are
17 you adhering to the points you articulated
18 prior to the adjournment?
19 MR. KESSLER: We are adhering to the
20 points we articulated -- I assume for the
21 League players and the union that I
22 represent, we are adhering to the points
23 that we articulated beforehand.
24 And going forward, we will listen to
25 whatever the League is going to present,
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2 but we do not intend to participate at all
3 in the merits. If there are other
4 procedural objections we have, we'll raise
5 them while we're here; but otherwise, that
6 would be the only point I will make.
7 I guess I would ask, just for our
8 own purposes, to know what the League
9 intends to present today. We understand
10 this will be a presentation by your outside
11 counsel. I don't know if you intend to put
12 on any witnesses or what your day is like,
13 just so we know.
14 MR. PASH: I think we're going to go
15 ahead and give that presentation, but I
16 don't believe that any live testimony is
17 going to be had.
18 MR. KESSLER: Okay. Good.
19 MR. PASH: And then I appreciate, as
20 you said, you're just here observing, but
21 on behalf of Mr. Vilma, is there anything
22 that you would like to put on the record?
23 MR. DEUBERT: We believe the record
24 for Mr. Vilma is closed. And as
25 Mr. Kessler said, we will not participate
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2 in any of the merits.
3 MR. PASH: Then as we said earlier,
4 we're going to ask Mary Jo White to give
5 you a presentation reviewing the evidence
6 that underlies the disciplinary decision
7 that the Commissioner made.
8 And so I will turn the floor over to
9 Mary Jo at this time.
10 MS. WHITE: Thanks, Jeff.
11 Let me just say at the outset that
12 the League has previously disclosed all of
13 the exhibits that we're going to be
14 referencing in this summary that I give
15 today, just so you're aware of that at the
16 outset.
17 I think we probably should begin,
18 for record purposes -- I don't think we got
19 to that this morning -- and ask the
20 reporter to mark as NFL Exhibit A a
21 collection containing the exhibits provided
22 previously to the players and their
23 representatives.
24 The individual exhibits within this
25 NFL Exhibit A are marked 1 through 16 to
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2 correspond to what you were given
3 previously.
4 (NFL Exhibit A, Binder of Exhibits 1
5 through 16, marked for identification.)
6 MS. WHITE: We're also going to ask
7 that the correspondence binder be marked as
8 Exhibit B, and those individual items are
9 numbered 1 through 13. And we have copies
10 which we'll distribute to everybody now.
11 (NFL Exhibit B, Binder of
12 Correspondence Exhibits 1 through 13,
13 marked for identification.)
14 MS. WHITE: Sitting to my right is
15 Jeffrey Miller, the League's vice president
16 and chief security officer. What he and
17 I -- and Jeff, I should say, really
18 supervised the NFL's investigation and
19 conducted large parts of it. And what he
20 and I will be doing today in part is
21 putting the evidence, in those exhibits
22 you've been provided with, in context, with
23 descriptions of firsthand accounts provided
24 to NFL investigators by eyewitnesses to the
25 conduct that is the basis for the
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2 sanctions.
3 And as just an aid to really follow
4 this summary, we're going to be projecting
5 some slides on the screen that will track
6 our summary.
7 So I guess with that, Jeff, I would
8 just ask you to give us an overview of the
9 NFL security's investigation into this
10 matter.
11 MR. MILLER: Thanks, Mary Jo.
12 Our investigation began in early
13 2010 when Vikings head coach, Brad
14 Childress, reported on January 26, 2010,
15 that one of his players had told him the
16 previous day that the Saints defense placed
17 a $10,000 bounty on Vikings quarterback
18 Brett Favre during the 2009 NFC
19 championship game played on January 24,
20 2010, and on Kurt Warner during the
21 preceding week's divisional playoff game on
22 January 16, 2010.
23 The NFL immediately launched an
24 investigation interviewing several persons
25 believed to have knowledge, including
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2 former Saints player Anthony Hargrove,
3 former defensive coordinator Gregg
4 Williams, and assistant head coach Joe
5 Vitt.
6 At that time, all denied knowledge
7 of an alleged bounty on Brett Favre or any
8 bounty on any other player or any
9 pay-for-performance/bounty program, and the
10 investigation was discontinued due to a
11 lack of evidence.
12 Subsequently, in November 2011, a
13 knowledgable source provided us with a
14 firsthand account of a
15 pay-for-performance/bounty program operated
16 by the New Orleans Saints defense. He also
17 provided the League with corroborating
18 evidence and documents.
19 In the course of our investigation,
20 we spoke to a number of witnesses who gave
21 accounts that confirmed that the New
22 Orleans Saints defense operated a
23 pay-for-performance/bounty program.
24 These witnesses included former
25 defensive coordinator Gregg Williams;
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2 assistant head coach Joe Vitt; Michael
3 Ornstein, a nonplayer who's often present
4 in the Saints facility and locker room and
5 participated in some of the relevant
6 conduct.
7 They also included other sources
8 associated with the New Orleans Saints with
9 firsthand knowledge. All of these
10 witnesses voluntarily cooperated with the
11 investigation and, given their positions
12 with and/or relationships to the team, each
13 had firsthand knowledge of the events about
14 which they provided information.
15 MS. WHITE: Let me interject for a
16 second here.
17 In order to safeguard their
18 identities, some sources will not be
19 referred to today by name, but generally
20 will be identified by their function and/or
21 their relationship to the New Orleans
22 Saints.
23 MR. MILLER: In addition to speaking
24 to these witnesses, we also, with the
25 consent of the New Orleans Saints,
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2 retrieved numerous relevant documents from
3 the New Orleans Saints' computer system.
4 These documents, some of which we will
5 review today, provide evidence consistent
6 with and corroborate the statements made by
7 the witnesses.
8 MS. WHITE: These again are exhibits
9 you've been previously provided, and they
10 are now part of NFL Exhibit A.
11 MR. MILLER: In connection with the
12 investigation, we retained an outside
13 computer forensic firm to analyze the
14 electronic documents we collected from the
15 Saints' computer system, as well as certain
16 other electronic documents provided to us.
17 With respect to each of the
18 electronic documents used today and
19 previously relied upon by the Commissioner,
20 the forensic firm verified that the
21 documents were, in fact, created
22 contemporaneously using the New Orleans
23 Saints' computer system.
24 Based on the witness' demeanor, the
25 level of detail of their accounts, and the
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2 consistency of the witness accounts with
3 each other and with the contemporaneous
4 documents, we were able to reach factual
5 conclusions in which we have a high degree
6 of confidence.
7 MS. WHITE: Mr. Miller, can you tell
8 us very briefly what your own background is
9 and give us some indication of how many
10 witness interviews you've conducted.
11 MR. MILLER: Prior to coming to the
12 NFL, I served in law enforcement with the
13 Pennsylvania State Police from 1984 through
14 2008. During those years, I held every
15 rank in the department, including serving
16 as commissioner from 2003 through 2008.
17 Over the course of my career, I
18 conducted hundreds, if not thousands, of
19 witness interviews related to criminal
20 offenses, such as narcotics offenses,
21 crimes against persons, death
22 investigations and internal affairs
23 matters, to name a few.
24 MS. WHITE: Thank you.
25 Before getting into the details of
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2 the evidence, I'd just like to summarize up
3 front the key factual findings of the NFL's
4 investigation. And the slide that's on the
5 board now summarizes the major conclusions
6 of the NFL's investigation. And for the
7 record, let me just read it.
8 The New Orleans Saints defense
9 established a pay-for-performance/bounty
10 program. Coaches and players, including
11 Jonathan Vilma, Anthony Hargrove, Will
12 Smith and Scott Fujita, participated in
13 that program. The program was active for
14 2009, 2010 and 2011, those NFL seasons.
15 The program included offering significant
16 financial rewards to players for hits
17 risking injury and hits resulting in
18 injuries.
19 Witness statements evidence that
20 during the 2009 playoffs, significant
21 financial bounties were specifically
22 offered on opposing quarterbacks Kurt
23 Warner and Brett Favre. Contemporaneous
24 documentation, which we'll get into,
25 corroborates the bounty on Brett Favre.
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2 During a 2010 NFL investigation, the
3 interviewed New Orleans Saints personnel
4 falsely denied knowledge of any bounty or
6 As was mentioned I think by Mr. Pash
7 earlier, I was asked to review the evidence
8 and findings of the NFL's investigation. As
9 an initial matter, prior to the
10 Commissioner's decision, I found that there
11 was overwhelming evidence that members of
12 the Saints defense participated in a
13 pay-for-performance/bounty program during
14 2009, 2010 and the 2011 NFL seasons.
15 Additionally, consistent evidence
16 has also emerged since the Commissioner
17 issued his decisions. As recently as about
18 a week ago, for example, admissions by New
19 Orleans Saints linebacker Scott Shanle that
20 the program existed were published in the
21 New Orleans Times-Picayune. A copy of that
22 article was produced to you previously as
23 Exhibit 16.
24 It's clear, from contemporaneous
25 documents and evidence reviewed by NFL
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2 investigators, including, for example, the
3 evidence in Exhibits 5 and 6 previously
4 produced to you, that Mr. Shanle was also a
5 participant in the
7 During the investigation, multiple
8 independent sources with firsthand
9 knowledge, including Mr. Williams, provided
10 NFL investigators with a description of how
11 the program worked. And documents obtained
12 in the NFL's investigation corroborated
13 those accounts.
14 Gregg Williams acknowledged to NFL
15 investigators that when he came to the New
16 Orleans Saints in 2009, he decided to
17 implement a pay-for-performance/bounty
18 program for members of the defensive unit.
19 He also acknowledged that the
20 program was run for the 2009, 2010 and 2011
21 seasons.
22 He further acknowledged that the New
23 Orleans Saints' pay-for-performance/bounty
24 program in and of itself constituted a
25 non-player-specific bounty program in that
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2 the Saints players were rewarded monetarily
3 for on-field hits that resulted in an
4 opposing player being knocked out of the
5 game because of an injury.
6 He also stated that the program
7 violated NFL policies and that he was
8 rolling the dice with players' safety and
9 that someone could have been maimed.
10 Mr. Vitt also acknowledged the
11 existence of the program in an interview
12 with NFL investigators, stating that
13 Mr. Williams introduced the program during
14 a team meeting in 2009.
15 According to Mr. Vitt, Mr. Williams
16 told the defensive players that the program
17 would reward on-field performance,
18 including big hits such as whacks,
19 cart-offs and knockouts. This description
20 is consistent with that given by
21 Mr. Williams to the NFL investigators.
22 Mr. Miller, let me turn to you for a
23 second for a question.
24 Did Coach Williams talk about the
25 role of any particular players in helping
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2 him establish the program we've been
3 talking about?
4 MR. MILLER: Coach Williams said
5 that before he brought the program to the
6 entire defense, he first brought in his
7 cocaptains on defense, Will Smith and
8 Jonathan Vilma, and he ran his idea for the
9 program past them first.
10 MS. WHITE: According to Gregg
11 Williams, the New Orleans Saints'
12 pay-for-performance/bounty program was a
13 voluntary program, meaning that players
14 could opt not to participate in it.
15 Mr. Vitt said the same to NFL
16 investigators.
17 Mr. Williams further explained that
18 the program was initially funded by pledges
19 from himself, Jonathan Vilma, Will Smith,
20 certain other players and Mike Ornstein, an
21 individual with close ties to the New
22 Orleans Saints organization who was given
23 access to team meetings.
24 The seeding funds were put into a
25 kitty, which was further funded by dues
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2 paid by participating players in the amount
3 of a hundred dollars per game.
4 Mr. Williams also informed NFL
5 investigators that he, Mr. Vilma and
6 Mr. Smith each put a thousand dollars into
7 the pay-for-performance/bounty kitty at the
8 beginning of the 2010 and 2011 seasons.
9 In addition to the seed money and
10 dues, fines were assessed on participating
11 players for poor game performance and were
12 deposited into the kitty. For example,
13 players were fined if they missed an
14 opportunity for a big play, MOBP. You'll
15 see that referenced in some of the exhibits
16 you've already seen and that we'll be
17 talking about today. Also fined for
18 committing a mental error, referred to as
19 ME, or showing a lack of hustle on the
20 field, referred to as LOHF [ph.]
21 Payouts which were to be increased
22 during the playoffs could be earned for a
23 variety of different kind of plays,
24 including potentially injury-risking or
25 injury-causing plays.
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2 Gregg Williams assigned monetary
3 values to certain plays on the field. This
4 slide that you see on the screen summarizes
5 the basic structure of the program,
6 including the inflows of funds into the
7 program and the outflows.
8 As you can see, players earned
9 payouts from the pay-for-performance/bounty
10 fund based on the program's terms. For
11 example, players could obtain payments of
12 $200 for a fumble recovery, which you see
13 on the slide. The program also rewarded
14 players for other plays that posed a risk
15 of injury to opposing players or actually
16 injured them.
17 For example, players could be
18 rewarded with a thousand dollars for a
19 cart-off, we talked about that before;
20 $1500 for a knockout; or $200 for a whack
21 or smack, which were understood to be
22 particularly explosive hits.
23 Coach Williams and other witnesses
24 also recalled that payout amounts were to
25 be increased during the playoffs. For
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2 example, Mr. Williams recalled that
3 cart-offs were valued at $2,000 during
4 playoff games.
5 As mentioned, the program rewarded
6 players for potentially injury-risking
7 plays such as explosive hits called smacks
8 or whacks. The program also provided for
9 rewards for injury-producing plays such as
10 cart-offs, hits that resulted in a player
11 temporarily leaving the game because of an
12 injury; and for knockouts, hits that
13 resulted in a player leaving the game for
14 the duration of the game because of an
15 injury.
16 Numerous contemporaneous documents
17 corroborate these facts, and I thought I
18 would now just go through some of those
19 examples.
20 This slide, which is Exhibit 1
21 previously produced to the players and
22 their representatives, depicts
23 contemporaneous handwritten notes taken for
24 the 2009 season by a member of the New
25 Orleans Saints defensive coaching staff
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2 indicating the amount of seed money that
3 certain players, including Mr. Vilma and
4 Mr. Smith, agreed to pay into the kitty.
5 And as you'll see on the slide,
6 $2,000 for Mr. Vilma; 1500 for Mr. Smith;
7 and at the bottom before the total 5,000
8 for Mr. Ornstein.
9 It also reflects a pledge in the
10 right -- upper right-hand corner by
11 Mr. Fujita to pay $500 to members of the
12 defensive line, that's the "DL" on the
13 slide, for sacks and forced fumbles.
14 That's the "FF" there.
15 A question has been raised I think
16 in some of the correspondence that was
17 exchanged on Friday as to whether the NFL
18 is in possession of handwritten versions of
19 these notes and others provided to you in
20 typed form. The answer is yes. They have
21 been produced in typed form, again to
22 safeguard the identities of sources.
23 Part of the documentary evidence
24 collected by NFL investigators was this
25 e-mail on the next slide, which is on the
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2 screen, dated October 12, 2009, from Mike
3 Ornstein to Gregg Williams. And this is
4 excerpted from Exhibit 2 previously
5 provided. It corroborates the amount of
6 seed money Mr. Ornstein agreed to
7 contribute to the pool for the 2009 season.
8 The e-mail, which is recovered from
9 the Saints' computer system, indicates that
10 Mr. Ornstein had paid $1500 to
11 Mr. Williams, with 3500 total still owed.
12 The pledged amount total -- the
13 pledged amounts total $5,000, exactly the
14 amount of the handwritten -- that the
15 handwritten notes indicate he pledged as
16 seed money for the
17 pay-for-performance/bounty kitty. And
18 that's reflected on Slide 7, which we've
19 just gone back to for a second.
20 The next document, which is part of
21 Exhibit 3 previously provided to you, was
22 also recovered from the Saints' computer
23 system. It's a PowerPoint slide dated
24 November 12, 2009. As you see, it is a
25 slide on green background with dollar signs
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2 also in the background. That is how each
3 of the slides like this were recovered from
4 the New Orleans Saints' computer system.
5 Witnesses, including Mr. Williams
6 and another source from the New Orleans
7 Saints defensive coaching staff, have said
8 that PowerPoint slides such as this were
9 shown during defensive squad meetings each
10 week.
11 November 12, 2009, just for some
12 context, was a few days after the Saints'
13 30 to 20 win over the Carolina Panthers on
14 November 8, 2009, and prior to the team's
15 Week 10 game against the St. Louis Rams on
16 November 15, 2009.
17 You'll see the reference at the
18 bottom of the slide, "We need Rams dues by
19 Friday."
20 The slide shows both game fees that
21 were assessed against two players based on
22 errors in the game against the Panthers and
23 remind certain players of the weekly dues,
24 the hundred dollars per game, they still
25 owed to the kitty for past games.
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2 The New York Giants, Miami and
3 Atlanta games, which are also you can see
4 referenced on this slide, already had been
5 played in the three weeks prior to the
6 Carolina game.
7 Next is another of these PowerPoint
8 slides recovered from the Saints' computer
9 system. This one is included in Exhibit 4
10 previously provided to you. The electronic
11 file is dated October 29, 2009, a few days
12 after the Saints play the Miami Dolphins on
13 October 25, 2009, and a few weeks before
14 the Week 8 game against the Atlanta
15 Falcons.
16 It shows fees assessed against
17 particular players for the Miami game, as
18 well as for two prior games against the New
19 York Jets and New York Giants. You can see
20 that the fines were assessed for penalties,
21 mental errors, that's that "ME"; missed
22 opportunities for big plays, that's "MOBP";
23 and LOHFs, which is again entirely
24 consistent with the witness' statements
25 about how the program worked.
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2 You see, for example, on this
3 particular slide that Mr. Smith is shown to
4 owe $400 from the New York Giants and New
5 York Jets games and that Mr. Hargrove was
6 assessed $400 for two LOHFs and a mental
7 error in the Miami game.
8 This next slide shows additional
9 evidence recovered again from the Saints'
10 computer system. It's an excerpt from
11 Exhibit 5 previously produced to you. It
12 is a ledger relating to a game against the
13 New York Giants, which was played on
14 October 18, 2009. That's Week 6 of the
15 season.
16 The forensic review showed that the
17 document itself was last modified on
18 October 20, 2009. The notes indicate that
19 one player, Roman Harper, you see that in
20 Item 1, was to receive a thousand dollars
21 for a cart-off. And, again, that's a play
22 resulting in an opposing player leaving the
23 field due to injury and missing at least
24 one play.
25 The game film for that game reflects
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2 that New York Giants running back Raymond
3 Jacobs was tackled by Harper in the second
4 quarter and left the field with a shoulder
5 injury.
6 The ledger also shows, in Item 2,
7 that Mr. Vilma was credited with $200 for a
8 whack, an explosive hit, although he also,
9 as the ledger shows, owed more money than
10 that to the kitty for mental errors and a
11 penalty.
12 Item 7 on this ledger shows that
13 Mr. Smith was assessed a $200 fee for a
14 mental error in that game.
15 The next slide shows a portion of a
16 similar electronic document provided by a
17 member of the New Orleans Saints coaching
18 staff and previously produced to you in
19 full, this is an excerpt, as Exhibit 6,
20 again which is a ledger of fees assessed
21 and payouts owed for the Week 7 October 25,
22 2009, game against the Miami Dolphins.
23 The forensics review showed that
24 this document was created on the Saints'
25 computer system and last modified on
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2 October 31, 2009.
3 The notes show that four members of
4 the defensive team were to receive payouts,
5 in part for one or more whacks. If you
6 look at Item 7 on this document, you see
7 that Jonathan Vilma was one such player
8 credited with two whacks, $200 each. After
9 deducting $200 for a mental error, this
10 document shows that Mr. Vilma was owed a
11 $200 payout.
12 Also in Item 3, this document shows
13 money owed to and fees owed by Mr. Hargrove
14 in the pay-for-performance/bounty program.
15 At least three witnesses interviewed
16 by NFL security, all from the New Orleans
17 Saints defensive coaching staff and
18 including Coach Williams, stated that they
19 personally participated in the process of
20 paying players owed rewards under the
21 pay-for-performance/bounty program after
22 each game that the Saints won in the 2009,
23 2010 or 2011 seasons.
24 All said that the monies in the
25 kitty were kept in a locked cash box
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2 secured in Mr. Williams' office.
3 Mr. Vitt also told NFL investigators
4 that he saw Mr. Williams with envelopes he,
5 that is to say Mr. Vitt, assumed contained
6 payout cash from the program.
7 One of the witnesses described how
8 the process worked after Saints wins.
9 Mr. Williams would announce the recipients
10 of the cash at a defensive team meeting
11 prior to the game after the one in which
12 the payout was earned.
13 A staffer or assistant to
14 Mr. Williams would then hand out the cash
15 payments to the recipients in envelopes
16 addressed to them.
17 The next slide actually pictures one
18 example, it's on the screen now, of the
19 payment envelope where the handwritten
20 notations again have been typed, as I
21 explained before.
22 So this is Exhibit 7, previously
23 produced to you, which shows a payment
24 envelope for a $200 payment to Mr. Vilma.
25 The amount -- the net amount he was owed
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2 for two whacks plus $200 after accounting
3 for one mental error and minus $200 for the
4 Miami game.
5 This envelope appears to contain
6 Mr. Vilma's payout for the Miami game. As
7 you can see, the amounts written on the
8 envelope correspond with the previous
9 document we just reviewed on the previous
10 slide --
11 Will you go back to that for a
12 second.
13 -- in Item 7, as you'll see it.
14 Back to the next slide.
15 And as noted on the envelope at the
16 bottom, Mr. Vilma evidently returned this
17 particular payment to the pool.
18 Again, I should note here that the
19 NFL investigators are in possession of the
20 original of this envelope that's been typed
21 and shown on the screen at the moment.
22 As we've said previously, the League
23 first investigated the bounty allegations
24 in early 2010. Documents and a number of
25 witnesses indicate that notwithstanding an
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2 awareness of the League's investigation,
3 the Saints' pay-for-performance/bounty
4 program continued beyond the 2009 system --
5 season, sorry, and was operated in the 2010
6 and 2011 NFL seasons.
7 Multiple witnesses with firsthand
8 knowledge, including Mr. Williams and
9 another member of the defensive coaching
10 staff, acknowledged to NFL investigators
11 that the program continued in the 2010 and
12 2011 seasons.
13 One of these sources informed NFL
14 investigators that payments were made from
15 the kitty after every Saints win, including
16 payments for injury-producing plays like
17 cart-offs. The source also stated that
18 Mr. Williams insisted that all discussions
19 about the administration of the program
20 remain secret and records relating to
21 particular games were destroyed immediately
22 after the game.
23 Mr. Williams acknowledged that he
24 assumed all records were discarded after
25 each game.
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2 The League interviewed a witness
3 named Duke Niphon, who credibly claimed to
4 be present at some Saints team meetings
5 during the 2011 NFL season, a claim that he
6 substantiated by showing photos to League
7 investigators via the Internet.
8 In March 2012, Mr. Niphon reached
9 out to the NFL. He described himself as a
10 trained respiratory therapist and a person
11 also expert in sleep disorders, who is the
12 CEO/president of the Sleep Point Company
13 located in Kansas.
14 He explained that he was a friend of
15 Gregg Williams and was asked to speak to
16 the team during training camp for the 2011
17 season. Thereafter, he said he attended
18 many of the games in the 2011 season and
19 was given free access to the Saints players
20 for purposes of understanding the demands
21 and stress placed on NFL players and
22 coaches.
23 Mr. Niphon told League investigators
24 that although he was present at locker room
25 meetings during the 2011 NFL season, he
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2 never saw evidence of players receiving
3 payments for injury-producing plays.
4 Mr. Niphon said that he was not
5 present at any meetings during either the
6 2009 or the 2010 season and he acknowledged
7 that he was not present at all defensive
8 meetings during the 2011 season.
9 In addition, he acknowledged to NFL
10 investigators having personally seen on
11 occasion envelopes in the Saints locker
12 room at some of the defense meetings he did
13 attend, which he assumed contained cash,
14 although he did not know that or what the
15 cash was for or what the basis -- his basis
16 was for believing that there was cash in
17 the envelopes that he saw.
18 The envelopes he saw he said were
19 not distributed in his presence. His
20 account of his recollections of what he
21 witnessed in the 2011 season was not
22 considered by NFL investigators to
23 contradict the clear recollections of those
24 who actually participated in the program.
25 This electronic document from
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2 Exhibit 8 previously produced to you lists
3 several players who had contributed money
4 into the program kitty near the start of
5 the 2011 season, including Mr. Vilma. And
6 it is consistent again with the witness
7 accounts that the NFL investigators
8 received.
9 The fact that the
10 pay-for-performance/bounty program
11 continued into the 2011 season is further
12 evidenced by public statements made by
13 filmmaker Sean Pamphilon after the
14 Commissioner's decision on May 2, 2012.
15 On May 31, 2012, Mr. Pamphilon
16 posted an essay on his blog entitled, "When
17 You Kill the Head, the Body Doesn't Die."
18 A copy of this essay was previously
19 provided as Exhibit 15. In that essay,
20 Mr. Pamphilon reports that he was present
21 at a meeting of the New Orleans Saints
22 defense on January 13, 2012, the night
23 before their 2011 season playoff game
24 against the San Francisco 49ers on
25 January 14, 2012.
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2 During the meeting, Mr. Pamphilon
3 wrote, this is a quote, "Gregg Williams
4 began passing out envelopes for bonuses.
5 At least one seemed to be for a whack hit,
6 but most were performance-based for
7 turnovers. As the money was to be doled
8 out, many of the players began playfully
9 screaming, 'Give it back, give it back'."
10 Mr. Pamphilon voluntarily played for
11 NFL investigators a video, an audio account
12 of this particular 2011 season defensive
13 meeting.
14 I guess, Mr. Miller, I'll turn to
15 you and ask you whether you were present
16 when he did so.
17 MR. MILLER: I was.
18 MS. WHITE: Can you describe very
19 briefly what it showed, the video showed.
20 MR. MILLER: The video showed Coach
21 Williams -- he can be heard on the video
22 handing out payment for players for big
23 plays in the previous game. And this
24 occurred during a defensive meeting prior
25 to the playoff game against the 49ers.
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2 MS. WHITE: In addition to the
3 slides like the next one, which is about to
4 be up on the screen, which is from
5 Exhibit 9 previously produced, depicting
6 rolled-up money appear in presentations of
7 the defense as late as 2011.
8 A member of the defensive coaching
9 staff told NFL investigators that slides
10 like this one were routinely included in
11 the defensive squad's PowerPoint
12 presentations and were meant to portray the
13 money available under the
15 This one would appear to have been
16 included in the PowerPoint presentation
17 prior to the 2010 season playoff game
18 against the Seattle Seahawks, which was
19 played on January 8, 2011. And that
20 PowerPoint has been produced to you as
21 Exhibit 9.
22 So in addition to the evidence that
23 we've just gone through demonstrating that
24 the four players sanctioned by the
25 Commissioner participated in a Saints
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2 pay-for-performance/bounty program that
3 rewarded injury-risking or injury-inducing
4 plays, whacks, cart-offs and knockouts, the
5 NFL investigation also found direct
6 evidence that certain members of the Saints
7 defense pledged specific sums of money to
8 any defensive player who knocked opposing
9 quarterbacks out of the game during the
10 2009 playoffs.
11 According to multiple firsthand
12 sources who League investigators
13 interviewed, Mr. Vilma offered such
14 rewards. One of the witnesses present at
15 the defense meetings prior to the
16 divisional playoff game with the Arizona
17 Cardinals on January 16, 2010, at which
18 this happened, described the events to the
19 NFL investigators in a statement this way.
20 And it's on the screen and I'll read it for
21 the record.
22 "In the NFC" -- this is a quote.
23 "In the NFC divisional playoffs, the
24 Saints faced the Arizona Cardinals. During
25 a meeting of the defense the night before
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2 the game in January 2010, Jonathan Vilma, a
3 Saints defensive captain, asked for
4 permission to address the team, which was
5 granted. Mr. Vilma, in the course of
6 giving a motivational speech to the team,
7 stated, while raising his hands, each of
8 which held stacks of bills, that he had two
9 five stacks, which I understood to mean
10 $10,000, for anyone who knocked Cardinals
11 quarterback Kurt Warner out of the game."
12 The substance of this account that
13 Mr. Vilma offered a $10,000 payment to any
14 player who knocked Kurt Warner out of the
15 game was independently confirmed by
16 Mr. Ornstein, who was present at the
17 meeting.
18 In addition, Mr. Williams and
19 Mr. Ornstein and another member of the
20 Saints defensive coaching staff, all of
21 whom were present at the meeting, all
22 stated to NFL investigators that Mr. Vilma
23 pledged $10,000 to any player who knocked
24 Brett Favre out of the next week's NFC
25 championship game against the Minnesota
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2 Vikings.
3 All three witnesses stated that the
4 amount of this bounty was $10,000.
5 Williams also admitted that he personally
6 pledged $5,000 to any player who knocked
7 Brett Favre out of the game.
8 According to one of the witnesses
9 present at the meeting, the bounty offered
10 by Mr. Vilma prior to the NFC championship
11 game inspired additional players to pledge
12 money for injury-producing hits or
13 potentially injury-producing hits against
14 opposing players or for other types of
15 plays during the game.
16 Mr. Vitt told NFL investigators that
17 this meeting, quote, got out of hand,
18 unquote. NFL investigators were informed
19 that a member of the defensive coaching
20 staff kept track of the various pledges
21 made by players at this meeting.
22 The slide that's on the screen now
23 shows again a typed version of
24 contemporaneous handwritten notes taken
25 during the meeting. That's from Exhibit 10
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2 previously produced to you.
3 In these contemporaneous notes,
4 Mr. Vilma, if you look at the top of that
5 note, is shown to have pledged $10,000 on
6 the quarterback. Mr. Smith and Mr. Fujita
7 are shown to have pledged, if you look at
8 the bottom of that note, $5,000 and $2,000,
9 respectively, to the general program pool.
10 In addition, NFL footage from the
11 NFC championship game confirms that the
12 Saints players were keenly aware of the
13 existence of the bounty on Mr. Favre during
14 this game.
15 What we're about to show is game
16 footage of several plays during a
17 third-quarter possession by the Vikings
18 followed by sideline footage captured by
19 NFL films, in which Mr. Hargrove's voice is
20 captured.
21 For ease of understanding, his
22 remarks are shown in captions.
23 (Video played.)
24 MS. WHITE: That clip is actually
25 from Exhibit 14, which was previously
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2 produced to you.
3 So what this film footage showed to
4 the NFL investigators was that after
5 Mr. Hargrove is told that Mr. Favre might
6 have broken his leg and may not be
7 returning to the game, Mr. Hargrove smiles
8 or winks and states, "Bobby, pay me my
9 money."
10 When taken together with evidence we
11 already reviewed of the bounty for knocking
12 Brett Favre out of the game, the League
13 investigators understandably drew the
14 inference that Mr. Hargrove's statement
15 references the bounty on Brett Favre.
16 "Bobby" is Saints player Bobby
17 McCray, who had made the hit on Favre on
18 the previous play, for which it appeared
19 Mr. Favre would not return to the game
20 because of an injury.
21 Mr. Hargrove's statement on the film
22 corroborates the witness accounts that
23 there was a bounty payable for a hit on
24 Brett Favre that resulted in him being
25 knocked out of the game. It is also
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2 evidence of Mr. Hargrove's knowledge of
3 that bounty and the
4 pay-for-performance/bounty program,
5 contrary to what he told NFL investigators
6 in early 2010.
7 Just for context, just to note, in
8 this game, three tackles made by the Saints
9 players on Brett Favre were later fined by
10 the League. Mr. Hargrove was fined $5,000
11 for lifting and stuffing his opponent to
12 the ground.
13 Mr. McCray was fined for two hits on
14 Favre for a total of $20,000. One was a
15 fine for unnecessary roughness. Another
16 was for a hit on the quarterback on a play
17 when Favre threw an interception and
18 Mr. McCray delivered a blow to the knee
19 area of the quarterback.
20 As noted, Gregg Williams and another
21 Saints defensive coaching staff member
22 confirmed to NFL investigators that the
23 Saints pay-for-performance/bounty program
24 continued for the 2010 and 2011 seasons.
25 Documentary evidence that the
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2 investigators found on the Saints' system
3 confirms this and suggests that the
4 practice of placing specific bounties on
5 specific opposing players also may have
6 continued beyond the 2009 season, including
7 after the League commenced its 2010
8 investigation, although neither
9 Mr. Williams, nor any other witness
10 recalled an instance in the 2010 and/or the
11 2011 seasons where a bounty had been placed
12 on a specific opponent.
13 One defensive staff member recalled
14 that there were one or two times in 2010
15 and 2011 when a player pledged additional
16 amounts to a quarterback cart-off, a
17 cart-off or another specific play, but
18 didn't recall who or in what games.
19 The next PowerPoint slide comes from
20 a defensive team presentation from
21 January 7, 2011, prior to the January 8,
22 2011, NFC wildcard game against the Seattle
23 Seahawks. And incidentally, the red circle
24 and the typed name was added to the slide
25 just for explanation.
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2 It features the picture of former TV
3 personality and professional bounty hunter
4 Duane 'Dog' Chapman and encourages players,
5 if you look in the red circle, to do their
6 job and collect bounty money, three dollar
7 signs with an exclamation point.
8 As you can see at the top of this
9 slide, they're images of key offensive
10 Seahawks players, including quarterback
11 Matt Hasselbeck; wide receiver Mike
12 Williams, number 17; and running back
13 Marshawn Lynch, number 24, next to the
14 photo of a sniper scope.
15 On another document in Exhibit 9
16 previously produced to you is a slide that
17 contains the language, quote, "Eliminate
18 number 17/number 24."
19 That's on -- just to give you the
20 document number in Exhibit 9, NFLSL00056.
21 One defensive staff member said that
22 the payment amounts doubled or tripled for
23 the Seahawks game, that Coach Williams
24 wanted Matt Hasselbeck hit as often as
25 possible, but said he could not recall if
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2 any players pledged extra funds for
3 cart-offs or quarterback cart-offs for this
4 game.
5 He did say that during the 2010 and
6 2011 seasons, if the team won, Saints
7 players always received financial rewards
8 for, among other plays, cart-offs and
9 quarterback cart-offs.
10 What I'd like to do now is just very
11 briefly summarize the evidence that the NFL
12 security investigators obtained regarding
13 the role of each of the four players so you
14 have that kind of collected in one place.
15 We'll start with Jonathan Vilma.
16 This slide summarizes the evidence with
17 respect to him, much of which we've already
18 discussed. Gregg Williams stated that
19 Mr. Vilma contributed seed money to the
20 pay-for-performance/bounty kitty at the
21 start of each of the 2009, 2010 and 2011
22 NFL seasons.
23 This information is corroborated by
24 handwritten notes provided by another
25 source that show Mr. Vilma committed to pay
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2 $2,000 into the kitty at the start of the
3 2009 season. That's Exhibit 1 --
4 You might turn to that film and come
5 back to it.
6 -- which we already reviewed.
7 You'll see the red circle was put on by us
8 just to illustrate.
9 It's also corroborated by the
10 defensive presentation slide recovered from
11 the Saints' computer system indicating that
12 Mr. Vilma contributed money to the pool
13 during the 2011 season. And that's
14 Exhibit 8.
15 Phil, do you want to go to that next
16 one.
17 Again, we've talked about that one
18 before.
19 Numerous documents that were created
20 contemporaneously using the Saints'
21 computer system, including Exhibits 5 and
22 6, again we've reviewed already, show
23 Mr. Vilma's participation in the
25 Exhibit 7, again which we've seen
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2 before and talked about, is the payout
3 envelope for Mr. Vilma for the Miami game.
4 And finally, at least three sources,
5 including Mr. Williams, all stated that
6 Mr. Vilma pledged a $10,000 bounty against
7 Brett Favre during the 2009 playoffs.
8 Two sources said he also placed a
9 $10,000 bounty on Kurt Warner in the
10 divisional playoff game.
11 So to summarize, the evidence
12 discovered during the NFL's investigation
13 supports the conclusion that Mr. Vilma, a
14 defensive team captain, actively
15 participated in the
16 pay-for-performance/bounty program,
17 including by providing substantial sums as
18 seed money for the kitty and offered a
19 $10,000 bounty to any defensive player who
20 knocked Kurt Warner and later Brett Favre
21 out of the 2009 NFC playoff games.
22 Exhibit 10, which we looked at,
23 shows handwritten notes reflecting the
24 $10,000 pledge on the quarterback Brett
25 Favre for the Minnesota game.
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2 It's entitled, "Mini Game" at the
3 top. And again the red circle we've put
4 on.
5 Next Mr. Hargrove.
6 If you go to that slide.
7 Several documents indicate that
8 Mr. Hargrove was assessed for fees in
9 connection with the Saints'
11 Exhibit 4, which we've seen already,
12 indicates that for Mr. Hargrove.
13 And then Exhibits 11 and 12 --
14 If you can go to those, Phil.
15 -- are additional examples showing
16 the same thing. If you see, this one is
17 from the Atlanta game. "Due from the
18 Atlanta game, Hargrove, 200," and then
19 Exhibit 11 is a similar example.
20 The sideline film we viewed earlier
21 showed to the investigators that
22 Mr. Hargrove was aware of the bounty that
23 had been placed on Mr. Favre and a willing
24 participant in the
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2 Despite his participation in the
3 program and his knowledge of the bounty
4 placed on Brett Favre, Mr. Hargrove falsely
5 denied the existence of the program when
6 interviewed by NFL investigators in 2010.
7 Mr. Hargrove later acknowledged this lie in
8 his declaration in which he explains his
9 misstatements by pointing to his former
10 coaches who instructed him to deny the
11 existence of the Saints'
12 pay-for-performance/bounty program and
13 bounties and that he did so.
14 I'll just go through the slides,
15 Phil.
16 Other independent evidence from a
17 source present at a meeting in early 2010
18 supports Mr. Hargrove's statement that he
19 was asked to and willingly agreed to
20 falsely deny the existence of the program.
21 And just for the record, let me read the
22 slide that's on the screen.
23 Quote, "I subsequently was present
24 at a meeting between Mr. Vitt and Anthony
25 Hargrove, a defensive player, during which
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2 Mr. Vitt instructed Mr. Hargrove to deny
3 any knowledge of the program if he was
4 interviewed by the NFL investigators.
5 Mr. Hargrove agreed to lie to the
6 investigators saying, to the best of my
7 recollection and in substance, 'I can lie
8 with the best of them'."
9 Moving on to Mr. Smith, this slide
10 summarizes the evidence with respect to
11 him. As we have reviewed, the evidence
12 establishes that Mr. Smith, also a
13 defensive team captain, participated in the
14 Saints' defense pay-for-performance/bounty
15 program and contributed substantial sums to
16 the program kitty in excess of those
17 contributed by the average participant.
18 Mr. Williams stated that Mr. Smith
19 pledged seed money to fund the program at
20 its inception and at the beginning of each
21 season. This statement about the 2009
22 season is corroborated by contemporaneous
23 handwritten notes, that's Exhibit 1, which
24 you've seen before, showing $1500 -- a
25 $1500 pledge contribution.
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2 Documentary evidence obtained from
3 the Saints and authenticated by forensic
4 experts shows that Mr. Smith was assessed
5 game fees for errors in several different
6 games, establishing that he participated in
7 the program.
8 We've looked at Exhibit 4 already.
9 And Exhibit 13 shows dues are owed
10 to the program by Mr. Smith, again the red
11 circle being added by us.
12 Mr. Williams also confirmed that
13 Mr. Smith pledged significant sums during
14 the 2009 playoffs, but could not recall
15 whether it was for player-specific bounties
16 or other aspects of the
18 Next slide shows Exhibit 10, that
19 Mr. Smith contributed $5,000 to the general
20 pool prior to the Vikings game. And again
21 we've reviewed that previously.
22 Mr. Fujita. The evidence
23 establishes that Mr. Fujita participated in
24 the Saints' defense
25 pay-for-performance/bounty program and
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2 contributed substantial sums to the program
3 kitty in excess of those contributed by the
4 average participant.
5 Documentary evidence shows that
6 Mr. Fujita was assessed game fees related
7 to the program, and that's shown in the
8 next slide, which comes from Exhibit 11,
9 which has been previously produced to you.
10 That shows $200 in game fees owed by
11 Mr. Fujita from the second Tampa Bay
12 Buccaneers game in the 2009 season.
13 In addition, a Saints coach informed
14 NFL investigators that Mr. Fujita pledged
15 additional sums for, quote, big plays
16 during the 2009 NFL playoffs. This
17 statement was corroborated by another
18 source.
19 Contemporaneous handwritten notes,
20 which is our Exhibit 1, dating from the
21 start of the 2009 season show that
22 Mr. Fujita pledged a significant sum,
23 approximately a thousand dollars, to the
24 pool for sacks and forced fumbles.
25 Finally, handwritten notes from the
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2 2009 NFL playoffs show that Mr. Fujita was
3 among several players who pledged a
4 substantial sum of money, $2,000 in his
5 case, to the general pool to be used -- a
6 pool which was used in part to reward
7 players if there were injury-inducing plays
8 such as cart-offs or knockouts.
9 So based on --
10 Actually, Mr. Miller, let me ask you
11 one question before I just conclude this
12 summary.
13 And that is, during the course of
14 your investigation, did any of the sources
15 of your information ever retract what they
16 had to say with respect to any of the four
17 players we're discussing today?
18 MR. MILLER: No.
19 MS. WHITE: So just to conclude,
20 based on all the evidence, both documentary
21 as well as information coming from
22 witnesses with firsthand knowledge, the
23 factual findings of the investigation upon
24 which the Commissioner based his
25 disciplinary decisions are, in my view,
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2 fully supported by the evidence found
3 during the NFL's investigation.
4 It should be noted, I think as it
5 was earlier, that none of the players
6 agreed to an interview with the League
7 investigators or provided any evidence to
8 the investigators casting doubt on or
9 contradicting the findings of the
10 investigation.
11 That concludes my summary.
12 MR. PASH: Mr. Kessler, do you have
13 any comment that you would like to make?
14 MR. KESSLER: As I mentioned, we
15 won't participate in the merits discussion.
16 I would note for the record, per my earlier
17 objections, that much of the material
18 presented by Ms. White is materials that we
19 asked for that have not been provided.
20 Particularly we received no
21 handwritten notes in any contemporaneous
22 fashion. We received no witness
23 statements. The witness statements are
24 referred to.
25 In any case, the identity of
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2 witnesses have not been identified so the
3 players could not even begin to mount a
4 defense to confront their accuser.
5 We note that we did hear now that
6 statements were allegedly made by Coach
7 Williams and Coach Vitt. We ask for both
8 of them to be produced as witnesses.
9 They're not here so that plaintiffs have no
10 chance to confront those individuals.
11 And we heard about forensic evidence
12 and we received no forensic evidence and,
13 therefore, we believe all of the evidence
14 related to these matters are not properly
15 before this proceeding and the proceeding
16 is improper and not consistent with the
17 notions of fairness in this hearing and,
18 therefore, should be excluded.
19 And I'll just note that the rest of
20 Ms. White's remarks are basically oral
21 arguments, which is not evidence.
22 That concludes my remarks about
23 that.
24 MR. PASH: On behalf of
25 Mr. Ginsberg's office?
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2 MR. DEUBERT: We would adopt what
3 Mr. Jeffrey Kessler said.
4 MR. PASH: I'm pretty sure I know
5 the answer, but any of the -- this is your
6 hearing. Would any of the players like to
7 say anything? Or take any questions?
8 MR. KESSLER: On the advice of
9 counsel, the players have been advised that
10 they will not be participating in the
11 merits of the case.
12 MR. PASH: There have been
13 references -- Mr. Ginsberg referenced this
14 this morning, that there have been
15 references from representative Players
16 Associations on independent investigations
17 that were performed by Mr. Ginsberg and by
18 the Players Association.
19 And notwithstanding the procedural
20 issue that might be raised, we would
21 certainly be willing to receive the results
22 of those investigations or a report if you
23 wanted to present those to the Commissioner
24 as part of the record on the appeal. So
25 I'll just make that offer --
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2 MR. KESSLER: Again, for the reasons
3 we discussed, since we don't believe this
4 is a proper procedure at this point, we're
5 not going to participate in the merits and,
6 therefore, will not be submitting any
7 merits evidence.
8 MR. PASH: Would you like to, on
9 behalf of the Players Association, file any
10 kind of post-hearing memorandum?
11 MR. KESSLER: At this point, I think
12 we've stated our objections. If the
13 Commissioner or you have any areas that
14 you'd like us to further address on the
15 procedural or jurisdictional objections or
16 objections on bias or other matters, we'd
17 be happy to further elaborate; but if you
18 feel you have an adequate statement of
19 those objections in order to rule upon
20 them, we have not requested any opportunity
21 for --
22 MR. PASH: Is that true for
23 Mr. Ginsberg's office on behalf of
24 Mr. Vilma as well?
25 MR. DEUBERT: The same.
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2 MR. PASH: Why don't we take about a
3 two-minute recess, and the Commissioner can
4 consider if there's anything he would like
5 to ask anyone before we conclude.
6 (Recess from the record.)
7 MR. PASH: I guess we'll go back on
8 the record.
9 And as we've been discussing it
10 during the break, I think, Jeffrey, and
11 I'll make the same offer to Mr. Ginsberg's
12 office as well, we'll -- assuming there's
13 nothing further today, which it sounds like
14 there's nothing further today, we will hold
15 the record open until 5 p.m. on Friday.
16 And the Players Association or, on
17 behalf of Mr. Vilma, Mr. Ginsberg's office
18 is free to file any paper that it wishes in
19 support of either the procedural objections
20 that you've raised or the bias issue. Or
21 if, on reflection, you want to file
22 something commenting on the merits, you're
23 welcome to do that as well.
24 So whatever submission that people
25 would like to make by 5 p.m. on Friday,
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2 we'll accept it. If you conclude that
3 you're not going to make a submission,
4 that's obviously your choice as well. But
5 we'll hold the record open. You'll have a
6 chance to look at the transcript. If you'd
7 like to file something, we'll be happy --
8 the Commissioner would be happy to receive
9 it.
10 MR. KESSLER: Thank you very much.
11 MR. PASH: If there's nothing
12 further, thanks very much. And appreciate
13 your time.
14 (The hearing adjourned. The time is
15 3 p.m.)
16
17
18
19
20
21
22
23
24
25
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1
2 E X H I B I T S
3 PAGE
4 Exhibit A Binder of Exhibits 1 40
5 through 16
6 Exhibit B Binder of Correspondence 40
7 Exhibits 1 through 13
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 ss:
5 COUNTY OF NEW YORK )
6 I, Eileen Mulvenna, CSR/RMR/CRR and
7 Notary Public within and for the State of New
8 York, do hereby certify that the foregoing
9 proceedings were taken before me on June 18,
10 2012;
11 That the within transcript is a true
12 record of said proceedings;
13 That I am not connected by blood or
14 marriage with any of the parties herein nor
15 interested directly or indirectly in the matter
16 in controversy, nor am I in the employ of any
17 of the counsel.
18 IN WITNESS WHEREOF, I have hereunto
19 set my hand this 19th day of June, 2012.
20
21
22 ____________________________
23 Eileen Mulvenna, CSR/RMR
24
25
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&
& 2:4,20 3:4 5:21
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200 2:5 21:25 23:19
51:12,20 58:7,13
59:8,9,11 60:24
61:2,3 79:18 83:10
2003 44:16
20036-1564 3:6
2008 44:14,16
2009 40:18 45:14,20
46:14 47:16,20
48:14 52:24 54:2,7
54:24 55:11,14,16
56:11,13 57:14,18
58:22 59:2,22 62:4
64:6 68:10 74:6
76:21 77:3 78:7,21
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2010 40:13,14,20,22
45:14 46:2,14 47:20
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62:5,11 64:6 67:17
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80:6,17
2011 41:12 45:14
46:14 47:20 50:8
59:23 62:6,12 63:5
63:16,18,25 64:8,21
65:5,11,23 66:12
67:7,19 73:24 74:11
74:15,21,22 76:6,21
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2012 1:10 9:5 22:15
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24 40:19 75:13,18
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4 56:9 79:11 82:8
40 91:4,6
400 57:4,6
46 8:11 18:4,17
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49ers 65:24 66:25
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5 47:3 57:11 77:21
89:15,25
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6 47:3 57:14 58:19
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7 54:18 58:12,21
59:6 60:22 61:13
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72 8:19,23 23:25
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8 55:14 56:14 65:2
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9 67:5,21 75:15,20
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accepting 27:8
access 20:16 22:4,11
49:23 63:19
accommodation
31:23
account 41:14 64:20
66:11 69:12
accounting 61:2
accounts 39:23
41:21 43:25 44:2
47:13 65:7 72:22
accusations 10:5,23
11:3 15:12
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16:18
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additional 33:11
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53:4 54:6 80:19
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ahead 13:6 32:18
37:15
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allegations 10:5,9
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anthony 3:18 13:2
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83:23
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arizona 68:16,24
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30:12 87:18 88:9
89:16
associations 87:16
assume 22:2 23:10
36:20
assumed 60:5 62:24
64:13
assuming 89:12
atlanta 56:3,14
79:17,18
attend 64:13
attended 63:17
attorney 5:23 6:3
attorneys 2:5,11,16
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21:2,5,10,12 22:10
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33:24 37:16,23
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blow 73:18
board 45:5
bobby 72:8,16,16
body 65:17
bonuses 66:4
bottom 18:10 53:7
55:18 61:16 71:8
bounties 45:21 74:4
80:13 82:15
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41:15,23 45:9,25
46:4,5,13 47:6,17
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72:12,15,24 73:9
78:7,20,24 80:4
briefing 36:5
briefly 5:16 44:8
66:19 76:11
bringing 32:14,15
broken 72:6
brought 49:5,6
buccaneers 83:12
building 3:5
burbank 18:16
burbank's 17:11
c
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calculation 30:5
calendar 8:16,18
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captain 69:3 78:14
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cardinals 68:17,24
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career 44:17
carefully 4:20
carolina 55:13 56:6
cart 13:5 48:19
51:19 52:3,10 57:21
62:17 68:4 74:16,17
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28:16 30:14 84:5
85:25 87:11
cash 59:25 60:6,10
60:14 64:13,15,16
cast 15:16
casting 85:8
causing 50:25
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49:20 51:3 53:3
55:23 68:6
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chapman 75:4
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charity 12:16
chief 6:2 39:16
childress 40:14
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chosen 12:18 13:6
14:11
christopher 2:14 9:6
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EXHIBIT N
1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN VILMA * Docket 12-CV-1283-HGB c/w
* 12-CV-1718 and 12-CV-1744
*
versus * Pertains to 12-CV-1718
*
* New Orleans, Louisiana
ROGER GOODELL *
* July 26, 2012
*
* * * * * * * * * * * * * * * *

EVIDENTIARY HEARING BEFORE THE
HONORABLE HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

Appearances:

For Jonathan Vilma: Williams Law Group, LLC
BY: CONRAD WILLIAMS III, ESQ.
J.C. ZAINEY JR., ESQ.
435 Corporate Drive, Suite 101
Houma, Louisiana 70360

For Jonathan Vilma: Peter R. Ginsberg Law, LLC
BY: PETER R. GINSBERG, ESQ.
12 East 49th Street, 30th Floor

For the NFL: Jones Swanson Huddell
& Garrison, LLC
BY: GLADSTONE N. JONES III, ESQ.
CATHERINE E. LASKY, ESQ.
HARVEY S. BARTLETT III, ESQ.
LYNN E. SWANSON, ESQ.
601 Poydras Street, Suite 2655
New Orleans, Louisiana 70130

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Appearances:

For the NFL: Covington & Burling, LLP (DC)
BY: GREGG H. LEVY, ESQ.
BENJAMIN C. BLOCK, ESQ.
1201 Pennsylvania Avenue, NW

For the NFLPA, Frilot, LLC
Scott Fujita, BY: JOSEPH N. MOLE, ESQ.
Anthony Hargrove, MEREDITH SIMONEAUX, ESQ.
and Will Smith: 1100 Poydras Street, Suite 3700

For the NFLPA, Winston & Strawn, LLP (NY)
Scott Fujita, BY: JEFFREY L. KESSLER, ESQ.
Anthony Hargrove, 200 Park Avenue
and Will Smith: New York, New York 10166

Official Court Reporter: Toni Doyle Tusa, CCR, FCRR
500 Poydras Street, Room HB-406
(504) 589-7778
Toni_Tusa@laed.uscourts.gov

Proceedings recorded by mechanical stenography using
computer-aided transcription software.

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I N D E X
PAGE
Jonathan Vilma
Direct Examination By Mr. Ginsberg 7
Cross-Examination By Mr. Jones 67
Redirect Examination By Mr. Ginsberg 76

Troy Evans
Direct Examination By Mr. Williams 79
Redirect Examination By Mr. Williams 86

Randall Gay

Joe Vitt
Direct Examination By Mr. Ginsberg 96
Cross-Examination By Mr. Levy 128

Scott Shanle

Sedrick Ellis

Jonathan Casillas

Roman Harper
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MORNING SESSION
(July 26, 2012)
(The following proceedings were held in open court.)
THE COURT: Have a seat, please.
THE DEPUTY CLERK: Civil Action 12-1283 and
consolidated cases, Section C, Jonathan Vilma versus Roger
Goodell.
MR. WILLIAMS: Good morning, Your Honor. Duke
Williams and Chris Zainey of New Orleans for Jonathan Vilma. I
would like to introduce to the Court our co-counsel, Mr. Peter
Ginsberg, Ginsberg Law, from New York.
MR. GINSBERG: Thank you for the honor of letting me
appear, Your Honor.
THE COURT: Nice to meet you.
MR. JONES: Good morning, Your Honor. Glad Jones on
behalf of the National Football League, with my partner Lynn
Swanson. I'd likewise like to introduce to you Mr. Gregg Levy
and Mr. Ben Block on behalf of the National Football League.
THE COURT: Nice to meet you too.
MR. MOLE: Your Honor, Joe Mole here with my
associate Meredith Simoneaux. I would like to introduce to the
Court Mr. Jeffrey Kessler for the National Football League
Players Association. We are here to support Mr. Vilma and
assist the Court in any way we can. We are party to the
consolidated action.
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MR. KESSLER: Good morning, Your Honor.
THE COURT: I just wanted to make sure we were
straight on the ground rules. I just don't want noise. If
y'all have cell phones and that sort of thing, just put them on
vibrate. I have no problem if you want to text or communicate
with people, but, please, just no noise.
I also wanted to just explain the folks in the
jury box. These are externs that have been working with me
this summer, for the last six weeks or so. Tomorrow is
actually their last day, but they have been helping me
immensely.
This is Alex Sloan, who is my law clerk, who has
been helping me with this case from the beginning.
I understand we are going to have just witnesses
initially. I know Mr. Vilma wants to testify, then we will
have witnesses again at 12:30. Is that --
MR. GINSBERG: Yes, Your Honor, that's correct. We
were a little unsure of the schedule when we were on the
telephone with you the day before yesterday. We do have two
other players who are here waiting to testify. So it might be
a little more seamless than we expected when we talked to you
on the telephone.
THE COURT: They need to be sequestered, of course.
Are they in the courtroom?
MR. WILLIAMS: They are already in the jury room.
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THE COURT: If you want to call them first, to get
them back to whatever they're doing.
MR. WILLIAMS: They are okay. We are going to put
Mr. Vilma on first and have him testify. Then we'll move on to
them.
MR. GINSBERG: They are actually former players, so
they are not missing training camp.
THE COURT: Okay.
MR. JONES: Your Honor, at the conclusion of the
witness presentation by Mr. Williams and Mr. Vilma, we may want
to argue some of the jurisdictional issues.
THE COURT: I actually have a series of questions for
both sides for this afternoon when we get into that.
MR. JONES: Mr. Levy, our co-counsel, will be
addressing that.
THE COURT: I assumed we would do all the witnesses
first and then go to that this afternoon.
MR. JONES: That makes sense.
MR. GINSBERG: Your Honor, we call Jonathan Vilma.
THE COURT: Ms. County, who you will learn quickly is
an incredibly competent employee of mine and reminds me of
things I need to do -- the two players that are in the back
should not be talking about this case now that they are
sequestered, so if you need to go back there and let them know.
MR. WILLIAMS: I'll go back.
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THE COURT: They can talk about anything else, but
they can't be talking about their testimony.
JONATHAN VILMA,
having been duly sworn, testified as follows:
THE DEPUTY CLERK: Please state your full name and
correct spelling for the record.
THE WITNESS: Jonathan Vilma, J-O-N-A-T-H-A-N,
V-I-L-M-A.
THE COURT: You may have a seat. Mr. Vilma, there's
a pitcher of water right there and cups. You are welcome to
that at any time.
THE WITNESS: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. GINSBERG:
Q. Jonathan, where were you born?
A. I was born in Miami, Florida.
Q. Where did you go to college?
A. The University of Miami.
Q. Jonathan, did you graduate from Miami?
A. Yes, I did. I graduated in 2004.
Q. What was your major?
A. My major was finance and my minor was marketing.
Q. Did you play some football in Miami?
A. A little bit of football.
Q. For all four years?
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JONATHAN VILMA - DIRECT
A. Yes.
Q. Jonathan, what position did you play?
A. I played middle linebacker all four years.
Q. Were you drafted by the NFL?
A. Yes. I was drafted in 2004, first round, by the New York
Jets.
Q. Jonathan, how long have you been playing professional
football?
A. I've been playing since 2004. It's been eight years now.
Q. Have you been a starter except when you were injured, when
you have had injuries, for all --
A. Yes, I've been there, a starter my whole career.
Q. Have you also played middle linebacker your whole career?
A. Yes, sir.
Q. Jonathan, for those of us who are not as familiar with
football, would you describe what that position is.
A. The middle linebacker is like the quarterback of the
defense. What we do is we get in the huddle, we get the call
from the defensive coordinator, we relay the call. We have to
figure out the down and distance, what the offense is, their
personnel, what they are lined up in.
Once I get the call to the defense, I turn around. I
observe the offense, what they are lining up in. I give the
strength call to get the defense lined up. Once the defense is
lined up, I listen for checks from the offense. If they check
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into a certain play, given what we are doing defensively, I may
check out of our defense, get us into a better play.
For example, if we are in a blitz and the offense
knows we are in a blitz, I'll check out of it and get into a
coverage. Vice versa, if we are in a coverage, I will check
into a blitz if the offense realizes that.
After surveying the offense, I try to tell the
tendencies and relay that to the defense, whether it's a run
play or a pass play.
Q. You said something about checking the strength. What do
you mean by that?
A. Depending on how we break down the offense, we'll
determine a player to be the strength where we set our defense
to. So it's usually the tight end, and the tight end lines up
on the right side. We are going to assume that's going to be
the strength of their offense for that play, and I will line up
my guys to the right.
Q. When you talk about checks, that's just changing the
formation you're in as a defense?
A. Yes.
Q. Are you also the captain of the New Orleans Saints
defense?
A. Yes, over the past three years.
Q. What does it mean to be captain?
A. Well, to me, being captain -- one, I don't take lightly
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being captain -- is you must lead by example. You have to be
one of the hardest workers. I have to be the best leader. You
have to be able to understand the different personalities on
your team and relate to everyone. You have to be able to know
when it's time to push some guys, time to back off some guys.
It will be Sean Payton, or back then it was Gregg
Williams, my defensive coordinator. They would come to me if
they felt there were any locker room issues -- come to myself
or Drew if there were any locker room issues, if they felt the
guys weren't going hard enough or if they wanted just the pulse
of the team, if the guys were tired, if the guys were a little
beat up or worn down.
So being captain, it's a big role, in my opinion, and
I take it very seriously.
Q. Drew is Drew Brees, I assume?
A. Yes, Drew Brees. Sorry.
Q. The two of you are the two captains of the New Orleans
Saints?
A. Yes, sir.
Q. What's it like to be a professional football player?
A. For me, being a professional football player, it's a dream
come true. I always tell people to do what you love, love what
you do. If you are doing that, it never feels like work. For
the past eight years, I have never felt like I've been working;
I've felt like I've been having fun. I love to compete. I
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love to get after it. That's the fun of the game, to prepare
for the game, prepare for your opponent, and then to go out
there and be able to win.
Q. Has it also opened doors for you in other parts of your
life?
A. Yes, it has.
Q. In what way?
A. It has opened doors in pretty much every facet outside of
football, whether it's charity work, whether it's business
ventures; even opening doors as far as going back to the
University of Miami and being able to talk to some people
there, and really giving back to the University of Miami as
well.
Q. In what way do you give back to Miami?
A. I recently donated to the University of Miami to the
sports facility. We are rebuilding the sports facility to keep
up with, you know, the bigger Division 1 players of the world
that can do this every year. Now, we can't do it every year,
but we -- I donated myself. Alex Rodriguez has donated to the
baseball team. That was great for me, to keep in touch and
show how much I appreciated being at the University of Miami.
Q. You also mentioned charitable work. What were you
referring to?
A. I'm referring to my foundation. I have the Jonathan Vilma
Foundation, which the main purpose is to go down and build
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schools in Haiti. We already built one school. We have
actually almost completed our second school in Haiti. The
first school is for grades 7 through 9, holds over 700
students. They are being taught in French. The goal is for
them to now take that -- I'm sorry. In Haiti, the language is
Creole, the main dialect. You can't take that overseas, so
it's hard to -- it's hard to relate. You have to break that
language barrier. So we are teaching them in French so that
when they go from middle school now to high school, which is
the second school that we built, which goes from grades 10 to
13, from there they will be able to go overseas with French and
go from there.
Q. You said you are almost done building a second school down
there?
A. Yes. We are about 95 percent complete. I received an
e-mail actually yesterday saying that we are pretty much done.
Q. What grades is the second school for?
A. The second school will be grades 10 through 13. So the
kids that we started off with in grades 7 through 9 will then
go to our school that's being built. It will be 10 to 13, and
from there they can go to college.
Q. How many students in toto will be helped by those two
schools?
A. Well, right now it's over 700 students graduating and move
on to the second school, and we plan to have another 700. So
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it will be around 1,400 kids.
Q. How much money has your foundation donated to building
those schools?
A. I have raised over $400,000 -- $300,000 to $400,000.
Q. How do you raise money for the schools?
A. Well, I have people that -- it gets a lot of press. So I
have people that come and actually go onto a Web site and
donate. I have had people call me. I have had former
teammates call me and ask how they can help. That was great.
The main thing that I do is I have a -- the first
week of November in New Orleans, I have a celebrity waiter
charity event where I teamed up with Morton's, and that's where
I raised most of my money for the charity.
Q. Do your teammates participate in the Morton's fund-raiser?
A. Yes, they do. I usually ask about 15 to 20 of my
teammates if they will come and be celebrity waiters for the
day. Really, all that entails is just delivering food to the
people who came and bought tables. It's really just a good
time. They go, they serve the food, take pictures. Everybody
is having a great time. We have a silent auction, a live
auction later on. Music is playing. It's an all-around fun,
enjoyable time.
Q. In addition to providing money to the schools, do you also
give your time?
A. Oh, yes, I definitely give my time.
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Q. How much time, approximately, do you give to your
foundation?
A. During the season I give most of my time to the celebrity
charity waiter event. In the off-season -- I actually just
came back from Haiti this past April. I spent three days there
checking out the school, the facilities, talking to the
students. And I plan to do about two or three trips a year in
the off-season, to go down to Haiti.
Q. How did you get interested in Haiti?
A. Both of my parents were born and raised in Haiti. My
mother moved when she was in high school, my father moved when
he was in college, to the States. Of course, I have family
down there. I have aunts, uncles, cousins, relatives. And
Haiti has been a second home to me.
When the earthquake hit in 2010, that was, in my
opinion, my calling to now come down, go down and help. And,
of course, my family, it's especially important to them. And
if it's important to my family, it's definitely going to be
important to me. I have gone down there. I've made it not a
one- or a two-year or one off thing. This is for years to
come.
Q. Are your parents still alive?
A. Yes.
Q. Has your mom worked outside of the house?
A. Yes, yes. She was a social worker for the county. She
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lives in Miami, Florida. She just retired this past April.
Q. After how many years?
A. 36. Don't quote me on that.
Q. How about your dad? Does he work?
A. Yes. My dad, he is a CPA, works with the IRS, and he has
been working -- he says he is going to retire. I don't know
when. He says December, but I don't believe him. He has been
working for them 30-some-odd years.
Q. Jonathan, do you have any children?
A. Yes.
Q. How many?
A. I have one daughter. She's 2 1/2.
Q. Is there a second foundation you have been involved with?
A. Yes. It's also part of -- under the Jonathan Vilma
Foundation. It's for financial literacy. And this one is for
my colleagues, my peers and guys that are in college, to
understand just the basics of finance, you know, just simple
how you do a checking account, savings account, why it's good
to save your money instead of spending your money, just to
really get to understand they can be -- they can get to a point
where they don't have to rely on everything their accountant,
their agent, their financial advisors say. They can actually
speak with them and question them and get the answers they need
about their money.
Q. How long have you been doing that work, Jonathan?
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A. I've been doing that since 2006.
Q. Do you also have business interests outside of football?
A. Yes, I do.
Q. What are they?
A. The most recent one right now is Brother Jimmy's
restaurant. When I was playing in New York, I used to frequent
Brother Jimmy's. It's a barbecue casual bar/sports bar. We
have six locations in New York City. And I used to go and I
loved it. I actually met the founder -- his name is Jimmy --
when I was in New York. And we talked, we talked, we talked,
and we finally flirted around with saying let's build one in
Miami and bring the franchise down there. This was about three
years ago. And then two years ago, we actually put it into
practice, and now we are opening August 16.
Q. Let me turn now to your physical condition. How are you
doing?
A. I'm always good.
Q. Would you say you're a hundred percent as far as your
physical condition?
A. Right now I'm about 75, 80 percent.
Q. Why is that?
A. September 16, it was right before a Chicago game, I had
one of those weird, freak accidents with my left knee, and come
to find out I had lost cartilage. Some of the cartilage popped
off in my knee, and I played through it throughout the season.
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After the season I knew I was going to have to get surgery, and
I had what was called an OATS procedure. It's an
osteoarticular transfer system procedure where they take
cartilage from your nonweight-bearing side of your knee and
replace the cartilage that was lost on your weight-bearing
side.
Q. Did you miss any games because of your injury?
A. I missed five games this past season.
Q. During the course of the season, did you have some
surgical procedures performed on you so you could play?
A. Yes. I had arthroscopic surgery after -- it was
November 7, 2011. I believe it was after the Tampa Bay game
that we played at home, and I went down that Monday and had the
surgery.
Q. What kind of surgery was that?
A. It was just to clean out the particles. The floating
cartilage causes irritation. It was causing swelling. It was
limiting my movement in my knee, limiting my running gait, and
I had to get that cleaned out so I could get back to trying to
play.
Q. I know it's not a pleasant thought for you, but I want you
to focus on what it was like during the season last year,
trying to rehab and trying to keep playing. About how many
hours a day did you devote at the Saints facility to getting
your body into shape?
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A. At least 13 hours. I would get there about 6:00 a.m.
Well, I will just tell you my schedule. That will be easier.
6:00 a.m., I would get there. I would rehab from 6:00 a.m. to
7:00 a.m. I would get a workout in with some of my teammates
from 7:00 to 7:30. 7:30, I go back, I would rehab a little bit
before the 8:00 meeting. 8:00, we would have our team meeting.
From 8:00 to 8:15 at our team meeting, we have our special
teams meeting right after that. Special teams, I wasn't
involved with, so I would go run, eat some breakfast real
quick, go back and get some more treatment until our offensive
and defensive meeting that was around 9:00, 9:10. We have our
offense and defensive meetings from 9:10 until practice time.
Once practice started, right before practice I would
leave the meeting to go get some more treatment. Then when
practice started, I would do a little bit of cardio and then go
out and watch practice. I wasn't able to practice Wednesday
and Thursday. Wednesday and Thursday I would do one period.
Friday and Saturday I wouldn't practice. And then Sunday we
would play.
So I would then go out and watch practice. After
practice I would go and get treatment again. I would squeeze
in a little lunch. I would then watch film up until the review
of the practice film at 3:15. Review of the practice film, I
would be there. After the review of the film, I would then go
back, get some more treatment, get a little dinner.
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Q. What was last year like for you?
A. It was tough. It was probably the toughest year I had.
Q. Was it important for you to spend so much time at the
facility while you were rehabbing or did you have to keep
interacting with your teammates during that time?
A. Yes. Again, you don't want excuses. Especially being the
captain, I don't have time for excuses. I still have to get my
guys ready whether I'm playing or not. I have to make sure
they are watching film, that they're doing everything they need
to do to get ready for the game. On top of that, I need to get
to treatment. I need to be as best as I possibly could for the
games. It's just part of rehab. It's part of your
responsibility.
Q. What was it like when you had to sit out games?
A. That was tough. I don't like doing it. It was very
tough. But again, it doesn't do anybody on the Saints any good
if I'm around pouting. So I would then grab a clipboard, a
game plan. I would break down the offense as I see it from the
sideline and try to relay it as quickly as possible to the
defense guys when they come back after a series.
I'm not the type to receive a lot of information
during the game, so I didn't want to bombard them with a lot of
information, but I would give them just little tidbits to keep
their eyes on.
Q. Who would make the decision whether you could play on any
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particular week?
A. I want to say me, but that's not really accurate. It was
really Sean Payton and Joe Vitt. I would always tell them,
"I'm fine. I'm fine. I can play." I got away with that for
about two or three games. And then finally they stepped in,
"You're not playing."
Q. Would you and Coach Vitt sometimes go head to head about
these decisions of whether you are going to play or not?
A. That was the only time me and Joe Vitt ever argued, is
because he wants to protect me from myself, and I just want to
play. He hid my jersey one time for a home game so that I
couldn't suit up and play.
Q. When did you find out he had hid your jersey from you?
A. He didn't tell me until afterwards that he hid my jersey.
But I went into the Superdome and looked at my locker and I
couldn't figure out where's my jersey. So I go and I run to
Joe, "Where's my jersey? I'm playing today." And he is acting
dumbfounded, like he had no idea. Then, of course, come to
find out Monday -- it was against Houston. We won the game.
Come to find out Monday, he told them to leave my jersey at the
facility.
Q. To keep you from playing?
A. Yes.
Q. Let me now ask you about the OATS procedure you had after
the season. That was taking cartilage from one part of your
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knee and putting it back into your knee?
A. Yes.
Q. What was the process like after you had the OATS
procedure?
A. The rehab process? You know, it was tough. It's one of
the major surgeries, and I was on crutches for six weeks. What
happens in the procedure is not only do they take cartilage,
they take out a little piece of bone, and they plug it back in.
When they plug back in the cartilage and bone, you have to be
nonweight-bearing for basically six weeks to let that bone
heal. And then from there, the cartilage doesn't get as much
blood supply, so the cartilage takes a little bit more time.
But you are allowed to do range-of-motion movements,
nonweight-bearing, strength-training movements, functional
movements, everything up until around that four-month mark
where you are allowed to finally start putting a little bit of
a load on and gradually progress.
Q. Did you have a follow-up procedure within the last month
or so?
A. Yes, I did.
Q. Where did that procedure take place?
A. The first week of July, I went to Dsseldorf in Germany.
I had heard about -- well, actually, I didn't hear about it.
Alex Rodriguez told me about it when I told him what happened
with my knee.
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Q. The guy who plays baseball in New York?
A. Yeah, that guy. He told me that he had a lot of success
with a doctor named Dr. Peter Wehling in Dsseldorf, Germany.
He said that he rushed back from his -- he had a meniscus
injury in his knee and he had the surgery and he rushed back.
And he said that it was sore, aching, it would swell up on him
sometimes.
And he heard about this procedure from Kobe Bryant,
and Kobe Bryant urged him to go see Dr. Wehling. He said he
went to Dr. Wehling, had tremendous results, and he urged me to
go see him. And I went the first week of July.
What he does there is different from the States.
What he does is he attacks a different problem, I should say,
or issue that you are having than a lot of surgeons do. What
that is, he treats inflammation. He believes, if you take out
the inflammation, that that starts the healing process all over
again, allows you to heal. You don't have pain, things like
that.
So I went July 2. He drew my blood. From there, the
procedure, he takes the blood, heats it up to a certain level,
and that gives you the IL-1Ra. Those are basically your
anti-inflammatories. He takes those and he cultivates that.
When he cultivates that, he then reinjects it back into your
body. It's your blood, it's your everything. And what he is
doing, he is countering any inflammation you have in the knee
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that causes your discomfort or pain.
He was very clear, it doesn't regenerate cartilage;
it doesn't do anything for the bone. But what it does is take
away the inflammation that's aggravating it, and it's now
allowing it to heal.
Q. Did the procedure seem to help you?
A. Yes. Yes, I did very well, very well. I couldn't jog
without pain. I was at about the 4 1/2-, 5-month mark, and I
was still having a little pain when I was jogging. I went up
there and came back. I've been jogging since. I still have a
little soreness because it's the first time I'm loading up my
knee since playing football back in January. That was great to
feel that way. It's been a while.
Q. Now, Jonathan, under normal circumstances, who would be
watching over your rehab from the OATS procedure and from the
Dsseldorf process?
A. It would be Scottie Patton. He is the head trainer for
the Saints.
Q. Is it important for Mr. Patton to be involved in your
rehab?
A. For me it's crucial because Scottie Patton -- when I was
up at 6:00 a.m. and doing all my treatment for those 13 hours,
it was Scottie that was there with me. Scottie saw me every
day, literally every day. He saw my knee. He saw how I was
feeling physically, emotionally, mentally. And he was the one
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that could gauge whether I could play, whether I can't play,
all those things.
When I finally got the major surgery after the
season, I was with Scottie, and we would put together like a
two-week game plan essentially of where I should be, some
numbers I should try to hit, some strength numbers, functional
movements I should be doing, all those things. And then from
there, if I hit my goals in those two or three weeks, we would
sit down again, map out another game plan for the next two or
three weeks, and just keep taking it in stages until I'm able
to practice and play.
Q. Does Mr. Patton have a particular expertise, both
objectively and subjectively, with regard to how you should be
moving and your running gait and those types of measurements to
determine your rehabilitation process?
A. Yes. Objectively, he is the head trainer. He has been
our head trainer, I believe, since 2000. He has been there
with me since I got to the Saints. So objectively, it only
makes sense that he is going to know what he is talking about.
I'm going to trust him.
Subjectively, seeing the injury on an MRI is
different than watching a player or the person go through the
rehab and go through their movements. So even if the MRI is
saying, well, he should be fine or he should be playing, but he
is there to see me every day and he sees that my running gait
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is off for whatever reason or I'm still having a little
stiffness or a little soreness, then he is going to back me off
regardless of whatever it says on paper. So he has to be there
to be able to watch me and see my movements.
And vice-versa. The MRI may say, hey, look, he is
not healed up. But I'm telling Scottie I'm fine; and I'm not
lying this time, I'm really fine, I can go out there and do
some things. So for Scottie to be there and be able to watch
me every day, he will know whether or not I'm ready to play.
He will probably know better than I would.
Q. Does your four-year history with him put him in a unique
position to perform those functions?
A. Yes.
MR. GINSBERG: Your Honor, we provided and filed with
the Court previously an affidavit from Scottie Patton. I
assume I don't have to reintroduce those. Is that right?
THE COURT: No, I believe it's in. Yes.
MR. GINSBERG: Thank you.
BY MR. GINSBERG:
Q. Jonathan, I want to turn now to early May 2012. Was that
when you learned that you had been suspended from football?
A. Yes.
Q. Jonathan, what is your punishment?
A. I was suspended immediately for a year.
Q. Were you barred from the facility?
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A. Yes.
Q. Jonathan, you said you were suspended for a year. Does
that mean you can automatically come back in a year and start
playing football again if the suspension is upheld?
A. No. I would have to reinstate with Roger Goodell.
Q. So Mr. Goodell not only suspended you, but he has to let
you back into the league after the year?
A. Yes.
Q. How did you learn that you had been suspended from
football?
A. I learned on ESPN that I was suspended.
Q. I'm going to talk to you about the months leading up to
your learning that you had been suspended. When did you first
learn that Mr. Goodell was investigating whether you had
embraced a program designed intentionally to injure opposing
players?
A. I first learned in March, whatever day it was that they
sent the letter of their findings to all 32 teams. I got a
call from our PR director, and he said that "Hey, I don't know
what to tell you, but the NFL is about to release this report."
I said, "What is it?"
He said, "Something about a bounty. I don't really
know anything else about that. But I just want to let you know
that your name is in it and it's going to be reported."
Q. In fact, over the course of the next several weeks and
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several months, was it reported publicly? Was information
about the investigation reported publicly?
A. Yes.
Q. During those weeks and months, did Commissioner Goodell
himself say what he thought you had done?
A. Yes, he did.
Q. Let me show you what we have identified as Exhibits 1, 2,
and 3 for identification.
MR. GINSBERG: Your Honor, there's a March 21 report,
Exhibit 1; a March 21 press release, Exhibit 2; and a May 2
press release, Exhibit 3.
THE COURT: Okay.
MR. GINSBERG: May I approach the witness?
THE COURT: Sure.
BY MR. GINSBERG:
Q. Jonathan, do you recognize those three documents?
A. Yes, I do.
Q. Were those all documents that you recognized, having seen
them in the public media?
A. Yes. These documents -- I was given an e-mail from the
director of PR, our director of PR, Greg Bensel, of this, and
he said this was going to the NFL teams. He didn't say
anything about it going publicly or to any of the media
outlets. I would say within hours of me reading this, it was
on ESPN, NFL Network, and literally everywhere.
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Q. Were all three of those documents, in fact, released to
the public media?
A. Yes.
Q. In addition to those three documents, were there other
press releases and other statements from Mr. Goodell regarding
what he thought you did in the bounty program?
A. Yes, there was.
MR. GINSBERG: Your Honor, I offer Exhibits 1, 2, and
3 into evidence.
THE COURT: I think they are already admitted, but
they are admitted. Okay. They are admitted.
MR. GINSBERG: Thank you, Your Honor.
BY MR. GINSBERG:
Q. Jonathan, I just want you to focus on what Mr. Goodell
said about you.
A. Uh-huh.
Q. What did Mr. Goodell say that you did?
A. He said that --
Q. I'm sorry. Let me interrupt you one more time.
A. Okay.
Q. Just focus only on what you heard him say publicly to the
media.
A. What he said publicly, which resonated with me, was I
willingly embraced a bounty culture with intent to injure. He
also said that I enthusiastically enjoyed entering into this
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program.
Q. Did he say that you had embraced the program?
A. Yes, he did.
Q. Did he say what the program was that he said that you had
embraced?
A. He said I embraced a pay-to-injure bounty program.
Q. Did he explain publicly what that program consisted of?
A. He said that program consisted of myself and my teammates
and Gregg Williams specifically targeting out opponents with
money and going out with the intent to injure them.
Q. Did Mr. Goodell say that you had held up $10,000 and put
them on the heads to secure the injury of Brett Favre and
Kurt Warner?
A. Actually, more specifically, what he said was I had $5,000
in each hand, I was waving it around, and I slammed them on the
table saying, "This is for whoever knocks out Brett Favre."
For Kurt Warner, he said I waved $5,000 in each hand for
Kurt Warner.
Q. Did Mr. Goodell say that he was investigating that, or did
he say that his conclusion was that you had embraced the
program to secure the injury of particular opposing players?
A. Mr. Goodell said that that was his conclusion from his
findings. He didn't ask me if I did it or didn't do it. It
was already reported in these reports, and it was already sent
to all the media outlets.
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Q. These conclusions that Mr. Goodell made publicly about
your involvement in the bounty program, did they come before
you had the opportunity to go through a process in which
Mr. Goodell would be the arbitrator?
A. Yes. It came before literally everything regarding myself
and the process with Goodell.
Q. Jonathan, did you ever participate in a program designed
to secure the injury of opposing players?
A. That's 100 percent false.
Q. Was there ever with the New Orleans Saints a program, as
Mr. Goodell concluded publicly, by which players put money on
specific opposing players to reward your teammates for injuring
those players?
A. There was never a program -- in the three years that Gregg
Williams was there, me being the captain, there was never a
program for a bounty.
Q. Have you ever offered money to a teammate to hurt another
player?
A. I have never offered money to a teammate to hurt a player.
Not with the Saints, not with the Jets, not in my whole career.
Q. Jonathan, have you ever encouraged a teammate to hurt
another player?
A. Again, in my whole career I have never encouraged a
teammate to hurt another player.
Q. Have you ever taken money as a reward for hurting another
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player?
A. I have never received a dime for ever hurting another
player.
Q. Have you ever waved $10,000 in your hands and asked your
teammates to hurt Brett Favre or Kurt Warner or anybody else?
A. Never.
Q. As best as you know, has any teammate of yours ever put
money up to secure the injury of an opposing player?
A. None of my teammates have ever done that. They have never
implied that. They have never tried to do that. If it were to
happen, me being a captain, I wouldn't allow it.
Q. Was there a bounty program, as Mr. Goodell concluded
publicly?
A. There was not a bounty program.
Q. How does it make you feel that Mr. Goodell accused you --
not only accused you, but publicly concluded that you had
engaged in a program to hurt an opposing player?
A. What Roger Goodell has done publicly, he has basically
hurt me and what I stand for to the very core of who I am. For
eight years in the NFL, if you ever asked about Jonathan Vilma,
Jonathan Vilma played hard. He was a respected player. He was
smart. He was cerebral. How was he off the field? He was a
great person off the field, somebody that exemplified what
being a football player is.
This was up until March of this year. Everything
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that I have worked for is now basically thrown down the toilet
because anytime you ask about me now, it's bounty this, bounty
that, you're a criminal, you shouldn't play anymore.
It hurts. It hurts. It's tough to swallow because
this is not who I am, and it's not right, it's not accurate. I
don't understand where this came from. For me to now try to
pull back what I have taken eight years to do is next to
impossible.
Q. There has been a lot of media attention to a person by the
name of Gregg Williams. Who is Mr. Williams?
A. Gregg Williams was my defensive coordinator from 2009 to
2011.
Q. Describe him.
A. Gregg Williams was probably one of the best defensive
coordinators I had. He was a great motivator. Gregg Williams,
he did a lot for me. He embraced me. He gave me the defense.
He allowed me to go out there, right, wrong, or indifferent,
make decisions. And for a coach to put his job on the line to
allow me to go out there and do what I did defensively speaks
volumes. I think he's a great coach.
Q. What was his demeanor?
A. Gregg Williams was very blunt. He was very upfront. He
was going to do literally whatever he had to do to get us
motivated, to get us to listen to him and go out there and play
hard.
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Q. Was he prone to screaming and yelling and using
vulgarities?
A. That's to put it lightly, yes.
Q. Without offending anybody, can you describe the sorts of
things that he would say and do?
A. Without offending anyone in the courtroom, I can give one
example of -- in 2009 we had played the Washington Redskins.
We actually won that game to win the division. And in that
game they were doing -- it's called a smoke route for us
defensively. Basically, if the offense saw that we are
blitzing, they would take the ball real quick and throw it to
one of the receivers. So you essentially have about eight guys
coming this way, you throw the ball that way, and it's
one-on-one with a cornerback, and they would get 8 or 10 yards.
So what they were doing is they were calling it --
they were hiking the ball quickly so that I couldn't check out
of our blitz and then get the ball over. At the end of the
day, they ended up with about 300-some yards passing, and it
was all on these smoke routes, smoke routes, smoke routes.
So we come back the next week, and Gregg Williams for
the whole week of practice, he's setting off fire alarms
because we need to get ready for smoke routes, and he sees
smoke everywhere. He would bring chalk to practice, and he
started smacking it and blowing it all in our faces because
there's smoke everywhere and we are getting beat by smoke and a
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smoke route.
So he would do little things like that where he
wanted to get our attention and emphasize how important it was
to heed what he was talking about.
Q. Was there certain terminology that Mr. Williams used that
you have been reading about in the press?
A. Oh, yes.
Q. Who's Pierson Prioleau?
A. Pierson Prioleau was one of my former teammates. We won a
Super Bowl together back in 2009. His last year playing was
2010, I believe. And he was with Gregg Williams when Gregg
Williams was at Buffalo as head coach, Washington Redskins as a
defensive coordinator, Jacksonville as a defensive coordinator.
And I was with Pierson and Gregg at the Saints when Gregg was
the defensive coordinator.
Q. Mr. Prioleau has filed an affidavit in this case,
identified and entered, I guess, as Exhibit 23. In that
affidavit, first of all, he says that you never engaged in the
bounty program, as Mr. Goodell has accused you, and that he
attended every defensive meeting while he was with the Saints
and that's how he knows there was no such program.
He also, in paragraph 10, said that he had been
coached by Gregg Williams with Buffalo from 2001 to 2003, with
the Redskins from 2005 to 2007, Jacksonville in 2008, and then
the Saints in 2009 and 2010.
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Jonathan, then Mr. Prioleau said, in paragraph 13,
and I quote: Gregg's rantings were exactly the same for every
team we were on together: the Bills, the Redskins, the
Jaguars, and Saints. His statements were no better and no
worse; in fact, usually the same with the Saints.
Is that your understanding based upon the discussions
you have had with Pierson and your other teammates who have
played for Mr. Williams on other teams?
A. Yes. I remember specifically when Gregg first got there
in 2009 and he started on one of his rants. And for lack of a
better term, he was talking crazy. We were like, what is wrong
with this guy?
After the meeting we are all scratching our heads
like, is this guy for real? Is this guy crazy?
And Pierson came over and he told me, "Look, don't
worry about Gregg. He is just doing that to get your
attention. You notice that he has everyone thinking about what
he was saying after the meeting."
I'm like, "Yeah, you're right."
He said, "That's what he does. He gets your
attention. He wants to get your attention. Whether it's the
first meeting or the last meeting at 6:00 at night, he is going
to find a way to keep your attention." He said, "So just don't
worry about all that. We go out, play hard, but just know that
there's a method to his madness."
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I said, "Okay."
Q. I'm going to talk to you about some of the terminology
that Mr. Williams used to use. In doing that, I would like to
show you what's been identified as Exhibits 15, 16, 17, 18, and
24.
THE DEPUTY CLERK: Judge, was Exhibit 23 admitted?
THE COURT: Pardon me?
THE DEPUTY CLERK: Was Exhibit 23 admitted?
THE COURT: If it's not admitted already, it's
admitted now. Some of these are in other parts of the record
somewhere else. In fact, why don't we just go ahead and admit
the entire exhibit list that you presented. That's all
admitted.
MR. GINSBERG: Thank you, Your Honor.
THE DEPUTY CLERK: Exhibits 1 through 26 are
admitted?
THE COURT: Yes. Well, I have 1 through 24. It's 1
through 24. Go ahead.
BY MR. GINSBERG:
Q. With the Court's permission, Jonathan, I'm going to
approach and show you Exhibits 15, 16, 17, 18, and 24.
MR. GINSBERG: May I approach, Your Honor?
THE COURT: Uh-huh.
BY MR. GINSBERG:
Q. Jonathan, let's start with 15. First of all, before this
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case started, had you ever seen this document?
A. I don't believe I did, no. Well, I have seen this in our
meetings, yes. Okay.
Q. Exhibit 15 on the top says "2010, Kill the Head Totals."
A. Yes.
Q. Are you familiar with the term "kill the head"?
A. Yes.
Q. What does that mean?
A. "Kill the head" is simply when you're -- when a running
back is running the ball or any ball carrier running the ball,
once they get tackled, you don't want them to fall forward. If
you fall forward, then they're facing the end zone they are
going to.
So what you do is you tackle them. You hope that
your other guys come, and you have them fall sideways, have
them fall backwards, diagonal, it doesn't matter. It's just
mentally you don't want them to every play get confidence that
they are going to run the ball, they're going to fall forward,
and then go on whichever way they want. Shoestring tackles,
all those things gives an offense confidence.
So "kill the heads" was us going out there making
sure they fell sideways, diagonal, backward, whatever it was;
that as long as their head wasn't facing the end zone, that's
for us a win psychologically.
Q. Is it also true that if they are going north/south and
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they are tackling north/south, they might gain extra yardage?
A. Of course, which is probably the next exhibit here.
Q. Was there anything about "kill the head" that implied or
encouraged or meant that any New Orleans Saint was supposed to
injure anybody on the opposing team?
A. Not at all. Not at all.
Q. Mr. Vilma, you seem to be the leader of the "kill the
heads".
A. Damn right. That's the way it's supposed to be.
Q. Exhibit 16, this is --
A. I don't have 16. I have 17.
Q. Look on the other side of 17. Just flip it over.
A. I see it.
Q. Sorry. Actually, before we get to that, let me ask you
about Exhibit 24 because Exhibit 24 has a term that seems to
have gained a lot of attention in the media.
A. Uh-huh.
Q. This document refers to a New York Giants game. Do you
see that?
A. Yes.
Q. By the name "Harper" -- I assume that's Roman Harper?
A. Yes.
Q. There's the term "cart-off, 1,000/impact play." Do you
see that?
A. Yes.
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Q. Did Mr. Williams used to use the word "cart-off"?
A. Yes, he did.
Q. Jonathan, what does "cart-off" mean?
A. A cart-off is when you tackle a running back, ball
carrier, whoever it is, and you tackle them so hard -- excuse
me. You legally tackle them so hard, tough, however it was,
that they could have had the wind knocked out of them and they
ended up missing a couple plays.
So you go -- Harper -- whoever it was on that day, he
hit someone clean, legal, no penalty on the play. He hit
someone so hard that they got the wind knocked out of them.
They weren't able to play the next couple plays. That was a
cart-off for him.
Q. Are you guys supposed to tackle hard enough to knock the
wind out of somebody?
A. That's what we are aiming for.
Q. Well, when NFL Sports and ESPN broadcast these shows
about --
A. Jacked Up, NFL's Hardest Hits, correct.
Q. Is that the kind of cart-off Mr. Williams was talking
about?
A. That's exactly the kind of cart-off.
Q. Is that the kind of hit that the NFL in its own commercial
enterprise was trying to gain ratings for?
A. Yes.
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Q. Was Mr. Williams' term "cart-off," as far as you could
tell, in any way meant to encourage you and your teammates to
hurt anyone?
A. Not at all. So for Harper, if you look and it's cart-off,
$1,000, if he would have gotten a penalty on that play, he
wouldn't have received $1,000 or whatever the amount was. In
fact, he would have been penalized by Gregg Williams the
following week, and he would owe money to us, to the defense.
Q. Let me ask you about that. When you say Harper got $1,000
for a cart-off, what are you referring to?
A. I'm referring to a pay-for-performance.
Q. What is a pay-for-performance?
A. Well, I will backtrack. In 2009 when Gregg got there,
right before the season started, he came to me, Will, Fujita,
and he said, "Look, guys, I have this thing that I've been
doing with other teams, and I think it will be really great
with us. I think you guys are talented enough, and it will be
a lot of fun. I have this pay-for-performance where guys put
their money to a pool, and we have item-by-item --
interceptions, sacks, sack-fumble, fumble recoveries, etc.,
etc. -- where guys get paid. They get paid out of the pot.
It's only after a win, and it's great to motivate the guys and
it's fun. He said he had a lot of success with it when he did
it with other teams.
So he was basically telling us that we are going to
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do it, and we'll let everyone know and bring their money in for
the pot. We said, "Cool. We like it."
Q. What kind of plays did Mr. Williams give money as a
reward?
A. He gave plays for anything positive, whether it was, like
I said, a fumble recovery, a forced fumble, a sack,
interception, interception for a touchdown, fumble recovery for
a touchdown, the whacks. I think I mentioned forced fumbles
already, but all the positive impact plays that a defensive
player can do within a game.
And then on top of that, if you had any mental
errors, you were fined. If you had any penalties, you were
fined. Because his biggest thing was never hurt the team.
Penalties hurt the team. He didn't want it. He didn't like
it. So we would get penalized for it, and now you have to put
money into the pot.
Q. When Mr. Williams crafted this game of paying out $200 or
$500 or $1,000, was it in any way to encourage or reward you
guys for injuring another player?
A. Not at all. He never mentioned injuring players. He
talked about positive plays that we can make.
Q. Turn to Exhibit 16, if you would. Exhibit 16 uses the
word "whack." Are you familiar with that item?
A. Yes, I am.
Q. What is a whack?
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A. A whack is a legal tackle that's below the waist. It's
usually like around the knees, legs. That's it, that's a
whack.
Q. Are you supposed to hit somebody below the knees or the
legs to hurt them?
A. No. It's a regular tackle.
So I don't know how many people have the exhibit, but
if you look at it, you notice that the leaders in whacks were
safeties and cornerbacks. The linebacker and D linemen, they
don't usually whack. I'm old school, I don't believe in going
low on a player if you are a linebacker. That's a pride thing,
in my opinion.
So you have these guys where let's say he's a running
back, he gets to the outside. The running backs are 230;
cornerback, 180 pounds. They are not going to tackle them
high, so they just go low and take his legs out real quick.
All legal, all clean.
Q. You didn't get any of those, did you?
A. No. No. I don't go low. Someone is going to get run
over or something's going to happen. I'm not going low.
Q. Turn to 17. That's entitled a "YAC Report," Y-A-C?
A. Yes.
Q. What is a YAC?
A. YAC is "yards after contact."
Q. What do you mean by that?
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A. That means as soon as a player made contact with the ball
carrier, how many yards did he gain after that. What I was
alluding to before comes big in the Exhibit 15 with the "kill
the heads" because if they fall forward, that counted as YAC
against us. It would be 2 to 3 yards of YAC against us. If
you make a tackle, that was YAC for however many yards it was
until someone tackled them.
Q. You're on the top of that list.
A. Yeah, I know. I know.
Q. That's not a good thing.
A. Where's the 2010 one? It was a lot better then.
Q. Jonathan, you talked about this sort of pay for good
plays --
A. Yes.
Q. -- interceptions or fumble recoveries. Did you have a
similar program when you were playing with the Jets?
A. Of course. Every team did.
Q. Have you talked to your teammates about whether, in fact,
every team has that kind of program?
A. Yeah. From when I was a rookie, that was what we do.
Q. Paying out a couple hundred dollars or so for good plays,
is that a team-run plan, a team-run game?
A. No. Like I say, Gregg was the one that told us about it.
Usually that's how you get it organized. Maybe you have a
player do side bets, but to get organized, you need like a
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coach to come in and say this is what we are doing.
Q. What was Mr. Williams' reaction if a player was penalized?
A. He hated it. He didn't like it. Especially if it was
something like jumping offsides, anything where it wasn't about
the impact of the game or -- he couldn't stand it, he didn't
like it, and that's exactly why he would penalize us for it.
Q. How about if it was intentional roughing of the passer?
A. No. I mean, if it happened, he didn't like it at all. At
all.
Q. How about applying some kind of dirty hit on somebody?
A. No, not at all.
Q. No reward for that kind of play?
A. No. You get penalized. And frankly speaking, if you
weren't -- if you were a young guy, he would probably take you
out of the game for a couple plays.
Q. Did Mr. Williams talk about crossing the line?
A. Yes. He said never to cross the line. He said get to it,
never cross the line, never hurt your team.
Q. Did you have an understanding of what he meant when he
said never hurt your team?
A. It was strictly on the penalties. He wanted us to play as
hard as possible between the white lines, fair; but as soon as
you got the penalties, I'm telling you he couldn't stand that;
and the mental errors, he couldn't stand that. Substitution
errors was another thing he couldn't stand. That was a
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reflection of coaching.
Q. Leading up to the day of our appeal hearing with
Mr. Goodell, did you ever have an opportunity to tell him how
wrong he had been in concluding publicly that you had engaged
in a program designed to hurt other players?
A. No, I did not. I never had a chance.
Q. I'm going to show you a group of exhibits, and we'll go
through them quickly, one by one. Let me show you Exhibits 5
through 12.
THE COURT: Uh-huh.
BY MR. GINSBERG:
Q. Exhibit 5 is a letter from me to Mr. Goodell on March 21,
correct?
A. Yes.
Q. And that asks Mr. Goodell for the opportunity to meet with
him, correct?
A. Yes.
Q. Was that done with your permission?
A. Yes.
Q. Did we receive a response to Exhibit 5?
A. I don't know if it's in the other exhibits, but I remember
them telling us that we weren't going to get anything that we
were asking for. So that would be the only response.
Q. What do you mean, we weren't going to get anything we had
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been asking for?
A. Well, if I can backtrack a little bit, when my coaches
went up to speak with Goodell and security, they said that they
were blindsided, that they didn't know what they were really
stepping into the meeting for. So they didn't know what the
meeting was about when they went up there and they spoke. They
said they basically got bombarded with a bunch of questions
about this bounty stuff, and they were so taken aback that they
first were confused, what's going on.
Then when they tried to start defending themselves
and saying that's not true, that's not true, or this is false,
they were accused of lying. Basically, the meeting got ugly,
from what the coaches told me, and it ended -- it didn't end
well. I'm not going to say how it ended as far as the
language.
From hearing that from when the coaches told me that,
I just wanted a basic sense of what I was going up there for
and what they were going to ask me, the questions or anything
like that, so I didn't get blindsided myself and then when I
try to defend myself, be accused of lying.
Q. If you look at Exhibit 6, the letter from me to
Mr. Birch -- do you know who Mr. Birch is?
A. Do I know? Yes, I do.
Q. This identifies him as the senior vice president of law
and labor policy. Is that accurate?
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A. Yes.
Q. Do you see in that letter that we requested from the NFL
that we be provided with the basis that the NFL had concluded
it had grounds to investigate you?
A. Yes. Just the simple whatever documents they had or
testimony from whoever the witnesses they spoke to, just really
simple stuff so that I could prepare myself. That's all.
Q. In that letter as well, on your behalf, I denied the
allegations that we had been reading about and the conclusions
we had been reading about from Mr. Goodell; is that right?
A. Yes.
Q. Then if you turn to Exhibit 7, did we also raise some
legal and jurisdictional issues with Mr. Goodell regarding the
process that he was invoking?
A. Yes, you did.
Q. On April 5 we received a written response from Mr. Birch,
correct?
A. Yes. Exhibit 8?
Q. Yes, Exhibit 8.
A. Yes.
Q. Was that a written denial of our request for materials or
information relating to this investigation?
A. Yes, it was -- or yes, it is a written denial.
Q. If you turn to Exhibit 9, on May 7 we wrote again to
Mr. Goodell, correct?
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A. That's correct.
Q. And reiterated that we were requesting information about
the investigation?
A. Yes.
Q. Did we identify 17 different categories of information
that we believed we needed to respond to what we had read
Mr. Goodell had already concluded about your involvement in
this program?
A. Yes, because now, by this time -- the early ones were the
infantile stages of what in the world is going on, from our
very first letter back in March and then progressively moved on
each month. So by this time, you know, we had a really good
idea of what they were talking about from all the media and
press clippings. So we asked specifically for everything that
they were talking about.
Q. Then if you turn to Exhibit 10, we wrote again to the NFL
on May 11; is that right?
A. Yes.
Q. We had been told by Mr. Birch that he thought that the
NFLPA had provided some documentation to us?
A. Correct.
Q. In fact, we did not have that documentation?
A. Not at all.
Q. On May 23 Mr. Birch gave us the report that we -- that had
previously been referred to by him, correct?
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A. Yeah. We got the report. This was the report that I
received from the e-mail from my PR director for the Saints,
the one that got spit out to all of the media, and this was
what he was giving us as the evidence that he had given to the
union regarding the bounties and specifically me.
Q. We already had that information because the NFL had
already released it publicly, correct?
A. Yeah. Everyone had it: Me, you, my mom, grandmother,
everybody.
Q. On May 23, also, Mr. Birch told us we didn't have any
right to any other information, correct?
A. That's correct.
Q. Finally, Mr. Goodell, about three months after he had
first proclaimed that you were guilty of embracing a program
designed to injure opposing players, scheduled an appeals
hearing for you, correct?
A. Yes.
Q. We wrote to Mr. Goodell on June 15; is that right? I
direct your attention to Exhibit 12.
A. Yes.
Q. In that letter we laid out a legal argument regarding
whether he had jurisdiction over the appeal, correct?
A. That is correct.
Q. We asked, as a matter of fundamental fairness, that
certain witnesses be made available at the hearing, correct?
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A. That's correct.
Q. We reiterated our request --
A. Yes.
Q. -- for documentation as well?
A. Yes, we did.
Q. Let me direct your attention to the appeal hearing. That
was on a Monday, correct?
A. Monday, June 18.
Q. About 55 hours or so before that appeal hearing, we
finally received some documents, correct?
A. That is correct.
Q. Now, had you read in the media what Mr. Goodell had
represented that he had reviewed in terms of numbers of
documents and numbers of pages of documents regarding this
alleged bounty program that had proved your guilt?
A. Yeah. From day one he said that they had 50,000 pages,
18,000 documents of evidence, and that over a 3-year period,
that's what he used to come to the decisions on the coaches and
the players.
Q. So less than three days before your appeal hearing, did we
receive 50,000 pages and 18,000 documents that Mr. Goodell had
considered in his investigation?
A. No, we did not.
Q. What did we receive?
A. We received 16 documents, about 100-some-odd pages. Less
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than 200; I know that.
Q. Did we receive any witness statements?
A. No, we did not.
Q. Did we receive any original documentation?
A. No, we did not.
Q. Did we receive any unaltered or unredacted documentation?
A. No. Basically, what we were stepping into was everything
either handwritten -- I mean, excuse me, typed up by I don't
even know who. Someone from the NFL. No witnesses. It was
Mary Jo White, who was their outside counsel, and their
security people, and those were the witnesses. I don't really
know how they are witnesses, but those were the people that
were going to speak at the appeals hearing.
Q. So none of the people who had firsthand evidence were
going to be presented at the hearing; is that right?
A. Nobody.
Q. Even with regard to Mary Jo White and Jeff Miller, the
security person, were they going to be sworn in as witnesses?
A. No. Nobody was going to be sworn in.
Q. Had you read before you went to the appeal hearing a
statement by Mary Jo White about our request for information?
A. Yes, I did.
Q. What do you recall that Mary Jo White said about our
request to have an understanding of what the accusations were?
A. She called our request for evidence as a red herring
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because we know what we did and we don't need the evidence.
Q. This is a former United States attorney who called your
request for information about your supposed guilt a red
herring?
A. Yes.
Q. How did that make you feel, that Mr. Goodell's lawyer was
making those pronouncements in the press?
A. I don't know if it made me feel a certain way. It was
expected. The NFL paid her, so she is obviously going to do
what they ask. I really wasn't surprised, to be honest with
you, by it.
Q. Did we appear for the hearing on June 18?
A. Yes, we did.
Q. If you look at Exhibit 13, do you recognize -- do you have
13 in front of you?
A. I don't think I have 13.
Q. Let me give you Exhibit 13. I'm sorry.
THE COURT: Uh-huh.
BY MR. GINSBERG:
Q. Do you recognize Exhibit 13?
A. Yes, I do.
Q. What do you recognize that to be?
A. This is our letter to the NFL stating that they did not
present us evidence within 72 hours. If I'm correct, they're
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mandated by New York law to present evidence within 72 hours,
which was supposed to be 10:00 a.m., Friday, of the evidence.
They gave us the evidence at around 1:30, 2:00 that day, so we
filed a motion to not allow that evidence into the hearing.
Q. Jonathan, let me try to set the stage for the appeal
hearing. We walked in and we went to the NFL offices, correct?
A. Correct.
Q. There's a huge conference room, right?
A. Correct.
Q. Then on one side of the table were you and your teammates
and former teammates who were accused of engaging in this
bounty program, correct?
A. Correct.
Q. And far too many lawyers?
A. Correct.
Q. Then on the other side of the table there were
representatives of the NFL, correct?
A. Correct.
Q. Then Mr. Goodell was in the front of the table, right?
A. Mr. Goodell and Jeff Pash.
Q. Who is Jeff Pash?
A. I don't know his legal title. I guess he is the second
guy or right-hand man.
Q. At the NFL?
A. Oh, yes, yes. To Roger Goodell, yes.
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Q. You understand that the adversary party in this
arbitration was the NFL, correct?
A. Correct.
Q. Mr. Goodell was supposed to be the arbitrator, correct?
A. Supposed to be the neutral arbitrator.
Q. When we made our motion to preclude based on the NFL's
late delivery of documents --
A. Yes.
Q. -- did Mr. Goodell have a conversation in private with
anybody in that conference room?
A. Yes, he did.
Q. Who did he talk to?
A. He talked to Jeff Pash, who was to his left. He whispered
over to Jeff Pash to his left.
Q. So Mr. Goodell consulted with one of the opposing people
at the hearing about our motion, correct?
A. Correct. He only talked to Jeff Pash. He didn't speak to
us. And then from Jeff Pash they then spoke to Mary Jo White,
Joe Hummel; and then from there, that's when they finally
addressed us.
Q. We weren't allowed to participate in those conversations,
correct?
A. No.
Q. Was it clear by that point that the witnesses with
firsthand knowledge that we had asked to appear were not going
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to be made available?
A. That's correct.
Q. Was it clear that no witness, even the third-hand
witnesses who were there, were going to be presented for
cross-examination?
A. That's correct. Jeff Pash said that basically -- excuse
me. Actually either Goodell or Pash, I can't remember, but one
of them said, "We are here. You can listen to Mary Jo White
and Hummel. They're going to give their presentation, and you
can cross-examine them if you like."
Q. They weren't going to be sworn in?
A. No.
Q. Did we also on our side present to Mr. Goodell a
representation regarding our factual position about his
allegations and his conclusions?
A. Yes, we did.
THE COURT: May I interrupt just a second? Was that
verbally done? How was that done?
MR. GINSBERG: Yes, Your Honor. The proffer that we
made, the representations that we made were verbal at the
hearing.
THE COURT: Okay.
BY MR. GINSBERG:
Q. Incidentally, Jonathan, did you read in the media the next
day that the very statements that Mr. Miller, the NFL
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investigator, had given and Mary Jo had given later on at the
hearing about the supposed evidence was exactly the
presentation they subsequently gave to the press?
A. Yes. We took a recess until the time, which was -- 1:33.
So I guess we took a recess until around that time. You and
me -- Peter and myself, we didn't show up. The other three
players did go back. I don't know with who as the counsel.
They were given this presentation by Mary Jo White.
After they left, the NFL then invited 12 media people
to go to the conference room, and Mary Jo White, I'm assuming,
then now gave the same presentation that she gave to the
players that afternoon.
Q. Jonathan, I'm going to turn to one of the pieces of
evidence or supposed evidence that the NFL had provided and
that seemed to be the focus of the NFL's case.
A. Do I have it here?
Q. No. I'm going to give it to you. It's Exhibit 14.
THE COURT: Uh-huh.
BY MR. GINSBERG:
Q. If there's such a thing as a smoking gun, did you
understand this to be the NFL's smoking gun?
A. It was supposed to be this and the video of Anthony
Hargrove where they said that he says, "Give me my money."
Q. We are going to talk about that video as well.
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A. Okay.
Q. Exhibit 14 says "Minny Game." I assume that's the
Minnesota game?
A. Right, correct.
Q. Supposedly this was transcribed from handwritten notes?
A. Yes.
Q. Did the NFL ever disclose whose notes these were?
A. No.
Q. Did the NFL ever show us the notes?
A. No, they did not.
Q. Is there any way that we could determine whether this
transcription was accurately transcribed?
A. No.
Q. Do you have an understanding as to where this document
came from?
A. I have an understanding that it came from Mike Cerullo.
Q. Who is Mike Cerullo?
A. Mike Cerullo was a coaching assistant, which is actually
different from being an assistant coach. I guess the hierarchy
is different, pay grade is different. So he was a coaching
assistant. He was, from what I could tell, basically the guy
that would do the PowerPoints for Gregg Williams. He would do
the cards and the PowerPoints for Joe Vitt in our linebacker
meetings.
Q. How long did Mr. Cerullo work for the Saints?
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A. To my knowledge, Mr. Cerullo worked for at most a year,
two years.
Q. What happened to him?
A. He got fired.
Q. Do you know why?
A. Mr. Cerullo would leave, and he would have these
quote/unquote emergencies that he would leave for, and
apparently these emergencies were made up. And he wasn't there
at a crucial time. He wasn't there for the week of the Super
Bowl, for one of his emergencies, and he was fired.
Q. What was his reaction when he was fired?
A. Apparently him and Joe Vitt did not get along. Joe Vitt
couldn't stand that he was not available. "This is your job,
and you have to make time. Everyone has their problems.
Everyone has their issues. You suck it up and you move on."
He wanted to get revenge on Joe for Joe firing him, basically.
Q. Is that what he said, that he wanted to get revenge on
Joe Vitt?
A. That is what he said.
Q. This document suggests that you put $10,000 on a
quarterback. Do you see that?
A. Yes, it does, top of the line.
Q. Is that true?
A. No, that's not true.
Q. It says that someone named Grant also put $10,000 on a
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quarterback.
Incidentally, do you understand that this supposedly,
according to what the NFL said, came from the pregame meeting
before the Minnesota playoff game?
A. This was supposed to come from the night of the -- the
Saturday night before we played Minnesota, this was supposed to
come from that defensive meeting where -- the meeting where I
had the $5,000 in each hand and slammed it on the table.
That's what this was supposed to come from.
Q. Did Charles Grant put $10,000 on a quarterback at that
meeting?
A. No, he did not. Charles Grant was not even present at the
meeting because he was on IR. He had torn his tricep in the
Carolina game the last week of the season and he was put on IR,
so he wasn't there.
Q. Was there a Mr. Ornstein at that meeting?
A. Yes, Mike Ornstein was at the meeting.
Q. Have you read statements from Mr. Ornstein rigorously
denying that he engaged in putting money on anybody at any
time?
A. Yes. I actually asked Mike Ornstein about this when I saw
this evidence, when I left back to Miami, and he vehemently
denied this $10,000 that's on this letter.
Q. It says "Joe Vitt, $5,000."
A. Yes. We all know publicly Joe Vitt came out and said that
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was wrong and that was not accurate. He even talked to Roger
Goodell about it. And the NFL also came out and said that this
was not accurate about Joe Vitt's $5,000.
Q. Of course, Mr. Fujita was also punished at the same time
you were, correct?
A. That is correct.
Q. What's his reaction to this transcribed, redacted
document?
A. Scott Fujita publicly, privately has been very disturbed
by this ledger, by the process and how he has been unfairly
accused.
Q. Have you had a chance to talk to the other people whose
names are on this document?
A. Yes. You have Will Smith, $5,000, general pool. Of
course, he denies that. We have Randall Gay, $2,000, who is
actually here, so I don't even have to tell you. I know he is
going to deny that. Roman Harper you will speak to or he will
testify later on today, $5,000, general pool. That's obviously
false. There's $2,500, we don't even know who. Tracy Porter,
he is now with the Denver Broncos. That's not true. We had
Darren Sharper for $5,000, pick six; under it, QB hits. I
don't really know what that means, but the $5,000, Darren
Sharper has denied it. He is going to try to be here today. I
know he has a TV engagement. And then pick six, Jabari Greer,
$5,000, he was as confused as I was when I asked him about it.
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Q. I want to turn for a moment to whether there's any
objective evidence supporting the conclusions that Mr. Goodell
reached regarding the bounty program, the existence of the
bounty program.
How many fines, Jonathan, have you received from the
way you played football during the three years that Mr. Goodell
claims that you were engaged in the bounty program?
A. I received two fines.
Q. For what?
A. One fine was for roughing the passer. I believe the other
fine was for a face mask.
Q. Were you trying to hurt anybody at the time?
A. No, I was not.
Q. Did you receive any money for those plays?
A. I did not receive any money.
Q. In four years, Jonathan, how many personal fouls have you
received?
A. I have received three personal fouls in four years.
Q. Is that a lot or a little for an NFL player?
A. That is the bottom third of the NFL during that time
frame.
Q. How about the Saints overall in terms of injuring other
players? Are there statistics for how many players the teams
hurt on the opposing teams?
A. Yeah. Statistically, we were 31 out of 32 teams. We were
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the second-least team to have injured an opposing player in
that three-year span.
Q. So if there was a bounty program, it wasn't working very
well?
A. We didn't listen.
Q. Jonathan, how has the suspension affected you?
A. In what way? Physically, mentally, emotionally?
Q. All of them.
A. You name it. The suspension -- I can start physically. I
need to be around Scottie. That's plain and simple. I need to
get to him so I can get my game plan and get going. I want to
play. That's easy.
Mentally, I haven't had an off-season. This has been
by far the toughest off-season because whether I'm dealing with
the knee -- 6:00 in the morning, I'm dealing with the knee from
6:00 to 9:00. Then from 9:00 to you call it, I'm dealing with
this. Then, of course, my daughter still wants to play.
Emotionally, it's been tough because, again, this is
not who I am. I don't know where this came from. This is not
me. This is not who I am. This is the complete opposite of
what I prided myself on as a football player for eight years.
To go from, as I said before, being here to now here
emotionally is tough. No one wants to hear a sob story, so it
is what it is.
Q. You have played for eight years. How many years does an
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average linebacker in the NFL play for?
A. Less than four.
Q. What's it like not to be at training camp today?
A. It's the first time in 16 years I haven't been at training
camp, dating back to high school, so it's different. It's
different.
Q. Is it important for you, as a middle linebacker and
captain and just the kind of person you are, to be at training
camp from the very beginning?
A. Yes. Well, for one, I'm one of the rare ones that
actually likes training camp. I enjoy it. I enjoy being
around my teammates. I enjoy the camaraderie, the competition.
Two, I don't have the job of a corner where they have
to stay with their receiver and understand the routes and they
are done, you put them on an island and leave them alone. I'm
the general. I have to get everything right. If something
doesn't go right, the first person you look at is me. Then you
go to the defensive coordinator, then you go to the head coach.
So I have to be there to get going.
Q. Does the suspension cause you concern about the charities
and the foundation you talked to us earlier about?
A. Yes. Specifically for my charity event that I do the
first week of November, if I'm not here and I can't talk to my
players or my teammates, then they are not going to be there,
and that was the biggest source of my funding for my charity.
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So if I can't get that this year, it will be tough to start
building the next schools down in Haiti.
Q. Incidentally, if you are suspended, are you allowed to
continue to have interaction with the people from the Saints?
A. No. I know the NFL has said, yeah, I'm allowed to work
with the trainer, but -- theoretically, yes. You put it in
practice, it's not practical. You can't do it.
You can't have 60 guys that you need to attend to --
and I'm talking about Scottie and the training staff -- they
have to attend to every day, and then pull one of those guys
aside -- it would mainly be Scottie because that's who I need.
But pull one of those guys aside and send them to wherever I am
to train for two or three hours a day, that's -- practically,
it's not possible.
Q. Are you concerned you won't be able to have your
fund-raiser for the foundation if you are suspended?
A. Yes, very concerned.
Q. What's your relationship with Sean Payton?
A. Me and Sean were great until I couldn't talk to him
anymore. I had been talking with him throughout the whole
process. It was very tough, what he was going through, and
this was before I had got suspended. I was just as mad for
Sean as Sean was for himself, if not madder, because I don't
understand -- let me backtrack. I get it. He is the head
coach. Everything trickles down from there. But I don't
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understand how that guy wasn't in any of the meetings -- he
gets completely blindsided by the NFL. Any time he tried to
say, "Well, that's not right," he is accused of lying. I don't
get that. And maybe there was more to it than that, I don't
know, but all I know is that he was put in a very tough
situation.
Q. Have you talked to him recently?
A. I can't.
Q. Why not?
A. He has been barred from speaking with us, "us" as in the
team, Saints, anybody.
Q. Mr. Goodell has barred the head coach from talking to his
friends and his teammates and his colleagues?
A. That's correct. That's correct.
Q. What does the city of New Orleans mean to you?
A. To say the least, I met my girlfriend here. My daughter
is here. I won a Super Bowl here. The fans have been great,
to say the least, from day one. Even when we weren't playing
our best in 2008, they were still with us. They were by far
better than Jets fans. It's been great.
Q. I'll stipulate to that.
A. I told Joe, I told Sean, I told everybody I want to retire
here. This is what I was looking for when I started with the
Jets in 2004, a team like this, a dream like this.
Q. Do you give time and make contributions to the community
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here?
A. Of course.
Q. How would the suspension affect your ability to do that?
A. I can't do any of that. I have to find a place to rehab
because, as I said, it's not going to be practical -- it's not
going to happen. The Saints aren't going to send someone every
day. It's not going to happen. So I have to find a place to
rehab my knee and go from there.
Q. Has the suspension also had an impact on the business that
you talked to us about before with the restaurants?
A. Yes. Yes.
Q. In what way?
A. I was not able to get financing for my restaurant,
Brother Jimmy's. We applied for financing, everything was
fine. They sent back the letter saying, "Financially he is
okay, but with everything that's going on with him right now,
we would just rather stay away from it." That's what they
wrote in a letter.
Q. Has the suspension had any impact on endorsements you've
had?
A. I lost two endorsements. Verizon chose not to deal with
me anymore. And JACO, which is a clothing company, also chose
to not be in this mess.
Q. Jonathan, what would it be like for you to walk into
training camp tomorrow?
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A. (Indicating.) That says it all.
MR. GINSBERG: May I have a moment, Your Honor?
THE COURT: Uh-huh.
MR. GINSBERG: Your Honor, I have no further
questions. Thank you.
THE COURT: It's 11:35. I offer a break, if you want
to take a break, or we can continue on. It's up to you.
MR. JONES: Your Honor, I'm ready to go forward.
THE COURT: Go ahead. I'm fine too.
CROSS-EXAMINATION
BY MR. JONES:
Q. Good morning, Mr. Vilma.
A. How are you doing?
Q. My name is Glad Jones. I represent the National Football
League. I have a few questions for you.
Do you have Exhibits 15, 24, 16, 17 and --
A. Slow down one second.
Q. Let's start with 15 --
A. All right.
Q. -- which Mr. Ginsberg was just asking you about. It's the
"kill the head."
A. Okay. Got it.
Q. Do you have that before you?
A. Yes, I have it right here.
Q. Did you have that on June 18 when you were in New York?
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A. Did I have this on June 18?
Q. Yes, by June 18.
A. By June 18?
Q. Uh-huh.
A. If you're referring to when you sent it late, yeah.
Q. Okay. I just want to confirm that you had it on June 18,
that document. All right.
Did you take the time to explain to the commissioner
what you have explained to the Court today --
A. Uh-huh.
Q. -- about what "kill the head" meant?
A. No, I did not.
Q. Let me ask the same question with regard to Exhibit 24,
cart-offs.
A. Yes.
Q. Did you have that document on June 18 --
A. Yes.
Q. -- when you were in New York before the commissioner?
A. Yes.
Q. All right. Did you take the time to explain, like you
have done to the Court this morning, what "cart-off" meant to
the commissioner and Mr. Pash and the others that were present
that morning?
A. Well, with the presentation that you guys were giving, it
was to my understanding that Mary Jo White, Joe Hummel, and I
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believe Jeff Miller were going to give presentations and we
were allowed to cross-examine them. So speaking to Roger
Goodell I do not believe was even an option; and if it was, I
didn't hear that.
Q. We will wrangle about that later. I'm just asking -- I
want to confirm, with all due respect --
A. Yes.
Q. -- on June 18 did you explain to Mr. Goodell and anyone
from the NFL in that process which was ongoing on that day --
A. Yes.
Q. -- what a cart-off meant as set forth in Exhibit 24?
A. No, I did not.
Q. We can speed through here for a second. Exhibit 16,
"whacks."
A. Give me a second.
Q. Take your time.
A. Got it.
Q. Did you explain what a whack was and that you didn't have
very many of those, right?
A. No, I did not have very many.
Q. Right. That's below the knees and principally the
safeties, correct, that have a number of those?
A. A legal hit below.
Q. Did you have that document on June 18 and explain, as you
have done to the Court today, what a whack was?
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A. Yeah, the same thing. The procedure wouldn't allow for
that.
Q. Now, Exhibit 17, YAC report, yards after contact, same
question: Did you have the document and did you make any
explanation to the NFL on that particular day?
A. Same question, same answer.
Q. Finally, Exhibit 14, the smoking gun, Mr. Ginsberg, the
document that he referred to --
A. Yes.
Q. -- did you have that document in your possession that day
on June 18 when you were there before the NFL --
A. Same answer to the same question.
Q. The answer is you had them all on June 18 --
A. Not on time.
Q. -- and you did not make any explanation to the
commissioner of the National Football League; is that correct?
A. It's correct that they were late, so we couldn't use them.
We were precluded not to use them, and you guys denied that
after speaking with each other.
Q. All right. Thank you. I would like to turn for just a
moment to your affidavit that you submitted.
MR. JONES: I believe, Your Honor, it's Exhibit 19.
BY MR. JONES:
Q. Do you have one, Mr. Vilma?
A. No, I do not.
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MR. JONES: Your Honor, may I approach?
THE COURT: Uh-huh.
THE WITNESS: Thank you.
MR. GINSBERG: Your Honor, do you have one?
THE COURT: I do.
BY MR. JONES:
Q. We talked a little bit in your testimony, Mr. Vilma, about
rehabilitation.
A. Yes.
Q. I would like us to focus in on that for just a moment. If
you would take a look at your affidavit at paragraph 25. It
doesn't have page numbers on it, at least my copy doesn't. If
you would just go there to paragraph 25.
A. Correct.
Q. Are you with me?
A. Yes.
Q. Did you read this affidavit before you signed this?
A. Yes.
Q. Did your lawyers assist you in preparing this affidavit?
A. Yes, they did.
Q. Was it Mr. Ginsberg's office?
A. Yes.
Q. Did you make your very best effort to make sure that the
information that you were going to put forth in this affidavit
was true and accurate information?
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A. Yes, it was.
Q. When you read this, you read it for that purpose because
you knew it was going to be signed and submitted to
Judge Berrigan in the Eastern District of Louisiana?
A. Yes.
Q. Let's take a look at paragraph 25, and I would like to
read it to you. It says, "For the first time in my NFL career,
I suffered an injury last season." Do you see where I'm
referring to?
A. Yes, sir.
Q. This affidavit was signed very recently. I'm assuming
there you are talking about last season being 2011?
A. Yes, sir.
Q. "I suffered an injury last season that caused me to miss
playing in an NFL game." Did I read that correctly?
A. Yeah. Am I allowed to -- I don't need to go into the
details.
Q. Just a moment. Let me ask the question. Just a moment,
if that's okay. It's my turn for just a second, Mr. Vilma.
A. All right.
Q. You read that before you signed this affidavit, correct?
A. I overlooked it.
Q. You continue, "I was hurt on September 16, 2011, during a
noncontact practice drill," correct?
A. That is correct.
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Q. The fact of the matter, Mr. Vilma, is that you had a knee
injury in October of 2007 when you were playing for the
New York Jets, correct?
A. That is very correct.
Q. So what we can take away from this, at least the first
part of this, is that paragraph 25 is not exactly accurate.
A. That's correct.
Q. You overlooked that, correct?
A. Yes. Well, actually, Peter and myself, after we submitted
it, I told -- actually I didn't tell him. My mother told me
that 25 was off. I said, "Well, I overlooked that."
Q. Did you call your lawyer and tell him that your mother
said it was incorrect?
A. No. I said I overlooked it.
Q. Let me just be clear with the Court. Those two sentences
are not correct?
A. That is correct.
Q. What happened was that you did have an injury in October
of 2007 when you were playing for the New York Jets. I think
it was a game against the Cincinnati Bengals. Correct?
A. Yes, sir.
Q. You were injured, and the specific injury that occurred
then was a knee injury.
A. Yes.
Q. It was a season-ending injury, correct?
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A. Yes, it was.
Q. What happened was that you were put on the Injured
Reserve, correct?
A. That's correct.
Q. You shortly, after having the injury in November, went
down to Miami -- where you are from, correct?
A. Yeah.
Q. And you had surgery in Miami, correct?
A. That's correct.
Q. Then just so our timetable is correct, you were traded to
the New Orleans Saints in late February of 2008?
A. Yes, sir.
Q. You had a pretty good season in 2008 when you came back to
the Saints, didn't you?
A. Thank you.
Q. Wasn't bad in 2009 either, was it?
A. Thank you.
Q. When did we win the Super Bowl?
A. 2009.
Q. 2009. Now, you had the surgery as a result of that injury
that occurred in October of 2007 sometime in early November; is
that right?
A. Yes.
Q. What was the doctor's name who did that?
A. Dr. John Uribe.
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Q. Is that a doctor you chose?
A. Yes.
Q. Yes. Then you were placed on Injured Reserve, correct?
Between the time of November and February, you
rehabbed in Miami, correct?
A. I actually rehabbed both Miami and New York. Then I was
traded and I went to the Saints. They did a physical on me,
checked my knee out and again did a game plan, two or three
weeks, and I would periodically go back and forth.
Q. So the Jets directed and monitored the rehab when you were
down in Miami after that surgery in November of 2007?
A. Right. They said what I was supposed to be doing. The
physical trainer down in Miami followed the protocol.
Q. In fact, you mentioned just a few moments ago that the
trainers here and the Saints have directed or monitored or
given you objectives every two or three weeks. That's what you
told Mr. Ginsberg, correct?
A. Yes, sir.
Q. That's been ongoing, correct?
A. No, it hasn't been ongoing.
Q. In 2007, so the Court is clear, you rehabbed partially in
Miami after that injury and partially in New York?
A. That is correct.
MR. JONES: Your Honor, may I have one moment?
THE COURT: Uh-huh.
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MR. JONES: Mr. Vilma, thank you for your testimony.
That's all the questions we have. Thank you.
REDIRECT EXAMINATION
BY MR. GINSBERG:
Q. I guess it's clear I'm not a Jets fan. Was that an honest
error, that we had missed your previous injury?
A. Yeah. I sent an e-mail to you, said I overlooked it.
Q. With regard to the appeal again, did your attorney, me,
make a proffer to Mr. Goodell that the documents they had
provided were inaccurate and unreliable because they were all
redacted and that you engaged in no bounty program and that the
documents 15, 16, 17, whatever -- I guess they only gave us
either 16 or 18 documents -- none of them accurately reflected
the conclusions that Mr. Goodell had already reached?
A. That is correct.
Q. I apologize because you said the other smoking gun was the
Hargrove video, correct?
A. Yes.
Q. At that hearing Mary Jo -- at the appeal Mary Jo White was
saying, "Well, look, you can see Hargrove saying, 'Where's my
money?'" Correct?
MR. JONES: Your Honor, may I make an objection?
This isn't something I raised on cross-examination, so I'm
going to be precluded from asking him anything. We didn't talk
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JONATHAN VILMA - REDIRECT
about "where is our money" in the exhibit.
THE COURT: I think that's right.
MR. GINSBERG: Well, it is right. I forgot. May I
have the Court's indulgence for a couple real quick questions?
THE COURT: Go ahead.
You can recross if you want to.
MR. JONES: Thank you. Let's let him finish his
questions. I will see.
BY MR. GINSBERG:
Q. The video was portrayed as Mr. Hargrove saying, "Where's
my money?" Correct?
A. Correct.
Q. What happened after the appeal hearing and after the
suspensions were handed down by Mr. Goodell regarding that
video?
A. Well, two things. The first thing was, when they invited
the media in to see the evidence and present it the way they
presented it to the other players -- because I wasn't there --
Mary Jo White is quoted as saying, "You can see Hargrove's lips
moving when he says, 'Give me my money.'"
That was completely inaccurate. If you watch the
video -- I don't know if you have seen the video, but you see
Hargrove say "Bobby"; you see Remy Ayodele block the camera's
view, and you hear someone say, "Give me my money."
The second thing that happened was Hargrove very
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JONATHAN VILMA - REDIRECT
emphatically went the next day or the day after on to the front
of the NFL office and gave this long speech. Within the long
speech he said he could swear on anything you want, swear on
his life that he didn't say, "Give me my money." I don't know
if the NFL even responded to that.
After that, after everyone had seen the video, you
had a bunch of people saying that this doesn't look like
Hargrove saying, "Give me my money"; it looks like someone
saying, "Give me my money," but not Hargrove.
MR. GINSBERG: Thank you.
THE COURT: Any recross?
MR. JONES: No, ma'am.
THE COURT: You may step down.
THE WITNESS: Do I take these?
THE COURT: Just give them back to your counsel.
It's 10 minutes to noon. We can continue on. I
know you have some other witnesses. It's entirely, again, up
to you all.
MR. JONES: Your Honor, our preference would be to
go -- if their witnesses are here, we certainly don't want to
jeopardize the time, and we're happy to go straight through.
MR. GINSBERG: Your Honor, could we get a 5- or
10-minute bathroom break?
MR. JONES: We won't object to that.
THE COURT: Let's take 10 minutes, and then we will
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be back at noon.
(Recess.)
TROY EVANS,
THE WITNESS: Troy Evans, T-R-O-Y, E-V-A-N-S.
DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good morning, Mr. Evans.
A. Good morning.
Q. As you know, I'm Duke Williams, and I represent Mr. Vilma.
I just have a few questions for you this morning.
Where did you go to college?
A. University of Cincinnati.
Q. Did you play football in college?
A. Yes, sir.
Q. All four years?
A. Yes, sir.
Q. Did you get a degree from the University of Cincinnati?
A. Yes, sir.
Q. What was that degree in?
A. Business finance.
Q. What's your current occupation?
A. I started a school bus company. Owner of a school bus
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TROY EVANS - DIRECT
company.
Q. Is that in the Cincinnati area? Is that where you still
live?
A. Yes, sir.
Q. Did you play for the New Orleans Saints?
A. Yes, sir.
Q. Could you tell the Court what years you played for the
Saints.
A. I believe it was 2007 'til 2010.
Q. What position did you play when you were with the Saints?
A. I was a linebacker.
Q. Were you also special teams captain when you were with the
Saints?
A. Yes, sir, all the years.
Q. Could you just describe briefly what you do as special
teams captain.
A. It's a leadership role on the team that was voted on by
the players and just a position of leadership where you try to
lead by example both on and off the field.
Q. You were also a linebacker; is that correct?
A. Yes, sir.
Q. In your capacity as a special teams player and special
teams co-captain, could you describe briefly for the Court what
special teams do.
A. Special teams is the play in between the plays. It's a
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TROY EVANS - DIRECT
very high-speed, high-intensity, physical play usually
involving kicking the ball in some way, transferring the ball
from offense to defense before or after scores.
Q. Did you play on both sides on special teams or just --
A. All of them, yes, sir.
Q. Is it fair to say that special team play is characterized
by high speed and violent hits?
A. Very accurate, yes.
Q. Is the NFL a violent game, in your opinion, Mr. Evans?
A. Yes.
Q. You and your teammates are expected to deliver big hits.
That's your job, isn't it?
A. Correct.
Q. Of course, those big hits are and should be legal hits,
correct?
A. Correct.
Q. Is it fair to say that big hits are just part of the game,
part of the NFL game?
A. Yeah. Tackling is a major part of defense and special
teams, and big hits are part of tackling.
Q. Can you characterize for me what impact a big hit -- what
is a big hit?
A. A big hit is -- how do you classify it? A big hit is
obviously a high-speed probably collision that would result in
sometimes the defender and sometimes the offensive player
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violently getting taken down, which in turn makes the crowd go
crazy.
Q. I was going to ask you about that. It has an impact on
the crowd, obviously. Correct?
A. Yes, sir.
Q. Does it have an impact on the team, your team?
A. Absolutely.
Q. What kind of an impact does it have?
A. Just euphoric, natural, celebratory -- it's part of the
game. Hard hits just kind of -- it's like slapping the table
in this room. Everybody would jump.
Q. Do those kind of hits also have an impact on the opposing
team?
A. Absolutely. One side of the crowd gets loud, and the team
gets jumping up and down; and the other team is picking the
other player up, and the crowd goes quiet.
Q. How long have you known Jonathan Vilma?
A. I've had the pleasure of knowing Mr. Vilma now for 5 1/2
6 years.
Q. You say you have had the pleasure. Why has that been a
pleasurable friendship?
A. I kind of winked at him. It's not that pleasurable. No,
I'm kidding.
Obviously, I'm here. I respect him as a man, first
and foremost, and as a player. Anybody that's played this game
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knows how he plays the game, and you have to respect it.
Q. Let's talk just briefly, just a little bit about how he
played the game, and tell us how he played the game and why you
respect the way he plays the game.
A. First and foremost, one of the smartest football players
in my almost 10-year career, and then -- don't get mad at me,
JV. For a littler guy playing a linebacker position, he plays
it very physical and knows where to be and how to do it
properly and when to be there, which is the key to the
position.
Q. Jonathan was the defensive captain, was he not?
A. Yes, sir.
Q. Because he was the defensive captain, did you have reason
to interact with him more frequently and perhaps on a different
basis than you would just a regular member of the defense?
A. Yeah. Every day, all the time, and then like for, I
guess, extra interactions. There was once in a while meetings
where staff or management would ask a handful of guys to be in
a room to talk about the team, talk about what we are doing and
stuff, so obviously I had those instances as well. But being a
linebacker, I mean, 80 percent of our day was spent together.
Q. While you were with the Saints, did you attend all of the
team meetings and pregame meetings?
A. Never missed a one.
Q. You attended those with Jonathan and the rest of the
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defense, I presume. Correct?
A. Yes, sir.
Q. During those meetings, all of those -- how many of those
meetings were there, do you think, over your career, ones you
were with Jonathan?
A. Oh, in three years, probably four meetings a day.
Thousands.
Q. There were a lot?
A. Yeah.
Q. During all those meetings, every single one of them, did
Jonathan Vilma ever put a bounty on another player's head?
A. No, sir.
Q. Did he ever say to you or any other member of the Saints
defense that he would pay them money, give them money to go out
and intentionally injure any player on the opposing team during
those years?
A. No, sir.
Q. Based on your knowledge and your friendship with Jonathan,
do you think that's the type of behavior he would ever
countenance or promote?
A. No, sir.
Q. Did you ever hear him put a bounty or tell anybody that he
would pay them money if they injured and put Kurt Warner out of
the playoff game?
A. No, sir.
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Q. How about the Minnesota game that we have talked about? I
know you weren't in the courtroom. We have talked a little bit
about it earlier. Did he ever put a bounty on Brett Favre's
head?
A. No, sir.
Q. Did he ever say to anybody that he would pay them if
they -- pay a teammate if they injured Brett Favre and put him
out of the game?
A. No, sir.
Q. Now, did anyone from the NFL contact you at any time to
ask you any questions about this so-called bounty investigation
or "Bountygate," as it's been called?
A. No, sir.
MR. GINSBERG: Thank you. Those are all the
questions I have.
CROSS-EXAMINATION
BY MR. JONES:
Q. Mr. Evans, my name is Gladstone Jones, and I represent the
National Football League.
On June 18 there was a hearing in New York that
Mr. Vilma attended with the commissioner of football, Roger
Goodell.
A. Yes, sir.
Q. Were you asked by Mr. Vilma to attend that hearing and
offer the same testimony that you have offered the Court today?
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A. No, sir.
Q. Do I understand it correctly that you were not in New York
and at that particular hearing you offered no testimony? Is
that correct?
A. Correct.
MR. JONES: Thank you.
Your Honor, that's all that we have.
MR. GINSBERG: Just a brief follow-up.
REDIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Mr. Evans, do you know whether or not you could have given
testimony at that hearing?
A. No, sir.
THE COURT: Thank you very much, sir. You may step
down.
THE COURT: I think your lunch is in the back.
MR. GINSBERG: He doesn't eat much.
MR. WILLIAMS: Judge, we have another witness. We
need to see who it is.
THE COURT: Just go on back and see who it is.
RANDALL GAY,
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THE WITNESS: Randall Gay, R-A-N-D-A-L-L, G-A-Y.
DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good morning, Mr. Gay. How are you?
A. Fine. How are you?
Q. I understand you have a nickname. Correct?
A. Yes, sir.
Q. What's that?
A. "Blue."
Q. I may call you "Blue" at some point today, but --
A. That's fine.
Q. Do you prefer to be called "Blue" instead of "Randall"?
A. I've gotten to love them both.
Q. I've got the same problem.
Randall, where did you grow up?
A. Brusly, Louisiana.
Q. That's just up the road towards Baton Rouge, right?
A. West Baton Rouge Parish.
Q. I suspect a lot of people in the room know the answer to
this question, but where did you go to college?
A. I'm a proud LSU Tiger.
Q. You won a national championship at LSU, didn't you?
A. Yes, sir.
Q. What was your major at LSU?
A. Marketing.
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RANDALL GAY - DIRECT
Q. What year did you start your professional football career?
A. It was 2004. Yes, that's it.
Q. Were you drafted? Were you a free agent?
A. I wish I was drafted, but I was fortunate enough to become
a free agent with New England.
Q. You made the team, obviously. Correct?
A. Yes.
Q. That was the 2004 New England Patriots?
A. Yes, sir.
Q. That was your rookie year, and the Patriots went to and
won the Super Bowl that year?
A. Yes. Yes, sir. We whooped up on Mr. Vilma's team a
couple times that year.
Q. That would be his other team?
A. Yes. When he was with the Jets.
Q. What position did you play at New England?
A. Well, cornerback -- well, I was a defensive back because
wherever they needed me back there, that's where I played.
Q. Did you do the same thing while you were at LSU --
A. Yes, sir.
Q. -- play wherever they needed you?
A. Wherever they needed me back there, I'd go.
Q. You switched back and forth between cornerback and safety?
A. Corner, safety, and nickelback.
Q. Now, at some point, obviously, you left the New England
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Patriots and you came down back home, and you went to work for
the New Orleans Saints football club, right?
A. Yes, sir.
Q. What year was that? Do you remember?
A. I guess that was 2008 or 2007 -- well, let me put these
years together. I played four years with New England and
started 2004. So I guess it was 2007 or 2008. Those years,
how they start, is kind of --
Q. That's close enough. Are you still in football?
A. No, sir.
Q. When did you retire?
A. Well, I haven't officially filled out any paperwork, but
after the 2011 season, I decided that it was in my best
interest not to play anymore.
Q. Why is that?
A. Because of the head injuries that I suffered over my
career and the symptoms that I was still having and talking to
the neurologist that really felt that it wasn't in my best
interest to keep playing football.
Q. I understand. I understand.
Now, as a defensive back in the pro game, you do a
lot of hitting, don't you?
A. Yes, sir.
Q. How would you characterize the hitting that you guys do
back there in the secondary?
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A. Well, a lot more than a lot of us really want, especially
for a small guy like me, but it's a lot of contact. No matter
how you put it, you're going to get hit.
Q. That's what you're expected to do, isn't it?
A. If you want to play, you better.
Q. Even if a guy weighs 30, 45, 50 more pounds than you, you
still have to take them down as best you can?
A. Even when a guy weighs even more than that, because
sometimes you go against guys a hundred pounds more than you,
and you better get them down or they will find somebody else to
do it.
Q. In that position you're not just doing all the hitting.
You're not dishing out all the punishment. You're taking some
too, right?
A. Oh, yeah. Because if not, I would still be playing
football.
Q. I understand. Now, how many years did you play with
Jon Vilma as your teammate?
A. Well, we came in around the exact same time, because I was
a free agent and I signed with the Saints and I think either he
got traded to the Saints right before I signed or right after,
but we came in together.
Q. He was the team captain, wasn't he?
A. Well, I don't know about that year. He may have been. My
memory isn't that good, but he was -- you could tell he was a
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team leader from the beginning.
Q. How could you tell he was a team leader?
A. Some guys you can just tell. He was already well known
through the league as being a great player, a great linebacker,
and a great leader. Like I say, I played against him six to
eight times in my years in New England when he was with the
Jets, so he developed a reputation over those years as a
leader.
Q. When you guys were in the locker room at New England
getting ready to play the Jets, would you talk about Mr. Vilma?
A. Oh, he was one of the guys. Coaches always, they are
going to headline a guy that you need to take care of; take
care of as do your job against because, if not, he can end your
game, basically. He will mess up the whole game plan. If you
don't pay attention to this guy, that he is going to cause a
lot of havoc out there to your team. So he was one of those
guys.
Q. When you were at New England, did you ever hear any of
your coaches or other players ever say anything other than what
you have just told us, that he was a great player?
A. Not really. And I played with players that was with him
in Miami, and they would just talk about, you know, he was a
good dude. But on the field he was -- he got after it.
Q. Did you ever hear any rumors or anybody say anything about
Jon Vilma being a dirty player?
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A. No, never did.
Q. So you guys, you get together with the Saints. Did you
get to know Jon Vilma?
A. Yes.
Q. What do you think of him?
A. Good guy. I like him. I'm a guy who -- I like to sense
people. I don't hang with a lot of people that I don't really
know. I don't deal with a lot of people that I don't know
because I like good people, and that was a guy who -- I liked
him, so I dealt with him.
Q. Did Mr. Vilma -- while you guys were with the Saints, did
you -- were you ever on Injured Reserve?
A. Yes.
Q. Did you -- what year? I'm sorry I'm stuttering.
A. Oh, my last year I went on Injured Reserve because of a
concussion my last year.
Q. Up until that time, would it be fair to say you didn't
miss a team meeting ever?
A. No, I was in the meetings.
Q. Did you listen to what was going on in those meetings?
A. Yes. You had to.
Q. Did you ever, ever see Mr. Vilma stand up, sit down, from
his knees or any other position, and offer anybody cash money
or any other reward to intentionally hurt or injure an opposing
player?
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A. No, sir.
Q. If he had done something like that, would it have
surprised and shocked you?
A. Vilma? Yes. $10,000 money just to hurt somebody? No.
You don't see that in the NFL. Because like I said, I talked
about the guys from Miami who played with him in college. We
all played either with each other or against each other at some
time in our life. It's like it's a brotherhood. We are
family, really, because you never know when you are going to be
on the next person's team.
Q. Let's talk a little bit about your defensive coach, the
most recent defensive coach, Gregg Williams. You know who I'm
talking about?
A. Oh, yeah.
Q. When you first got to the Saints or you had your first
experience with Gregg Williams as your coach, were you a little
surprised by his behavior?
A. Oh, yes, from the first meeting --
THE COURT: Hold up one second. We need to get a
witness sequestered.
MR. GINSBERG: Sorry, Your Honor. I didn't realize
he had walked in.
THE COURT: The other two are not witnesses?
MR. GINSBERG: No.
THE COURT: Go ahead. Continue.
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THE WITNESS: I forgot where I was.
THE COURT: Why don't you read it back.
(Question read.)
THE WITNESS: Oh, yes. From the first meeting, it
was just, say, a little different. It was a little shocking,
just how he talked, just attitudewise, just different,
shocking.
BY MR. WILLIAMS:
Q. Was it because of the language he used, or did he scream?
What was it that you found shocking?
A. Well, the language -- playing football, you hear cursing
out there from players. Coaches, you hear it. But his was a
little excessive -- it was a lot of excessive cursing, and just
the whole attitude that he had was kind of -- it was just
shocking.
Q. Did you consider Coach Williams a good motivator? Did he
motivate the defense?
A. When you look back on it, it's like, all right, that's
what he is trying to do, trying to get motivation out of guys.
Different players need different types of motivation, and
different people use different ways of motivating people. And
once you get to the NFL, you kind of figure out that, all
right, that's what he is trying to do, get us motivated.
Q. Did you think he was a good coach?
A. A good coach? Yeah, pretty good. Not the best I have
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been around, but he was a pretty good coach.
MR. WILLIAMS: Hang on just a second.
Blue, I don't have any more questions. There
might be a couple from the other side. Thank you very much.
THE WITNESS: Okay.
CROSS-EXAMINATION
BY MR. JONES:
Q. Good morning, Mr. Gay. How are you?
A. All right.
Q. Gladstone Jones representing the NFL. Just a question or
two.
Can you please tell us when you were first asked to
provide testimony at this hearing.
A. I can't recall, but it was maybe two weeks.
Q. You were not asked to go to New York on June 18 and
provide testimony at the NFL headquarters before
Commissioner Goodell?
A. June 18, no.
Q. Were you ever asked to do that?
A. I got a voice mail on my phone one time, that it was some
guy who wanted me to call back and talk to him, but I don't
return 90 percent of the phone calls. You can check my phone.
My son laughs about it. "Dad, you've got 90 voice mails." I
know. I don't check it.
Q. You can recall that you weren't there, Mr. Gay, on June 18
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offering any testimony?
A. June 18? I know I haven't talked to anybody this summer.
MR. JONES: Thank you very much, sir.
MR. GINSBERG: Nothing further.
THE COURT: Thank you, Mr. Gay. You may step down
and go about your business.
MR. GINSBERG: Mr. Vilma calls Joe Vitt.
JOE VITT,
THE WITNESS: Joe Vitt, V-I-T-T.
THE COURT: Mr. Vitt, there's a pitcher of water
right there and some cups if you want some water.
THE WITNESS: Thank you, Judge.
DIRECT EXAMINATION
BY MR. GINSBERG:
Q. Good morning, Mr. Vitt.
A. Good morning.
Q. Been a busy day for you?
A. Yeah. JV will tell you these are long, long days. Things
are going well.
Q. I appreciate you coming this morning.
A. It's my honor.
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JOE VITT - DIRECT
Q. Mr. Vitt, how are you employed?
A. Well, I'm the assistant head football coach for the
New Orleans Saints. And our head coach has been suspended, so
you know, I'm taking over the head coaching duties while he is
suspended.
Q. How long have you been with the Saints, Coach?
A. Since 2006, post-Katrina. February 7, 2006.
Q. This is now your --
A. This is going on my seventh season.
Q. Where are you from?
A. Blackwood, New Jersey, born and raised. Actually born in
Syracuse, New York, was there for six months, then my father
moved to New Jersey.
Q. Did you used to play football?
A. I mean, I played my whole life, four years of high school,
a year of military academy, five years of college, and then was
out of football for about six months before I got my first job
with the Baltimore Colts back in 1979.
Q. What did you do for the Colts?
A. Well, back then we had eight coaches, not like we have
today, between 18 and 20. We had, I think, eight coaches. And
so I was the youngest guy on the staff, and you have to be like
a jack-of-all-trades. I started out as strength conditioning,
also defensive quality control. And really anything else that
needs to be done around the building, as the young guy, you do
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JOE VITT - DIRECT
it.
Q. Have you been in the NFL ever since then, Joe?
A. Yes. I'm starting my 34th straight year.
Q. What teams have you been with?
A. 1971 to 1981, the Baltimore Colts; 1982 to 1991, the
Seattle Seahawks; '92 to '95, the Los Angeles Rams; '95 to '99,
the Philadelphia Eagles; '99 to 2000, the Green Bay Packers;
2001 to 2003, the Kansas City Chiefs; 2004 and 2005, the
St. Louis Rams; and presently with the New Orleans Saints.
Q. Are you involved in coaching defense?
A. Yes. The only thing that I've been flexible on defense, I
think 14 of the 34 years I've been in the league I was coaching
the secondary, but the majority of the time the task-on job has
been linebackers.
Q. Coach Vitt, in your 34 years of coaching, how many great
players do you think you have coached?
A. You know, we all throw the word "great" around now like
they are breath mints. I think there's things that really
distinguish a great player. I would say probably 15 to 18.
We had our first meeting last night, Judge, and I had
a former player from the St. Louis and Los Angeles Rams, Isaac
Bruce, and I didn't even put him in the "great" category when I
introduced him last night for our staff. He played 16 years in
the league, had over a thousand catches, 91 touchdowns,
averaged 14-point yards per carry and catch, and I kind of
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JOE VITT - DIRECT
forget about him. He was a great player. He is third all-time
in catches. So I say 15 and then look back, it might be 20,
but between 15 and 20.
Q. What are the characteristics, other than being just a
great athlete, that makes a great player?
A. Well, great players have a burning desire to get better
and improve every day. A great player has to have a unique
skill set that includes speed, height, weight that's needed for
a particular position, but then that great player has to a have
a burning desire every day to want to improve and get better.
And every day when he wakes up, he is thankful where he is, he
is thankful for the years he has to play in the league.
A great player sets himself apart, I think, from
other players because a great player can truly make other
players around him better just because of his presence both
physically and mentally.
Q. Coach, do you have a pretty good sense of what makes a
leader?
A. I do. I think that people in a leadership role -- it
really came to me in 2009 when we won a world championship,
what a true leader is. A true leader, number one, has to have
that skill set where he is potentially the best player on your
team or he is the best player in that unit. But a great leader
will always put the needs of a teammate, put the needs of a
team, put the needs of people in the organization above
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JOE VITT - DIRECT
himself. You have got to do that on a daily basis.
And a great leader is every day, every hour, every
minute, every game, every quarter, every snap, every series
exhibiting those skills, and then they become great leaders and
they become leaders for all time. Complete integrity. Know
your job. Great communication skills. And you always put
yourself second.
Q. How long have you known Jonathan Vilma?
A. You know, when I was with the St. Louis Rams, 2004, we had
some pretty good linebackers there. We were about a week
before the 2004 NFL draft and I started looking at Jonathan
Vilma on tapes, college senior, so it was kind of late in the
process. I had been to the Combine, seen him work out, but
about a week before -- am I talking too loud?
Q. You have been out in the field too long today.
A. I know. So about a week before the draft -- the draft,
the old college draft was on a Sunday at that time. So about a
week before the draft -- I want to say it was a Thursday
night -- I called up Jonathan. He also had another real good
college teammate, D.J. Williams, and a kid by the name of
McGlover we felt could be a good special teams player.
I called him on the phone. I wanted to meet them for
dinner on a Thursday night and then the next day meet at the
university, where we watched four or five hours of film
together, and then go out in the field to work them out, see
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JOE VITT - DIRECT
kind of what their skill level was.
It was a great meeting. Our dinner lasted 3 1/2,
4 hours because they were talking ball. They were coming off a
great year. They loved football.
I remember leaving there that day and telling
Jonathan, "Listen, if I can't draft you this Sunday, in four
years there's going to be somehow, someway I'm going to get
you." That meaning in four years, after a player has played
for four years in the league, he becomes an unrestricted free
agent and potentially we will have access to him.
Well, it just so happened that after our 2007 season,
the New York Jets had switched to a 3-4 defense and really
wanted a different skill level from a linebacker than Jonathan
Vilma and he became available. So we met. It was myself,
Jonathan Vilma, Gary Gibbs, Mickey Loomis, and Sean Payton in
Indianapolis, and we talked about a potential trade. JV and I
had already kept in touch. When he wasn't playing with the
Jets, we talked with each other after the games and things like
that. We were able to set that trade.
He was coming off of a micro-fracture surgery that
year, and he was able to play for us. His first year with us
was in 2008. We were 8-8. In 2009 we won a world
championship. In 2010 we were 11-6, we lost the first-round
playoff game to Seattle, and then the next year won 14 games.
That's been our history. Since I have been with Jonathan
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Vilma, as a team we have won more games than anybody in the
National Football League.
Q. Have you formed an opinion about whether Jonathan is a
great leader?
A. Jonathan Vilma means to our defense every bit of what Drew
Brees means to our offense. Jonathan Vilma has been there for
every coach and Jonathan Vilma has been there for every player.
On a personal and a professional and at times
spiritual level, as a coach in the National Football League,
it's my job to make sure that I give our players and our
linebacker corps particularly, because that was my job before I
became the interim head coach, structure and discipline. And
it's up to me as a coach to make sure that I can teach,
motivate, and inspire my players.
When you have a player like Jonathan Vilma, who has
an expectancy level that really exceeds the expectancy level of
the coach and the team, he becomes a joy to coach. Not many of
these players come around in a lifetime to a coach. I don't
think I have ever seen anybody play with the courage he has
played with. I don't think I've ever seen anybody play with
the leadership qualities he has exhibited on defense for us.
And I know I have never coached anybody who has been as
unselfish as he has. So I have been blessed.
That being said, as a coach in the National Football
League, you earn the right to coach your players hard, and I
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coached Jonathan hard. But it's with the understanding, number
one, I love him; and number two, I care about him. I care
about his physical, mental, and emotional well-being. But I'm
not his friend; I'm his coach. I'm his coach; I'm not his
friend. We'll be friends when he retires. We'll be friends
somewhere down the line.
It's up to me to make sure he becomes the best player
he can be, teach him a scheme, motivate him to do as best he
can, and inspire him, try to take him to a place he couldn't
get to by himself, and try to do it walking hand in hand.
I hope I have answered your question.
Q. Coach Vitt, one of the characteristics that you said that
go into becoming a great leader is integrity. Does Jonathan
Vilma have integrity?
A. Without a doubt. I think this -- I go back and think
about the history of our relationship. One of the things
that -- when you put on a film of a player and you watch the
way he plays our game, it takes a tremendous amount of courage
to play it the right way; snap in, snap out, game in, game out,
year in, year out. It's hard. It's physical. It's world
class athletes banging into one another at full speed, and to
do that snap after snap takes courage.
I remember asking Jonathan as a senior in college,
"Where did you get this courage?" because it's not easy what
players do, and he related the story to me about when
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Hurricane Andrew had hit the Miami area. I think it was the
Homestead area in particular. And I think the weather dial or
mark of the winds broke at 185 miles an hour, and his house
collapsed and he was underneath the bed with his sister and had
to go through an experience like that for eight to ten hours.
Anything after that was kind of gravy, wasn't quite as hard as
what he went through as a player after that.
So I think to be a great leader you have to have
great courage because it takes courage to stand up and stand
behind your core beliefs day in, day out. And I think it's one
of the unique qualities Jonathan Vilma has already shown.
I hope I have answered your question.
Q. Has Jonathan ever done anything on or off the field that
led you to question his integrity?
A. Absolutely not.
Q. Is he also a great player?
A. Yes, he is a great player. I think that -- we haven't
seen the best of Jonathan Vilma yet because he has great
intestinal fortitude to get over the injury he has right now.
He is one of those guys that can conceive something in his mind
and visualize it and then achieve it in his life. He is a
great player. He has played great football for us.
When I make the comment that he means to our defense
what Drew Brees means to our offense -- I'll take one game in
particular. It was the biggest game of my life. We played the
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Indianapolis Colts in the world championship back in 2009.
Peyton Manning is notorious for changing plays at the line of
scrimmage and getting into a play that best fits his offense
based on what a defense is running. I don't know that there's
ever been anybody in the history of the National Football
League that has done it better than Peyton.
Jonathan Vilma, academically, going into that game,
had the Colts down cold. Jonathan Vilma -- I think there were
64 plays in that game mobilized, 31 of the defense that we were
originally put in. I may be off a play or two.
But Peyton Manning is a great player, and Peyton
Manning got Jonathan Vilma early in the game. And Jonathan
Vilma -- none of use were batting a hundred, none of us.
Jonathan Vilma has the unique quality and the unique
characteristic that when something goes bad, it's put behind
him. It's on to the next play, and he forgets about it. And
those are the qualities I think you find in great leaders and
great players. They are always looking one step ahead.
Yesterday is over, we look forward to tomorrow. This game is
over, we look forward to the next game. This play is over, we
look forward to the next play.
So those are the unique qualities and unique set of
skill level he has.
Q. He is the middle linebacker, correct?
A. Yes.
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Q. What does it mean to your team to have a middle linebacker
like Mr. Vilma?
A. Well, again, just to -- I have made this comment over the
last couple weeks. And I'm sure everybody in here is not a
football fan, but we just signed Drew Brees. I stated earlier
I have probably coached anywhere from 15 to 20 great players.
When we signed Drew, I categorized Drew as a great player.
Drew Brees is in the middle of our offense. He takes
the ball from center. He has two wide receivers. He is in the
hub of what we do. He calls the play in the huddle, he touches
the ball every play, and so whatever happens on offense starts
and ends with Drew Brees.
Jonathan Vilma is the same way. Jonathan Vilma gets
the call from the sideline, he comes into the huddle, and now
he verbalizes the call for our defense. It could be one call,
it could be two calls, it could be a set of calls.
We have a defense that we used to call AFC, automatic
front coverage. And what that means is a defense is not going
to be called until an offense breaks the huddle, we see what
the formation is, and now we make a check.
The defense that Jonathan calls, he has full leeway
to check every defense that we have. So if we have a defense
on first and ten and it's over cover two and all of the sudden
they come out, based on the split of a wide receiver, based on
the slot formation, based on the down distance, the time left
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in a game, based on the wide side, short side of the field,
Jonathan has the ability to check that.
So just like you see Drew Brees do, call the play in
the huddle from the sideline to the earpiece, Jonathan does the
same thing. He calls the defense from the sideline to the
huddle, and then he has full leeway in our defense to make all
checks necessary.
Now, that being said, again, what amazes me -- and I
understand everybody is not a football fan here. But we get to
our practices and you watch Drew Brees, a great player, break
the huddle and take the snap, and you see Jonathan Vilma see
the formation and make an audible. Drew Brees is now going to
make another audible. Now Jonathan Vilma is going to make
another audible. And all this time the clock is running, all
this time you are out of breath. So it's a tremendous chess
match between these two great players, one in charge of the
defense and one in charge of the offense.
Q. Jonathan is also captain of the defense, correct?
A. Elected, and that's a huge difference. There's a lot of
captains in the National Football League that either by draft
status or social status are given the title of "captain."
Jonathan Vilma was elected by his teammates as a captain.
Ever since Jonathan Vilma has been here and been a
part of our program, after year one when he proved himself, he
has been an elected captain. And it hasn't been close. It
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hasn't been close in the voting.
Q. What does it mean to be a captain under those
circumstances?
A. Well, again, I think when you're an elected captain, it
speaks volumes of who the person is because in the National
Football League, players have a very short window for a career.
Now, by position, that career could be longer or it could be
shorter. Take, for instance, our defense. The majority of our
players on our defense are married, so they have a window of
opportunity to clothe, house, educate, and feed their families.
You're better equipped to do that if you can win.
So when these grown men, who make a lot of money,
vote for this man to lead them into critical situations and
make critical calls and make critical audibles and be there for
them in times of need personally, I think it speaks volumes.
Q. Have you gotten to know about Jonathan's activities
outside of football as well?
A. You know, I say this again. I know some about his
foundation. As I said earlier, you earn the right as a coach
to coach your players hard.
I have gotten to know Jonathan's father very well. I
have gotten to know his sister very well. But there's got to
be a line where you draw where you don't go personally into
some other areas. I am proud of him and the foundation work he
does, but no, specifically, I don't know about it all. I know
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it's at Morton's Steakhouse, and we talk about it. I know
every time Jonathan asks players to get involved with the
foundation, there's a hundred percent participation because the
players are a team, don't want to let him down. They want to
be there for him.
Q. Coach Vitt, what would it be like for you and for the team
to be without Jonathan?
A. You know, I made this comment when I was asked about it
the other day, you know, what it's been like for me not to be
around Sean Payton, with his suspension, and there's been a
huge hole in my chest both personally and professionally. That
same hole would be there with Jonathan Vilma's absence, not
only for me but for our team.
Q. Sean Payton means a lot to you as well?
A. Yes.
Q. When is the last time you talked to him?
A. Probably 3 1/2, 4 months.
Q. Why so long?
A. Well, there's a protocol. Once a coach is suspended, we
go through league channels. We had an equipment manager that
had gotten ALS, and I wanted to tell Sean about that. We had
another coach whose sister was diagnosed with cancer who Sean
was very good friends with. I had to notify him about that.
In situations like this where protocol says that I
can't talk to him -- if I haven't talked to him in four months,
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that usually means it's a good thing for our team because we
are not going through any catastrophic situation, and I don't
have to be the bearer of bad news.
Q. Has Mr. Goodell prohibited Sean Payton from talking to
you?
A. Well, yeah. Listen, if Sean needs to talk to me, the
commissioner has provided an avenue which he can talk to
somebody in the League and talk about what we are going to talk
about, and he gets through to me. But he hasn't had the reason
to call me, and I have had the reason to call him twice.
Q. So Mr. Payton would have to debrief somebody who works for
Mr. Goodell about the subject matter if he wanted to talk to
you?
A. I want to say yes, but I don't know -- Sean should
probably answer that question. I would say yes.
Q. Jonathan suffered a knee injury last year, correct?
A. Yes, he did.
Q. How did that happen?
A. You know, since Jonathan and I have been together, we have
played the Chicago Bears twice, and twice we had lost to the
Chicago Bears, one in overtime in a nationally televised game
on a Thursday night. So the second game of the season this
year, we were playing the Chicago Bears. And, really, since
2006 when we played in the NFC Championship, we are 0-3 against
the Bears. So this was a huge game coming up for us
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emotionally. We're going to play a team, it's a good team,
that had been in the NFC Championship the year before and lost
going to the Super Bowl to the Green Bay Packers. This is a
huge early season game for us. It was game two.
And on Friday -- as the week goes on, we kind of
taper practice back, and Friday we go into what we call the red
zone, which is the 20-yard line to the goal line. It's a
shorter area on the field that you have to defense
schematically. We were in this area, and it was a walk-through
where we actually have our defensive players simulating routes
of the Chicago offense and JV putting us into the proper
defense and getting to our proper landmarks based on formation
and release of the wide receivers and tight ends.
We were what we would call a cover two concept where
he has to protect the hashmarks all the way to the end zone,
the uprights. This is probably three-quarter speed. And I'm
watching him and, bam, his knee kind of tweaked. Which I've
seen his knee go like this before, but then I see him bounce
back into the huddle. But I saw him kind of just, you know,
that smart and kind of limp back into the huddle, and that's
when he originally hurt his knee.
I want to say that we had to play games without him
all the way up to the bye, and then he went and got surgery.
He had the bye so that he would be ready for the second half of
the season so he could participate with our football team. But
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it was a noncontact walk-through type injury.
Q. What was the process like to get Jonathan back to playing?
A. Excruciating. Again, Jonathan Vilma, like the other great
players that I have been around, know that they only have so
many years to play, which means they only have so many games to
play, and they are not going to miss any game. Since we have
been together with Drew, touch wood, he hasn't missed any
games.
So Jonathan would go as long as he could for as hard
as he could, getting treatment during the course of the week,
knowing he would have to miss practice because his knee was
swollen. His knee was being drained daily. Then we would show
up to the stadium on Sunday morning and he would try to run and
we would evaluate his physical skill and how he was moving. No
matter how slow or how much he was limping, he was going to
play because that's his nature.
So what we had to do is we would have to work him out
all Sunday morning knowing that he couldn't play, knowing that
he was injured. We just wouldn't bring his football uniform to
the stadium. He would come back in the locker room, his
uniform wasn't there. He thinks he's playing. Well, you can't
play without a uniform. And he would want to hit me, and then
he would sit there and not talk to anybody for about
10 minutes.
But there was a game to be played. He put the good
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of the team and his teammates above everything else. He would
grab a clipboard, start diagramming defenses, get on the
sideline, and help the rest of his teammates try to go win a
football game, including the coaching staff.
Q. Describe the rehabilitation he went through.
A. Well, you know, I'm not a doctor and I'm not a
rehabilitator. I know that it's long and I know that it's
tedious hours, and able to recover from micro-fracture surgery
and to be able to play, what he went through, is a full-time
job. What I mean, a full-time job, the rehabilitation is 8
hours a day and then you eat. And if you go get more
rehabilitation, it potentially is 10 hours a day.
You are constantly carrying machines. You're getting
your knee hooked up on a plane. You're getting to the team
hotel, you put more machines on your knee. You take it up to
your room, you have got it on your knee. Now you have got the
trainers that are giving you massages. You have got the
trainers and they are giving you treatment, and you have the
doctors that are draining it. It's a full-time 8- to 10- to
12-hour job to get your body and get your knee right to play a
game. Actually, you have to rehab the knee just to be able to
get back to practice.
Q. Coach, based on your experience, is it important, as
Mr. Vilma continues his rehabilitation, to do that under the
guidance of the team and the team trainer?
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A. I think absolutely it's critical. We have a full-time
trainer in Scottie Patton, besides our doctors, that knows the
full medical history of Jonathan Vilma and helped Jonathan
Vilma the first time he had micro-fracture surgery back in 2007
to get back to full speed to play in 2008.
Our trainer has got a personal, vested interest in
Jonathan Vilma. This is one of our players. Scottie Patton
has a family to feed. Scottie Patton wants to educate his
family. Scottie Patton wants to get our best players ready to
go back on the field. It is personal. It is a vested
interest.
We also, for the first time since I've been here,
have now a full-time physical therapist that works with us,
which I think is going to be a great bonus for our team and our
players. So now we have another set of skill level, another
set of hands, another set of eyes working on our injured
players now. Our team doctors have worked closely with
Jonathan since he came to us. It's personal with them. So,
yes, it's important.
Q. Incidentally, the NFL in some papers filed recently in
this Court suggested that Mr. Patton and the others on your
staff could go offsite to help Jonathan in his rehabilitation.
Does that make any sense to you?
A. Not in my opinion.
Q. Why not?
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A. Again, I don't know how anybody else feels in here. I can
only give you my personal opinion. But when you can come, you
are inside the confines of our complex. You are inside the
confines with your teammates. You are protected from the
outside world. You have got warriors, you have coaches, you
have trainers all working in the same direction for a common
goal. What we want to do is win a world championship for our
city again. And I don't expect anybody in this room who's a
nonplayer or a noncoach or a nontrainer or a nonequipment
manager to appreciate that and understand that.
So if something happens to one of our players, not
only one of our great players, it's important that they have
the camaraderie and the support of the people that love them;
and not love them because they are a professional player and
have a lot of money in the bank but love them because they love
them, because they are part of the team, because they are part
of what we have to accomplish together.
I would venture to say -- and Jonathan wasn't here
post-Katrina. I don't know that there's another team in the
National Football League that has been through as much as our
football team has. Post-Katrina was hard for us. It was hard
for our city. Nobody went through more than our city did. Our
players, along with Jonathan, took a personal pledge to try to
help bring our city back, make our fans feel good about
themselves again. Our players, including Jonathan, knew at one
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point in time, if we had 75,000 people in the Superdome, maybe
55,000 of those people were returning to FEMA trailers. They
worked hard for their season ticket money to come watch us
play.
So when you have that commitment with a group of
players to a city, you also have to have a commitment to one
another. So when you are rehabbing and you're going through
tough times, besides your family, besides your children,
besides your mom or your dad, that support system comes from
within, from the teammates that love you and from the teammates
that have gone to war with you and from the teammates that have
depended -- have always had your back. I don't know how else
to put it.
Q. Coach, let me ask you a practical question. How many
people are at the facility -- how many players or would-be
players are at the facility these days during camp?
A. We have 90 players right now that are at our facility. We
start our first practice this afternoon at 4:00. We have been
through two walk-throughs and did some player testing
yesterday.
Q. What would it be like for Mr. Patton to say, "Hey, Coach,
I have to go and spend the next eight hours with Jonathan Vilma
offsite because the NFL won't let him come here for
rehabilitation"?
A. Understand one thing. Scottie Patton wouldn't say that
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because we are all -- we're going to do what we have to do.
But Scottie Patton is our head trainer, he has a capable staff,
and that would just be another challenge for us to overcome.
Easy? No.
Q. Coach, when is the last time you missed a defensive team
meeting?
A. I have never missed one. Now, you are talking about the
New Orleans Saints? Never.
Q. Are you familiar with Mr. Goodell's conclusion that the
New Orleans Saints had a program by which money was put on the
heads of specific opposing players to secure their injury?
A. Yes.
Q. Have you been punished as a result of Mr. Goodell reaching
that conclusion?
A. Yes.
Q. What punishment was imposed upon you?
A. I have a six-game suspension and a $100,000 fine.
Q. Who else, other than players, has been punished based on
Mr. Goodell's conclusion?
A. Sean got a year, and I'm not really sure what his fine
money was. And Mickey Loomis, our general manager, got eight
games.
Q. Is the allegation true?
A. No.
I want to say one more thing. I want you all to
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listen to me hard because I want to speak to you soft. I said
no.
Continue.
Q. Incidentally, you said Sean Payton had been suspended for
a year. Does he automatically get back to his job in a year?
A. No. You have to petition to be reinstated again.
Q. So he has to go back to Mr. Goodell?
A. I don't know exactly what Sean's protocol is, but I
believe that might be true.
Q. Have you had the opportunity to explain to Mr. Goodell and
his investigators that his conclusions were not true?
A. Yes.
Q. On how many occasions have you told Mr. Goodell and his
representatives that the conclusion Mr. Goodell has reached,
which has led to your punishment and Mr. Payton's punishment
and Mr. Loomis' punishment and Mr. Vilma's punishment, the
Saints' punishment, Mr. Smith's punishment -- how many times
have you been able to tell Mr. Goodell that his conclusion is
not true?
A. I have looked our commissioner in the eye on two separate
occasions and told him the first time that the integrity of our
league was never breached. The second time, my opening
statement to him when I was going for my appeal process, I said
at no time did our players ever cross the white line with the
intent to hurt, maim, injure, or end the career of another man.
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At no time.
Q. So you participated in an appeal opportunity that
Mr. Goodell gave you, correct?
A. Yes.
Q. You told him that he was wrong, correct?
A. In my opinion.
Q. How long did that meeting last where you explained to
Mr. Goodell that he was wrong in his conclusion?
A. My appeal process, I think, probably lasted longer than
anybody's, between 2 1/2 and 3 hours.
Q. What was Mr. Goodell's reaction?
A. You know, there's a lot of people that are taking shots at
the commissioner right now. I know there's a lot of people
that -- I think everybody has their own opinion. I think what
struck me, what made me respect the commissioner -- I think he
is an emotional man that has a lot of passion for our game.
You know, he would look me in the eye and at times he was a
little -- I mean, always a little teary-eyed and grab my hand
and shake it hard.
So at the end of the day, I had no problem with the
commissioner's passion for our game, the way he
enthusiastically embraces it. I think that during my appeal
process, he looked me right in the eye. And I hope at the end
of the day, he would think that it's my constitutional right to
respectfully disagree with what he says and disagree with what
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his conclusions were. At the end of the day --
And I want to make this clear, Judge. I have taken
full responsibility for what I allowed to take place with
overheads, with what I allowed the defensive coordinator to
speak. I was the assistant head coach. I've taken full
responsibility for the spoken word but never the clinched fist.
I think there's a huge difference because in the National
Football League, what you say means nothing. It's what you do
in the National Football League that means everything. You
gain your respect, you gain your integrity by the production
and the durability and the availability you have on the field.
Q. Was there a bounty program?
A. No.
Q. Did Mr. Payton also explain to Mr. Goodell there was no
bounty program?
A. I would assume. I'll tell you, one of the things that --
we all went through the first process. You have to understand
that we have a unique setup with the New Orleans Saints. Sean
Payton, he took over the head coaching duties in 2006, also
really acted in the beginning as the offensive coordinator. So
Sean Payton would come up with the offensive game plan. Sean
Payton would be the play caller on offense. Sean Payton would
make the corrections. Sean Payton did it all and continued to
really do it all until he broke his leg a year ago.
So I would say in the course of -- I'm going on my
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seventh year -- the last six years, I can only think of one
instance where Sean was actually in a defensive meeting. We
actually asked him to come into the defensive meeting so he
could explain to us what we call the first 15,and that's the
first 15 plays that a lot of people script around the league
for success and try to get the tempo of a game going quicker,
try to get the ball in the end with all your offense players
early in the game or go after a particular defensive guy early
in the game.
Sean was never privy to defensive meetings, and Sean
really chose to stay on the offensive side of the ball. So
Sean knew nothing about any of this that was going on.
Q. You assume that Mr. Payton told that to Mr. Goodell?
A. I assume that.
Q. He was suspended for a year and has to go back to
Mr. Goodell to get back into football?
A. Yes.
Q. You made it clear to Mr. Goodell that there was no bounty
program and no program designed to injure opposing players?
A. Yes.
Q. What did Mr. Goodell react? What was his reaction to your
telling him the truth?
A. I have no problem with the commissioner. I think this. I
think -- when we were there in New York, I told -- I will
repeat it again. At no time did our players cross the white
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line with the intent to injure, maim, or end the career of
another player.
We spent a significant amount of time, myself and the
commissioner and his staff, on player safety and coming up with
some ideas that we think might make our game a safer game and a
more productive game. When I say "productive," I mean
productive for those players, after they get finished playing,
can live a little bit more healthier and safer life. And I'm
on board.
I've been in the league for 34 years, and in the last
year I've had two players diagnosed and now suffering from ALS;
and I have three players, two under the age of 45, that have
died, and one under the age of 52 that has died.
So we spent a significant amount of time talking
about player injuries and some programs potentially to be put
into place. I think the commissioner and commissioner's office
knows that I'm on board. This is a very serious, serious
matter.
Q. Have you ever seen any evidence that Mr. Vilma engaged in
a program designed to --
A. No.
Q. Did you tell that to Mr. Goodell?
A. Yes.
Q. What did Mr. Goodell --
A. Let me say this. This is important. My response -- and I
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want to say this again because I have said it about six times.
Everybody, listen again hard. At no time did any of our
players ever cross the white line with the intent to hurt,
maim, or end the career of any player that we ever played
against. At no time.
Q. You told that to Mr. Goodell?
A. Yes.
Q. Are you aware of a New Orleans Saints player ever putting
money on the head of an opposing player?
A. No.
Q. Would you have allowed such a thing?
A. No.
Q. Why not?
A. It's a hard, hard profession to coach because you're
coaching world class athletes with a tremendous amount of
courage. Number one, how are you going to tell a player to go
out and hurt or maim another player and have that on your
conscience personally? That's number one.
Number two, how are you going to tell a player go out
there and maim, hurt, or injure another player, and what are
you going to give him? A thousand dollars, two thousand
dollars? And that player is going to get suspended for four,
five, six weeks and potentially lose half or three-quarters of
his salary for the year, which could be in the millions? It
doesn't make sense.
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JOE VITT - DIRECT
We take great pride in New Orleans, because it's a
unique city, to draft and acquire the right type of people:
Character, integrity, intent, and accountability. Why would we
bring those people into our city and then try to ask them to do
such a thing? No. No. It's not done.
Q. Coach, did you explain that to Mr. Goodell?
A. Yes.
Q. Were you present during the 2009 season before the Arizona
playoff game?
A. Yes.
Q. Did Mr. Vilma --
A. No.
THE COURT: Let him ask the question.
THE WITNESS: I'm sorry, Judge.
BY MR. GINSBERG:
Q. -- offer $10,000 to secure the injury of Kurt Warner?
THE COURT: You can answer it now.
THE WITNESS: No.
BY MR. GINSBERG:
Q. Were you present before the Green Bay -- no, it wouldn't
have been Green Bay anymore -- before the Minnesota playoff
game?
A. Yes.
Q. Did Mr. Vilma offer $10,000 to anyone who injured Brett
Favre?
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JOE VITT - DIRECT
A. No.
Q. Did you ever hear Mr. Vilma offer money to anyone to
obtain the injury of anyone?
A. No.
Q. Did you tell that to Mr. Goodell?
A. Yes.
Q. Did you also tell the same information to the NFL
investigators?
A. Yes.
Q. What was your reaction when you were suspended, Coach?
A. You know, from a selfish standpoint -- I've done this my
whole life. There's nothing else I've ever done but coach
football and play football. And when you get to be my age, at
57 years old, you know, your needs really diminish. So what
you have is you have your faith, you have your family, and in
my case my grandchildren also, and then you have your players.
It's the first time in my life that this is going to
be taken away from me. So from a personal standpoint, in the
beginning you kind of feel sorry for yourself, what am I going
to do with this time, and then really after that it kind of
goes to some personal reflection and humiliation. I've been
suspended from the game that I truly love.
So I'm not going to say that time heals all. I still
feel I'm going to miss this game terribly when I'm away from
it. I'm going to try to use that time to be a true proponent
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JOE VITT - DIRECT
of player safety and educate myself as best I can to head
injuries and potentially what could be positive for our league.
I've talked to some people that maybe we would do
some work with the Wounded Warriors at Walter Reed Hospital.
When we won the Super Bowl, we went and met the president, and
after that went and spent almost a full day at Walter Reed
Hospital. Truly, it was an amazing visit, some courageous
young men. So, you know, volunteer our time there and maybe,
potentially make a difference there and at the same time maybe
learn a little bit more about head trauma. But I want to try
to make the most out of this situation during my suspension and
make it positive and help me grow.
Q. Coach Vitt, when is the last time you missed an NFL game?
A. The last time I missed a National Football League game was
in 1986. I was diagnosed with cancer, and I think I missed
four games that year. Back in the old days, when you had
cancer, the treatment back then was kind of barbaric and
horrific. You would actually be in a hospital and get the
chemotherapy and radiation for 18 hours a day, and you would
get sick. So the only time that I would miss the game was if
my white blood cells went down and I would miss a treatment and
it would carry into the weekend. If not, if I could get out of
the hospital on Friday, I would try to get to the game that
Sunday. So I think I missed like three or potentially four
games that year in 1986.
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JOE VITT - DIRECT
Q. Coach Vitt, I would like to show you what's in evidence as
Exhibit 14.
MR. GINSBERG: May I approach?
THE COURT: Uh-huh.
BY MR. GINSBERG:
Q. Coach Vitt, Mr. Goodell and Mary Jo White have described
Exhibit 14 as a ledger or a revised/redacted transcribed ledger
from the meeting before the Minnesota playoff game. Do you see
that?
A. Uh-huh. Yes, I do.
Q. That ledger has your name on it, right?
A. It does.
Q. It seems to imply that you offered $5,000.
A. That's what it says.
Q. Is it true?
A. No. I have never in 34 years put money up, number one,
for anything in the National Football League, not a
pay-for-performance. I'm not a betting man. I don't and
certainly did not -- certainly never in my career have I put
money up to hurt another player. Again, all you do is lose
credibility with players when you do things like this.
Q. Did you tell Mr. Goodell and his investigators that that
document was not accurate?
A. I told the commissioner that, yes.
Q. Coach Vitt, what was your reaction when you learned that
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JOE VITT - DIRECT
Jonathan had been suspended for a year?
A. Let me reiterate what I have said. I've been in this
league my whole life. I have my wife who I've been married to
now for 36 years, I have two grown children, I have
grandchildren, in relation to myself and my wife right now. So
my players are my family. My players are an extended family to
me. So I see something happen to someone whom I love very much
and care very deeply for, it hurts, and I'm very disappointed.
Listen, I'm not going to just say this as -- this is
Jonathan Vilma and this is Scott Fujita. Both of those men
were in my room. I have stated publicly before that both of
these men are like my sons. I also want to reiterate they are
not my friends.
MR. GINSBERG: Coach, I appreciate your time today.
MR. GINSBERG: There may be a couple questions from
the NFL.
CROSS-EXAMINATION
BY MR. LEVY:
Q. Mr. Vitt, my name is Gregg Levy. I represent the National
Football League in this case.
A. How are you?
Q. Well. Thank you.
When were you first asked to testify on behalf of
Mr. Vilma?
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JOE VITT - CROSS
A. I don't recall. Three weeks ago. A month ago. Six weeks
ago. I really don't recall. We were involved in OTAs. I went
on vacation for four weeks. I've been back here now for about
20 days. So listen, I knew all vacation that this was a
distinct possibility. I didn't know the exact date of it, but
I would say probably about five or six weeks.
Q. Were you asked to testify on behalf of Mr. Vilma at the
appeal hearing held before Commissioner Goodell on June 18?
A. No.
Q. As I understand it, you said that you had 90 players in
camp today. Is that right?
A. Yes.
Q. Why 90?
A. It's the roster limit.
Q. It's the roster limit. That's the limit on the number of
players you can have on your roster imposed by the Collective
Bargaining Agreement?
A. Yes.
Q. That means that if Mr. Vilma's suspension is lifted,
another player will lose his job; isn't that right?
A. Yes.
MR. LEVY: That's all I have. Thank you.
MR. GINSBERG: Coach, thank you for your time.
THE COURT: I do have one question I wanted to ask
you, Mr. Vitt. Were you aware of a pay-for-performance pool
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going on for the defensive players?
THE WITNESS: Yes, Judge.
THE COURT: Would you tell me a little bit about what
did you know about that and what that consisted of.
THE WITNESS: Judge, I'm with you. I'm with you.
This is a great question.
You know, since I've been in the National
Football League in 1979 -- and I think it's eight teams I have
been with now, and really the only people that I come in
contact with are coaches on other teams and players that I have
coached in the past.
This has always been a fun-based performance,
and what I mean is this. If a player gets a tackle for a loss,
he may get $50. I think it's $50 now or it may go as high as
$75, but this is the kind of money that players put up amongst
one another for big plays. Back in the old days, in '79, it
was like $5.
So there's a list of big plays potentially a
defensive player could make. He could make an interception.
He could recover a fumble. He could get a tackle for a loss.
He could sack the quarterback. He could tip a ball that
results in an interception. He could tackle the quarterback
for a safety that results in points. And players would have a
good time and pay each other for big plays; big plays, not
hurting anyone.
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I have also been at places, Judge, where
management was involved, and they may give out big screen color
TVs for a big play. They may give out dinner for two at the
finest restaurant in town. They may give out a vacation for a
quarterback that threw for over 400 yards. Judge, this was
always just in the spirit of the game that, hey, listen, let's
have a little bit of fun.
Now, Judge, on the other hand, when you are
talking about pay-for-performance, if a player gets a needless
penalty, if a player is penalized, we had the same type of
fund. That player had to pay everybody on defense because you
hurt the team with careless play. So it kind of went both
ways.
It was just a way to keep players in bounds. It
was just kind of a way to -- a kangaroo court, if you will, to
have everybody accountable. And it really became fun when you
had a full team buy into it. You'd hoop and holler a little
bit.
And that's what the pay-for-performance was.
THE COURT: Could you show him Exhibits 15 and 16 and
17 and 18.
The first question is: Have you ever seen any
of those documents before? They may not be the final form that
they were in, but have you seen the contents of them?
THE WITNESS: Yes.
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THE COURT: Look at 15. Can you tell me what that
is?
THE WITNESS: "Kill the head"?
THE COURT: Uh-huh.
THE WITNESS: What we would do, Your Honor -- and I
find this kind of ironic lately. In know we have a lot of
talking heads on TV, sports commentators that are kind of
blasting what we are saying, one of them being a former head
coach, and this sign was hanging in his room, "kill the head,"
and all that stuff the mind does. All this meant right here
with "kill the head," when a ball carrier was trying to go
forward and gain an extra couple yards, all's we did was try to
turn his head, which would turn the body so that the ball could
not be advanced for a potential first down. That's what that
meant.
THE COURT: What about Exhibit 16?
THE WITNESS: I don't have a 16.
THE COURT: Maybe the other side of the piece of
paper.
THE WITNESS: I gotcha. Okay.
THE COURT: What is that?
THE WITNESS: This is called a whack. Where these
would take place most, Your Honor, is what we would call a
perimeter play. Now, a perimeter play for us defensively, the
ball carrier is getting outside what we call the tackle box and
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is going toward the sideline. When you are out there trying to
leverage that tackle, it's really -- the most tackles that are
missed in the National Football League is when a tackle has to
be made in space.
A whack meant for us a legal hit where we would
try to take the ball carrier's legs out so the ball carrier
could not advance the ball and the ball would go down, a legal
hit. A whack is going between the bottom of the numbers to the
top of the -- excuse me, to the kneecap and taking the legs
out, which is completely legal.
THE COURT: Number 17.
THE WITNESS: Your Honor, this is a report that we
would do every year, and every team in the National Football
League does this. YAC to us is yards after contact. So if you
are the ball carrier and I'm tackling you, but you're stronger
than I am and you run me over, I may have hit you at the line
of scrimmage, but you may have gained another 5 yards because
you ran me over. So yards after contact -- so our ability to
secure the tackle in a bent knee position, eyes are over our
thighs, your head is up, you are seeing through the target, you
wrap it up, and you try to knock the ball carrier backwards.
It's called yards after contact.
THE COURT: Okay. Do you have No. 18 up there also?
THE WITNESS: I have it right here.
THE COURT: This does not purport to be the original
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notes, but it purports to be an accounting of what was on some
original notes. Have you seen this before?
THE WITNESS: Your Honor, I'm sorry. Could I borrow
somebody's glasses?
THE COURT: You can borrow mine, actually.
THE WITNESS: Perfect. I'll say this to you. I've
never seen this before, "Fujita to the D line," so I don't
know. I've never seen this. I don't know what this is.
THE COURT: So you haven't seen the content. It
doesn't purport to be what it was originally. It purports to
be notes and these are typed up. These are not familiar to
you?
THE WITNESS: No, ma'am. I've never seen it before.
THE COURT: Can you also give him Exhibit 24.
Have you seen that document before?
THE WITNESS: You know, I've seen this document
because it was shown to me when I went for my appeal process.
THE COURT: Okay.
THE WITNESS: And then I have seen this again because
they turned over evidence to us, so I subsequently have seen
that.
THE COURT: Tell me what you understand a cart-off to
be.
THE WITNESS: Your Honor, again, a cart-off for us --
Your Honor, who's your favorite running back? Do you have one
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in the National Football League? I'm being serious. Besides,
I know -- all right, here we go. We trade Pierre Thomas to the
Atlanta Falcons. Okay. Everybody likes Pierre Thomas.
THE COURT: Not a good move.
THE WITNESS: I'll tell him that this afternoon.
A cart-off means this. In our business we have
to physically reduce our opponent's will to compete. It's a
physical game. If we were to hit a running back legally, if we
were to hit a wide receiver legally and all of the sudden he
had to go out for a couple plays, the trainers are giving him
smelling salts, he is taking a breath, he is taking some
Gatorade on the sideline, we would call that a cart-off. He is
out of the game. He is not playing.
THE COURT: Last question. Are you aware that
pay-for-performance rewards are prohibited under the Collective
Bargaining Agreement?
THE WITNESS: You know, I didn't, but I should have.
I didn't, but I should have.
THE COURT: Okay. If anybody wants to ask something
else as a result of what I asked?
Thank you, Mr. Vitt. Go back to training camp.
THE WITNESS: Do I have to?
THE COURT: You guys decide how we proceed. If you
want to break, we'll break. We can keep going if you want to
keep going.
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MR. GINSBERG: It might make sense to have a short
lunch break, maybe a half hour, so if we could make sure
everyone is here.
THE COURT: That's fine.
(Discussion off the record.)
THE COURT: You had listed four more. I think you
had listed a total of four more.
MR. GINSBERG: I think that's probably right,
Your Honor.
THE COURT: Let's say come back at 2:00.
MR. GINSBERG: That would be great.
(Lunch recess.)

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AFTERNOON SESSION
(July 26, 2012)
(The following proceedings were held in open court.)
THE COURT: Be seated.
SCOTT SHANLE,
THE WITNESS: Scott Allen Shanle, S-H-A-N-L-E.
DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good afternoon, Mr. Shanle. My name is Duke Williams, and
I represent Jon Vilma.
Could you tell us what you do for a living, please.
A. I play linebacker for the New Orleans Saints.
Q. Where did you go to college?
A. University of Nebraska.
Q. Did you play linebacker at Nebraska?
A. Yes, I did.
Q. Did you play all four years?
A. I played all four years, started for three of them.
Q. What did you major in?
A. Family financial management.
Q. How long have you been a member of the New Orleans Saints?
A. I've been a member since 2006.
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SCOTT SHANLE - DIRECT
Q. Did you go to the Saints straight out of college?
A. No. I was drafted to the St. Louis Rams and then from
there played for the Dallas Cowboys and was traded here in
2006.
Q. You have been a starting linebacker for the team for the
past few years, have you not?
A. Since 2006, yes.
Q. How long have you known Jon Vilma?
A. I've known Jon since 2008, which would have been his first
year here.
Q. So you had been with the team and had some experience with
the team before Jon got to the Saints, obviously, a couple
years?
A. Yeah, a couple years.
Q. Now, did you notice whether or not Jonathan brought a
different mind-set or different energy, a different attitude to
the Saints when he came to the team?
A. Yeah. Jonathan fit great into our locker room. He was a
guy who automatically commanded respect based on what he had
done, his reputation as a linebacker, as a player. Within that
first year he was automatically respected by the entire team.
He has been one of our team captains every year he has been
here, I believe, and he is one of the top two or three leaders
we have on the team.
Q. He is a fellow linebacker, correct?
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A. Yes.
Q. You have worked closely with him the last few years; is
that correct?
A. Yes.
Q. You mentioned he is captain of the defense. What does the
captain of the defense do?
A. Really motivates everybody. I mean, 16 weeks throughout a
season you need a personality and a voice to rally all the guys
together. You need a guy, when you're speaking among guys
ranging from age 22 to 35, a guy who when he speaks everybody
listens, and that's something that I think he has been born
with. He is a natural leader and someone that's very important
to our defense.
Q. Did he also fulfill a role on the team defense as a
teacher of players as well?
A. Oh, absolutely. I always watch the young guys, especially
the guys who play middle linebacker position, and they watch
the way he works. I've never seen a guy work as hard as he
does, and I think even sometimes people have to tell him to
slow down a little bit. That's just the way he is. He tries
to outwork everybody, always helps the younger guys. He is a
vital goal to the young guys and a great teacher.
Q. During your tenure as a teammate of Jonathan's with the
Saints, did you ever, ever hear him tell you or anyone else,
any of the other players in the locker room -- whether it was
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in the locker room or a team meeting, did he ever tell anyone
to go out and intentionally injure another player?
A. No. Those words would never come out of his mouth, to
intentionally go out and injure somebody.
Q. Did Jonathan during your time together ever admonish his
teammates to play clean, to play up to the line but never cross
it, things like that?
A. Absolutely. And, you know, we had -- we try to keep
ourself accountable by tracking our penalties, plays that cost
the defense yards, and we took pride in playing hard and
playing fast and aggressive but playing clean and not having
penalties against us as a defense.
Q. I appreciate your answer to my question just a minute ago,
but I want to make sure we get this right. Did Jonathan ever
offer any teammate money to take somebody on the opposing team
out of the game by injuring them?
A. No.
Q. Never happened?
A. No.
Q. If somebody said it happened, would they be lying?
A. Yes.
Q. Did you or have you attended every defensive team meeting
since you have been on the team?
A. Yes.
Q. Have you attended every defensive team meeting since
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Jonathan has been on the team?
A. Yes.
Q. If somebody had -- if Jonathan had said those things --
which you testified he never did. If he had, you would have
heard them. Is that a fair statement?
A. Yeah, that's a fair statement.
Q. How many defensive team meetings do you think you went to
with Jonathan, just a rough number?
A. I would just say 20 games a year, probably 80 meetings.
Are you talking game meetings or just throughout the
entire -- every day?
Q. All meetings. All meetings that the defense has.
A. Wow. Hundreds. 400, 500 meetings we probably had
together with game meetings and linebacker meetings.
Q. Did anybody from the commissioner's office or a
representative of Roger Goodell or Roger Goodell himself,
anybody that worked with the NFL, did anybody bother to call
you at any time to ask you any questions about this alleged
bounty system or anything else having to do with Jonathan
Vilma?
A. No, they didn't.
MR. WILLIAMS: Thank you. Those are all the
questions I have.
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CROSS-EXAMINATION
BY MR. JONES:
Q. Mr. Shanle, my name is Gladstone Jones, and I represent
the National Football League. Good afternoon.
A. Good afternoon.
Q. I just have a couple of questions for you.
When were you first asked to provide your testimony
to this Court?
A. A week and a half, two weeks ago.
Q. Were you ever asked by Mr. Vilma or anyone else to travel
to New York around June 18 and offer testimony to the
commissioner, Commissioner Goodell, in relation to this matter?
A. No.
Q. You have been interviewed, have you not, with regard to
the circumstances regarding a pay-for-performance program at
the New Orleans Saints? Correct?
A. With the local media.
Q. Yes.
A. Yes.
Q. Do you recall giving an interview with the local media?
A. Yes.
Q. Would you agree with me that there was a pay-for-
performance program at the New Orleans Saints?
A. Yes.
Q. You admitted as much to the local media that you provided
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SCOTT SHANLE - CROSS
that interview to, correct?
A. Yes.
Q. You would agree with me that there were money in the pay-
for-performance program related to cart-offs; is that correct?
A. Yes.
Q. That's what you told the local media as well?
A. Yes.
Q. You likewise -- included in that pay-for-performance
program was the exchange of money for knockouts?
A. Yeah.
Q. Is that correct?
A. Yeah. "Knockout," not knocking somebody out the game, but
a knockout-type of hit, a big-time type of hit.
MR. JONES: Thank you very much for your time.
That's all the questions I have.
MR. GINSBERG: No further questions, Your Honor.
THE COURT: You may go back out to camp.
SEDRICK ELLIS,
THE WITNESS: Sedrick Ellis, S-E-D-R-I-C-K,
E-L-L-I-S.
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DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good afternoon, Mr. Ellis.
A. Good afternoon.
Q. Where did you play college ball?
A. The University of Southern California.
Q. Did you get a degree? What did you major in?
A. Sociology.
Q. While you were at USC, were you selected or given any
honor?
A. Yeah. I got a lot of different honors, All-American
honors, so forth and so on.
Q. What are you doing right now?
A. I play for the New Orleans Saints.
Q. What position do you play?
A. Defensive tackle.
Q. How long have you been with the Saints?
A. This is my fifth year.
Q. Has Jonathan Vilma been captain of the defense since you
have been on the team?
A. The whole time.
Q. What kind of relationship have you developed with
Mr. Vilma during the period of time that you have been
together?
A. Well, you know, he has been the captain of the team since
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SEDRICK ELLIS - DIRECT
I got there in 2008, and he has been a tremendous help to me
from the time I was a rookie and I didn't even know where to
line up. He always had to do his job and kind of help me do
mine. He has always been a great influence and a friend, and
he is always there when you need him, you know.
Q. Was he a good teacher?
A. Yeah, definitely. He kept me in the league my first year.
Q. Does the rest of the defense respect him in your opinion?
A. 100 percent.
Q. Do you think he is a good captain of the defense?
A. I think he is a great captain. I wouldn't want to play
with anyone else.
Q. In that teaching role you just described briefly, has
Jonathan imparted any wisdom or given you any advice as to how
the game of professional football should be played?
A. Yeah. Me and him talk all the time during the season and
in the off-season. One thing about Jonathan is he is very
passionate about football, whether we are in the middle of the
season or the middle of a game. Even in off-season he is still
very passionate about his football. He just wants you to play
it the right way, have respect for the game. In that sense he
always said that the game will have respect for you.
Q. Has he ever told you since you have been with the Saints,
or anyone else that you know of or have heard of, that he would
pay money as a reward or a bounty if you or any other member of
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SEDRICK ELLIS - DIRECT
the defense intentionally hurt a player on an opposing team?
A. No.
Q. Never happened?
A. No.
Q. Now, Jonathan's issues with the NFL, when you learned of
that, at any time after that or before, did anybody from the
commissioner's office, the NFL, any representative,
investigator, anybody else ever call you or seek to interview
you to get some information on the vocabulary of the game? We
have heard about cart-offs and whacks and things like that.
Did anybody call you to ask you questions about that?
A. No.
Q. Nobody called you to ask you whether Jonathan had done the
things he was accused of?
A. No.
MR. WILLIAMS: Thank you very much. I appreciate it.
This lawyer might have a couple questions for you, so just hang
on.
CROSS-EXAMINATION
BY MR. JONES:
Q. Very brief, Mr. Ellis. My name is Glad Jones. I
represent the National Football League.
When were you first asked to come and provide your
testimony on behalf of Mr. Vilma to this Court?
A. I don't recall the exact date, but maybe a week ago.
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SEDRICK ELLIS - CROSS
Q. Were you ever asked to go up to New York around June 18
and offer your testimony on behalf of Mr. Vilma to the
commissioner of football, Roger Goodell?
A. No.
MR. JONES: That's all the questions I have. Thank
you. Thank you, Mr. Ellis.
THE COURT: Anything else?
MR. WILLIAMS: You're done.
THE COURT: Thank you Mr. Ellis.
JONATHAN CASILLAS,
THE WITNESS: Jonathan Casillas, J-O-N-A-T-H-A-N,
C-A-S-I-L-L-A-S.
DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good afternoon, Mr. Casillas. I'm Duke Williams, and I'm
one of the lawyers representing Jonathan Vilma.
Could you just tell us real quickly where you went to
college.
A. University of Wisconsin.
Q. How long have you played for the Saints?
A. This will be my fourth year.
Q. What position do you play?
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JONATHAN CASILLAS - DIRECT
A. Outside linebacker.
Q. Is the linebacking corps on the Saints team a close unit?
A. Yeah, very much so.
Q. You spend a lot of time off the field together, in the
training facility and elsewhere?
A. Yes, we do.
Q. Y'all are good friends?
A. Yeah, pretty much so.
Q. When you joined the Saints, was Jon Vilma captain of the
defense?
A. Yes, he was.
Q. Describe for me briefly what kind of a captain Jon is.
A. He is one of the best I've been around. Everybody knows
who Drew Brees is. I put him on the same level with him. He
is our quarterback of the defense. As we say, he's a very
intelligent guy, very caring, very loving. He's very dedicated
to the sport and to his craft, and a lot of people look up to
him, including myself.
Q. Has he ever suggested to you or any other player that you
may have overheard that you break a rule established by the
NFL?
A. No, sir.
Q. Has he ever or have you ever heard him tell anyone that he
would pay them or reward them, you or any of your teammates,
for intentionally hurting another player?
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JONATHAN CASILLAS - DIRECT
A. No, sir.
Q. Did Mr. Vilma ever admonish you or suggest to you that the
game should be played within the rules?
A. Yes, at all times.
Q. Now, in 2010 you were on the IR list, is that right, the
Injured Reserve?
A. Yes.
Q. Did you still attend defensive meetings?
A. Yes.
Q. So you were present throughout 2010 even though you
weren't playing, correct?
A. Yes. I would say I attended maybe 80 percent of the
meetings.
Q. It's your testimony that you never heard him place a
bounty on anybody's head, hold up handfuls of cash or stack
them on a table and say something to the effect that this money
is yours if you go hurt Kurt Warner, Brett Favre, Cam Newton,
or anyone else; is that correct?
A. Yes. No, sir, he never said anything like that.
Q. Has the NFL ever contacted you at any point in the last
year to ask you questions about Jonathan, the so-called "bounty
program," or anything related to it?
A. No, sir.
MR. WILLIAMS: Thank you very much.
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CROSS-EXAMINATION
BY MR. JONES:
Q. Good afternoon, sir. My name is Glad Jones. I represent
the National Football League.
When were you first asked to provide your testimony
before the Court?
A. A few days ago. I'm not too sure how long ago it was.
Q. Were you ever asked to go to New York and provide any
testimony before the commissioner of the NFL, Roger Goodell?
A. No, sir.
MR. JONES: Thank you, sir. Have a nice evening.
THE COURT: Mr. Casillas, you may step down.
MR. WILLIAMS: The next witness will be Roman Harper.
ROMAN HARPER,
THE WITNESS: My name is Roman Harper, R-O-M-A-N,
H-A-R-P-E-R.
DIRECT EXAMINATION
BY MR. WILLIAMS:
Q. Good afternoon, Mr. Harper. I'm Duke Williams, and I
represent Jonathan Vilma.
A. How are you doing, Mr. Williams?
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ROMAN HARPER - DIRECT
Q. Where did you play college ball at?
A. University of Alabama, 14-time National Champion.
Q. I knew I shouldn't have asked that question.
Although it's probably no secret, what's your current
occupation?
A. I play football for the New Orleans Saints.
Q. How long have you been with the Saints, Roman?
A. This will make seven years, the season coming up.
Q. In addition to winning the Super Bowl, the world
championship in 2009, have you been recognized in any other way
by the NFL or gotten any other awards or accolades?
A. I've been sent to the Pro Bowl twice, I've been NFC
Defensive Player of the Year a couple times. I've been in the
league six years, seven years, so I don't know. I don't know
all my accolades.
Q. Fair enough.
You're a strong safety; is that right?
A. Yes, sir.
Q. Briefly describe what you do in that position, what your
job is and how you accomplish it.
A. My job is -- really, I cover the tight end a lot of times.
I'm more involved in the run game against the offense. I have
to know my gaps fit it. I have to get most of the defensive
backs lined up. I have to relay the calls from my middle
linebacker, from JV and Curtis Lofton, to the back half of the
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defense to get everybody lined up. I'm like a second tier
quarterback of the defense.
Q. You mentioned tight ends and running backs, I think, were
the first two offensive positions on that list. Does that mean
you do a lot of hitting?
A. I do do a lot of hitting. That's part of my job
description. I'm definitely the guy who's called upon to come
downhill and tackle running backs and hit guys whenever I need
to, wide receivers, sack the quarterback. So I'm kind of a
jack-of-all-trades guy.
Q. I guess in the case of tight ends, also in the case of
most running backs, they are probably a little bit bigger than
you are?
A. I'm considered probably a smaller strong safety in the
NFL. Most guys are about 215, 220. I'm about 205 on a good
day.
Q. Based on your experience and your observations as a
college and professional football player, can an entirely legal
hit sometimes hurt somebody?
A. It can hurt both sides, actually. I've been in those
collisions where it's just large men running into each other at
high rates of speed, and collisions are going to happen; big
hits, things like that will occur, and sometimes guys get
injured. I've been hit a few times.
The rules now have changed to where you are trying to
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change your aiming point on guys and things like that, so you
are trying to abide by those rules. But, you know, whenever
you stick, you try and get your head out of the way and things
like that, your shoulders exposed. Especially against bigger
guys that you hit, sometimes it happens.
Q. You mentioned big hits. What's a big hit?
A. A big hit is when you pretty much take the guy down,
whether it's when you go low on him and you try and hit him in
the lower area to try to get him down -- because you can't
tackle big guys that weigh about 260. Well, at least I can't.
I will get run over.
Then sometimes you catch a guy's feet when he doesn't
see you and you quarter him. In other words, he is coming off
the ground, he just is not ready for the hit, that's when you
really try and get the guy. So other than that -- that's what
I would consider a big hit. Or sometimes you just face them
up. Like most linebackers, when they hit running backs in the
hole and things like that, they really catch them. When you
are coming downhill and the guys are trying to make a cut or
they don't see the guy, that's when you really see the big hit
in the NFL.
Q. Would you say, among other things, that the NFL is a
violent sport?
A. It's a violent sport. It's a gladiator sport. I hate to
use the word "violent" because people think violence is guns,
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knives, things like that. I think it's a gladiator sport where
guys are actually grown men, they get out there and compete in
front of a large crowd. It's all about winning. We are going
out there and compete with each other.
It's a blessing to be in this business, and we all
understand that, but I would never want to say it's a violent,
violent sport, but it is a physical sport. It's a gladiator
sport. We are all out there competing to try and get out there
and earn a living.
Q. The expectation is, when you are in a position to do so,
your job is to deliver the big hit. Is that a fair statement?
A. Yes, sir.
Q. Every chance you get, correct?
A. Yes, sir.
Q. That's not just your job, that's the job of every NFL
player on a football field during a game, isn't it?
A. Yes, sir.
Q. Not just defense, but offensive players as well?
A. If the offensive lineman catches a corner on the sweep, he
is going to try and hit him and take him out. It's just part
of the job, and it's been going on for a long time.
Q. Have you ever heard of a television show that's on ESPN --
or used to be, I'm not sure if it still is -- called Jacked Up?
A. Yes, sir.
Q. Do you watch it, or did you?
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A. Yes, sir. It's on Sunday -- Monday night, Primetime.
They used to do it from -- ESPN would do the Jacked Up thing,
and they would have like the biggest hits of the week. I think
they have it, all five, because it's five guys. It's Chris
Berman, Chris Carter maybe, and Steve Jackson. They usually
have some other guys on there. And they always pick a play
from the week of the last football games. They have the
Jacked Up settings where the guys have the biggest five hits:
Somebody gets de-cleated; or it's a big hit on a wide receiver,
somebody like that; somebody's getting jacked; a quarterback
gets hit.
And it's usually sometimes, you know, it's plays
within a game that you might not ever see them going to make
the highlights, but if you watch film long enough you're going
to see it. And you see those same hits every week from special
teams on kickoffs to anything. So that's what Jacked Up is,
the whole special on the ESPN show.
Q. Jacked Up aren't clips of guys making beautiful
ballet-like catches in the end zone. These are hard, hard hits
that lay somebody out. Is that right?
A. Yes, sir. These are the extreme hits of the NFL each week
in and week out, whether this guy's getting flipped on his head
or a guy is getting pummeled straight on and going across the
middle.
Q. Have you ever heard of an NFL film called The Best of
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Thunder and Destruction: NFL's Hardest Hits?
A. No, sir, but I have heard of NFL's Hardest Hits by
Steve Sabol.
Q. That's NFL Films, right?
A. Something like that. I just remember watching it when I
was little. I haven't seen the one that you are talking about.
Q. In your experience -- and you can go back as long as you
want to, even when you played when you were a younger boy -- is
it true that football talk, locker room talk, meeting room talk
between coaches and players, it's pretty rough, profane, and
violent talk at times, or gladiator talk? I now you don't like
the word.
A. Yes, sir, it's pretty brash. The thing is, when you are
younger, you can try and motivate guys, "Hey, guys, if we win
this game, let's go to McDonald's. Let's go to Pizza Hut."
And then as you get older, those same things don't matter
anymore. You have to take care of your body. Nobody wants to
get excited about McDonald's. You can always go by McDonald's.
That's not going to be the same case.
Then as you get older, college, it's more about the
Buckeye on the helmet or a different stripe or different
things, you know, getting out -- girls. You know, they get
girls if they make big plays and things like that that enthused
other guys.
Now that you are in the league, you get out there,
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you have to rowdy guys up, you have to talk it. Not everybody
cares about girls. Most guys are married and things like that.
Nobody cares about McDonald's because we all can afford that.
Now you have to go out there and use different angles and
different ways, choose your words to try and fire guys up and
get them going. And that's where you can kind of get it
misconstrued because you're working with grown men.
We all have our different factors of motivation.
When you try to get a group of grown men thinking the same
angle, with the same mind-set, that's what you want to try and
do, sometimes your words can be misconstrued from the outside
looking in when they don't know exactly what you mean. That's
what it's about, trying to get everybody on the same page to go
out and try to win the game.
Q. Think back to your college days at Alabama. Now you as a
veteran pro -- is it harder for a coach to fire up a locker
room or a meeting room full of wizened veterans like yourself
than it was for a college coach to light a fire under his
players?
A. Yes, sir, of course it is, because you have heard the
"rah, rah, sis, boom, bah" cheers and the whole speeches since
you were young. Everybody reads the John Wooden book. You try
and learn this kind of thing and how to get guys motivated and
things like that. You have heard the Lou Holtz speeches and
things like that. And it doesn't have the same effect when you
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have heard it the second, third time, fourth time.
So there's different ways you have to try and get
guys to get motivated. Most of us are motivated by actually
playing the sport that we love, and we all cherish and love
getting out there competing against the best of the best, and
that's a lot of motivation for most people. So when you get
out there, as a coach you have to really try and get guys
enthused, all on the same page, and you have to use different
techniques to try and get a different team going. No team's
the same.
Q. What kind of techniques did Coach Williams use? How did
he get you fired up?
A. Oh, he was a fiery guy. He's going to use four-letter
words I'm not going to use in this courtroom. And he is brash.
He's loud. He's going to say different things. When you look
at it and you hear it for about the fifth or sixth time, you
think, well, it's just Gregg. You think it's a little off at
first, but you kind of just understand that he is who he is,
and that's the type of language that he uses, the type of
speech he uses. He doesn't care.
We have had one, the main -- you know, that Christian
guy say we had some small kids in the building. And you know,
hey, you gotta cover their ears because you know Gregg's going
to coach the way he coaches. Once you get to playing for him,
you love to play for him. It's very motivational. He wants
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you to play fast, play hard, and don't ever hurt the team.
But, you know, we are going to go out there and play with our
sense of attitude and the way he wants us to play, and that's
what we did.
Q. Let's get back to your teammate Jonathan Vilma for a
minute. Have you ever heard, in your years playing with
Jonathan, him ever suggest to you or any player to
intentionally injure a player on the opposing team?
A. No, sir.
Q. Have you ever heard Jonathan admonish you or tell you or
tell other teammates that the game should be played within the
rules?
A. Yes, sir. Well, this is what he says before he breaks out
of every huddle, before we go out and play any game. The
offense goes in there. He calls up the defense. He gives a
speech talking about how we need to go out and play. "Let's
play to the end of the whistle. Let's play fast. Let's play
physical, and let's dominate this game." That's what he would
always tell you, it's about dominating the game, dominating
your opponent physically, mentally, emotionally. Let's go out
and lead us to victory. What I tell him before we go in the
huddle every time, I say, "You just lead us, and I got your
back." And that's what we did every game.
Q. In your years in the locker room with him and the meeting
rooms, did you ever hear Jonathan Vilma offer money to you or
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any other player or a bounty or a reward to go out on the field
and intentionally injure another player, whether it's Brett
Favre -- we have heard his name -- Kurt Warner, Cam Newton?
I'm not restricting the universe to those three players. I'm
saying any player.
A. Anybody. No, sir, I did not. I love JV to death. He is
a great guy. He's a great leader. And some of the stories I
have heard, I don't want to get into things like that because
it's not what we are here for, to go into all these stories and
things like that. I'm just going to tell you what I know. I
know this guy is a smart guy. He is a finance major. He is
smart with his money. There's no way he would go out there and
start throwing around large amounts of cash for things like
this. He is a numbers guy. This is what he does. We talk
about things like that.
Q. Forget about the money, and then I will leave this alone.
A. Yes, sir.
Q. Forget about the money, the holding up cash in his hands
or stacking it up on a table or stuffing it in an envelope. I
don't care. You have never heard him suggest or tell another
player that they should go out and intentionally injure a
player on the opposing team; is that right?
A. Yes, sir, that is correct. No, sir, he has never said
that.
This is a privilege to play this game. Nobody wants
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to take it from anybody. It's a brotherhood. We all are
trying to go out there to earn a living, and we all understand
that. I would never want to try to intentionally hurt anybody.
Injuries do occur playing this sport, but nobody wants to
intentionally hurt somebody. We are all trying to earn a
living for our family and friends.
Q. You often have good friends, sometimes very close friends
on opposing teams, right?
A. Yes, sir. All the time -- I grew up playing with a lot of
guys on other NFL teams and things of that nature. So nobody
wants to hurt anybody. We are just out there competing at the
highest level, and we definitely enjoy it and we all love to do
it. We've been doing it since we're kids.
MR. WILLIAMS: Thank you very much. I appreciate it.
CROSS-EXAMINATION
BY MR. JONES:
Q. Good afternoon, Mr. Harper. My name is Glad Jones. I
represent the National Football League. How are you?
A. I'm doing well. Is it Jones or --
Q. Jones.
A. Jones, yes, sir.
Q. When were you asked to provide your testimony in this
court today?
A. When was I asked? I guess earlier this week, if I was
interested in doing it.
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ROMAN HARPER - CROSS
Q. Were you ever asked to go to New York around June 18 and
appear at the NFL offices to offer your testimony, the
testimony that you have provided this Court today, to
Commissioner Goodell?
A. I don't know if it was June 18. I did receive one call
from somebody that worked in the NFL. I don't know who it was
or anything. It was some security guy.
I called my agent, and he told me that he would get
in touch with him, and that's all I remember. I never heard
anything from anybody else.
Q. To the best of your knowledge, Mr. Harper, you don't have
any recollection of going up and offering Mr. Goodell and the
NFL the same testimony that you've offered today?
A. I did not talk to anybody from the NFL, no, sir.
MR. JONES: Thank you. Have a nice afternoon.
MR. WILLIAMS: No further witnesses, Your Honor.
THE COURT: Mr. Harper, you may step down.
THE COURT: Are we done with witness testimony?
MR. WILLIAMS: Unless somebody has crawled into that
room since we have been out here.
THE COURT: Do you want to check?
MR. WILLIAMS: I'll double-check.
That's it, Your Honor.
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THE COURT: Let's take about 10 minutes just because
I have to change places. We'll have a 10-minute recess and be
back.
(Recess.)
THE COURT: Have a seat, please. I'm not going to
restrict anybody in terms of what you want to argue. Both with
Mr. Vilma and with the NFL, I do have some specific things I do
want you to address in your arguments in addition to anything
else you might want to.
With respect to Mr. Vilma, I think the issue
that concerns me the most is the alleged failure to exhaust
your remedies under the collective bargaining agreement because
it's a jurisdictional issue. If I were to conclude that there
was a failure to exhaust, then the only remedy is to dismiss
the TRO and motion for injunction because I wouldn't have
jurisdiction.
The NFL alleges two ways that you failed to
exhaust. One was not participating fully in the appeal hearing
before Commissioner Goodell. Then the second was the fact that
there was an appeal filed by the NFL Players Association on
Mr. Vilma's behalf and a few other players to the system
arbitrator, Mr. Burbank, and that Mr. Burbank disagreed with
what the Players Association asked for, but the appeal of that
is still pending. So that's another exhaustion issue.
The second ground of concern is the allegation
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that it's required under the Norris-LaGuardia Act before an
injunction can issue that there be proof that unlawful acts
would be committed unless restrained by the injunction. In the
Fifth Circuit at least, these unlawful acts have generally been
interpreted to be violence, intimidation, threats of physical
harm. Mr. Vilma doesn't seem to have alleged that sort of
threat.
So those are the two primary issues. And then,
thirdly, one that I actually am going to ask the NFL to address
also: If I were to overturn the arbitrator's decision, is the
appropriate remedy to make a ruling myself or is the
appropriate remedy to vacate the decision and remand it for
another arbitration proceeding?
So those are really the three things. Again,
you can address whatever else you want to address that was
raised, but please do deal with those, if you don't mind.
MR. GINSBERG: Be glad to, Your Honor.
THE COURT: Thanks.
MR. GINSBERG: May it please the Court. Thank you
again, Your Honor, for giving me the privilege to be here. It
has not only been a privilege to be here but to be here on
behalf of Jonathan Vilma. Having gone through today's hearing,
I'm sure Your Honor has an insight into why that is such a
privilege.
I think the best place to start, Your Honor, is
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to start with Roger Goodell's conclusion -- his conclusion
reached publicly, unwaveringly, and wrongly, and perhaps even
most important months before the appeal process provided by the
CBA -- was that Jonathan had embraced and helped to establish a
program designed to secure the injury of opposing players by
providing monetary incentives. It wasn't even couched in terms
of an allegation or of an investigation.
It was stated by Mr. Goodell time and time again
publicly, not in the confines provided by the CBA but publicly
and months before Mr. Vilma was allowed to go through a
process, that Mr. Vilma essentially had committed that criminal
act of conspiring to assault opposing players. This conclusion
by Mr. Goodell was the conclusion that in the guise of a fair
and neutral arbitrator, he was going to decide if he was right
or wrong in publicly and vehemently making those claims.
He said it in March in press releases, in
reports. He said that Mr. Vilma, in March, offered $10,000 to
secure the injury of Brett Favre. He repeated that Mr. Vilma
intended to have other players injured. He repeated that
conclusion in press releases in May. In May, he said it wasn't
just Mr. Favre that Mr. Vilma offered $10,000 but it was even
Kurt Warner. Time and time again, Mr. Goodell said that
Mr. Vilma had embraced that program.
There are many, many other examples, but I think
it's very clear and I think it's important to make sure we all
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understand that this wasn't a pay-for-performance program that
Mr. Vilma was accused of, that Mr. Goodell claimed Mr. Vilma
violated. It wasn't what he has been punished for. And
indeed, if this were a pay-for-performance program, it would be
within the jurisdiction of Special Master Burbank, as Special
Master Burbank made clear. This was a bounty program, a
program to injure.
Mr. Vilma, as Your Honor has heard, has
vehemently, unequivocally, and adamantly denied those
conclusions, but for today's purposes -- because at some point,
in a fair and neutral tribunal, I think that we will be able to
address how wrong those conclusions were. But for today's
purposes, I think it's important to focus on the process that
we have been going through and that Mr. Goodell invoked.
That process, Your Honor, was uniquely
defective. It was defective with regard to the fundamental due
process rights that any person is entitled to, to be abusive.
There was a process that was intended, and Commissioner Goodell
abused that process. It is almost beyond comprehension that a
person with the power and authority that Mr. Goodell has could
be so oblivious to the very fundamental rights that not only
should an individual be entitled to, but in this case an
individual under the CBA should have been entitled to. There
are federal statutes designed to assure against this very type
of abuse. It is pursuant to those federal statutes, the LMRA
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and the FAA, that we have used to come to court to seek justice
for Mr. Vilma, and those two statutes provide specific judicial
review for specific reasons.
Now, in order to analyze the two federal
statutes that provide protection against this sort of abuse, I
respectfully submit that there are facts that are relevant.
The NFL, as I think you are about to hear, will tell you this
is really a pure question of law, that what happened here, with
regard to the process and the abuse and the prejudgment, that
that's not really relevant, but it is. If it weren't relevant,
these statutes effectively would be nullified. The NFL can't
just wish away the protections that our legislature has given
to individuals, whether members of a union or otherwise.
Thank goodness the law does not countenance this
kind of abuse. There are, as I said, a series of grounds under
those two federal statutes that provide for judicial review and
judicial nullification of an arbitration decision, but I think
for today's purposes, so as not to take too much of the Court's
time, I would like to focus on two of those grounds. In a way,
as I talk about it, I'm going to be a little out of order
because I'm going to talk about the process that was used and
then address the bias that Mr. Goodell brought into these
proceedings.
The process, Your Honor, as I said, in this case
was uniquely abusive and unfair. We are not challenging that
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Mr. Goodell had the right to be the arbitrator. We are not
saying that every time Mr. Goodell and his office investigate
something and reach a conclusion that Mr. Goodell then can't be
the final arbitrator. He can be. He should be. That's what
the parties to the CBA negotiated for. But this is different.
Let's look at first how he carried out his
responsibilities. Then I want to go back, as I said, to his
bias. We offered to meet with Mr. Goodell and his
investigators over and over again. Mr. Vilma went through
those pieces of evidence and those offers to meet. Mr. Goodell
was telling the press and telling the public that he reached
his conclusions by reviewing 50,000 pages of documents and by
looking at 18,000 such documents. That's how he was justifying
his conclusions to the press. When we asked to have him share
that information with us, when we said, "We don't think, we
know that what you have concluded is not true, but we need to
be able to see what you have so we can address it, so we can
discuss it with you, so we can really come to the truth,"
Mr. Birch, Adolpho Birch, and Mr. Goodell said, "No. We don't
have to show you anything."
When we finally reached the point of having the
appeal, one huge obstacle we had is that we knew what happened
to Coach Vitt and Sean Payton and Mickey Loomis. We knew that
no matter what they did to explain to Mr. Goodell that the
documents they had such as this fabricated ledger, that the
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information that Mr. Goodell supposedly had like interviews
with Gregg Williams and Mike Cerullo, had communicated to him
untruths.
When those leaders of the Saints went to the
commissioner and said, "Roger, you have it wrong," Mr. Goodell
pretended to listen, called them liars publicly, told the
public that those gentlemen, including Coach Vitt, had
obstructed his justice and he was going to impose punishments
unique to the NFL, we knew that unless we were given the right
fairly to review the evidence and respond to the evidence, that
there was nothing that could be done to change the minds of the
man who had already so publicly and so vehemently so many
months before reached a conclusion that Mr. Vilma had abused
his role as a leader with the New Orleans Saints.
Finally, when it came time for the hearing,
Mr. Goodell released some documents. Now, we can put aside for
a moment whether he violated the CBA by making the production
less than 72 hours in advance because although I think that's
important and although I think that shows some insight into how
unmindful the NFL was of its obligations, it is a blip on the
globe of abuse.
What Mr. Goodell sent to us, albeit late, was
less than one percent of the documents that he said that he
considered to reach his conclusions. Less than one percent.
The documents he gave us on the eve of the hearing were
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redacted, were revised, altered, and we knew some of them were
fabricated. We received no document with attribution. So
although we may be able to guess who created those documents,
we don't know. We don't know which investigator manipulated,
altered, and revised the documents either.
We received not a single witness statement. We
received not a single memorandum of interview. We received not
a single handwritten document that we could use to understand
time, place, and manner of creation. We received a newspaper
article that had been published after the initial discipline
had been provided. We received a video of Mr. Hargrove that
Mr. Hargrove adamantly said was not his voice saying, "Where's
the money?" And Mr. Goodell has finally backtracked from that
allegation. We essentially received nothing.
Then we arrive for the hearing having already
made a request for specific documents categorized in 17
different ways and a list of witnesses that we were asking
Mr. Goodell to present, and those witnesses weren't there
either. Instead we were presented with someone that I had
worked with closely and had quite a bit of professional respect
for, but an attorney who made the pronouncement that our
request for evidence was a red herring because my client, the
criminal, knew what he had done, so why does he need to see the
evidence. I think I was more disappointed than shocked, but
I'm not sure which sentiment took precedent.
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We made a motion on legal grounds with regard to
the document production, and Mr. Goodell turned to my opponent
in this arbitration and sought clandestine counsel about how to
respond. We made arguments regarding his jurisdiction and
whether he should be holding the proceeding or not and we
received no response. We were told basically that Mary Jo
White was going to be giving us kind of a show-and-tell and
telling us her understanding of the evidence.
I know Mr. Vilma was under the impression that
we were allowed to cross-examine supposedly the investigator.
That, in fact, wasn't the ground rules that we understood them
to be. I think that there was going to be an opportunity to
ask questions, not an opportunity to provide cross-examination,
and the witnesses were not going to be sworn.
We were provided with not a single piece of
exculpatory evidence. From our own investigation and from what
has materialized since that appeal, we now know that that
ledger, the smoking gun, was fabricated and false. As
Coach Vitt told you, he told Mr. Goodell well in advance of our
hearing that that ledger was fabricated and false, but we
didn't know it because Mr. Goodell didn't think it was
important enough. Why didn't he think it was important enough?
He believed it was not exculpatory. And why? Well, because he
didn't believe what Mr. Vitt had told him. So if it's not
truthful in Mr. Goodell's mind, it's not exculpatory because he
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had rejected it. He had rejected the contrary evidence, so he
wasn't going to give it to us.
There were e-mails that were repudiated by the
authors. There were e-mails from a Michael Ornstein.
Mr. Goodell had concluded, apparently, that Mr. Ornstein in a
communication indirectly to Mr. Williams was offering money
into this bounty program. Well, now we know that Mr. Ornstein
was trying to contribute money to a Gregg Williams charitable
foundation. Mr. Ornstein had told Mr. Goodell that, but did
Mr. Goodell disclose that information to us before the hearing?
No. He gave us the Ornstein e-mails.
I traveled to California afterwards, finally
tracked down Mr. Ornstein, and Mr. Ornstein told me that he had
told Mr. Goodell even before the coaches had been punished that
those e-mails had nothing to do with a bounty system, they had
to do with a charity, but Mr. Goodell wasn't going to tell us
that. There are countless examples of exculpatory information
that we should have been provided but we weren't.
Now, the NFL claims that we didn't exhaust, that
we didn't participate on that day, June 18, before Commissioner
Goodell. That is simply not correct. We may not have
participated the way the NFL suggests we should have
participated, but we appeared. We provided legal argument. We
provided jurisdictional arguments. We asked for discovery.
What the NFL has totally omitted from their representations to
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you, Your Honor, is that I did make a detailed factual proffer
to Mr. Goodell in which I explained why he was so wrong in his
conclusions. That's participation.
Did I present Mr. Vilma as a witness? No. Did
the NFL present Gregg Williams as a witness? No. Does that
mean the NFL didn't participate at the hearing because they
provided no witnesses with firsthand knowledge? Perhaps. But
it's rather ironic that the NFL says, "Well, we did what we did
because we are the NFL, and we participated the way we believe
we could participate, but you essentially did the same thing
and you didn't participate."
Well, we did participate. Did the NFL not
participate today because it didn't bring any witnesses before
Your Honor? That's essentially their argument with regard to
our participation. They may not like how we participated, but
we participated. We exhausted. We gave enough to Commissioner
Goodell that he should not have imposed these sanctions. If
you add to that all the information that by the hearing date we
knew that Mickey Loomis and Sean Payton and Joe Vitt and the
other Saints had given to Mr. Goodell, he had more than enough
information before him.
There's also a futility argument, Your Honor.
The law provides if there's no point going through the process,
there's no point going through the process. That's not really
our primary argument because we did go through the process.
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But we also knew that if Jonathan had given testimony to
Mr. Goodell that Mr. Goodell was going to reject what he had to
say no matter what the truth, no matter what the facts, the
same as Mr. Goodell rejected what Joe Vitt said and Mickey
Loomis said and Sean Payton said.
The NFL case law essentially almost entirely,
and perhaps entirely, stand for the proposition when you don't
take an appeal, then that is not exhausting. We did take an
appeal. We went to the appeal and we participated.
I made this argument before, Your Honor, and I
just want to make sure it's clear. We are not saying that
Commissioner Goodell cannot preside over "conduct detrimental"
proceedings. He clearly can. It was negotiated for and that's
his right. But having negotiated for that right to take that
position, having taken on that obligation, Commissioner Goodell
also has the obligation to act the way arbitrators must act
under the law. That is his obligation under the CBA.
That brings me to the second ground under the
LMRA and the FAA. An arbitrator, quite simply, can't be
biased. It is hard to conceive of a more biased arbitrator
than a man who is paid $18 million a year to preside over a
$10 billion industry and goes before every major media outlet
in the country and says Jon Vilma embraced and helped to
establish a program designed to injure other players, and makes
those pronouncements several times and well in advance of the
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hearing. It's hard to conceive of a more biased and a more
abusive arbitrator. It is shocking, it is arrogant, and it is
exactly what the law does not allow. He had prejudged
Mr. Vilma. He had not conducted an appropriate investigation.
Your Honor heard just sort of the tip of the
iceberg of the people that the NFL didn't want to hear from.
Who could know more about what happened in the meetings than
the people who were in the meetings? The NFL didn't interview
those people. Who could know more than Joe Vitt, who's been at
every defensive meeting since 1986 and has been in the league
for 34 years, when he says it didn't happen? And they simply
brush it off.
It was Roger Goodell who breached the bargain.
It was Roger Goodell who breached the CBA. It was Roger
Goodell who breached his duties, and it is he and the NFL who
have violated the law. He is allowed to be the commissioner
and the arbitrator. He is not allowed to prejudge.
THE COURT: Hang on one second.
Go ahead. I'm sorry.
MR. GINSBERG: Thank you, Your Honor. Now, as I
said, the LMRA and the FAA do provide additional grounds for
reversing or enjoining these arbitration decisions, but they
all essentially overlap in one way or another.
One of the grounds is if the arbitration doesn't
draw its essence from the CBA. I think that when one thinks
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about the type of investigation, the type of prejudgment, and
the type of abuse, it's easy to conclude this arbitration
didn't take its essence from the CBA.
Is their misconduct another ground? I think I
have made myself clear how I think about that.
Did Commissioner Goodell exceed his authority,
another ground? Well, sure. Because although he had the right
to hold those two positions, as I said, he didn't have the
right to do it in the way he did.
I respectfully submit, Your Honor, that the
record is enough now to permanently enjoin the suspensions.
But at the very least, the very least, if Your Honor concludes
that the record isn't sufficient to permanently enjoin the
suspensions, we should have the right to do some limited
discovery. After all, Your Honor, if the NFL's position were
correct and Mr. Goodell could have any motive to do what he has
done and we didn't have the right to explore what that motive
was because the CBA is the CBA and Mr. Goodell is Mr. Goodell
and essentially he can do whatever he wants, let's think about
how abusive that could be. Let's think about what the NFL is
really saying.
As a hypothetical, let's say Mr. Goodell decided
that small market teams shouldn't survive. Let's say that he
truly wants, as has been reported in the press, a team in
Los Angeles. Perhaps this is a Machiavellian scheme to destroy
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the Saints, cripple them financially, and have them move to
Los Angeles. I'm not suggesting that's the truth, but what I'm
suggesting is we don't know what the truth is about
Mr. Goodell's motives, but we do know that there is not
sufficient evidence to support what he has done. If the NFL
has its way, that doesn't matter. The law cannot countenance
that. There was no fair process, prejudgment, and abuse of the
system.
So when we look at the various factors that are
involved in providing injunctive relief, I respectfully submit
that the likelihood of success on the merits has been easily
satisfied; that in reviewing the FAA and the LMRA, the grounds
that I have discussed today about an abuse of the process and
the bias of the arbitrator shows that we have a likelihood of
success at the end of the day in this litigation.
We look at irreparable injury. I respectfully
submit, Your Honor, in these situations I don't believe that
one has to enjoin a life-threatening event to obtain justice
and assure that a person is not inflicted with irreparable
injury. The irreparable injury to Mr. Vilma is, I think,
self-evident. His career would be compromised by this
punishment. His rehabilitation will be compromised.
His career has already exceeded expectation in
terms of duration. Taking a year of Mr. Vilma's career is like
taking 10 years of a coach's career. There aren't that many
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years in this violent sport for a player. It has done damage
and will do further damage to his reputation.
Your Honor, talk about irreparable injury, if
Mr. Vilma can't do as he told Your Honor he needed to do with
regard to his charities and his fund-raising because of this,
he is not the only one being hurt. So are the kids in Haiti.
He has devoted his years here to the city, and I
respectfully submit that even for the city to lose its faith
and its perspective of Mr. Vilma is a shame. The Saints take a
huge amount of pride, as Coach Vitt told you, in their roles as
ambassadors for this city. Commissioner Goodell, I believe,
has taken a real swipe at one of those true ambassadors. So
there's a public interest as well.
Jonathan, as Your Honor has heard, stands out as
a leader of his team. Your Honor has heard how his teammates
would suffer professionally, as well as personally, if this
suspension is not enjoined.
The NFL argues if the suspension is enjoined
that the public would lose confidence in the commissioner and
in the NFL. Are they kidding? Can the NFL truly stand up in
this courtroom and say that the public has any confidence any
longer, has any respect any longer for what has happened here?
Quite the opposite, Your Honor.
I respectfully submit if the law isn't used to
tell Mr. Goodell that this is wrong, that the public would lose
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confidence in more than just Mr. Goodell and the NFL. The law
has to protect against this type of abuse. The law has to tell
Mr. Goodell that if he was provided with this kind of power
through the CBA, he has responsibilities and duties and must
live up to those obligations.
The law simply cannot leave to the vagaries of
Roger Goodell under these circumstances the career, the
physical well-being, the reputation, and indeed all that
Mr. Vilma has dedicated his life to in terms of gaining
respect, in holding himself out as a citizen, in helping people
even beyond the borders of the United States. Roger Goodell
not only doesn't have the right to do that to Mr. Vilma, he
doesn't have to legal right to do it to Mr. Vilma. That's why
we have laws, and thank goodness that's why we have courts.
Thank you, Your Honor.
THE COURT: Okay. You did address the first concern
I had about failure to exhaust, which is what happened at the
hearing itself. The second round that the NFL alleged for
failure to exhaust was that the appeal from Mr. Burbank is
apparently still pending.
MR. GINSBERG: Well, that's actually interesting.
THE COURT: So do you have a response to that? Let
me just say also -- this is not criticism in any way. After
the NFL filed their brief, you did not file a reply brief, so
that's why I'm asking some of these questions now. I didn't
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know what your response would be.
MR. GINSBERG: The question about the jurisdiction,
the appeal of Mr. Burbank's decision, is interesting because
the NFLPA -- and I believe this is correct -- asked Mr. Goodell
to hold off in proceeding with the appeal until those issues
were resolved on appeal, and the NFL said no. We piggybacked
on that request. We told Mr. Goodell that until these issues
were resolved, he should not proceed with the appeal.
THE COURT: Now, which appeal are you talking about,
Burbank's appeal?
MR. GINSBERG: Yes, Your Honor.
THE COURT: Okay.
MR. GINSBERG: We had gone through Mr. Burbank's
decision.
THE COURT: Right.
MR. GINSBERG: The NFLPA then filed an appeal of
Professor Burbank's decision.
THE COURT: Right.
MR. GINSBERG: Our position, the PA's position was
that Mr. Goodell didn't have jurisdiction and should hold off
until those appeals were exhausted, and the commissioner said
no. So I don't think I can even fathom what's behind that
argument except --
THE COURT: Does the NFL have any idea how long it
takes -- I know this is an unusual situation -- for these kind
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of appeals to get to the appeal counsel?
MR. LEVY: Your Honor, the appeal panel is being
constituted now.
THE COURT: "Now" meaning today or "now" on a global
"anytime soon"?
MR. LEVY: No, no, "now" meaning there are
invitations out to judges. We do not have a full complement of
judges ready to rule on the appeal.
THE COURT: How many hear it?
MR. LEVY: Three. I should add this is a new process
created under the new collective bargaining agreement, so that
panel should be in place soon. If there's any interest, the
issue is addressed in Article 15 of the new collective
bargaining agreement, which is one of the large exhibits that
have been --
MR. KESSLER: Your Honor, if I just may, at some
point -- I'm sorry. Jeffrey Kessler for the NFLPA.
Your Honor, at some point either before Mr. Levy responds or
after, I would like a brief opportunity to address these
exhaustion points on behalf of the union because they are also
directly relevant to the motion the NFL has filed against us.
So we also have not had a chance to put it in our reply yet.
If Your Honor is going to be addressing that, we would just
like a brief opportunity to supplement what Mr. Ginsberg said.
THE COURT: Well, as a practical matter -- and I
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think an order went out yesterday -- we have three different
cases sort of ongoing, but they all overlap substantially in
terms of issues. The main reason I ordered yesterday that the
process be expedited is because I want to have everything at
one time before I make a decision.
I know Mr. Vilma wants a decision sooner than
that. As a practical matter, I don't want to be making a
decision and not having had the full benefit of all the related
parties, essentially, who are raising much of the same issues.
Somebody may have an argument that's like, "Oh, I didn't think
of that." You can talk today if you want, but you are
certainly going to have the opportunity. I'm not going to rule
today.
MR. KESSLER: Thank you, Your Honor. If I can have
just a few minutes, I'll take very few minutes to just let you
know what we are going to be presenting in our papers, and then
Your Honor can address it at an appropriate point.
THE COURT: Let's then go, if we could, to the -- you
sort of addressed the no threat of violence issue, but then you
sort of didn't. You sort of seem to be saying that maybe it
shouldn't be applicable, this business about that under the
case law, the Fifth Circuit anyway, that you don't get an
injunction unless there's really a threat of physical danger or
harm or intimidation, that sort of thing.
MR. GINSBERG: There are cases that deal specifically
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with this sort of situation, especially when a professional
athlete's career is threatened by an action, and those cases
discuss the unique situation that Your Honor is facing and
discuss the fact that it's really a balancing of the equities
approach.
Essentially, those cases stand for the
proposition that if the other elements necessary to satisfy
injunctive relief are met that -- for instance, in this case
the NFL can suspend Mr. Vilma at any time if at the end of the
day Your Honor rules that Mr. Goodell was correct or can't be
reviewed, but that for a professional athlete to miss time in a
short career, that that sort of balancing satisfies the prong,
which is somewhat unique to a sport situation.
THE COURT: What was the date we set for the briefing
for next week?
THE LAW CLERK: August 3.
THE COURT: For the briefs, August 3? If you could
get a reply brief in, which would include some of those cases.
MR. GINSBERG: Sure.
THE COURT: I may have read some of them already, but
I may not have read them in the context you are raising them.
So if you would get something in by the 3rd as well, that would
help us.
MR. GINSBERG: If I could address the remedy.
THE COURT: The last thing was if I do decide to
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overturn the arbitration decision, do I make a decision or do I
just send it back to another arbitration?
MR. GINSBERG: Your Honor, there are two things I
would like Your Honor to consider. One is I understand
Your Honor can't possibly decide the legal issues today --
THE COURT: Thank you.
MR. GINSBERG: -- but what Your Honor can do is
decide that we have satisfied our burden sufficiently to let
Mr. Vilma go back to work tomorrow. Mr. Vilma's medical
condition isn't something to be taken lightly. The process of
training for the season isn't something that can be taken
lightly. Pretraining is a process that is required in order to
really get yourself ready for the season.
The Saints need him. He needs the Saints. The
NFL essentially loses nothing by having an injunction enjoining
the suspension so that Mr. Vilma can go back to work, can get
his knee rehabbed, can become part of the team. And then if
Your Honor ultimately rules that we are correct, the NFL is
incorrect, Mr. Vilma will be sort of in full swing. If
Your Honor ultimately rules that we are wrong and Mr. Goodell
can do what Mr. Goodell did, then it doesn't do anything
negative. Then at that point the suspensions would go into
effect. So the most immediate aspect of dealing with the
remedy, Your Honor, is that I respectfully request that
Mr. Vilma be allowed to go back to work.
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With regard to the remedy Your Honor ultimately
should provide, in my opinion I think that this suspension
should be permanently enjoined, that there really isn't an
avenue to remand to Mr. Goodell. Mr. Goodell --
THE COURT: I wasn't saying it would necessarily be
going to Mr. Goodell. It could be a remand to a system
arbitrator or something else.
MR. GINSBERG: I don't know that the CBA provides for
that. As a resolution, I think the idea of sending it to a
neutral binding arbitrator is a wonderful idea. It makes a lot
of sense. Unfortunately, I think it takes two to tango, and we
don't have a dance partner in that resolution.
So I think, respectfully, that the record is
such that Your Honor is empowered and, again respectfully,
should let Mr. Vilma go back to work tomorrow and ultimately
permanently enjoin Mr. Goodell from doing what he is attempting
to do.
THE COURT: Okay. Thank you.
From the NFL's perspective, I have really a
number of issues I want to raise. You might want to jot these
down so that you can follow the sequence.
I understand that judicial review of arbitration
decisions is narrow, but it's not precluded. The award is
legitimate only if it draws its essence from the collective
bargaining agreement. If it doesn't, a Court can refuse to
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enforce it. So I have a number of serious jurisdictional
concerns with respect to what Mr. Goodell did.
Article 14, Section 1 of the CBA talks about a
player may not at any time enter into any undisclosed
agreements involving consideration of any kind to be paid,
furnished, or made available or guaranteed to the players,
basically a pay-for-performance provision.
Under Article 15 the system arbitrator has
exclusive jurisdiction over this type of allegation. It's a
distinction of significance because under Article 15 the
players have broader discovery rights than were afforded by the
commissioner in these proceedings. For example, discovery
includes a full production of documents and also the taking of
depositions.
I think it's worth noting that in the report of
the NFL security on March 3, Exhibit C, it prominently cited
the noncontract bonuses provisions of Article 14 of the CBA as
applicable, which arguably I think should have triggered the
exclusive jurisdiction of a system arbitrator.
The commissioner's own March 21 memorandum of
decision regarding sanctions to be imposed on the coaching
staff, Exhibit D likewise cited a prohibition against
noncontract bonuses in the opening paragraphs, again which
arguably should have triggered the exclusive jurisdiction of a
system arbitrator.
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I'm aware that system arbitrator Burbank also
concluded that Mr. Goodell did have jurisdiction over
discipline of the kind that is at issue here. My first
question, I guess, with respect to that is whether someone
within the NFL can absolve the commissioner of requirements
under the collective bargaining agreement.
Secondly, I think the basis of Mr. Burbank's
conclusions are questionable. He concluded that the
commissioner's punishment was not covered under Article 14
because it was a distinction as to players between funding the
pool or making the offers or pledges to contribute sums to it
on the one hand and accepting or agreeing to accept
distributions from it on the other. Accepting payments clearly
comes under the exclusive jurisdiction of the system
arbitrator.
But then Mr. Burbank went on to say that in the
commissioner's letters to the other three players -- this was
Fujita, et al -- it states clearly that he imposed discipline
because of the various roles they allegedly played in
establishing and/or funding a pool that rewarded on-field
conduct calculated to injure opponents and that also included
bounties on specific opponents.
Frankly, when I was initially drafting my notes
for possible questions to you all, I was concerned about the
system arbitrator being potentially intimidated by the
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authority of the commissioner to issue a decision to please
him. However, in one of the cases that you all cited,
Black v. NFL, the court noted that an NFL-selected arbitrator
may have an incentive to appease his employer, but since the
parties chose that method in their dispute resolution, that
would include any inherent partiality.
So again the issue is whether such an
arbitrator, including one that has an incentive to please the
commissioner, can still absolve the commissioner of the
requirements of the CBA, and that gets back to my concern about
whether proper procedures were followed at all.
Finally, Mr. Burbank concluded that Mr. Goodell
was punishing the players for funding the pool. I think that's
kind of slicing the salami very thin to avoid the mandatory
jurisdiction of the system arbitrator and not that persuasive a
distinction. Even Mr. Burbank concluded that this did involve
on-field conduct to injure players, which brings me to my next
jurisdictional concern about Mr. Goodell's sanctions.
Separate and apart from the issue of the system
arbitrator, there is another provision of the collective
bargaining agreement which arguably should have applied.
Article 46, titled "League Discipline," states in part that
fines or suspensions imposed upon players for unnecessary
roughness or unsportsmanlike conduct on the playing field with
respect to an opposing player or players shall be determined
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initially by a person appointed by the commissioner after
consultation concerning the person being appointed with the
executive director of the National Football League Players
Association.
This dispute appears to clearly involve a fine
and suspension for "unnecessary roughness or unsportsmanlike
conduct" on the playing field, which then arguably should have
triggered the commissioner appointing someone to hear the case
after consulting with the executive director of the NFLPA.
Turning back to Exhibit C, the March 3 report of
the NFL security states in the first paragraph the players
received cash payments from those pools for, among other
activities, violent hits on opposing players, all with the
intent to cause the opposing player to leave the game and be
unable to return. So according to the NFL security report, the
on-field conduct was an important component. Again, should
this have triggered the appointment of a hearing officer in
consultation with the Players Association?
Then again the commissioner's own March 21
memorandum of decision, which is at Exhibit D again, broadly
described the transgressions as a pay-for-performance bounty
program which involved cash payments made into a pool, payments
made out of a pool, including payments for plays resulting in
opposing players leaving a game due to injury.
Mr. Goodell in his letters to the players on
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July 3 of this year, Exhibit A in the NFL exhibits, he states
in part that this section of the collective bargaining
agreement was inapplicable because "the conduct for which you
were disciplined took place in locker rooms and meeting rooms,
not on the playing field."
I have to tell you I think that characterization
borders on the ridiculous, and at a minimum it's just another
instance of slicing the salami very thin to avoid serious
jurisdictional concerns. Clearly, these players were not being
punished only for what happened in the locker room. It was the
implementation of the plan, the actual attempts to injure
players that justifiably -- justifiably -- incurred the wrath
of the commissioner, but again it also creates, I think,
serious issues of jurisdiction.
They were being punished clearly for unnecessary
roughness and unsportsmanlike conduct on the playing field.
Again, the report of NFL security, Exhibit C, confirms that all
this was implicated. So again at a minimum it should have at
least triggered the exclusive jurisdiction of the system
arbitrator or the appointment of an arbitrator with the
consultation of the NFL Players Association.
I do agree obviously under Article 46,
Exhibit B, the commissioner does have the authority to suspend
a player who engages in conduct detrimental to the integrity or
the public confidence in the game of professional football.
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Also, the NFL cited Appendix A, Section 15 of the NFL players
contract. There is that particular provision in the players
contract. I would like to read it, Section 15, "Integrity of
the Game":
"Player recognizes the detriment to the league
and professional football that would result from impairment of
public confidence in the honest and orderly conduct of NFL
games or the integrity and good character of NFL players.
Player, therefore, acknowledges his awareness that if he
accepts a bribe or agrees to throw or fix an NFL game, fails to
promptly report a bribe offer or an attempt to throw or fix an
NFL game, bets on an NFL game, knowingly associates with
gamblers or gambling or gambling activity, uses or provides
other players with stimulants or other drugs for the purpose of
attempting to enhance on-field performance, or is guilty of any
other form of conduct reasonably judged by the commissioner to
be detrimental to the league of professional football, then the
League has the right to fine or suspend those players."
I think it's worth noting that none of the
specific examples cited -- bribery, fixing games, betting,
associating with gamblers, using or providing
performance-enhancing drugs -- are involved in this case.
I make one last observation. When these
allegations of Bountygate came out last year, I was appalled
and disgusted with the New Orleans Saints. If the allegations
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are in fact true, the fines and suspensions are appropriate
probably, but I think 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.
I don't know if the Players Association,
whenever you want to chime in -- do you want to chime in at the
end or do you want to chime in now?
MR. KESSLER: I would like to do two minutes, and
then Mr. Levy can respond as well, if Your Honor doesn't mind.
THE COURT: That's fine.
MR. KESSLER: Your Honor, on the exhaustion points
that you raised, first, Mr. Ginsberg is entirely correct, and
we will put this in our brief at length. We actually asked
Commissioner Goodell at the hearing to not rule because the
appeals panel, on the issue of Professor Burbank's ruling, had
not yet even been formed at that time. It is now about to be
formed, as Mr. Levy said. They haven't yet even constituted.
There could be a decision or there will be a decision sometime
maybe a month or two from now.
The problem is it was the NFL who decided that
there was no need to wait for that to be exhausted. It was
Commissioner Goodell who decided to rush forward and impose the
discipline, which leaves us no choice but to move to set aside
the arbitration.
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So to argue a failure to exhaust in that context
is completely inconsistent with the case law. It's the NFL
who's decided to go forward. There's no other remedy to us now
other than to move to set aside the arbitration because by the
time the appeals panel even can get constituted -- there hasn't
even been a brief filed there yet, but they don't exist yet as
a body. You couldn't possibly use that. So this can't be a
failure to exhaust there. He could have waited on the
discipline.
On the other exhaustion point regarding the
hearing, again Mr. Ginsberg is correct. We participated. He
participated. We made every argument on jurisdiction,
documents. We asked that there be witnesses. It was only
after none of the documents were turned over except for the
very small number of 200, no witnesses were presented, the
commissioner refused to await the appeals court decision, all
these points were rejected, and we concluded it was not in our
interest to cross-examine and present evidence and possibly
waive our jurisdictional argument.
As Your Honor knows, the Fifth Circuit gives you
a choice. If you argue all the merits even though you think
the arbitration is improper, you might waive your
jurisdictional argument. So we made an informed decision not
to present on the merits. That's not a failure to exhaust.
The cases on failure to exhaust are all about
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not going to the hearing at all. We are entitled to present
our defense in any manner we decided just like the NFL had a
right to decide how they were going to present their evidence.
So the failure to exhaust is a canard, it's a red herring, and
we will address that all in our brief.
On the issue of remedy, Your Honor, we do
believe very firmly you have the power to appoint a neutral
arbitrator, and I just want to state that. I don't know if
Mr. Ginsberg was disagreeing with that or not, but we have
already cited in the petition the Morris, Shuler case, which
was a precedent where the NFL commissioner was found to be
evidently partial and a neutral arbitrator was appointed
pursuant to the LMRA. So you have that power.
What the precise remedy would be here will
depend on what grounds you overturn this. If you overturn it
on the grounds that this belonged before Professor Burbank and
that in fact this is pay-for-performance, there's no evidence
it was a program that in fact involved injuring players or was
pay-for-performance, on that ground it would go to Professor
Burbank. You wouldn't have to appoint anyone.
I would note, by the way, that if that is the
grounds, the CBA specifically prohibits any suspensions for
that conduct for players. That's something else we will brief.
So it would be against the essence of the CBA to suspend a
player for pay-for-performance. There are other remedies,
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fines, etc., but no suspensions at all.
So if that were the case, Mr. Ginsberg is right,
you would permanently enjoin the suspension because it's
against the essence of the CBA. If Your Honor finds evidence
of partiality, you would appoint a neutral arbitrator. If
Your Honor finds abuse of process by not providing the required
discovery, complying with the CBA, etc., you would void the
arbitration. Then whether or not there would be further
proceedings in part would depend on what the NFL tried next,
but the arbitration and the discipline would be set aside. So
there are many possible remedies depending on the grounds that
Your Honor would find. I think you have a full panoply of
remedies.
The last thing I will say, Your Honor, is that I
am glad you're giving Mr. Ginsberg a chance to brief the
Norris-LaGuardia Act issue because there are many cases that
have held that that requirement of violence would not apply in
this particular type of context to block this injunction under
the Norris-LaGuardia Act. I'm sure Mr. Ginsberg will present
those cases to you.
THE COURT: Just in case he doesn't, why don't you
put them in yours also.
MR. KESSLER: Thank you, Your Honor. I will.
THE COURT: I don't mind duplication.
MR. KESSLER: We will supply those as well, although
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we are not seeking an injunction, obviously. We are seeking
just -- well, I guess we are only in the sense that we are
seeking to void the discipline. We are seeking equitable
relief in that sense, but really it's a petition to vacate the
arbitration is our first remedy.
THE COURT: Okay.
MR. KESSLER: Thank you, Your Honor.
THE COURT: NFL.
MR. LEVY: Your Honor, let me turn first, if I may,
to the issues that you raised here at the end. I want to start
by inviting the Court's attention to General Warehousemen and
Helpers Union Local 767 v. Albertson's, a Fifth Circuit case,
331 F.3d 485.
THE COURT: F.3d 485?
MR. LEVY: Yes, 331 F.3d 485. That case discusses
the general principle and the general distinction between
substantive arbitrability and procedural arbitrability. It
makes clear, with all due respect, Your Honor, that the Court's
role in deciding which of the arbitrators should have heard
this issue -- the Court has no role in making that decision.
Just to quote from the language of the opinion,
"The court's role is very limited when deciding issues of
arbitrability. The court decides only whether the parties
agreed to submit the subject matter of the grievance to
arbitration. For questions of so-called procedural
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arbitrability," including the question of which arbitrator
presides, "the arbitrator, not the court, generally decides
whether the parties complied with the agreement's procedural
rules."
Here, that's exactly what happened. The
arbitrator, Professor Burbank, made the decision that this was
within the commissioner's jurisdiction, and let me say a word
about Professor Burbank. Professor Burbank has been the system
arbitrator since August of last year, but before that he served
in essentially the same capacity by another name for five or
six years. He was the special master overseeing the collective
bargaining agreement that expired last year. He has decided
many cases and disputes between the Players Association and the
League. He has decided a good number of those cases for the
League. He has decided a good number of cases for the Players
Association.
He is a very highly respected, experienced
arbitrator, and he made the judgment and he made findings that
the basis for the commissioner's decision here was not within
the scope of Article 14, Section 1. It was not within the
scope of the provision that requires the commissioner to
appoint a designee, but it was squarely within the
commissioner's jurisdiction, and I'll explain why. I'll
explain why that was right.
Article 14, Section 1 of the CBA, as Your Honor
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can tell, deals with the salary cap. It is designed to address
the issue of salary cap circumvention. It is focused on
undisclosed compensation -- and I think that's the language of
the provision, "undisclosed compensation" -- paid by the club
or club affiliate to a player or player affiliate. It does not
deal with the issue of players funding and incentivizing hits
that have the potential to injure other players.
THE COURT: I think the commissioner, doesn't he send
out a notice -- as I understood it somewhere in the briefing, I
think it was your briefing where it was said that the
commissioner sent out a reminder every year to all the teams of
Article 14, Section 1, pay-for-performance, this means you
don't pay players for any kind of performance-conduct type
behavior. Am I right about that? Was that in your brief?
MR. LEVY: I think you are partially right,
Your Honor. Forgive me if I'm wrong but I believe that the
notice that goes out says that pay-for-performance arrangements
violate the constitution and bylaws and that they are
prohibited.
THE COURT: Under Article 14.
MR. LEVY: I don't think it says under Article 14.
I'm quite confident it doesn't say under Article 14.
THE COURT: Okay.
MR. LEVY: Article 14 deals with the salary cap,
deals with club-paid compensation, and that's what the special
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master found.
Now, in making those findings, what did he focus
on? He focused on the letters, the four letters that were
mailed to the players or sent to the players -- I think the
date is May 5 -- the letters that outline and provide with
specifics the conduct for which the players were being
disciplined. He made findings that that was the basis for the
discipline.
In the case of Mr. Hargrove, he said that the
commissioner's letter was ambiguous, and the commissioner then
sent another letter clarifying that the basis for the findings
of "conduct detrimental" was not clubs providing undisclosed
compensation but was instead players contributing money to a
pool that incentivized hits that had the potential to cause
injury. Those were his findings. Your Honor, if those
findings are wrong, if they are wrong, they will be revealed by
the appeals panel, but the standard for the appeals panel
review of those findings is clearly erroneous.
Now, I respect the fact that Your Honor has said
that you think that those distinctions slice the salami too
thin and I appreciate that, but those were findings made by
Professor Burbank, who has seven years of experience with the
collective bargaining agreement and this industry. They will
be reviewed by the appeals panel under a "clearly erroneous"
standard. If the appeals panel disagrees with system
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arbitrator Burbank's decision, then presumably there will be a
reversal of that decision and the world will look different.
THE COURT: Let me ask you. Mr. Goodell, in his
letter to the players said, as I quoted before, "The conduct
for which you were disciplined took place in locker rooms and
meeting rooms, not on the playing field."
MR. LEVY: Yes, Your Honor, that's precisely right,
and that's what the system arbitrator found.
THE COURT: Go ahead.
MR. LEVY: The conduct for which they were
disciplined was creating the pool, funding the pool, and
creating the incentive. The consequences of that conduct may
have appeared on the football field, but what the commissioner
was concerned about, what the commissioner focused on was the
agreement among the players to fund this sort of pool that had
those consequences.
It was not to discipline a player for an
individual hit or unnecessary roughness. If that had been the
basis for the decision -- and the Players Association, by the
way, argued before system arbitrator Burbank that that was the
basis for the discipline -- then presumably the matter would
have been or should have been sent to one of the commissioner's
designees, but that's not what the system arbitrator found and
his findings are binding.
Now, if you go back to the Fifth Circuit case
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that I mentioned, the Albertson's Distribution case, the issue
for this Court on the threshold question of arbitrability is
whether the parties committed this issue to arbitration. There
can't be any reasonable doubt that the parties committed this
issue to arbitration. Indeed, there's a provision of the
collective bargaining agreement that says that all disputes
between players and clubs or between players and the League are
committed to arbitration, and then there follows the criteria
for allocating those proceedings among the different
arbitrators. It's worth adding that there was a second
arbitration proceeding involving these issues. It was
before --
THE COURT: Mr. Das?
MR. LEVY: Mr. Das, yes, the noninjury arbitrator,
Mr. Das. The players there also made a similar argument that
the commissioner didn't have jurisdiction. They withdrew that
argument before the arbitrator reached his decision, but he
confirmed as well that the commissioner had authority to impose
the discipline.
So here we have three arbitrators created by the
collective bargaining agreement, the entire universe of
decision makers that the collective bargaining agreement has
authorized for disputes in any way related to any of these
issues, and all three have come to the same conclusion, and
that is that this is within the commissioner's jurisdiction.
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Under the Fifth Circuit's holdings and the principles of
procedural arbitrability, that's an issue that is not
reviewable by this Court. I understand you disagree, but it's
not reviewable.
I don't know whether that responds to the points
that you raised, to all of the points that you raised, and I'm
happy to entertain questions on any of those points. The one
thing I can tell you is this is not a situation where you had a
weak arbitrator or a novice arbitrator resolving an issue in
fear of the commissioner. This arbitrator was selected by both
parties. He has been repeatedly re-upped, if you will. He was
most recently on August 4 re-upped as the system arbitrator.
He is as -- I'm not going to say he gets them all right because
we have lost a few, but he has not been shy about ruling
against the National Football League on matters broader than
this. I think that is an issue that is just not subject to the
Court's review.
Now I would like to spend a few minutes talking
about what we saw here this morning and early this afternoon --
THE COURT: All right.
MR. LEVY: -- because Mr. Vilma's extensive
testimony, as well as the testimony of the other five or six
witnesses who testified on his behalf, begs a fundamental
question: Where were those witnesses? Where was that
testimony when Mr. Vilma's appeal was pending before
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Commissioner Goodell? Where were those witnesses on June 18,
the date of the appeal hearing, or in the subsequent period
during which Mr. Goodell left the record open for
supplementation by either the union or by Mr. Vilma?
The oral and written testimony offered in this
Court today confirms beyond dispute and Mr. Kessler just
admitted that Mr. Vilma and his counsel made a strategic
decision to forego the dispute resolution process to which his
union had agreed and instead to seek from this Court relief
that the Court lacks jurisdiction to grant.
Now, Mr. Vilma this morning testified that when
asked why didn't he tell his story at the time of the hearing,
he said, "Well, that's not what the hearing was intended for,"
but I would like to invite the Court's attention to the
transcript of the hearing. It's at Exhibit T. I have a copy
if the Court would like it.
THE COURT: No, I have it.
MR. LEVY: Exhibit T, page 4 of the hearing
transcript, which begins with Commissioner Goodell speaking:
"Thank all of you for coming. I want to be
respectful of your time, so we will get started quickly here.
As you know, the purpose of today's hearing is to hear from the
players. And contrary to the reports and some of the
statements, I do want to hear from the players, so I
respectfully hope that you will speak up."
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Now, there was nothing that prevented
Mr. Ginsberg or Mr. Kessler from reserving their rights, but
what happened instead was both the union and Mr. Ginsberg
elected not to pursue, not to exhaust that remedy. They still
haven't exhausted that remedy, and that failure to exhaust
dictates the outcome here in two different respects.
First, it establishes, as Your Honor recognized
earlier this afternoon, that Mr. Vilma cannot satisfy the
requirements of Section 8 of the Norris-LaGuardia Act and that
as a result this Court lacks jurisdiction to grant any
injunctive relief.
Second, it demonstrates that Mr. Vilma is not
likely to succeed on the merits of his claim because, among
other things, he failed to exhaust the remedies provided to him
under the CBA.
More generally, the presentation of evidence
that we heard today reflects a profoundly mistaken
understanding of the proper role of a Court in a proceeding
seeking to vacate a labor arbitration award. On this issue
there is no possible basis for dispute. Federal courts are not
authorized to review an arbitrator's decision on the merits.
That's true here with regard to Commissioner Goodell. It's
also true with regard to Professor Burbank. That is the square
holding of the Supreme Court in the Steve Garvey case. That is
the law.
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So regardless of how it's characterized,
virtually everything, all the testimony that we heard this
morning and certainly all the testimony offered on the issue of
the pay-for-performance bounty system is entirely and utterly
irrelevant to the issues before the Court. I understand and
respect the reasons that the Court permitted that testimony,
but that evidence serves no judicial purpose here.
Now let me turn to the question that Your Honor
asked of both Mr. Ginsberg and me, and the question is: "If I
were to overturn this, what is the remedy?" We'll be prepared
to address this in additional papers if Your Honor would like,
but one thing is clear, and that is that the Court does not
have authority to reach its own findings. I think Your Honor
acknowledged that. That's the Steve Garvey case.
The remedy here is to remand for further
arbitration and I, frankly, agree with Mr. Ginsberg. The CBA
does not permit arbitration of this issue by anyone other than
the commissioner, period. The system arbitrator does not have
jurisdiction to review the issue, and the noninjury grievance
arbitrator doesn't have jurisdiction to review the issue.
I would like to go into a little more detail on
the jurisdictional impediments that bar the relief that
Mr. Vilma seeks here. First, as I noted, the Norris-LaGuardia
Act withdraws jurisdiction from federal courts to issue
injunctions in labor disputes except under very limited
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circumstances. The established doctrine reflects the view that
courts simply should not intervene in labor disputes, disputes
concerning terms and conditions of employment, and that those
disputes should instead be resolved through the dispute
resolution procedures provided by the parties' collectively
bargained agreements.
Two provisions of the Norris-LaGuardia Act, both
of which you referred to, Your Honor, are key here. First,
Section 8 withdraws jurisdiction to grant injunctive relief to
any party that has not made every reasonable effort to resolve
the effort through arbitration mechanisms. The Supreme Court
confirmed this requirement in the Brotherhood of Railroad
Trainmen case in the mid '40s, emphasizing that the act
requires the applicant for injunctive relief to have made all
reasonable efforts to pursue his arbitrable remedies, and the
Fifth Circuit confirmed that in the Railway Express Agency case
in 1971.
Now, Mr. Kessler suggests there are lots of
cases out there that go the other way with regard to
professional athletes, and I respectfully submit there are none
that countermand the Fifth Circuit's holding upon this issue
that exhaustion is a requirement before the Court has
jurisdiction to grant injunctive relief.
THE COURT: I thought he was making that argument
with respect to whether you have to show violence or
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intimidation.
MR. LEVY: My answer is the same, Your Honor. I
acknowledge that there have been cases in other jurisdictions
holding that the requirements of the Norris-LaGuardia Act don't
apply in these circumstances, but the Fifth Circuit has never
so held, and the holdings of the Fifth Circuit are in very
broad language. I think the Railway Express Agency case is
really the source of that doctrine in this jurisdiction. There
are cases in other jurisdictions, some of which, Your Honor,
are now in doubt. A number of those cases come out of the
District of Minnesota, and a number of those cases are now in
doubt as a result of the Brady case decided in 2011 by the
Eighth Circuit. In the Fifth Circuit, the law is clear that is
a requirement.
As I suggested at the outset of my remarks,
there's little question that Mr. Vilma can't meet the
requirement of exhaustion here. He substantially refused to
participate in the appeal process. He and his counsel refused
to offer testimony. They have refused to cross-examine
witnesses. They refused to offer exhibits. Indeed, Mr. Vilma
and his lead lawyer left the appeal hearing. They left the
building before the hearing was over.
THE COURT: I think that two of the witnesses were --
I think they were both from NFL security, and they had actually
been requested by Mr. Ginsberg to be present.
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MR. LEVY: That's right.
THE COURT: Today was for the first time I heard
anything about witnesses were going to be sworn or not sworn.
I wasn't there, so --
MR. LEVY: I wasn't there, Your Honor, but
Mr. Miller, who is the head of NFL security, the chief security
officer for the League, Mr. Hummel, who was the lead
investigator in this matter, were both present. They were both
available. I believe there was a court reporter there.
There's a transcript of the session.
THE COURT: Do you know if they would have been
sworn?
MR. LEVY: I'm sure if they were asked to be sworn,
they would have been sworn, but there was no request that they
be sworn in that I know of. If there was, it would be in the
transcript, but I'm almost certain that there was not.
THE COURT: Well, they didn't testify, so --
MR. LEVY: Well, no. Mr. Miller gave a lengthy
presentation -- again, this is reflected in Exhibit T, the
transcript of that proceeding -- a lengthy recitation of the
nature of the investigation, who they talked to. He identified
the exhibits that they relied on. That went on for some time.
I don't believe Mr. Hummel gave testimony or spoke at that
session, but Mr. Miller did.
THE COURT: That was in the afternoon?
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MR. LEVY: That was in the early afternoon. It was
an examination led by Mary Jo White. Mr. Miller did address
those issues in detail. There were even opportunities for the
players to question him. Put aside the issue of
cross-examination. They didn't even ask questions. I would
respectfully submit that the failure to ask questions is itself
a failure to exhaust the remedies that are available under the
collective bargaining agreement because those questions might
have enabled them to make additional supplemental submissions
that would have affected the commissioner's ultimate appeal
decision.
Section 8 is known as the clean hands provision
of the Norris-LaGuardia Act, and in this respect Mr. Vilma
simply does not come before this Court with clean hands. He
didn't attempt to use the arbitrable procedure provided in the
CBA. In some respects, Mr. Vilma's counsel dug that unclean
hands hole a little bit deeper with every witness he called
today.
There was never an effort made to contact any of
these witnesses to arrange for their testimony, written or
oral, before the commissioner in the appeal process that was
prescribed by the collective bargaining agreement. There is no
reason that what we saw here today couldn't have happened live,
by video, by written submission in front of the commissioner.
It's an interesting question what the result would have been if
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the commissioner had heard that testimony, but Mr. Vilma and
his counsel elected not to pursue that remedy and not to
present that evidence before the commissioner.
Second, as Your Honor mentioned, Section 7 of
the Norris-LaGuardia Act permits injunctive relief in a labor
dispute only if the applicant can prove an unlawful act that
threatens violence. I don't think I need to go into that
except to say I am not aware of any case in the Fifth Circuit
that supports the interpretation that Mr. Kessler offered a few
minutes ago.
Now, even if the Court had jurisdiction to grant
preliminary injunctive relief, Mr. Vilma still couldn't meet
his heavy burden of demonstrating a likelihood of success on
the merits. Any analysis --
THE COURT: Can we can the music?
UNIDENTIFIED SPEAKER: I'm so sorry.
THE COURT: Just throw it to the wall.
MR. LEVY: Any analysis of the likelihood to succeed
on the merits issue has to start with a very limited scope of
judicial review permitted when a party seeks to vacate an
arbitration award issued pursuant to a collective bargaining
agreement, and you recognized that limited scope of judicial
review in your preliminary comments.
That scope of review is extraordinarily narrow,
as the Fifth Circuit held in the Columbian Chemicals case, and
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in some cases it's been described as the narrowest scope of
review known to our legal system. The reason for the narrow
scope of judicial review of arbitrable rulings not only on
issues of fact but also arbitrable rulings on issues of process
and procedure is clear.
Federal labor law, reflected in the Labor
Management Relations Act, and federal labor policy strongly
favor arbitrated resolution of labor disputes. They strongly
encourage parties to agree on the process and procedures for
resolution of their own disputes, to choose their own
arbitrators, to define their own discovery rules and applicable
appeal procedures, all in an effort to keep the courts out of
the business of resolving labor disputes. On a first
principles basis, this is the same policy consideration that
shapes the Norris-LaGuardia Act's limitations on injunctions
and labor disputes.
Under the governing standard of review, as
Your Honor recognized, the test for review of arbitration
decisions is whether the decision draws its essence from the
governing agreement. As the Supreme Court held in the MISCO
case, that standard is satisfied, and I quote, "as long as the
arbitrator is even arguably construing or applying the contract
and acting within the scope of his authority."
The Fifth Circuit in the Zimmerman case put the
standard this way: "All that is necessary to pass muster is
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that it is rationally inferable that in some logical way the
award was derived from the contract." That is a very, very
deferential standard of review. There can't be any question
that the award at issue here, the commissioner's decision to
suspend Mr. Vilma and to deny his appeal, easily meets that
standard. It draws its essence from the parties' collective
bargaining agreement.
The commissioner's authority to address issues
of "conduct detrimental" is expressly established in the
collective bargaining agreement. It's expressly established in
the standard form player contract, the form of which is
dictated by the collective bargaining agreement.
In addition, the authority, as I mentioned
before, has been expressly upheld in two different arbitration
proceedings brought by the union on behalf of Mr. Vilma. The
remedy -- suspension -- is expressly provided by the parties'
collective bargaining agreement, and the commissioner's
exclusive authority to review any appeal of such a ruling is
expressly prescribed by the CBA. That, I respectfully submit,
should be the end of the matter. Under MISCO and Zimmerman,
there can be no serious question that the arbitrable decision
this Court is being asked to vacate draws its essence from the
CBA.
It's simply no answer for Mr. Vilma to argue in
this Court that the commissioner got the facts wrong. As the
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Supreme Court held in the Steve Garvey case to which I referred
at the outset, "Courts are not authorized to review the
arbitrator's decision on the merits despite allegations that
the decision rests on factual errors or misinterprets the
parties' agreement." That's at 532 U.S. 509. For that reason,
as I said, virtually all of the testimony that Your Honor heard
earlier today, testimony that under the collective bargaining
agreement should have been presented, if anywhere, to the
commissioner at the appeal hearing, is entirely irrelevant to
the issues properly before this Court.
Now, Mr. Vilma has also brought a series of
procedural and evidentiary objections to the proceedings below,
but none of those has merit, and the resolution of every one of
theme draws its essence from the collective bargaining
agreement. Indeed, under the governing standard of review,
this Court does not have authority to overturn the arbitrator's
interpretation of the CBA or to review the arbitrator's rulings
and interpretations on issues of evidence and procedure. Those
are decisions for the arbitrator, as the Fifth Circuit held in
Columbian Chemicals. Nor can a Court overturn an arbitration
award because of limitations on compulsory process or on
cross-examination. The Supreme Court so held in the McDonald
case in 1984. On each and every challenge that Mr. Vilma makes
to the process, the commissioner's decision draws its essence
from the CBA.
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Let's start with the commissioner's decision to
permit introduction of certain exhibits that were produced to
its counsel three days but not 72 hours before the start of the
hearing. The commissioner rejected this argument on several
grounds, including the fact that when the parties wanted to
define a notice period in terms of hours rather than days, they
did so elsewhere in the CBA. This is a classic example of a
decision that draws its essence from the CBA. It reflects the
procedures upon which the parties agreed in the CBA. As the
Fifth Circuit held in both Columbian Chemicals and the
Teamsters case, these are decisions for the arbitrator not the
Court.
Similarly, Mr. Vilma asked this Court to
substitute its judgment for that of the arbitrator on the
proper scope of discovery. Again, the commissioner reached a
well-reasoned decision that compared and contrasted the
discovery provisions of the CBA that apply to "conduct
detrimental" proceedings with discovery procedures of the CBA
that apply to other issues. Your Honor did that for us just a
few minutes ago in talking about discovery options available
under --
THE COURT: The system arbitrator.
MR. LEVY: -- the system arbitrator salary cap
enforcement proceedings as opposed to the "conduct detrimental"
proceedings. The commissioner looked at those issues and
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looked at the language of the CBA and made his decision that
the parties had agreed to require production, to require
discovery only of the documents that the adversary intended to
use at the appeal hearing. That was an entirely reasonable
decision. At the very least, it drew its essence from the CBA.
Right to cross-examine and compulsory process,
again on this issue, when they refused to participate in the
appeal hearing, Mr. Vilma and his counsel gave up the right to
cross-examine the two senior members of NFL security who had
led the investigation.
As the Fifth Circuit held this time in the
Gonzales case, arbitrable fact-finding is generally not
equivalent to judicial fact-finding. The usual Rules of
Evidence do not apply, and rights and procedures common to
civil trials such as discovery, compulsory process,
cross-examination, and testimony under oath are severely
limited or unavailable. That's the Gonzales case. I should
add, in that decision the Fifth Circuit was quoting language
from the Supreme Court's decision in the McDonald case in 1984.
THE COURT: Let me just say this. The CBA in this
case did have broader discovery under alternative remedies --
MR. LEVY: Yes, of course.
THE COURT: -- including depositions and including --
MR. LEVY: That's my point, Your Honor. I recognize
that, but that's my point. When the commissioner went to look
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at what the parties had agreed was required under "conduct
detrimental" proceedings, he looked at those proceedings, the
collusion proceeding where the Federal Rules of Evidence
applies and the salary cap proceedings where broader discovery
is allowed.
THE COURT: Well, to some extent -- and maybe you're
correct, I can't get to it. But to some extent, to me it's a
cart and horse. He is the one who decided it was "conduct
detrimental." I know Mr. Burbank ultimately affirmed him on
that, but there were alternative routes that I think this case
could have easily gone to. That's why I set forth, when I
spoke earlier, why I felt it seemed to fit system arbitration
and why it seemed to fit unsportsmanlike conduct, that sort of
thing. He made the decision that it didn't.
MR. LEVY: I understand, Your Honor. Also, I don't
mean to be argumentative --
THE COURT: Go ahead. That's the nature of being a
lawyer.
MR. LEVY: I don't mean to be argumentative, but as
to which route to follow, that issue has been litigated. It's
been decided. The courts have held that that's an issue that
courts are not permitted to review. It's an issue of
procedural arbitrability.
If system arbitrator Burbank had reached a
different decision, we wouldn't be here today, but he did reach
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that decision. The appeal of his decision has not been
perfected. An appeal has been perfected, but we haven't gone
through the appeal process yet. He made findings on this
issue, and those findings are binding no less on the union and
Mr. Vilma than they are, with all due respect, on you.
Those are findings that the appellate panel has
to accept unless they are clearly erroneous. I invite
Your Honor to think about, even though you might slice the
salami differently, whether it's possible or reasonable to say
that it is clearly erroneous. I'm betting that that
three-judge panel is not going to find him clearly erroneous.
I'll just stop there. I've made my point on that issue.
THE COURT: Yes.
MR. LEVY: Now I want to spend just a second on the
issue of bias. Mr. Vilma complains the commissioner, the
arbitrator selected by the CBA, was biased. That contention
can't be reconciled with the structure of the collective
bargaining agreement, which provides that an appeal to the
commissioner is the exclusive means by which a player can
challenge action against him by the commissioner for "conduct
detrimental." In judicial parlance, that is the equivalent of
affording a player an opportunity for a petition for
reconsideration.
THE COURT: Well, I think the complaint was in the
report that was released which involved Sean Payton and Mickey
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Loomis and those folks, that he made a lot of findings even
before Mr. Vilma had an opportunity to appear even for the
initial hearing. As I understood it, that was the complaint,
that Mr. Goodell made a lot of statements regarding the players
and what they allegedly did which was prior to any hearing that
the players had.
MR. LEVY: He did make those findings, Your Honor,
and I should say --
THE COURT: That's where I think the bias argument
comes from.
MR. LEVY: Well, I'm prepared to deal with that as
well. The players were all invited to interview and the union
said no, to provide their input during that process. But more
to the point, this is the process to which the parties agreed
in the collective bargaining agreement. They agreed that the
commissioner would have responsibility for maintaining public
confidence in the integrity of the game. So when the
commissioner issued his suspensions, he had an obligation to
speak publicly about the circumstances that were at issue. He
couldn't simply have decided to suspend Sean Payton or Gregg
Williams and for there to be a void, for there to be silence.
He had the right -- and the Players Association knew that he
had that right -- and he had the obligation to explain why the
suspensions of the coaches were being made. That context is
inherent in the process to which the collective bargaining
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representatives agreed.
If it weren't otherwise clear, Your Honor, I
would invite the Court's attention to the last sentence of
Article 46, Section 2(a), of the collective bargaining
agreement, the large volume that appears -- I think it's JJ in
the declaration.
THE COURT: It's over there in the pile.
MR. LEVY: In Article 46, Section 2(a), the NFL and
the NFL Players Association agreed that notwithstanding
anything else under that article -- I'm quoting now -- "The
commissioner may serve as hearing officer in any appeal under
Section 1(a) of this article at his discretion."
"The commissioner may serve as hearing officer
in any appeal under Section 1(a) of this article at his
discretion."
In short, Your Honor, as the courts have held,
the parties to an arbitration choose their method of dispute
resolution and can ask for no more impartiality than adheres in
the method they have chosen. The parties here, the NFL and the
NFL Players Association, which represents Mr. Vilma, chose to
have the commissioner as the sole and exclusive arbitrator of
"conduct detrimental" proceedings. Mr. Vilma may not like that
bargain, but it's reflected in the CBA and it's not for him
and, with all due respect, it's not for this Court to set it
aside.
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Let me spend a few minutes on the other issues
relating to preliminary injunctive relief, the equitable
issues, if I may. On irreparable harm, the issue here -- and I
know Your Honor understands this well. The question is
whether, in the absence of an injunction, Mr. Vilma will suffer
irreparable harm in the short period before this Court can rule
on the merits.
I don't want to be presumptuous about the
Court's other obligations, but you have done us the courtesy of
scheduling the other motions on an expedited briefing schedule
and argument schedule. Mr. Vilma hasn't made any showing
suggesting that he will experience any harm, much less
irreparable harm, during the short period that will be required
for this matter to be brought to a close.
On the issue of harm to the NFL, the CBA
expressly provides that arbitration awards are final and
binding. An injunction here would undermine and encourage
suspended players to go to court hoping to temporarily block
their suspensions. There are lawyers who encourage such claims
and have brought them repeatedly only to lose in the end. The
NFL would be harmed if the bargain that it's reached on that
issue would be undermined by an injunction here. Among other
things, such a ruling would send a message to players near the
ends of their careers that if they can find a lawyer willing to
pursue their claim aggressively in court, they might be able to
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defer their suspensions until they retire, and that's exactly
what happened in the StarCaps case.
With respect to the public interest, Mr. Vilma
would define the public interest to be commensurate with the
interests of the Saints fans, and I understand that, but the
Saints fans have 31 counterparts elsewhere in the
United States. The real public interest here is in upholding
the strict requirements of the Norris-LaGuardia Act and in the
finality of final and binding arbitration under collective
bargaining agreements.
When all is said and done, Your Honor, this case
may be disposed of on the same ground that the district court
disposed of a case brought by Mickey Mantle's estate, a case we
cited in our papers. Mr. Vilma's ill-advised failure to
participate in the appeal hearing dictates the result here in
numerous respects, and I respectfully suggest that his motion
should be denied.
THE COURT: Thank you very much.
MR. GINSBERG: Very briefly, if I may.
THE COURT: Sure.
MR. GINSBERG: I can't emphasize enough that we are
not suggesting that Mr. Goodell can't serve the role of a
neutral arbitrator, but I equally can't emphasize enough that
that didn't happen and that that's why this is not based on the
essence of the CBA and why there is statutory protection from
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this sort of abuse.
I don't mean to mix cases, but the focus of the
defamation action are those statements, those accusations, and
those conclusions that are outside of the CBA that were
gratuitous, public, and unnecessary statements by Mr. Goodell.
Those well preceded Mr. Vilma's right to engage in the
appellate process, and that is why this situation is so unique.
That's why this situation needs a remedy that doesn't undermine
the CBA but enforces the bargain for the CBA because
Mr. Goodell assumed responsibilities under the CBA and
shirked/breached those responsibilities here.
The idea that the NFL would be harmed if
Mr. Vilma goes back to work tomorrow simply doesn't hold water.
In fact, I respectfully submit the NFL would be far stronger
and less embarrassed by what's happened here if Mr. Vilma does
not have to sustain further punishment while Your Honor
grapples with some of these complicated legal issues.
Just a point of fact, the investigator,
Mr. Miller, provided very little by way of explanation of the
evidence. It was Mary Jo White who did most of the talking,
and the record clearly reflects Mr. Miller was not sworn in.
Mr. Levy, unfortunately, is wrong. He and I
don't agree on the issue that he said we did. Some day we'll
find something we agree on, but not today. The commissioner
doesn't have jurisdiction over this. I respectfully submit
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that Your Honor ultimately is correct. And that perhaps if the
commissioner had allowed the appeal of Professor Burbank's
decision, we wouldn't be here today because the appellate group
that's being appointed would get it right, but we do not agree
that the commissioner has jurisdiction here.
I'm going to clarify something. Your Honor
asked me about the potential remedies, and I do believe that
the appropriate remedy here would be a permanent injunction,
but I believe the LMRA would allow Your Honor, given the nature
of these proceedings, to send this to a neutral arbitrator who
could ultimately determine the appropriate resolution, but that
also is something that I think we will all have to address in
our papers.
More than anything, more imminently than
anything because I understand Your Honor has a lot to deal with
next week or whenever our next set of papers are filed, I do
respectfully submit that we have shown enough with regard to
what the LMRA, the FAA, and the various elements of irreparable
injury require.
So when you balance the equities, when you look
at the harm to Mr. Vilma compared to the harm to the NFL,
Mr. Vilma should be allowed to go back to work. Although
Your Honor may not ultimately be the one to decide whether
Mr. Goodell got the facts wrong or not, he quite clearly got
the facts wrong, and I respectfully submit there is a legal
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remedy to right that wrong. Although Your Honor can't rule on
that issue today, Your Honor can make a determination as to
whether Mr. Vilma ultimately will be harmed by having to sit
out another two weeks when he has to go to rehab, when training
camp has started, when he has already played eight years of
football. So again I thank the Court for Your Honor's time.
Obviously, if there are any questions, I'm here, but thank you
very much.
THE COURT: I want to thank both sides for extremely
good briefing also.
MR. KESSLER: Your Honor, I just want to note for the
record that when we file our papers, we will be disagreeing
with a number of the points that Mr. Levy just made --
THE COURT: Really?
MR. KESSLER: -- factually, Your Honor, including the
fact that there were no witnesses or testimony presented by the
NFL at the Goodell hearing despite what Mr. Levy has stated.
We will demonstrate that from the transcript.
The "clearly erroneous" standard does not apply
in the context he is speaking about, and we will demonstrate
that in the papers.
Finally, what he is ignoring is the commissioner
made an agreement. The commissioner agreed to serve as an
arbitrator so that Mr. Levy could come in and argue to
Your Honor you should give deference to him as an arbitrator
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and not question the merits. The price for that agreement by
the commissioner is he gave up his ability to advocate in an
evidently partial way. He gave up his ability not to comply
with the standards of the LMRA and the standards of the Federal
Arbitration Act. It was the commissioner's agreement to be an
arbitrator that limits him here and gives you a basis to
overturn that. We will address all that in the brief as well,
Your Honor.
THE COURT: Okay. Well, thank you all very much.
Again, well briefed and well presented. If anybody wants to
file anything more, it needs to be done by the 3rd.
THE LAW CLERK: Or before.
THE COURT: The 3rd or before. The sooner the
better, obviously. Thank you all very much.
(Proceedings adjourned.)
* * *
CERTIFICATE
I, Toni Doyle Tusa, CCR, FCRR, Official Court
Reporter for the United States District Court, Eastern District
of Louisiana, do hereby certify that the foregoing is a true
and correct transcript, to the best of my ability and
understanding, from the record of the proceedings in the
above-entitled matter.

s/ Toni Doyle Tusa
Toni Doyle Tusa, CCR, FCRR
Official Court Reporter

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EXHIBIT O
REGGIE WHITE, et al.,
Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE, et al..
Defendants
APPEARANCES:
FOR THE WHITE CLASS AND
NFL PLAYERS ASSOCIATION
DEWEY BALLANTINE LLP
1301 Avenue ofthe Americas
New York, N.Y. 10019-60
FOR THE NFL MANAGEMENT COUNCIL
COVINGTON & BURLING
By: Gregg H. Levy, Esq.
Benjamin C. Block, Esq.
STEPHEN B. BURBANK
RE: SALARY CAP VALUATION
ISSUES
OPINION
Class Counsel and the National Football League Players Association (collectively "Players
Association") initiated this proceeding on July 22, 2005, pursuant to Article XXII of the White
Stipulation and Settlement Agreement, as amended ("SSA"), and Article XXVI of the Collective
Bargaining Agreement, as amended ("CBA"), concerning contract valuation issues for purposes
of the Salary Cap provisions in Article XXIV, 7 of the CBA and Article X, G of the SSA. The
NFL Management Council ("Management Council") responded on August 31, 2005; the Players
Association replied on September 16, 2005, and a hearing was held in Cambridge, Mass. on
September 22, 2005. The matter is ripe for decision.
The Players Association contends that the Management Council's treatment of three
different types of contract provision violates the Salary Cap rules contained in the CBA and SSA,
to wit, provisions concerning (1) certain off-season roster bonuses, (2) contract year voidables that
are based upon a contingency, and (3) salary set forth in Paragraph 5 of the NFL Player Contract
when guaranteed in an extended contract. Although the parties' arguments concerning each issue
are framed by reference to a specific player's contract, the issues are not confined to those
contracts, with the result that the Players Association requests general declaratory relief as to all of
them.
I. Off- Season Roster Bonuses (Jamie Sharper)
In 2005 Jamie Sharper signed a contract with the Seattle Seahawks for five seasons.
Appendix A to that contract includes roster bonuses for 2006 and 2007. The 2007 roster bonus
provides:
Player will receive a roster bonus of $1,000,000 if he is on
the Club's 80 man Roster on the 7
1
h day after the start ofthe
2007 League year. Notwithstanding the previous sentence,
said roster bonus will become guaranteed for skill and injury
if Player plays a minimum of 85% ofthe defensive plays during
the 2006 NFL regular season. If earned, said roster bonus shall
be payable on March 10, 2007.
Players Association Opening Brief, Ex. A, App. A.
The Players Association contends that the proper treatment of this provision for Salary Cap
purposes is dictated by a side letter dated October 10, 1996, section 1 of which provides in
pertinent part:
[T]he full non-guaranteed amount of any ... off-season roster bonus
... shall be included in Team Salary only in the League Year in which
it is earned by the player, without any proration. For purposes of this
paragraph only, "guaranteed" means Salary that is fully guaranteed,
prior to being earned, for skill, for injury, and regardless of any
termination of the contract by the Club.
-2-
CBA, Art. XXN, 7(b); 10/21196 Side Letter, 1 (Printed CBA at 104).
On the Players Association's interpretation of this provision, Sharper's 2007 off-season roster
bonus should be included in Team Salary only if (and when) it is earned, because it is not
"guaranteed" in the defined sense of that word that is set forth in the side letter.
The Management Council, invoking one dictionary's interpretation of"non" as "[t]he
common prefix of negation," and another dictionary's definition of "negate" as "to nullify" or
"rule out," Management Council Brief at 2, argues that this provision does not apply to Sharper's
2007 off-season roster bonus, because it is subject to a conditional guarantee. That is (the
Management Council argues), this off-season roster bonus is not "non-guaranteed," because a
guarantee has not been negated or ruled out. Rather, the Management Council contends, this roster
bonus should be treated as an "incentive amount," subject to the "likely to be earned" test under
the following provision of the CBA:
Any and all incentive amounts, including but not limited to
performance bonuses, shall be included in Team Salary if
they are "likely to be earned" during such League Year based
upon the player's and/or Team's performance during the prior
year .... Any incentive within the sole control of the player
(e.g., non-guaranteed reporting bonuses, off-season workout
and weight bonuses) shall be deemed "likely to be earned."
CBA, Art. XXN, 7(c)(i) (Printed CBA at 106). See SSA, Art. X, G(3).
1
Side letters interpreting the CBA make reference to different types of roster bonuses (off-
season, pre-season, and regular season), and treat them differently in various circumstances, for
Salary Cap purposes. Some are treated as signing bonuses, subject to partially deferred recognition
through proration over the term of the contract? Others are treated as incentives subject to
1
Reference will be made to specific provisions of the SSA hereafter only ifthere is a
conflict between the CBA and the SSA. In the event of such a conflict, the SSA controls.
2
"The total amount of any signing bonus shall be prorated over the term of the player
contract in determining Team and Player Salary [subject to prescribed exceptions]." CBA Art.
XXN, 7(b)(i) (Printed CBA at 100). A 1993 side letter provides that "any roster ... bonus
which is earned or paid before the start of the Club's preseason training camp shall be treated as
a signing bonus." CBA, Art. XXN, 7(b ); 6/23/93 Side Letter, 6 (Printed CBA at 1 04). A
1996 side letter also provides for treatment as a signing bonus "at the time of execution" of off-
season roster bonuses contained in player contracts, or renegotiated or extended contracts,
executed in "the Final Capped Year," if it "is to be earned or paid to the player in the Final
League Year (which is an Uncapped Year)." CBA, Art. XXN, 7(b); 10/21/96 Side Letter, 2
(Printed CBA at 1 04).
-3-
accelerated recognition through application of the "likely to be earned" test based upon
performance during the prior year under section 7(c)(i), quoted above.
3
The treatment of"non-
guaranteed" off-season roster bonuses is different. In exempting qualifying amounts from both the
proration to which signing bonuses are subject and the acceleration under the "likely to be earned
test" to which incentives are subject, the section of the 1996 side letter on which the Players
Association relies treats those qualifying amounts like Paragraph 5 Salary, which, subject to
certain exceptions, "shall be included in Team Salary in the year earned." CBA Art. XXIV,
7(a)(i) (Printed CBA at 99).
It is not my role to attempt to divine or implement a coherent treatment of roster bonuses
for Salary Cap purposes. In interpreting the CBA, a complex agreement that has been
supplemented by side letters reflecting numerous interpretive disputes and compromises over
more than a decade, I must seek an interpretation that is faithful to the language used by the
parties and their apparent intent, mindful of the context in which that language reposes. See White
v. NFL, 899 F. Supp. 410, 414 (D. Minn. 1995). In doing so, I must try to avoid an interpretation
that either would create conflict between contractual provisions or render any such provision a
nullity. See Reda v. Eastman Kodak Co., 233 A.D.2d 914,915 (N.Y. App. Div. 1996).
The Management Council's position that the 1996 side letter provision on off-season
roster bonuses is not applicable to Mr. Sharper's 2007 off-season roster bonus, because it
contains a conditional guarantee, requires reading the prefix "non" to mean "incapable ofbeing"
rather than "not" "guaranteed" at the relevant time. Although such a reading might not be
umeasonable in some contexts and for some purposes, I agree with the Players Association that it
does not in any event exclude this roster bonus. Under the special definition in the 1996 side
letter, "guaranteed" means "Salary that is fully guaranteed, prior to being earned, for skill, for
injury, and regardless of any termination ofthe contract by the Club." The conditional guarantee
in Mr. Sharper's 2007 roster bonus is "for skill and injury'' only, and that roster bonus is therefore
not only "non-guaranteed" in the sense of"not guaranteed" in 2005; it is also incapable ofbeing
"fully guaranteed" within the meaning of the 1996 side letter.
Even if I were to agree with the Management Council that the 1996 side letter provision
concerning off-season roster bonuses did not apply to Mr. Sharper's 2007 roster bonus, I could not
3
A 1993 side letter includes roster bonuses among incentive bonuses that depend on a
player's performance, exempting them, however, from automatic treatment as "likely to be
earned." See CBA Art. XXIV, 7(c); 9/21/93 Side Letter, 11 & Ex. B (Printed CBA at 106 &
1 09). Regular season roster bonuses are listed among "ROOKIE 'LIKELY TO BE EARNED'
INCENTIVES." Printed CBA at 110. In addition, a 1995 side letter provides both that "[a]ny
roster bonus which is deemed not 'likely to be earned' based upon the player's performance
during the prior year shall immediately be included in Team Salary when earned," and that
"[p]reseason roster bonuses are automatically deemed 'likely to be earned'." CBA Art. XXIV,
7(c); 5/24/95 Side Letter, 8 (Printed CBA at 128) (emphasis added).
-4-
accept the treatment accorded it as an incentive.
4
Article XXN, section 7(c)(i) ofthe CBA cannot
reasonably be interpreted to authorize including in Team Salary for 2005 a roster bonus that can
only be earned in the 2007 off-season. Such a reading gives to the language, "[a ]ny and all
incentive amounts," a meaning that is contextually unlikely, putting it in serious tension with
language that clearly calls for a year-by-year determination, "based upon the player's and/or
team's performance during the prior year," whether an amount is "'likely to be earned' during
such League Year." Moreover, any doubt on that score is removed when one considers the scheme
for adjustments in sections 7(c)(ii) & (iii), which are to be made "[a]t the end of a season." When
it is certain that an incentive amount cannot actually be earned during a League Year, it makes no
sense to include that amount in Team Salary as "'likely to be earned' during such League Year."
II. Voidables Based Upon a Contingency (Denard Walker)
In 2004 Denard Walker signed a contract with the Oakland Raiders for five seasons, which
contract provides for a signing bonus. In addition, an addendum to the contract provides:
If Player participates in 10% of the defensive plays (excluding
special teams) during the 2004 regular season, and achieves any of
the incentives in Addendum A (A-C), then Player may elect to void
the 2005, 2006, 2007 and 2008 contract years by sending proper
written notice to the NFLMC, NFLPA and Club on or before the
last day of the 2004 League Year.
Players Association Opening Brief, Ex. E, Addendum "A".
At issue is whether the proration of Mr. Walker's signing bonus should be accelerated
under the following section of the CBA:
Any contract year that the player has the right to terminate based
upon a contingency shall count as a contract year for purposes
of proration until the contingency is fulfilled, at which time any
amounts attributed to such year shall be accelerated and included
immediately in Team Salary. To the extent that such acceleration
puts the Team over its Salary Cap, the difference shall be deducted
from its Salary Cap for the following year.
CBA, Art. XXN, 7(b)(ii)(4) (Printed CBA at 102).
4
Colloquy at the hearing on September 22 made it clear that the Management Council
also deems the 1996 side letter provision inapplicable to the 2006 off-season roster bonus in Mr.
Sharper's contract and thus also treated it as an incentive subject to Art. XXN, section 7(c)(i)
of the CBA. The amount of that bonus was not included in Team Salary for 2005, however,
because it was not deemed "likely to be earned."
-5-
The Players Association argues that no acceleration of the proration of Mr. Walker's
signing bonus should occur, because, although the 10% participation and incentive contingencies
were fulfilled during the 2004 regular season, Walker did not in fact elect to void the 2005-2008
contract years. Under this view, "sending proper written notice" is itself a "contingency" for
purposes of section 7(b )(ii)( 4), and the words, "the player has the right to tem1inate" in that
section mean "terminates." The Management Council contends, on the contrary, that, whatever
the meaning of "contingency" generally, in this contract providing the required notice is not a
"contingency" upon which "the right to terminate [is] based," but rather merely the means by
which the player is to exercise that right.
In ordinary usage, Mr. Walker had the "right to terminate" the 2005-2008 contract years
once he had fulfilled the 10% participation and performance contingencies specified in his
contract. Failure to send the "proper written notice" required by his contract meant that he did not
exercise that right, not that the right did not exist. See Laba v. Carey, 29 N.Y.2d 302, 308, 327
N.Y.S.2d 613, 277 N.E.2d 641 (1971) (court should give words in a contract their plain and
ordinary meaning unless the contract mandates a different interpretation). If the parties to the
(SSA and) CBA had intended to tie acceleration to the exercise of a right to terminate, they could
have provided that voidable contract years "shall count ... for purposes of proration until the
player exercises the right to terminate." They did not do so. Moreover, one can imagine language
in a player's contract that might make the existence of a right to terminate depend, among other
things, on sending effective notice, but that is not the language in Mr. Walker's contract.
5
The Players Association argues that interpreting section 7(b)(ii)(4) so as to accelerate
for proration purposes contract years that a player chooses not to void, although having the right
to do so, leads to an absurd result. The Players Association also argues that acceleration does not
occur under the other provisions of section 7(b )(ii) until it is certain that remaining contract years
will not be operative.
As to the latter point, the provisions in question deal with very different situations.
Moreover, a 1996 side letter interpreting section 7(b)(ii)(4) in a situation where a player "has one
or more rights to terminate based on one or more not 'likely to be earned' incentives and the
player also being on the roster at a subsequent time," supports the view that exercise of a right to
terminate is not necessary for acceleration. If that were not true, it is hard to understand why the
parties would have agreed that there would be no acceleration "until both the incentive(s) and the
roster precondition(s) have been satisfied." See CBA, Art. XXN, 7(b )(ii)(4); 10/21196 Side
Letter, 5 (Printed CBA at 102-03).
As to both points, counsel for the Players Association aclmowledged during the hearing
that on certain assumptions acceleration in the absence of the exercise of a right to terminate
would not in fact be absurd. Recognizing that (1) it is the nature of categorical rules to be either
over- inclusive or under-inclusive (or both), (2) the (SSA and) CBA reflect numerous bargained-
5
The question whether section 7 (b )(ii)( 4) covers automatic voids is not before me.
-6-
for compromises, and (3) it is not for the Special Master to rewrite the parties' agreements, I
conclude that proration of the voidable years in Mr. Walker's contract was subject to acceleration
once the 10% participation and performance contingencies were fulfilled.
III. Guaranteed Paragraph 5 Salary in Extended Contracts (Michael Strahan)
In 2002 Michael Strahan renegotiated and extended his contract with the New York Giants
to cover the 2002 through 2008 seasons. The contract includes guarantees for skill and injury of
portions of Mr. Strahan's Paragraph 5 Salary in 2003 and 2004. See Players Association Opening
Brief, Ex. F, A d d e n d u m ~ ~ 25-26. The Management Council treated the guaranteed portions as a
signing bonus, subject to proration, under a CBA provision that defines as a signing bonus:
Any consideration, when paid, or guaranteed, for option
years, contract extensions, contract modifications, or
individually negotiated rights of first refusal.
CBA, Art. XXIV, 7(b)(iv)(3) (Printed CBA at 103).
The Players Association contends that Paragraph 5 Salary in an extended contract is still
Paragraph 5 Salary, not "consideration ... for ... contract extensions," and thus that it is subject to
the rule that "[t]he highest applicable Salary set forth in Paragraph 5 of the NFL Player Contract
shall be included in Team Salary in the year earned."
6
The Management Council responds that
"because Paragraph 5 Salary guaranteed as part of a contract extension or modification is
governed by Section 7(b)(iv)(3), which provides that it shall be treated as a signing bonus and
therefore amortized over the term of the player contract, it is not 'applicable Salary set forth in
Paragraph 5' governed by Section 7(a)(i)." Management Council Brief at 5.
7
The parties also
6
Section 7(a)(i) reads in full:
The highest applicable Salary set forth in Paragraph 5 of the
NFL Player Contract shall be included in Team Salary in the
year earned, except that, between March 1 and the first day
of the regular playing season, only the following amounts
from Paragraph 5 shall be included for players whose Player
Contracts are not among the Team's 51 highest valued Player
Contracts, tender offers and Offer Sheets (as determined under
this section 7):
(1) Any amount that exceeds the applicable Minimum
Active/Inactive List Salary for Undrafted Rookie Free Agents; and
(2)Any amount that exceeds twice the applicable Minimum
Active/Inactive List Salary for all other players.
CBA, Art. XXIV, 7(a)(i) (Printed CBA at 99).
7
In that regard, the Management Council points out that section 7(b)(iv)(5) calls for
treatment as a signing bonus of the "difference between the Salary in the second contract year
-7-
disagree as to which provision is more specific and thus should govern in the event they are found
to be in conflict.
The Management Council's argument that, in combination with section 7(b)(iv)(3),
section 7(a)(i) excludes the guaranteed portion of Paragraph 5 Salary in Mr. Strahan's extended
contract is ultimately not persuasive. In context, the suggested interpretation of "applicable" is
strained, and it appears to neglect the adjective "highest." The Players Association's argument that
this language is designed to deal with split contracts (see Article XXXVIII, 14 of the CBA
(Printed CBA at 177)) suggests what the words seem to convey, to wit, that they speak, and speak
only, to a situation in which more than one salary is "set forth in Paragraph 5."
It is true that the exception in section 7(a)(i) (see footnote 6) contemplates treatment of
only a portion of Paragraph 5 Salary as "included in Team Salary in the year earned," which is the
treatment urged by the Management Council here for the non-guaranteed Paragraph 5 Salary in an
extended contract. But the fact that such treatment is specified in an exception indicates that it is
not an instantiation of the concept of "applicable salary" for these purposes, a reading that is
confirmed by the use of the term "applicable" within the exception (see section 7(a)(i)(l) &(2),
quoted in footnote 6), where that term is used to distinguish between two possible salaries in a
split contract.
The fact that, as I interpret it, section 7(a)(i) covers all of the Paragraph 5 Salary in Mr.
Strahan's extended contract raises the possibility of a conflict between that provision and section
7(b )(iv)(3). Moreover, if the latter were applicable to the guaranteed Paragraph 5 Salary in this
(extended) contract, it would also appear to conflict with a provision in the CBA stating (with
exceptions not relevant here) that "[a ]ny portion of Salary for which a team fully guarantees
payment for skill or injury shall be included in Team Salary during the year earned." CBA, Art.
XXN, 7(d) (Printed CBA at 130).
8
I do not accept the Management Council's interpretation of section 7(b )(iv)(3), and thus I
need not resolve either potential conflict. To be sure, "Salary'' is a defined term for these
purposes, and the definition in Article XXIV, section 1(c) (Printed CBA at 94) is very broad. It
may also be true that Paragraph 5 Salary in an extended contract is, in one sense, part of the
"consideration for" the entire contract, including the extension. Under the scheme set forth in
section 7, however, following this line of interpretation, so as to treat amounts of Paragraph 5
Salary that are guaranteed as subject to section 7(b )(iv)(3), loses the forest in the trees.
In setting forth the amounts that are "Salary" to be included in Team Salary, section 7
and the first contract year" when the former is less than half of the latter.
8
This provision was not briefed by the parties. When I raised it during the hearing,
counsel for the Management Council acknowledged the apparent conflict with section
7(b )(iv)(3), interpreted as the Management Council interprets it.
-8-
distinguishes between Paragraph 5 Salary, treated in section 7(a)(i), and signing bonuses, treated
in section 7(b ). Section 7(b )(iv)(3) is one of a number of subsections that specify amounts to be
deemed signing bonuses, the first of which is "[a ]ny amount specifically described in a Player
Contract as a signing bonus." No comparable provision is found in section 7(a), because no such
provision is necessary. Paragraph 5 salary defines itself by being set forth in Paragraph 5. It is one
thing to provide specifically that the difference in "Salary" (a term broader than, but including,
Paragraph 5 Salary) between the first and second year of a contract be treated as a signing bonus
in prescribed circumstances, as the parties did in section 7(b )(iv)(5). It would be quite another to
treat the same amount as Paragraph 5 Salary and a signing bonus, subject to conflicting
recognition rules under the CBA. I do not believe that was the parties' intent.
A result of the Management Council's capacious interpretation of the language,
"consideration ... for ... contract extensions," in 7(b )(iv)(3) (if its interpretation of section 7( a)(i)
were also accepted) would be that all non-guaranteed Paragraph 5 Salary in extended contracts
would be treated as a signing bonus, requiring proration, when paid. No such interpretation is
necessary so long as a common sense approach is taken to section 7(b )(iv)(3) and "consideration
... for ... contract extensions" is interpreted with the concept of a signing bonus in mind. Indeed,
Mr. Strahan's extended contract contains just such a provision:
I. ADDITIONAL CONSIDERATION
As Additional Consideration (the "Additional Consideration") for
Player's execution of separate NFL Player Contract(s) (the "Contracts")
for the 2002, 2003, 2004, 2005, 2006, 2007 and 2008 NFL seasons and
for Player's adherence to all provisions of said Contracts, Club agrees
to pay player the sum of $6,400,000 (less usual, customary and/or
required deductions) as follows:
$6,400,000 on his signing of this Contract
subject to the provisions of Section II and III below.
Players Association Opening Brief, Ex. F, "Signing Bonus Addendum."
Perhaps the caption ofthe addendum suffices to bring this provision within section 7(b)(iv)(l)
("Any amount specifically described in a Player Contract as a signing bonus"). Even if not,
however, it would clearly fall within section 7(b )(iv)(3) ("Any consideration, when paid or
guaranteed, for ... contract extensions .... ").
Finally, were I to conclude that Mr. Strahan's contract revealed a conflict between sections
7(a)(i) and 7(b )(iv)(3) of the CBA, for reasons adumbrated above I would regard section 7(a)(i) as
controlling, and thus as requiring the recognition of all amounts of Paragraph 5 Salary in Mr.
Stragan' s extended contract in the year earned. That result would flow not only from a
consideration of the structure of the CBA, distinguishing between Paragraph 5 Salary (which is
self-defining) and signing bonuses (which may or may not be), but also from awareness, on these
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assumptions, of another conflict- that between section 7(b )(iv)(3) and section 7(d), and of the
fact that the latter treats Salary amounts that are fully guaranteed for skill and injury according to
the same recognition rule as does section 7(a)(i). Cf Preminger v. Columbia Pictures Corp., 267
N.Y.S.2d 594, 599 (N.Y. Sup. Ct. 1966) ("[ w ]here the parties have particularized the terms of a
contract, an apparently inconsistent general statement to a different effect must yield.").
N. Conclusion
In sum, I conclude that the Players Association is entitled to relief on the first and third
issues raised in this proceeding. I am confident that, subject to any review either party may seek of
this decision, the Management Council will conform its conduct in the future administration of
the Salary Cap to the interpretations set forth in this opinion. At the hearing counsel for both
parties agreed that, in light of reliance interests created by past practices,
9
care and cooperation
would be required to achieve a smooth and fair transition if I were to rule in favor of the Players
Association on the third issue (and perhaps on others). Having done so, I am also confident that
the parties, assisted by their able counsel, can and will achieve such a transition. I will, however,
retain jurisdiction in the event disputes arise in that process which the parties are not able to
resolve consensually.
Stephen B. Burbank
Special Master
September 28, 2005
9
At the hearing counsel for the Management Council eschewed reliance on evidence of
past practices to which the Players Association had objected under Article LV, section 19 of the
CBA. Counsel for both sides agreed, however, that such practices may be germane for their
purposes in fashioning any transition required by my decision in this proceeding.

EXHIBIT P

EXHIBIT Q

EXHIBIT R
REGGIE WHITE, et al.,
Plaintiffs,
V .
NATIONAL FOOTBALL LEAGUE, et al..
Defendants
APPEARANCES:
FOR THE WHITE CLASS:
DEWEY BALLANTTNE LLP
1301 Avenue of the Americas
New York, N.Y. 10019-60
FOR THE PLAYERS ASSOCIATION
NFL PLAYERS ASSOCIATION
By: Richard Berthelson, Esq.
2021 L Street, N.W.
Washington, D.C. 20036
FOR THE NFL MANAGEMENT COUNCIL
COV INGTON & BURLING
By: Neil K. Roman, Esq.
Benjamin C. Block, Esq.
NFL MANAGEMENT COUNCIL
By: Dennis L. Curran, Esq.
280 Park Avenue
New York, N.Y. 10017
STEPHEN B. BURBANK
RE: TODD SAUERBRUN
OPINION
Class Counsel and the National Football League Players Association ( "NFLPA")
initiated this proceeding on April 6, 2007, pursuant to Article XXII of the White Stipulation and
Settlement Agreement, as amended ("SSA"), and Article XXV I of the Collective Bargaining
Agreement, as amended ("CBA"), concerning an alleged violation of the SSA by the New
England Patriots ("Patriots") in connection with the contract of Todd Sauerbrun ("Sauerbrun").
The NFL Management Council ("Management Council") responded by letter brief on April 16,
and a hearing was held on April 17.
Sauerbrun was an Unrestricted Free Agent when, in December 2006, his agent entered
into negotiations with the Patriots for a contract covering the remainder of the 2006 League
Year.' Although the negotiating parties agreed that Sauerbrun would be paid the League
Minimum Salary, he declined a two year contract term. The Patriots then offered a one-year
contract with a Right of First Refusal ("ROFR"), which offer, following discussion with his
agent, Sauerbrun decided to accept. The Patriots drafted the contract (the "2006 Contract"), and
after his agent read it and advised Sauerbrun to sign it, he did so. Sauerbrun and his agent knew
that, as an Unrestricted Free Agent, Sauerbrun was not under any obligation to agree to a ROFR,
and they both believed that the ROFR contained in the 2006 Contract would be enforceable if the
Patriots exercised it in a timely fashion according to its terms.
Although Sauerbrun's agent orally informed the NFLPA that Sauerbrun was going to
agree to a ROFR, and although the NFLPA received a complete copy of the 2006 Contract
shortly after its execution, Class Counsel first received a copy of the contract in April 2007.
Moreover, neither the NFLPA nor Class Counsel communicated with Sauerbrun or his agent
about the ROFR until after he had reached agreement on the terms of a proposed contract with
the Denver Broncos ("Broncos").
When contract negotiations between the Patriots and Sauerbrun's agent for the 2007
League Year failed to yield agreement on the terms Sauerbrun desired, negotiations commenced
with the Broncos, and a proposed contract was agreed to that Sauerbrun's agent forwarded to the
Patriots in accordance with the terms of the ROFR in the 2006 Contract. The Patriots decided to
exercise the ROFR by matching the terms that the Broncos offered and on April 5 sent Sauerbrun
a Player Contract containing all of those terms. Class Counsel commenced this proceeding on
April 6.
Article V II, Section 5 of the SSA governs "Individually Negotiated Limitations on Player
Movement." Section 5(a) provides that "[an individually negotiated limitations on player
movement are prohibited except as specifically provided as follows." The exception applicable to
Unrestricted Free Agents permits them "to negotiate and contract for an individual [ROFR] with
any Club with respect to the services of such player so long as the player is not a Franchise Player
' The facts summarized in this and the next paragraph are drawn from a Stipulation of
Facts executed by Class Counsel and the Management Council on April 11, 2007.
-2-
or Transition Player at the time of such negotiation and contract." In the event an Unrestricted
Free Agent negotiates and contracts for an individual ROFR, however, Section 5(c) provides that
it "shall be void and unenforceable unless it is specified in a separate document signed by such
player in the form annexed hereto as Appendix E, acknowledging such player's waiver of the
express right that Unrestricted Free Agents have under this Agreement to be free of any [ROFR]
restriction on their freedom of movement."
There is no question that, in drafting the ROFR in the 2006 Contract, the Patriots did not
comply with Section 5(c). The purported waiver of Sauerbrun's express right to be free of any
ROFR restriction on his freedom of movement is not contained in a "separate document signed
by such player," but in a two-page addendum to the standard Player Contract ("Additional
Agreements"), in which the fourth of five numbered paragraphs ("Paragraph 29") concerns the
ROFR, and which contains but one signature line for the player, at its end. Class Counsel and the
Management Council disagree whether that is the extent of material differences. In that regard,
the separate document in Appendix E of the SSA, to which Section 5(c) refers ("Appendix E"),
contains the caption, "Waiver of Free Agent Rights," whereas Paragraph 29 is entitled "Right of
First Refusal." Appendix E is framed in the first person, while Paragraph 29 is framed in the
third person. Appendix E requires discrete specification (i.e., following a colon at the end of the
sentence) of the "additional compensation, if any" to be received for renouncing the player's
rights, while Paragraph 29 states that "[i]n exchange for renouncing these rights, he understands
that he will not receive any additional compensation from the Club." Finally, Appendix E
contains a separate line for the signature of a witness, whereas there is no such line in Paragraph
29 (although there is a line for an agent's signature, following the player's, at the end of the
Additional Terms)?
Section 5(c) appears to be, as Class Counsel argues that it is, both unambiguous and
mandatory. If so, the ROFR in Paragraph 29 is "void and unenforceable." To escape that result,
the Management Council stresses the facts that, notwithstanding the differences between
Appendix E and Paragraph 29 discussed above, (1) as the negotiations for the 2006 Contract
developed, a ROFR was the salient element of consideration the way to bridge the gap between
a two-year contract (which the Patriots had proposed) and a one-year contract (which Sauerbrun
wanted), (2) Sauerbrun was aware that he was not required to accede to the Patriots' request that
he grant a ROFR, and (3) both Sauerbrun and his agent believed that the ROFR in Paragraph 29
would be enforceable if the Patriots exercised it in a timely manner, which they subsequently did.
On this view, permitting Sauerbrun to benefit from what the Management Council refers to as
2 Given my conclusion that the ROFR at issue here is void and unenforceable because not
specified in a separate document signed by Sauerbrun, I need not decide whether the other
differences between Appendix E and Paragraph 29 noted here are material. At the hearing Class
Counsel pointed out a difference between Section 5(c) and Section 3(b) potentially affecting the
answer to that question. The former requires that the specification (in a signed separate
document) be "in the folin annexed hereto as Appendix E," while the latter requires that a First
Refusal Exercise Notice be "substantially in the form of Appendix D."
-3-
"inadvertent" failure to comply with a "procedural provision" would seem, if not unfair to the
Patriots, then a windfall for Sauerbrun. The Management Council therefore urges on me the
solution of reforming the 2006 Contract to bring it (as respects the ROFR) into accord with the
contracting parties' mutual intent as to its legal effectiveness.
I am inclined to share the Management Council's view of the facts in this case. Thus, I
am willing to assume, as was represented at the hearing (although not part of the Stipulation of
Facts or otherwise reduced to admissible evidence), that the failure to comply with Section 5(c)
was an innocent mistake caused by thoughtless borrowing from a prior contract that shared the
same defect,' At the end of the day, however, such a view of the facts does not matter, because
I conclude that I lack the power to rewrite Section 5(c) or to do indirectly through contract
reformation what I cannot do directly.
I lack the power to rewrite the SSA by substituting my view about what it should mean
given the equities of a particular case for what, according to its plain and unambiguous language,
it does mean. See White v. NFL (Hobert-Grbac), 972 F. Supp. 1230, 1236 (D. Minn. 1997)
("Moreover, a court may not rewrite into a contract conditions the parties did not insert or, under
the guise of construction, add or excise terms."); id. at 1237 n. 5 ("It is our obligation to enforce
the SSA, not rewrite it."). Section 5(c) leaves no latitude to give effect to an individually
negotiated ROFR that does not meet its requirements, or at least the requirement that it be
"specified in a separate document signed by [the] player." Rather, it requires the conclusion that
such a ROFR is "void and unenforceable." The purpose of the rule is evidently to deny legal
effect to a purported relinquishment of a right that does not conform to specified procedures
designed to ensure the voluntary relinquishment of that right, recognized as such, for known
consideration (or lack thereof). Given that purpose, the fact that the parties to the purported
ROFR in the 2006 Contract may have believed that it was legally binding is irrelevant.
If I were to reform the 2006 Contract as the Management Council requests to
implement the parties' intent that it be legally effective -- I would in effect be rewriting Section
5(c). Special Master Friedenthal's decision in the Andre Collins matter is not to the contrary.
Collins had apparently agreed to a ROFR in his 1995 contract in accordance with Section 5(c).
The Special Master rejected Class Counsel's argument that including the ROFR in a tender made
3 Even accepting this explanation, it might not be possible for the Management Council to
meet its burden of demonstrating the mutual mistake that is a prerequisite to contract
reformation. See Restatement (Second) of Contracts 155, cmt. b ("The rule stated in this
Section applies only where both parties are mistaken with respect to the reduction to writing.");
id. cmt. c ("clear and convincing evidence" of mistake required). For, in addition to repeating
most of Appendix E while translating it into the third person, Paragraph 29 includes the
following sentence: "The foregoing shall serve in full and sufficient satisfaction of any waiver
requirement pursuant to the 1993 CBA, as amended." This sentence suggests that someone in the
Patriots organization once understood that the approach taken in Paragraph 29 represented a
departure from Section 5(c), and that knowledge may be imputable to the Club in 2006.
-4-
under Section 1(b)(i), which requires that the tender contain "all other terms of his contract
identical to the prior year's contract" violated Section 5(a). He also rejected the argument that
requiring Collins to accept or reject all of the tendered offer, including the ROFR, was
inconsistent with Section 5(c). Key to the latter conclusion, placing certain language in the
opinion in context, was the point that if a player in Collins' position were to refuse to "sign the
appropriate waiver form," the contract [would not be] consummated and the offer [would be]
rejected." In other words, without execution of the prescribed waiver form, there is no legally
effective relinquishment of the ROFR. 4
Finally, language in the Restatement (Second) of Contracts regarding the possibility of
reformation when there is "a mistake of both parties as to the ... effect of the writing," id. 155,
also needs to be considered in context. That language reflects the view that a mutual mistake
concerning the terms of an agreement that causes it to be unenforceable does not preclude
reformation (if it is otherwise called for). Thus, it reflects the "premise ... that a writing
evidencing an agreement may be reformed under the rule stated in 155 before it is subjected to
the requirements of the Statute of Frauds." Id. 156 cmt. a (emphasis added); see id. 155 cmt.
a ("Reformation is available even though the effect of the error is to make it appear from the
writing that there is no enforceable agreement. See Illustration 2 and Comment a and Illustration
3 to 156."). It is one thing to permit reformation of a writing "[i]f the parties are mistaken with
respect to the legal effect of the language they have used." Id. 155 cmt a. It would be quite
another to use that remedy to obviate mandatory formal requirements designed to ensure that
there is an enforceable agreement in the first place. Even if Paragraph 29 were reformed to match
Appendix E precisely, it would lack Sauerbrun's signature.
It is regrettable that, as a result of an apparently innocent failure to comply with a
provision of the SSA, the Patriots will be denied the full benefit of the bargain they sought in the
2006 Contract. At the same time, however, compliance with Section 5(c) would have been a
simple matter, and it appears that someone in the organization made a choice not to comply with
it at some time in the past. Going forward, compliance with this provision of the SSA will enable
the parties to the SSA, Clubs and Players to avoid disputes about knowledge, voluntariness, and
intent with respect to ROFR' s, which Class Counsel plausibly argued is its primary (and salutary)
purpose.' Class Counsel is entitled to a declaration that the ROFR in the 2006 Contract is void
and unenforceable. Whether, as a result of this ruling and the circumstances that brought it forth,
the Patriots have any remedy against Sauerbrun is a question not before me.
'Moreover, this is not a protection that an individual player can waive, with the result
that language in Paragraph 29, see supra note 3, is ineffective for that purpose.
Class Counsel also plausibly argued that the separate document requirement of Section
5(c) eases the burdens of contract review for compliance with the SSA and CBA.
-5-
Stephen B. Burbank
April 18, 2007

EXHIBIT S
CASE 4:92-cv-00906-DSD-SPMS Document 477 Filed 03/30/00 Page 1 of 19 Case 2:12-cv-01283-HGB-DEK Document 118-5 Filed 09/04/12 Page 520 of 604

EXHIBIT T
SHYAM DAS, ARBITRATOR
In the Matter of Arbitration
Between
THE DENVER BRONCOS and
THE NATIONAL FOOTBALL LEAGUE
MANAGEMENT COUNCIL
and
ASHLEY LELIE and
PLAYERS ASSOCIATION
}
}
}
}
}
}
}
}
}
}
)
}
}
}
}
}
Appearances
For the NFL Management Council:
Daniel L. Nash, Esq.
T. David Gardi, Esq.
For the NFL Players Association:
ARBITRATOR'S OPINION
AND AWARD
Case Heard:
March 12, 2007
March 23, 2007
Award Issued:
April 23, 2007
David Greenspan, Esq.
Todd Flanagan, Esq.
BACKGROUND Broncos/Lelie
In this grievance the Denver Broncos and the NFL
Management Council seek an order requiring former Broncos wide
receiver Ashley Lelie to return a portion of his signing bonus,
and to pay fines that were levied for his failure to report to
the Club's mandatory minicamp and pre-season training camp in
2006.
The Broncos drafted Lelie in the first round of the
2002 NFL draft. He entered into a Player Contract with the Club
covering the 2002 through 2006 seasons, with 2007 as an option
year. The Broncos exercised the option by paying Lelie an
option bonus of $1.1 million in 2002. (The option year
subsequently was voided pursuant to other provisions of the
Player Contract.) Lelie was paid a $3.3 million signing bonus
in the first year of his contract pursuant to an addendum to his
Players Contract. This addendum further provides:
If Player fails initial physical, does not
report to Club, does not practice or play
with Club (unless his failure to practice or
play is due to an NFL football related
injury incurred while properly performing
his services under this contract), leaves
Club without prior approval, does not honor
all terms of his Contract, including any
addenda thereto, is suspended for, Conduct
Detrimental, violation of the NFL Policy and
Program for Substances of Abuse, the NFL
Policy and Procedures for Anabolic Steroids
and Related Substances, or the NFL Personal
Conduct Policy, or violates any other
agreements between Club and Player, Player
shall be in default of this agreement and,
upon demand by Club, will repay to Club
based on the following schedule:
2 Broncos/Lelie
If Player defaults during Player will
return
Calendar year 2002 $3,300,000
Calendar year 2006 $660,000
It is further understood that Player's
waiver of rights to any unpaid amounts and
Player's obligation to re-pay this Bonus as
stated above, are express provisions of this
Bonus and, but for the provisions herein
contained, Club would not have executed this
Bonus.
During the 2005 season, Lelie was one of two starting
wide receivers for the Broncos, but at the end of the season he
felt he was being "underutilized" and that his role was
"diminishing" on the team. He testified he also heard rumors
and reports that the Club was trying to get another "big time
receiver." At or shortly after the Pro Bowl, Lelie's agent,
Mike Sullivan, let the Club know that Lelie was unhappy with his
role on the team, did not want to come back and wanted to be
traded. Coach Mike Shanahan spoke to Lelie. Both of them
thought the conversation went well, and Shanahan thought there
was a good chance Lelie was coming back. The Club did, however,
look into possible trades. Shanahan had told Sullivan that if a
player did not want to be with the Broncos he would try to trade
the player provided an acceptable deal could be worked out.
During the 2006 draft, the Broncos traded a second
round draft pick for Javon Walker, a wide receiver with the
Green Bay Packers. The Broncos had proposed trading Lelie for
3 Broncos/Lelie
Walker, but the Packers rejected that. Broncos General Manager
Ted Sundquist stated the Club made this trade because it did not
know if Lelie would be back and needed a suitable replacement if
he did not return. Sundquist added that this trade did not
change the Club's desire to retain Lelie, as one of three strong
receivers. Coach Shanahan indicated that concern over Lelie's
return was part of the reason for the trade, but that the Club
also was interested in acquiring Walker because he was a good
football player.
Shortly after the draft, Lelie replaced Sullivan with
a new agent, Peter Schaffer. Lelie at that point felt he was
going to be on the bench and was quite upset. In a television
interview aired on May 7, Lelie stated:
Q: So what's gonna happen July 27th when
training camp starts?
A: Hopefully, I'm in a camp playin
football.
Q: You don't see any way that you'd return
to the Denver Broncos-is that even
feasible?
A: Not-not. No I can't be a number three
receiver-! can't accept that role. You
know, I wouldn't be able to live with
myself if I did.
Q: If you don't get traded before training
camp, what are your options then-how far
can you take this?
A: To week ten.
4 Broncos/Lelie
The Broncos permitted Schaffer to talk to other Clubs
to try to arrange a trade that would be acceptable to the
Broncos. Schaffer discussed various possibilities with Coach
Shanahan, Sundquist and Broncos Director of Football
Administration Mike Bluem, but a trade was not worked out before
the start of mandatory minicamp in early July. Lelie did not
report for minicamp, and subsequently did not report for
training camp which opened on July 27.
On July 8, the Club notified Lelie it was fining him
$11,634 for missing minicamp. (This fine subsequently was
reduced to $8,000 in accordance with Article VIII of the CBA.)
The Club further notified Lelie:
Please be aware that although your conduct
entitles the Broncos to pursue enforcement
of the forfeiture provisions of the Signing,
Reporting and Playing Bonus of your NFL
Player Contract dated 7/25/02 as well as
Attachment II (Option Agreement) of your NFL
Player Contract dated 7/25/02, the Broncos
are electing not to pursue repayment at this
time.
The Broncos' decision in this present matter
in no way limits the Club's ability to
enforce our rights (forfeiture provisions of
the Signing, Reporting and Playing Bonus,
forfeiture provisions of the Option
Agreement) in the event of any breach of
your NFL Player Contract in the future,
including but not limited to the failure to
report to Training Camp on July 27, 2006
(mandatory reporting date for veterans) .
5 Broncos/Lelie
On July 28, the Club informed Lelie that he would be
fined $14,000 for each day of training camp he missed. (He
ultimately missed 27 days prior to being traded to Atlanta on
August 23.) On August 16, the Club demanded Lelie repay
$660,000 of his signing bonus as required under his Player
Contract.
Ultimately, on August 23, a three-way deal was worked
out under which Lelie was traded to the Atlanta Falcons and the
Broncos received draft pick compensation from the Washington
Redskins. The assignment of Lelie to the Falcons was subject to
several conditions set forth in the trade agreement, including
the following:
As additional consideration for the trade
discussed herein, the Denver Broncos (the
"Broncos") reserve any and all rights to
seek repayment of $660,000 in bonus money
that Lelie is required to return to the
Broncos under the express terms of the
Signing, Reporting, and Playing Bonus
addendum in Lelie's NFL Player Contract
(dated July 26, 2002). The Broncos also
reserve any and all rights to collect any
fines that have been levied against Lelie as
of the date of this trade agreement. The
preservation of rights provided herein is an
express provision of this trade agreement
and, but for this preservation of rights,
the Broncos, Falcons and Redskins would not
have executed this trade agreement.
The Broncos also insisted, as a non-negotiable condition of
agreeing to trade Lelie, that he sign an acknowledgment
(Acknowledgment) under which he acknowledged he was obliged to
6 Broncos/Lelie
return $220,000 of his option bonus (which he repaid at that
time) and $660,000 of his signing bonus, and to pay "in cash on
demand" fines levied for his missing minicamp and pre-season
training camp totaling $386,000 (to be reduced to $170,000 in
the event he repaid the $660,000 of his signing bonus, pursuant
to Article VIII of the CBA.)
In a proceeding initiated by Class Counsel and the
NFLPA pursuant to Article XXVI of the CBA and the White
Stipulation and Settlement Agreement (SSA), Special Master
Stephen Burbank ruled that the Acknowledgment signed by Lelie
was void under the terms of the SSA, and "may not be used for
any purpose in any other proceeding." The Special Master
further ruled that the return of $220,000 of Lelie's option
bonus was a prohibited forfeiture under the terms of the SSA,
and that Lelie was entitled to return of that money.
1
The present grievance was filed on September 11, 2006.
It was submitted to arbitration as an expedited appeal under
Article IX, Section 4 of the CBA. The parties filed pre-hearing
briefs and a hearing was conducted on March 12 and March 23,
2007. General Manager Ted Sundquist, Coach Mike Shanahan and
Director of Football Administration Mike Bluem testified on
behalf of the Broncos. Ashley Lelie and his agent, Peter
Schaffer, testified on behalf of the Player. There also was a
1
The Special Master issued his ruling, hereinafter Lelie Special
Master Case, on November 16, 2006. The NFLMC appealed the
ruling on the option bonus. That ruling was affirmed by U.S.
District Court Judge Doty on March 26, 2007.
7 Broncos/Lelie
stipulation that if he were to testify NFLPA General Counsel
Richard Berthelsen would testify that he was unaware of any
player having paid any fine on demand or out of future salary
payments from other Clubs after his service with the Club
imposing the fine had ended.
CLUB POSITION
Fines
The Club contends that by withholding his services
from the Broncos mandatory minicamp and pre-season training
camp, Lelie was properly subject to the fines imposed by the
Club, which are expressly authorized by Article VIII of the CBA.
Lelie has not been able to demonstrate that the fines were not
uniform. In particular, Trevor Pryce -- a player cited by Lelie
as having been treated differently -- was fined for not
reporting to training camp for a 14-day period in 2000.
The Club insists that it has standing to collect the
unpaid fines through this grievance. Lelie incurred the fines
while under contract to the Broncos, and the Club specifically
reserved the right to collect the fines when he was traded to
Atlanta. The Club maintains that Lelie's reliance on Carolina
Panthers v. Greene (Kagel 1997) is misplaced. The Panthers
released Greene and terminated his contract. The NFLPA argued
in that case that the Club discharged Greene for alleged
violation of club rules, thereby superseding and mooting prior
lesser forms of discipline. Here the Club granted Lelie's
8 Broncos/Lelie
demand for a trade and expressly preserved its right to seek
payment of the fines.
Lelie also cites Greene for the proposition that a
Club may collect fines only through payroll deductions. But,
the Club contends, Paragraph 7 of his Player Contract -- which
is an Appendix to the CBA -- clearly states:
Any advance made to Player will be repaid to
Club, and any properly levied Club fine or
Commissioner fine against Player will be
paid, in cash on demand ~ by means of
deductions from payments coming due to the
Player under this contract ....
{Emphasis added.)
Slaughter v. Jacksonville Jaguars {Das 2005) held that a Club
can rely on Paragraph 7 to enforce a demand for repayment of a
salary advance, and this language is just as applicable to
collection of fines.
Signing Bonus Forfeiture
The Club contends that Lelie is contractually
obligated to repay a portion of his signing bonus in accordance
with the terms of his Player Contract. As stated in NFLPA v.
Cincinnati Bengals {Loyalty Clause Dispute) {Bloch 2001) :
Arbitration precedent between these parties
clearly establishes both the contractual
nature of the signing bonus and the
9
enforceability of forfeiture provisions
contained therein.
Broncos/Lelie
See: Denver Broncos v. Kennison (Wittenberg 2003); Miami
Dolphins v. Williams (Bloch 2004); Tampa Bay Buccaneers v.
McCardell (Das 2005). By failing to report to the Club's
mandatory minicamp and pre-season training camp, Lelie was in
"default" as defined in the addendum to his Player Contract.
Because his default occurred in 2006, he is obligated to repay
the amount specified therein $660,000.
Lelie breached his contract before he was traded to
the Falcons, and the Broncos expressly preserved the right
asserted here in the trade agreement. Enforcement of the
signing bonus agreement, the Club argues, is not disciplinary in
nature. See: Loyalty Clause Dispute. Nor does it amount to a
penalty in violation of Colorado law governing liquidated
damages. As Arbitrator Bloch held in Williams, the bonus
repayment provisions in that case did not violate state law
because they were not, in fact, liquidated damages provisions.
See also: McCardell.
The Club further asserts that even if the signing
bonus repayment provisions were to be considered a liquidated
damages provision, it is enforceable under Colorado law. To be
unenforceable, a contract term must fix unreasonably large
liquidated damages. See Klinger v. Adams County School Dist.
No. 50, 130 P. 3d 1027 (Colo. 2006). That is plainly not the
case here. This grievance seeks repayment of the bonus in
accordance with the specific schedule set forth in Lelie's
10 Broncos/Lelie
contract -- $660,000 of the $3.3 million of the total bonus.
There is nothing unreasonable about such a forfeiture where, as
here, the player has effectively repudiated his contract with
one year remaining.
2
The Club maintains that the evidence shows the Broncos
only traded Lelie reluctantly because of his threat to hold out
through week 10 of the regular season. It also insists that the
Broncos ultimately got much less trade-wise than what it had
wanted when it considered the possibility of trading him before
his holdout. While the Club is not obliged to show harm, it
obviously was harmed and did not get the benefit of its bargain.
Most importantly, Lelie refused to finish out his contract and
did not play for the Broncos in the final season of his
contract.
PLAYER POSITION
Fines
Lelie contends that under the express language of
Article VIII, Section 5 of the CBA, as well as under long-
standing industry custom and practice and arbitral precedent,
Clubs may only collect fines by deducting them from the
paychecks of a player still employed by the Club. See: Greene.
The rationale behind this CBA provision and practice is that a
Club ceases to have any valid disciplinary purpose for
collecting fines from a player who no longer is an employee.
2
The Club's prehearing brief states "with two years remaining,"
but the 2007 option year was voided.
11 Broncos/Lelie
Even if Lelie's Player Contract does provide for fines to be
paid in "cash on demand", which to the NFLPA's knowledge has
never occurred, the CBA does not, and the protections of the CBA
are controlling, as specifically provided in both the CBA and
Lelie's Player Contract.
Lelie stresses at the outset that this case differs
from other cases where arbitrators have upheld the application
of signing bonus default provisions because the evidence
establishes there was no harm to the Club. The evidence shows
the Club got market value and just what it wanted by way of
compensation when it traded Lelie to the Falcons. Indeed, if
the trade had been worked out a few months earlier, before
minicamp, the Club would have been in the exact same position as
it was after Lelie was traded on August 23, but there would be
no grievance at all. Lelie also fully performed under his
original Player Contract. He reported to Atlanta's training
camp the day after he learned he was going to be traded and
played for the Falcons throughout the 2006 season under the
terms of that contract, and thus continued to earn the signing
bonus the Broncos now are trying to recoup.
Lelie contends that the enormous financial penalties
imposed on him by the Broncos constitute discipline and violate
the CBA requirements of "uniform discipline" and "just cause".
A determination of whether a Club's response to player conduct
constitutes discipline is to be determined on the basis of the
12 Broncos/Lelie
precise circumstances at issue. See: Owens v. Philadelphia
Eagles (Bloch 2005). The punitive, i.e., disciplinary nature of
the Broncos response to Lelie's conduct is established by the
contrast between this case and the manner in which the Club
responded when all-pro defensive end Trevor Pryce held out from
training camp in 2000 as well as by the Broncos coercive
recovery of $220,000 of Lelie's earned option bonus.
Pryce held out from training camp because he felt he
was underpaid. His Player Contract had a signing bonus default
provision similar to Lelie's, but the Club did not exercise that
provision, and subsequently rewarded Pryce with a lucrative,
long-term contract. Lelie argues that in Pryce's case the Club
chose not to exercise the forfeiture provision in his contract
because it did not want to punish a player that it highly
valued. Here, however, the Broncos no longer had any need for
Lelie, and, thus, punished him with what he believes to be the
highest financial penalties imposed in Club history.
In the Lelie Special Master Case, the Broncos stated
that in recovering $220,000 of his option bonus, the Club was
simply enforcing its rights under his Player Contract. Yet, the
Club had informed Lelie before his trade that, in accordance
with his contract, it would seek repayment of one-seventeenth of
his 2006 option bonus allocation ($220,000) for each regular
season week he missed. Because he missed zero regular season
weeks, Lelie insists, the Club knew full well it was not
entitled to any portion of his 2006 option bonus allocation
under the terms of the forfeiture provision. Yet, the Club
13 Broncos/Lelie
insisted on its right to recover the full $220,000. The Special
Master's ruling has put an end to the Club's improper attempt to
recover Lelie's earned option bonus, but the Club's bad faith
attempt to recover money it knew it was not entitled to shows
this grievance is not about the Club's good faith exercise of a
purported contractual right. It is intended to punish him.
Lelie maintains that there is no arbitral precedent
that controls the precise circumstances of this case. In
particular, while the decision by Arbitrator Bloch in the
Loyalty Clause Dispute case found that forfeiture provisions may
in the abstract be "contractual" rather than disciplinary, in
this case it is the Broncos' selective exercise of Lelie's
forfeiture provision in response to his holdout which
establishes the disciplinary nature of that action.
Discipline, under the CBA, must be uniformly
administered. The lack of uniformity is established, Lelie
argues, by the Club's very different treatment of Pryce for the
same conduct. To the Player's knowledge and belief, not only
did the Broncos not exercise the forfeiture provision in Pryce's
contract and reward him with a new contract at the end of the
season, it did not even deduct the fines he accrued for the days
he missed training camp.
Discipline also must be for just cause. Here the
punishment is out of all proportion to the purported crime.
Lelie did not attend minicamp or the first few weeks of training
camp, but there was no harm to the Broncos. His absence from
14 Broncos/Lelie
practice caused no disruption or any adverse effect on the Club,
and when the Club voluntarily traded him it received the very
draft compensation it had been seeking.
Lelie further contends that the signing bonus default
provision in his Player Contract is an unenforceable liquidated
penalty under Colorado law.
In the just issued Lelie Special Master Case, the
Special Master expressly held that:
It is clear from the structure of section 9
[of Article XVII of the SSA] as a whole that
a contractual provision vesting in a Club a
right to recoup monies upon subsequent
breach of contract by a player constitutes a
"forfeiture."
This ruling, Lelie insists, is binding on all parties and the
Non-Injury Grievance Arbitrator because the Special Master has
exclusive jurisdiction over Article XIV of the CBA and Article
XVII of the SSA, which cover NFL Player Contracts. Under the
Special Master's ruling, the signing bonus default provision in
Lelie's contract must be treated as a "forfeiture" --not a mere
contractual term determining the conditions under which the
bonus is earned. There is no way to reconcile this controlling
interpretation of the SSA with the holdings in McCardell and
Williams that such default provisions are not liquidated damages
provisions because they are contractual incentives.
15 Broncos/Lelie
The signing bonus default provision in Lelie's
contract is, by definition, a liquidated damages provision under
Colorado law. A liquidated damages provision is invalid as a
penalty if it is unreasonably disproportionate to the expected
loss on the very breach that did occur. See: Yerton v. Bowden,
762 P. 2d 786 (Col. Ct. App. 1988); Gouger v. Buffalo
Co., 141 P. 511 (Col. Ct. App. 1914). Under the forfeiture
provision in his contract, Lelie would forfeit his signing bonus
allocation for the entire 2006 season regardless of whether he
missed a single day of training camp, a month of training camp,
or the entire regular season. If he missed the entire regular
season, such a forfeiture might have been appropriate, but here
Lelie resumed full performance of his contract after missing
minicamp and a few weeks of training camp, and continued
thereafter to earn the very signing bonus money the Broncos are
trying to recover. Clearly, the $660,000 penalty in this case,
in which the Club suffered no harm since Lelie was traded for
full value to another Club before the start of the regular
season, was an unenforceable penalty.
Moreover, Lelie contends, the facts in this case are
quite distinguishable from those in Williams and McCardell and
show that the incentive analysis applied in those cases -- even
if not now overruled by the Lelie Special Master Case -- is not
applicable here, and that the forfeiture exercised by the
Broncos is a liquidated penalty. Unlike Ricky Williams, who had
three years remaining on his contract when he stopped performing
all together, Lelie played out his entire contract without
missing a game. Unlike the finding in McCardell, Lelie is not
16 Broncos/Lelie
receiving any financial benefit for his holdout. Lelie has
earned all of the signing bonus allocation at stake in this
case. Moreover, his temporary breach caused no harm to the Club
unlike the findings in Williams and McCardell.
FINDINGS
Fines
In this case the Club rightfully cites and relies on
NFL arbitral precedent in support of its claim for return of
$660,000 of Lelie's signing bonus. Arbitrator Kagel's decision
in Greene is entitled to equal treatment. Notwithstanding the
language in Paragraph 7 of the NFL Player Contract stating that
fines will be paid "in cash on demand or by means of deductions
coming due to the Player under this contract," which is quoted
in Greene, Arbitrator Kagel concluded:
The Collective Bargaining Agreement in
Article VIII, "Club Discipline," Section 5,
"Deduction" reads:
"Any Club fine will be deducted at
the rate of no more than $1,000 from
each pay period, if sufficient pay
periods remain; or, if less than
sufficient pay periods remain, the
fine will be deducted in equal
installments over the number of
remaining pay periods. This will
not apply to a suspension." (Jt. Ex.
1, emphasis supplied)
17 Broncos/Lelie
Both the Collective Bargaining Agreement and
Greene's Player Contract provide that
payment of fines will be satisfied by "means
of deductions from payments coming due to
the Player under his contract" and the
Collective Bargaining Agreement provided it
to be " ... deducted at the rate of no more
than $1,000 from each pay period."
Both the Collective Bargaining Agreement and
Greene's Contract provide that payment of
fines can only result from a Player earning
a salary as a Player. In this case, Greene
never worked as a Player under the 1997
contract and therefore earned no monies
during any "pay period" from which a fine,
even if proper, could be deducted.
Notably, there is no provision in Article VIII of the
CBA for collection of fines other than through deductions, as
specified in Section 5. Moreover, the decision in Greene is
consistent with unrebutted testimony in this record supporting a
finding that as a matter of practice over many decades Club
fines have only been paid by means of deductions by the Club
imposing the fine. While the facts in this case are somewhat
different from those in Greene, in that Lelie did continue to
work as a player under the 2002 contract he signed with the
Broncos after his trade to the Falcons, the only way Denver can
now collect the fines it imposed on Lelie is by insisting they
be paid in cash on demand. That is contrary to the law of the
shop in this industry.
The decision in Slaughter v. Jacksonville Jaguars (Das
2005), cited by the Club, involved repayment of a salary
advance. The CBA does not include any provision, other than
18 Broncos/Lelie
Paragraph 7 of the NFL Player Contract, relating to repayment of
salary advances. Moreover, a salary advance and a Club fine
obviously are very different in nature. One is a loan to be
repaid. The other is a disciplinary penalty imposed for
violating team rules. There is nothing illogical or
inconsistent in allowing a Club to seek repayment of a salary
advance from a player who no longer is under contract to that
Club "in cash on demand," while not permitting the Club to
demand payment of outstanding fines in those circumstances.
The Broncos are not entitled to an order requiring
Ashley Lelie to pay fines that were levied while he was under
contract to the Club.
The terms of Lelie's Player Contract clearly require
him to return $660,000 of his $3.3 million signing bonus to the
Denver Broncos.
Lelie's contention that the Club's decision to enforce
the provisions in the addendum to his contract governing his
signing bonus constitute improper disciplinary action is not
persuasive.
In the Loyalty Clause Dispute Arbitrator Bloch, after
reviewing prior NFL arbitration cases, concluded:
19 Broncos/Lelie
In sum, the finding here is that the
existence of a separately-negotiated bonus
provision requiring forfeiture of monies
that may exceed the Article VIII Maximum
Penalties does not conflict with Article
VIII merely because it seeks to regulate
conduct that may also be subject to
disciplinary fines under that Article. The
parties have utilized and applied such
negotiated provisions in the past, and the
arbitration precedent, discussed above,
supports the conclusion that the contractual
mechanism is distinct from, and does not
conflict with, the Maximum Discipline
provisions of the CBA. For these reasons,
the grievance will be denied.
Lelie contends, however, that the particular circumstances in
this case distinguish it from others where arbitrators have
upheld forfeitures of various types of bonuses pursuant to
negotiated bonus provisions for conduct that may also be subject
to disciplinary fines.
First, Lelie cites what he claims was a very different
response by the Broncos to a similar holdout by Trevor Pryce in
2000. The evidence establishes that Pryce -- like Lelie -- was
fined, and the fines were collected as deductions from payments
due Pryce under his contract. The Club did not demand repayment
of a portion of his signing bonus, as it had the right to do
under the terms of his contract. As in Lelie's case, when Pryce
began his holdout, the Club put him on notice that it had the
right to do so. Two weeks later he reported to the Club's
training camp, and the Club took no further action to enforce
that right. In Lelie's case, the Club only demanded repayment
20 Broncos/Lelie
of $660,000 of his signing bonus on August 16, almost three
weeks after the start of training camp, at which time there was
no reasonable basis to expect that Lelie would report to the
Club. Even accepting the testimony by Pryce's agent that Pryce
only returned after being told that the Club would "revisit" his
contract (which had two years left) at the end of the year --
which Coach Shanahan insisted he would not have done -- the fact
is Pryce returned to the Club after a two-week absence, whereas
Lelie had made it clear he had no intent or interest in doing
so. The evidence does not support Lelie's claim of disparate
treatment.
Second, Lelie points to the Club's action in
recovering $220,000 of his option bonus which, Lelie contends,
the Club knew it was not entitled to. The Club disputes that
assertion, pointing out that Lelie did not play for the Broncos
in the final year of his contract. The Club's action was
overturned in the Lelie Special Master Case, and the Club may
have overreached in an effort to recoup as much of the bonus
monies it had paid to Lelie as it could after he defaulted on
his obligations to the Club. The Club's efforts to maximize its
recovery after Lelie made it clear he would not honor the final
year of his contract does not establish that its decision to
seek return of $660,000 of his signing bonus was improper
because it was disciplinary in nature.
The remaining issue is whether the signing bonus
default provision in Lelie's Player Contract is an unenforceable
liquidated damages penalty under Colorado law. Prior NFL
21 Broncos/Lelie
arbitration decisions, particularly Williams which was followed
in McCardell, have held that signing bonus forfeiture provisions
like the one in Lelie's contract are not liquidated damages
provisions. The rationale for these decisions is set forth in
Williams, the first case to squarely address this issue, as
follows:
... But the clauses in these agreements are
not liquidated damage provisions; they are,
instead terms that highlight, with
precision, those circumstances in which
bonus monies will be given and those in
which they will be taken away.
To be sure, whether a provision is seen as
forfeiture, penalty, refund or return, the
end result is the same: Net monies are
reduced. But there are meaningful
differences in the nature of the financial
arrangements and, hence, in the contractual
consequences of a breach. Reading the
contract as a whole, there is no real
question that what was bargained here was a
comprehensive incentive and default
mechanism. At stake was not solely a series
of individual field performance goals and
rewards for the player but also a long-term
arrangement that figured prominently in the
Club's overall plan. Under the
circumstances, it was not unreasonable for
the parties to structure incentives that
recognized and accommodated both
expectations. These were not simply
surrogate methods of estimating damages in
the event the bargain went sour; rather,
they were the essence of the bargain
themselves.
Failing to honor and enforce the clear terms
of this particular arrangement would be to
22 Broncos/Lelie
at once ignore both the overlay of the
master collective bargaining agreement and
the overall structure of this individual
Player Contract. In this case, the Miami
club had made extensive plans for the
Player, attempting to provide both benefits
and costs that would ensure a long-term
relationship. All this was held for naught
when Williams walked away. In response, the
Club was entitled to reclaim the bonuses.
Lelie's contention that the ruling in the Lelie
Special Master Case that a contractual provision vesting in a
Club a right to recoup monies upon subsequent breach of contract
by a player constitutes a "forfeiture" as that term is used in
Article XVII of the SSA (and Article XIV of the CBA) does not
invalidate the rationale and holding in Williams and McCardell.
Those cases did not hold that repayment of bonus monies was not
a "forfeiture". Indeed, in Williams the Player Contract
specifically provided for "forfeiture" of various performance
bonuses. Nomenclature is not conclusive; what is important is
the substance and nature of the bargain. The issue decided in
Williams and McCardell, which was not addressed in the Lelie
Special Master Case, was whether a bonus forfeiture or repayment
provision constituted a liquidated damages provision. The
analysis in Williams is not overruled, in my opinion, by the
ruling in the Lelie Special Master Case.
It is true that the facts in this case are different
from those in Williams, McCardell and Kennison. Indeed, other
than not showing up for minicamp and training camp and
communicating privately and publicly that he was not going to
23 Broncos/Lelie
report to the Broncos, at least until the tenth week of the
season when the NFL rules gave him an incentive to do so, Lelie
conducted himself quite professionally. His agent worked with
the Club to try to work out a trade that would be acceptable to
the Broncos, who had little choice but to trade Lelie.
Following the trade, Lelie performed for the Falcons under the
terms of his Player Contract during the remainder of 2006, after
which he became a free agent. But by his intentional failure to
report to minicamp and training camp and his continued refusal
to perform for the Broncos, Lelie defaulted on his obligations
under his signing bonus provision, triggering the Broncos'
contractual right to demand repayment of $660,000 of his signing
bonus.
The parties are far apart on whether the Broncos were
harmed by Lelie's holdout.
3
By holding out and making clear he
would continue to do so, Lelie left the Club little choice but
to trade him. The Club presented evidence that its clear
preference was that Lelie play for the Broncos in 2006 pursuant
to his contract. As the Club also has argued, absent a likely
holdout by Lelie the Broncos may not have traded for Javon
Walker, although that is a moot issue on this record. While the
Club accepted the terms under which Lelie was traded to the
Falcons, there is evidence it had sought more when it first
considered the possibility of trading Lelie earlier in the off-
season before he had refused to report to camp. Moreover, Club
witnesses, whose credibility is not challenged, testified that
3
It is important to keep in mind that there is no equitable
restitution issue in this case as there was in McCardell.
24 Broncos/Lelie
after the Club had demanded repayment of part of his signing
bonus the Broncos made it clear they would only agree to a trade
on condition it receive that repayment plus the other monies it
believed it was entitled to as a result of Grievant's failure to
comply with Club rules and the terms of his contract. In the
final analysis, however, Williams stands for the proposition
that if a Player fails to perform in accordance with the terms
of a bonus provision he is subject to having to return that
portion of the bonus specified in his contract.
Lelie also stresses that unlike players in other
signing bonus forfeiture cases he has "earned" all of the
signing bonus allocation at stake in this grievance by playing
under his contract after his trade to Atlanta. In this regard,
Williams is instructive. That case did not just involve
repayment of a signing bonus allocation corresponding to the
remaining duration of Williams' contract after his announced
retirement. The Dolphins also successfully sought enforcement
of performance bonus provisions under which Williams was
required to return to the Club the full amount of over $5
million of various performance bonuses he had already earned and
been paid.
The Williams decision was unsuccessfully challenged in
Federal District Court in Florida on the issue of liquidated
damages. Absent a controlling court decision compelling a
finding that the analysis and rationale in Williams is legally
indefensible, it is the law of the shop. The parties are free
to change that "law" by agreement, as they have done in certain
25 Broncos/Lelie
respects in the 2006 CBA. But those changes are not by their
terms applicable to Lelie's signing bonus, as they are to his
option bonus which was at issue in the Lelie Special Master
Case.
For the reasons set forth above, I conclude that the
Broncos are entitled to repayment by Lelie of $660,000 of his
signing bonus.
AWARD
The Club's grievance is denied in part and granted in
part as set forth in the above Findings. Ashley Lelie shall
forthwith repay the Denver Broncos the total sum of $660,000.
Shyam Das, Arbitrator

EXHIBIT U
SHYAM DAS, ARBITRATOR
In the Matter of Arbitration
Between
PLAYERS ASSOCIATION On Behalf
of Steve Harvey, David Alexander
and Marlon Kerner
and
MANAGEMENT COUNCIL On Behalf
of THE BUFFALO BILLS and
THE NEW YORK JETS
-)
)
)
)
)
)
)
)
)
)
)
)
- - - - -)
- - - - - - - - - - - - - - - -)
THE NATIONAL FOOTBALL LEAGUE )
PLAYERS ASSOCIATION On Behalf )
of Charles Smith, Dusty Renfro, )
Michael Swift and Jason Peter )
)
and )
)
THE NATIONAL FOOTBALL LEAGUE )
MANAGEMENT COUNCIL On Behalf )
THE CAROLINA PANTHERS )
- - - - - - - - - - - - - - - -)
Appearances
For the NFL Players Association:
ARBITRATOR'S OPINION
AND AWARD
February 14, 2007
Richard A. Berthelsen, Esq.
Jeffrey L. Kessler, Esq.
Adam J. Kaiser, Esq.
Kristin A. Meister, Esq.
2
For the NFL Management Council:
T. David Gardi, Esq.
Daniel L. Nash, Esq.
Brook F. Gardiner, Esq.
Sylvia A. Krainin, Esq.
NFLPA/NFL
we Offset
BACKGROUND NFLPA/NFL
we Offset
On May 17, 2005, the NFLPA filed a grievance stating
as follows:
Pursuant to Article IX of the NFL 2002-2008
Collective Bargaining Agreement ("CBA"), the
NFLPA hereby files a non-injury grievance
against the Buffalo Bills, New York Jets
(collectively, the "New York Clubs") and the
NFL Management Council.
It is our understanding that following the
New York State Workers' Compensation Board's
decisions in Steve Harvey, WCB Case
#89516968 {April 4, 2005) and David F
Alexander, WCB Case #89814852 (April 4,
2005), the Buffalo Bills and the New York
Jets are now claiming an offset against
money paid to NFL Players Steve Harvey and
David Alexander, respectively, for the
entire amount of the workers' compensation
benefits awarded to those players (i.e., a
"dollar for dollar" offset) in the above
cited cases.
The New York Clubs' conduct in seeking this
dollar for dollar offset violates the
express language of Paragraph 10 of the NFL
Player Contract, which permits Clubs to take
only a limited offset for the amount of
workers' compensation benefits due and
payable during the ~ period of time in
which a player is deemed to be entitled to
his salary under his contract (i.e., a
"time" offset). See CBA, App. C (NFL Player
Contract) at ~ 1 0 . The New York Clubs'
conduct likewise violates various NFL
arbitration decisions holding that Paragraph
10 permits Clubs to take only a "time"
offset, as opposed to a "dollar for dollar"
offset. See, e.g., Kyle Freeman v. Los
Angeles Raiders (Arbitrator Kagel, Dec. 28,
1994) .
2 NFLPA/NFL
we Offset
To the extent that New York state workers'
compensation caselaw provides for a greater
offset than is permitted by Paragraph 10,
and is therefore inconsistent with the terms
of the CBA as interpreted in arbitration,
such state law is preempted pursuant to
federal labor law. See, e.g., Tampa Bay
Area NFL Football, Inc. v. Jarvis, 668 So.
2d 217, 219 (Fla. Dist. Ct. App. 1996)
(applying the "time" offset provided for in
Paragraph 10 of the NFL Player Contract
instead of the "dollar for dollar" offset
provided for by Florida statutory law) .
The NFLPA therefore seeks a ruling from the
Arbitrator that the New York Clubs must
cease and desist from any further attempts
to claim offsets for the entire amount of
workers' compensation benefits awarded to
NFL players (i.e., a "dollar for dollar"
offset) instead of the limited "time" offset
permitted by Paragraph 10 of the NFL Player
Contract. The NFLPA further seeks
declarations that (1) Paragraph 10 of the
NFL Player Contract provides for a "time"
offset and not a "dollar for dollar" offset;
(2) the "time" offset in Paragraph 10
applies regardless of whether New York state
law provides for a greater offset; and (3)
the New York Clubs may not make any further
attempts to claim a "dollar for dollar"
offset against workers' compensation awards.
Finally, the NFLPA seeks any additional
remedy that the Arbitrator shall deem just
and equitable.
(Underlining in original.)
On September 14, 2005, the NFLPA filed a separate
grievance against the Carolina Panthers, which has been
3 NFLPA/NFL
we Offset
consolidated with the New York grievance for purposes of
arbitration. The Panthers grievance states as follows:
Pursuant to Article IX of the NFL 2002-2008
Collective Bargaining Agreement ("CBA"), the
NFLPA and players Charles Smith, Dusty
Renfro, Michael Swift and Jason Peters [sic]
hereby file a non-injury grievance against
the Carolina Panthers pursuant to Article IX
of the 1993 CBA, as amended.
It has come to the NFLPA's attention that
the Carolina Panthers are taking the
position that they are entitled to claim a
"dollar-for-dollar" offset against workers'
compensation awards paid to their players.
For example, the Panthers have taken the
position within the past month that they are
entitled to a "dollar-for-dollar" offset
against any workers' compensation award paid
to Jason Peters [sic] . The club and/or its
insurer has also claimed to the North
Carolina Court of Appeals that it is
entitled to a dollar-for-dollar offset
against the claims of Charles Smith, Dusty
Renfro and Michael Swift.... The NFLPA has
challenged a similar position taken by the
Buffalo Bills and New York Jets in a
grievance previously filed on May 17, 2005,
and believes that this case can be
consolidated with the New York case for
purposes of final disposition under Article
IX.
In this grievance, the NFLPA requests the
same relief from the Panthers that it is
currently seeking from the Bills, Jets, and
NFL Management Council in the New York
case ....
4 NFLPA/NFL
we Offset
On September 14, 2005, the NFLPA also filed an amended
grievance to include NFL player Marlon Kerner as an additional
grievant in the May 17, 2005, New York grievance, on the basis
that: "the Bills have claimed a 'dollar-for-dollar' offset
against the entire amount of the workers compensation benefits
awarded to Mr. Kerner, in violation of Paragraph 10 of the NFL
Player contract."
The consolidated grievances were heard in arbitration
on January 10, 2006. The parties filed pre-hearing briefs.
* * *
Players who are injured and unable to play may be
entitled to a number of benefits under the Collective Bargaining
Agreement (CBA), including salary continuance, as provided in
Paragraph 9 of the NFL Player Contract, and injury protection
benefit, as provided in Article XII of the CBA.
Since 1977, Paragraph 10 of the NFL Player Contract,
which is an integral part of the CBA, has provided:
10. WORKERS' COMPENSATION. Any
compensation paid to Player under this
contract or under any collective bargaining
agreement in existence during the term of
this contract for a period during which he
is entitled to workers' compensation
benefits by reason of temporary total,
permanent total, temporary partial, or
permanent partial disability will be deemed
an advance payment of workers' compensation
5 NFLPA/NFL
we Offset
benefits due Player, and Club will be
entitled to be reimbursed the amount of such
payment out of any award of workers'
compensation.
One of the issues presented in Freeman v. Los Angeles
Raiders (Kagel 1994) -- a case cited by the NFLPA in the present
grievances -- was the extent to which the Raiders were entitled
to a workers' compensation offset against injury protection
payments that Kyle Freeman was found to be eligible to receive
in that decision. The Raiders contended they were entitled to a
complete "dollar-for-dollar" offset, regardless of the period
for which the workers' compensation payments were received.
Freeman argued the Club was only entitled to a limited "time"
offset. In addressing this issue, Arbitrator Kagel stated:
In view of the decision to award Freeman the
monies due him under the Injury Protection
provision of the Agreement, the Club
contends that it is entitled to an offset
for Workers' Compensation monies which have
been and may be received by Freeman.
Freeman contends that the offset granted
under paragraph 10 should be limited
strictly to the amount of Workers'
Compensation benefits due and payable to him
during the same period in which he was
deemed entitled to his salary and/or his
Injury Protection benefit.
Paragraph 10 is designed to avoid "double
dipping" by a Player in a case where the
Player is receiving a salary or injury
protection compensation and is also
receiving Workers' Compensation by providing
that the Club can offset Workers'
6 NFLPA/NFL
we Offset
Compensation payments against such salary or
injury protection payments.
The "period" during which such offsets can
be made by the Club is the period of salary
payments or the period related to the injury
protection period, in Freeman's case the
1993 regular season.
The decision in Freeman on this issue stated: "The Workmen's
Compensation for Freeman shall be an offset on a time basis for
the 1993 regular season .... "
Article LIV (Workers' Compensation) of the CBA
provides, in relevant part:
Section 1. Benefits: In any state where
workers' compensation coverage is not
compulsory, a Club will either voluntarily
obtain coverage under the compensation laws
of that state or otherwise guarantee
equivalent benefits to its players. In the
event that a player qualifies for benefits
under this section, such benefits will be
equivalent to those benefits paid under the
compensation law of the state in which his
Club is located.
* * *
Section 3. Arbitration: In any state where
a Club (e.g., Miami Dolphins/Florida) has
legally elected not to be covered by the
workers' compensation laws of that state,
the equivalent benefit, if any, to which a
player may be entitled under this Article
will be determined under the grievance
procedure of Article IX (Non-Injury
Grievance) .
7
* * *
NFLPA/NFL
we Offset
Section 6. Preservation of Rights: The
NFLPA and the Clubs preserve their prior
positions with regard to the legality of
workers' compensation offset provisions
under state law, and nothing in this Article
shall prevent any player from claiming that
an offset provision is not legally binding
upon him or prevent any Club from asserting
that an offset provision is legally binding
upon a player. In addition, neither party
nor members of the NFLPA's bargaining unit
will claim that the other party's agreement
to this Article or the revised NFL Player
Contract appended hereto affects the rights
set forth above.
NFLPA POSITION
The NFLPA asserts that the Clubs are not entitled to a
dollar-for-dollar offset under the plain terms of the
arbitration decisions interpreting Paragraph 10 of the NFL
Player Contract. In addition to Freeman, the NFLPA cites two
earlier decisions: Wandler v. Minnesota Vikings (Volz 1990) and
Green v. Washington Redskins (Stark 1992). Each of these cases
found the purpose of Paragraph 10 was to avoid "double dipping"
during the period in which a player is receiving compensation
under his contract or the CBA by permitting a time offset only.
The same ruling was thereafter applied in Donald Smith NFL Arb.
(Malka 1996), aff'd Donald Smith NFL Arb. Appeal (Kagel 1997).
No arbitrator has since disagreed.
8 NFLPA/NFL
we Offset
The NFLPA contends that Freeman and the other relevant
arbitration decisions have become part of the CBA and are
binding on all Clubs. Article II, Section 1 makes it clear that
there is a uniformity rule. All players have to be treated
alike, and all Clubs have to be treated the same. Article IX,
Section 8 specifically provides:
The decision of the arbitrator will
constitute full, final and complete
disposition of the grievance, and will be
binding upon the player(s) and Club(s)
involved and the parties to this
Agreement ....
(Emphasis added.)
All Clubs are parties to the CBA. The preclusive effect of such
arbitration is also required by basic principles of federal
labor law. Here, not only has Paragraph 10 never been annulled,
it was twice ratified and reaffirmed by the parties when the
1993 CBA was extended after the Freeman decision without any
change to Paragraph 10. Freeman is the law of the shop, fully
binding on each NFL Club, and state and federal courts and
administrative bodies are bound to follow it as such. Moreover,
the issue of whether the holding in Freeman is the law of the
shop and binding on all of the parties to the CBA is a decision
for the arbitrator, not for the courts.
The NFLPA insists that Freeman is indistinguishable
from the present consolidated grievances. Clearly, Arbitrator
Kagel held that the time offset in Paragraph 10 governed all
compensation payable to a player under any provision of the CBA
9 NFLPA/NFL
WC Offset
or NFL Player Contract. Indeed, that result is required by the
plain language of Paragraph 10. It makes no difference that in
the present consolidated case the Clubs reduced the workers'
compensation award, not the injury benefit, because the CBA
provides that injured employees are entitled to both contractual
injury benefits and workers' compensation. See NFLPA v. Dallas
Cowboys and Houston Texans (Das 2005), hereinafter referred to
as Texas Workers' Comp.
The NFLPA maintains that arbitration decisions
interpreting Paragraph 10, like Freeman, preempt inconsistent
state laws.
1
In particular, Texas Workers' Comp establishes that
where a state workers' compensation law conflicts with a
provision of the CBA, the CBA must control. The NFL also cites
Tampa Bay Area NFL Football, Inc. v. Jarvis, 668 So. 2d 217
(Fla. Dist. Ct. App. 1996), which it states held that a dollar-
for-dollar workers' compensation offset provision in Florida law
was preempted by the limited time offset provision in Paragraph
10 of the NFL Player Contract. Moreover, as in Texas Workers'
Comp, it is proper and appropriate for this arbitrator to decide
the preemption issue.
The NFLPA asserts that the "Preservation of Rights"
provision in Article LIV, Section 6 of the CBA merely preserves
the parties' prior positions concerning the constitutionality
and preemption of state offset laws. This is clear from the
1
The NFLPA relies on the Machinists preemption doctrine. See
Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers v.
Wis. Employment Relations Comm'n, 427 U.S. 132 (1976).
10 NFLPA/NFL
we Offset
text and bargaining history of this section. Nothing in this
section makes state offset laws part of the CBA, or vests state
tribunals or legislatures with the right to interpret or modify
the limited time offset provided for in Paragraph 10 of the NFL
Player Contract. That provision, like the rest of the CBA,
remains subject to the exclusive jurisdiction of the parties'
arbitrators, who have conclusively decided what its meaning is.
Only they can decide what Paragraph 10 means. Certainly, the
parties did not agree to delegate to the 23 states having NFL
Clubs the contractual "right" to interpret Paragraph 10, with
the end product being a patchwork of disparate decisions that
treat players unequally under a uniform CBA.
The NFLPA requests the following remedy in this case:
(1) a damages award for any grieving player whose workers'
compensation benefits were reduced as a result of a Club
obtaining a greater offset than the time offset permitted by
Paragraph 10 of the NFL Player Contract; (2) a declaration that
Freeman establishes that Paragraph 10 is a time offset only, and
that it is a benefit or right to the player, as well as the Club
-- in that it defines the scope of the injury benefits provided
for in other provisions of the CBA and that Freeman is the
law of the shop, binding on all Clubs for salary continuance and
injury protection; and (3) a declaration that to the extent any
state statute purports to create a greater offset and,
therefore, diminishes a contractual benefit it is preempted.
The NFLPA stresses that it is not asking the arbitrator to order
state authorities to do anything, and it is not seeking an order
11 NFLPA/NFL
we Offset
preventing or limiting the Clubs from making any arguments they
want in state proceedings.
The NFLPA also contends that the Clubs' argument that
these grievances are untimely insofar as they seek monetary
damages is without merit. The source of the injury to the
affected players was not the Club's arguing for a greater offset
than that provided in Paragraph 10, but the granting of an award
by the state tribunal which permitted such an offset and,
thereby, reduced the player's contractual injury benefit. In
the case of all players, except Peter and Kerner, the grievance
was filed within 45 days of such an award, and, therefore, was
timely under Article IX, Section 2. In Peter's case, there are
no damages yet, as the parties in that workers' compensation
proceeding have put the case on hold. In Kerner's case, the
NFLPA -- which is not a party in any of the state proceedings
did not know of the decision within 45 days of the award, but
filed an amended grievance to include Kerner a former player
who could not file a grievance on his own -- in the New York
grievance within 45 days of when the NFLPA did learn of the
award.
CLUBS POSITION
Initially, the Clubs argue that this arbitrator lacks
jurisdiction to resolve these grievances because they involve a
dispute over how state law should be interpreted and applied in
purely state law proceedings. As recognized in Texas Workers'
Comp, state law, not the CBA, determines what benefits a player
12 NFLPA/NFL
we Offset
who files a claim for workers' compensation benefits under state
law is entitled to receive. Any dispute over how such a claim
is to be calculated, including the amount of any appropriate
offset, always has been presented to, and resolved by, the
respective state authorities.
In any event, the Clubs contend, the grievances are
meritless because the CBA does not guarantee players any minimum
level of workers' compensation benefits, but instead leaves the
players' entitlement to such benefits for determination solely
by state authorities in accordance with state law.
Paragraph 10 of the NFL Players Contract gives Clubs
the contractual right to be reimbursed for money paid to players
that the parties deem to be an "advance payment" of workers'
compensation. Paragraph 10 confers no affirmative rights upon
NFL players that could be subject to violation. Past
arbitration decisions have not created any player rights to a
minimum level of workers' compensation benefits under state law.
The holding in Freeman may be asserted as authority in a
subsequent NFL arbitration in which a Club seeks to reduce a CBA
benefit by the amount of a state workers' compensation award,
but it cannot be extended to preclude Clubs from arguing how a
claim for workers' compensation should be determined by state
authorities under state law. Donald Smith followed the Florida
court's decision in Jarvis in interpreting Paragraph 10 to
provide a time offset under Florida law. State decisions in
Ohio, Louisiana and Pennsylvania likewise considered Paragraph
10 in determining that laws in those states provided Clubs with
13 NFLPA/NFL
we Offset
a full dollar-for-dollar offset for advance compensation paid to
players for their injuries.
The Clubs insist this is not a case of Machinists
preemption. A state's determination as to how a particular
workers' compensation award should be calculated under state law
does not in any way deprive a player of any collectively
bargained benefit. The NFLPA's reliance on Freeman and the law
of the shop principles is inapposite. The question is not
whether Freeman should be followed in a subsequent arbitration
involving substantially identical claims under the CBA, or even
whether that decision has become part of the CBA and may not be
relitigated. The grievances at issue here do not concern a
claim, as in Freeman, for injury protection benefits under the
CBA.
Neither Freeman nor any of the other arbitration
decisions cited by the NFLPA holds that Paragraph 10 only
permits a limited time offset and precludes a dollar-for-dollar
offset to workers' compensation. Indeed, Arbitrator Kagel
himself issued two decisions prior to the 1993 CBA granting a
Club a dollar-for-dollar offset. See Harris v. Los Angeles Rams
(Kagel 1989) and Miami Dolphins v. Bennett, et al. (Kagel 1990).
The Clubs stress that since Freeman was decided in
1994, Clubs and players -- with the assistance of the NFLPA --
have been arguing in state proceedings over whether Freeman's
analysis should be adopted in determining the offset to be
provided under state law on the particular facts in issue. This
14 NFLPA/NFL
WC Offset
shows that preemption does not apply, and that the practice
established under the CBA is that these issues are to be
resolved at the respective state level.
Indeed, the Clubs argue, the Preservation of Rights
provision in Article LIV, Section 6 of the CBA protects the
Clubs' right to make offset arguments to state authorities.
Ever since this provision was included in the CBA in 1993, both
parties have routinely argued to state workers' compensation
authorities regarding the legality of workers' compensation
offset provisions under state law, as Section 6 expressly
authorizes.
The Clubs assert that federal court decisions make
clear that a party to a CBA cannot obtain declaratory relief
precluding the other side from filing grievances or advancing
arguments that it believes already have been decided in
arbitration. See, e.g., AG Communications Systems Corp. v.
Int'l Brotherhood of Electrical Workers, Local 21, 2005 WL731026
(N.D. Ill.). Here the NFLPA seeks to bar the Clubs from ever
arguing about the offset issue not only in subsequent
arbitration, but even in a forum outside of the CBA under state
law.
The Clubs contend that there is no obligation that a
state apply state law in a manner consistent with Arbitrator
Kagel's decision in Freeman. State authorities are not bound by
Freeman in how they interpret Paragraph 10 in the context of
applying state workers' compensation statutes. An arbitrator
15 NFLPA/NFL
we Offset
cannot tell states how they should interpret and apply their own
state statutes.
Finally, the Clubs maintain that to the extent the
NFLPA is seeking damages for the named players in these
grievances, the grievances are untimely. The Clubs assert that
the conduct being challenged here is the argument the various
Clubs have made at the state level about the application of
state workers' compensation offset provisions. The Clubs argue
that in each instance the NFLPA was well aware of that far more
than 45 days prior to the filing of the grievance.
FINDINGS
In Freeman, the player had received an award of
workers' compensation benefits before he was found to be
entitled to injury protection benefits under the CBA. After
concluding that he was entitled to injury protection, Arbitrator
Kagel granted the Club a time offset under Paragraph 10 of the
NFL Player Contract.
2
In Freeman, the parties disagreed on
whether Paragraph 10 provided only for a time offset or for a
dollar-for-dollar offset. Freeman squarely held that Paragraph
10 only provides for a time offset, and not for a dollar-for-
dollar offset. While Freeman involved injury protection, not
salary continuance, neither the parties, nor Arbitrator Kagel
2
Freeman is consistent with the two prior decisions, Wandler and
Green, in which arbitrators granted a club a time offset,
although it does not appear that the issue of a time offset
versus a dollar-for-dollar offset was raised in either case.
16 NFLPA/NFL
we Offset
appeared to see any distinction between those contractual
benefits for purposes of the offset allowed by Paragraph 10.
That is perfectly understandable given the language of Paragraph
10.
Under the holding in Freeman, a Club which has paid
salary continuance and/or injury protection to a player who
subsequently receives an award of workers' compensation would be
entitled to be reimbursed on a time offset basis under Paragraph
10. For purposes of Paragraph 10 it would not seem to matter
whether such a time offset was factored into the workers'
compensation award itself or was repaid by the player after
receiving an award that did not include such an offset.
The Clubs have cited two other arbitration decisions
that preceded Freeman, both also decided by Arbitrator Kagel.
Bennett was a case decided under the special procedure
applicable to the Miami Dolphins who elected not to be covered
by the workers' compensation laws of Florida. As Arbitrator
Kagel later stressed in Donald Smith, the ruling in Bennett was
that a Florida dollar-for-dollar offset statute applicable only
to professional athletes did not apply retroactively. Harris
was decided on the basis of an individualized insurance
provision included in the player's contract which specifically
provided for a dollar-for-dollar offset.
Donald Smith can be viewed as implicitly acknowledging
that a state law can legitimately provide for a different offset
than Paragraph 10 in determining the amount of workers'
17 NFLPA/NFL
we Offset
compensation to be awarded under state law to a player who has
also received contractual benefits, such as salary continuance
and/or injury protection, when it states that Jarvis not Freeman
was the appropriate precedent to consider. Donald Smith, like
Bennett, was decided under the special procedure applicable to
the Dolphins, which looks to Florida state law to determine the
"equivalent benefits" to be provided under Article LIV, Section
1. Jarvis was a Florida court decision which held that,
although Florida law provided for a dollar-for-dollar offset in
the case of professional athletes, Florida law also would
enforce a contract to provide greater benefits than otherwise
mandated by law. The court in Jarvis then read Paragraph 10 of
the NFL Player Contract as only providing for a time offset, and
determined that was controlling under Florida law. As I read
Jarvis, it applies state law, which in this instance looks to
the parties' agreement to see if they have agreed to greater
benefits than those provided by statute. There is no mention of
federal preemption in Jarvis. The only citation is to an
earlier Florida workers' compensation decision. Moreover, in
Jarvis the Florida court interpreted Paragraph 10 on its own,
without any reference to how that provision had been interpreted
in arbitration proceedings under the CBA.
3
Texas Workers' Comp held that the CBA does not define
what workers' compensation benefits a player is entitled to
3
In that case, of course, the Florida court's interpretation
coincided with the prior interpretation by Arbitrator Kagel in
Freeman. Other courts in states such as Ohio and Pennsylvania
have interpreted Paragraph 10 as providing for a dollar-for-
dollar offset, contrary to the holding in Freeman.
18 NFLPA/NFL
we Offset
receive under state law in a case where state workers'
compensation coverage applies. That is a matter to be
determined under state law. Texas Workers' Comp directed the
Texas Clubs not to require players to make an election between
contractual benefits guaranteed them under the CBA and workers'
compensation benefits under the Texas statute, even though the
statute directed the Clubs to do so, because that could place a
player in the position of waiving guaranteed contractual
benefits in order to receive workers' compensation benefits,
when the CBA clearly provides he is entitled to both. The Texas
statute required an election be made only when the contractual
benefits were greater than the statutory benefits, and that part
of the state law was deemed to be preempted.
Texas Workers' Comp involved an election imposed on
the players by the Clubs -- albeit in conformity with state law
--not an offset. That decision also recognized that the
arbitrator did not have the authority to determine what the
consequences of the decision would be in a state workers'
compensation proceeding. That does not mean there would be no
consequences, but it does mean they would have to be determined
in a different forum.
It is in the context of these prior NFL arbitration
decisions and the terms of the CBA that the issues raised in
this case must be decided.
Freeman clearly decided that Paragraph 10 provides for
a time offset only. Under Article IX, Section 8 the decision in
19 NFLPA/NFL
we Offset
Freeman is binding "upon the player(s) and Club(s) involved and
the parties to this Agreement", which includes the NFLPA, the
NFLMC and all of the Clubs. As the NFLPA contends, the CBA
contemplates a uniform "law of the shop". Freeman's
interpretation of Paragraph 10 is the precedent in this shop.
Taking into account that the parties have twice renewed the
terms of Paragraph 10 without change since Freeman was decided,
Freeman is the law of the shop and is binding as such on all of
the Clubs, including those involved in these grievances.
There is a separate issue, however, as to whether
Paragraph 10 limits the right of a state to provide a greater
offset in determining what workers' compensation benefits a
player is entitled to under state law. Article LIV, Section 6
makes clear that the parties agreed to disagree over the
legality of state offset provisions, and preserved their rights
to assert their respective positions on that matter. In
particular they agreed that the parties' agreement to Article
LIV and to Paragraph 10 would not be the basis of any claim that
either party was precluded from making such an assertion. As
the NFLPA has stated, the legality question involved two issues
-- the constitutionality of state offset laws that provided for
a greater offset for NFL players or professional athletes, and
whether Paragraph 10 preempted state statutes providing for more
than a time offset.
The CBA does not guarantee any particular level or
amount of workers' compensation benefits, but rather provides
that injured players are entitled to receive workers'
20 NFLPA/NFL
we Offset
compensation benefits -- whatever they might be -- in addition
to contractual benefits. The legality of provisions of state
workers' compensation laws is a mater to be decided in the
appropriate state or federal forum, not arbitration under the
CBA. The parties seemed to have recognized this over the past
12 years during which those issues have been litigated in such
tribunals. While neither the NFLPA nor the NFLMC has been a
party to such proceedings, they both have participated in
raising the respective positions which they preserved the right
to do in Article LIV, Section 6.
This arbitrator cannot grant the damages sought by the
NFLPA in this case without in effect granting the affected
players a greater award of workers' compensation benefits than
they were deemed entitled to by a state tribunal applying state
law, which is not within my authority to do. Indeed, if the
NFLPA believed such damages were available through the grievance
and arbitration procedure of the CBA it is difficult to
understand why they waited 12 years during which other players
were similarly affected by state offset laws before seeking such
a remedy.
The issue of preemption can arise in a state workers'
compensation proceeding in a variety of contexts. A state law
may grant a dollar-for-dollar offset in state workers'
compensation proceedings, regardless of what the parties have
agreed to regarding offsets in the CBA. A state law may grant a
dollar-for-dollar offset unless the CBA provides for a lesser
offset (i.e., a greater benefit), as in the Florida cases--
21 NFLPA/NFL
we Offset
Jarvis and Donald Smith. In the latter situation, it would seem
that preemption would only be an issue if the state tribunal
concluded that the CBA provides for a dollar-for-dollar offset,
which was not the case in the Florida cases. A state law may
grant a dollar-for-dollar offset only where that is provided for
in the parties' contract -- which apparently is the law in North
Carolina.
Where the application of state law turns on what is
provided in the CBA, there is an issue as to whether a state
tribunal is free to interpret a provision in the CBA in this
case Paragraph 10 -- on its own without regard to what
arbitrators have held or to the law of the shop as determined by
arbitrators. In each of these instances, however, the
preemption issue is one to be decided by the courts.
What can appropriately be done here, however, is to
issue a declaration that: Freeman holds that Paragraph 10 of
the NFL Player Contract provides only for a time offset, and not
for a dollar-for-dollar offset; that this is a benefit or right
to the player, as well as the Club; and that this is the law of
the shop under this CBA and is binding on all the Clubs. In
light of the position taken by some Clubs and/or their workers'
compensation insurers in state proceedings -- where they argue,
among other things, that Paragraph 10 provides for a dollar-for-
dollar offset and/or that Freeman is not the law of the shop or
binding on all the Clubs -- the NFLPA has a legitimate interest
in obtaining such a declaration because the parties have agreed
that the arbitrator, not a court or other tribunal, is to be the
22 NFLPA/NFL
we Offset
final determiner of what a provision in the CBA means and what
constitutes the law of the shop.
AWARD
1. DECLARATION: The decision in Kyle Freeman v.
Oakland Raiders (Kagel 1994) holds that Paragraph 10 of the NFL
Player Contract provides only for a time offset, and not for a
dollar-for-dollar offset; this is a benefit or right to the
player, as well as the Club; and this is the law of the shop
under this CBA and is binding on all the Clubs.
2. The NFLPA's request for other relief is denied for
the reasons stated in the above Findings.
Shyam Das, Arbitrator

EXHIBIT V

EXHIBIT W
Date:
To:
From:
Re:
August llp 1
Gary Wichard
It .is WJ.derstood by al.l Gary Wicha.rd, and the
San Francisco 49e.rs that the: escalator for the year 2000 is achieved if player
plays 50% of the offensive plays and starts 8 gatnes during the 1999 regular
season. The team does not have to achieve any of the 3 team incentives and
the player does not have to ac.hieve any of the 5 .individual incentives listed
in the contract for the player to qualify for the escalator
ln addition, it is understood that the sixth year of the contract was added for
cap reasons only and that the player will not be asked to bono.r that year.

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