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Judge Berrigan believes NFLPA lawyer may have conflict of interest in bounty case

Jeffrey Kessler

NBA players association attorney Jeffrey Kessler arrives for a meeting in New York, Monday, Nov. 14, 2011. Player representatives from NBA teams are meeting to discuss the league’s proposal for a new labor deal. (AP Photo/Seth Wenig)


As the NFL awaits a ruling from Judge Helen G. Berrigan on the question of whether the bounty-related suspensions of Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and free-agent defensive Anthony Hargrove will be upheld or overturned or lifted pending a final decision, yet another new wrinkle has emerged.

In an order issued on Wednesday, Judge Berrigan directed NFLPA counsel Jeffrey Kessler to address the question of whether he has a conflict of interest, via his joint representation of the players union and his representation of three of the players who have been suspended (Smith, Fujita, and Hargrove).

The specific basis for the conflict hasn’t been identified. Instead, Judge Berrigan generally explains that she “has been concerned” that a conflict exists. Her concerns potentially arise from the fact that the NFLPA has a duty to represent all players, including the actual or potential victims of the acts that Smith, Fujita, and Hargrove allegedly encouraged, funded, and/or directly perpetrated.

Judge Berrigan also said in the order that she is “extremely disappointed” by the failure of the parties to engage in meaningful settlement negotiations, stating that she believes that talks “would likely have resulted in some relief for all four [of] the players.” She also noted the existence of “longstanding acrimony among all of the attorneys representing all of the parties that predates these disputes,” and she expressed a belief that the acrimony is “contrary to the interests of all four players.”

At first blush, the acrimony itself appeared to be the cause for her concern regarding a conflict of interest on Kessler’s part. However, given that she emphasized that the acrimony on the part of all attorneys for all parties is impacting the interests of all four players, she apparently believes that Kessler’s situation presents an issue separate from the reality that, when lawyers can’t get along, their clients have a hard time getting justice.

Justice, in one form or another, is coming soon. Judge Berrigan directed the NFL to respond by 12:00 CT Thursday to the NFLPA’s request for lift the suspensions pending a final disposition of the case. A ruling, one way or the other, has to come by the close of business on Friday. Otherwise, justice delayed will have been, from the perspective of the players, justice denied.

Then again, the fact that a ruling didn’t come Tuesday already has denied a portion of the justice they seek, given that they were unable to practice on Wednesday and now on Thursday. Absent a ruling today, they’ll also miss practice on Friday, making it harder for them to make any meaningful contribution on Sunday, when the Saints host the Redskins and the Browns host the Eagles. As to Hargrove, who was cut by the Packers last month, Judge Berrigan’s failure to rule has made it even harder for him to get a new job.