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Next wave of bounty litigation will be an uphill climb for players


Monday’s tweet from Jonathan Vilma confirms what anyone following the Saints bounty scandal already knew. Unless he’s planning to buy a condo at Del Boca Vista, “Phase 2" means litigation.

Technically, the litigation will be in the form of an attack on an arbitration award. And as the judge who recently rejected the challenge of Broncos linebacker D.J. Williams to the league’s decision to uphold his six-game suspension explained it, '[j]udicial review of an arbitration award ‘is among the narrowest known to the law.’”

The reason is simple. Courts like it when parties privately agree to settle their own disputes via arbitration, since that reduces the number of cases that otherwise end up clogging the publicly-financed justice system. Thus, Commissioner Roger Goodell’s inevitable decision not to reconsider his initial decision on the player suspensions will be overturned only if he “ignore[s] the plain language of the collective bargaining agreement” or if he “strays from interpretation and application of the agreement and effectively dispenses his own brand of justice.”

The Federal Arbitration Act, a law that requires courts to defer to arbitration awards, creates four specific reasons for scrapping the outcome of arbitration: (1) if the decision was “procured by corruption, fraud, or undue means"; (2) if there was “evident partiality or corruption by the arbitrator"; (3) if the arbitrator was “guilty of misconduct in refusing to postpone a hearing, in refusing to hear evidence, or in misbehaving in some other way"; or (4) the arbitrator “exceeded his powers and imperfectly executed them.”

Given the perceptions and opinions of the suspended players, those four factors likely provide a source of encouragement, since they believe Goodell crafted a flawed procedure that was both partial and corrupt. And so the players have focused -- and will continue to focus -- on alleged problems with the nuts and the bolts, from failing to demand the introduction of testimony supporting the league’s position to producing the documents the league intended to use less than 72 hours before the hearing (which may be a clear violation of the plain language of the CBA) to failing to share exculpatory evidence generated during the investigation with the players.

Perhaps the biggest problem for the league continues to be the decision of Roger Goodell, after leading the investigation and being aware of (or at least having access to) every nook and cranny of the evidence developed, to appoint himself to serve as the arbitrator. That’s why the NFLPA asked Goodell to stand down at the outset of the June 18 hearing; they believe that his public comments in support of the league’s discipline predispose him to finding that the discipline was proper. (Regardless of which side you personally favor, that’s not a bad argument.

And so these various factors give the players reason to believe that “Phase 2" will have a chance at succeeding.

Still, it’s a high bar. The court won’t be able to second-guess Goodell’s decision. Instead, the court will be able to disregard it only if the court believes that flaws in the process fall within one of the four factors on which arbitration awards may be overturned.

Either way, look for the lawsuit to be filed in the U.S. District Court for the Eastern District of Louisiana, where the appointed judge potentially will be more likely to have an open mind when assessing the various ways that an arbitration award can be overturned.

And look for that lawsuit to be filed promptly upon the issuance of the letters from Goodell upholding the suspensions.