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Timing of exhibit disclosure could scuttle bounty suspensions


Mary Jo White, former U.S. Attorney for the Southern District of New York, appears on Capitol Hill Tuesday, Oct. 8, 2002, before the Joint House-Senate intelligence Committee. The committees are conducting a joint inquiry into intelligence failures leading up to the Sept. 11, 2001 terrorist attacks. (AP Photo/Dennis Cook)


Though the NFL’s in-house appeal process doesn’t amount to a full-blown legal proceeding, the players accused of participating in the Saints’ bounty program could escape responsibility on the same basis that plenty of criminal defendants do.

By relying on a technicality.

As Article 46 of the Collective Bargaining Agreement goes, there aren’t many technicalities in the appeal process. Here’s one of them, from Article 46, Section (f)(ii): “In appeals under Section 1(a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing.”

Key language: Failure to timely provide any intended exhibit shall preclude its introduction at the hearing.

Key word: Shall.

As every law student learns when studying “civil procedure” (i.e., the rules for litigating cases), the word “shall” always should (or, I suppose, “shall”) be regarded as a red flag. It conveys a mandatory requirement. No discretion. No exceptions. No wiggle room.

Here, failure to deliver the exhibits on time “shall” prevent them from being used at the hearing.

Commissioner Roger Goodell previously scheduled the hearing in the bounty case for 10:00 a.m. ET on Monday, June 18. The NFL delivered its packet of 16 exhibits to the NFLPA at roughly 1:30 p.m. ET on Friday, June 15.

Three calendar days prior to the hearing translates, in the normal sense of the term, to at least 72 hours before the hearing. Actually, it could reasonably be argued that the exhibits were due by 11:59 p.m. on Thursday, June 14, since that would have given the players “three calendar days” (Friday, Saturday, and Sunday) to digest the evidence and prepare accordingly.

So by failing to deliver the materials before 10:00 a.m. ET on Friday, June 15, the plain language of the CBA (i.e., “shall”) prevents the materials from being introduced at the hearing.

Since the NFL’s entire cases consisted of the 16 exhibits plus comments from outside counsel Mary Jo White regarding their meaning, the failure to deliver the documents by 10:00 a.m. ET on June 15 could get all suspensions thrown out by a court that eventually reviews Commissioner Roger Goodell’s inevitable decision to uphold the penalties he previously crafted.

Is it a harsh outcome? It sure is. But it’s the outcome that the CBA mandates if the exhibits aren’t delivered on time, and it’s an outcome that easily could have been avoided by determining the earliest possible point at which the three-day window may close and making sure that the exhibits were in the hands of the NFLPA before that moment.

Thousands of lawyers throughout the country routinely apply that concept in a wide variety of proceedings and contexts. The fact that the NFL has full control over the appeal process doesn’t mean that the NFL has the power to disregard the clear, unambiguous terms of the limited rules that apply.

Despite a report that the players asked for the hearings to be adjourned in order to have the benefit of the full 72 hours, the official transcript indicates that NFL general counsel Jeff Pash delayed the hearing to ensure compliance with the rule. But if any delay in the commencement of the hearing time can be used to cure the failure to deliver the exhibits on a timely basis, the clear consequences of the rule can be avoided in any hearing in which the NFL delivered the exhibits late. Regardless of when the exhibits were tendered, the Commissioner can simply press the pause button until the 72-hour window between the disclosure of the exhibits and the start of the hearing has passed.

That’s probably not what the rules envision. And whoever failed to ensure that the exhibits were delivered at least 72 hours before the start of Monday’s hearing probably will be spending some time in the coming weeks and months gnawing on Tums while obsessing over the manner in which this one may play out.