By Robert T. Shannon
Hinshaw & Culbertson
It continues to be an active off-season on the legal front for the NFL. Recall that in March, a three-year NFL investigation into a system of "bounty" payments to New Orleans Saints defensive players was concluded. (See Rules of the Game column, May 2012). According to the investigation, the program operated from 2009 through 2011 and involved the Saints' defensive coordinator, general manager and between 22 and 27 defensive players. At its core, the program was alleged to have paid out financial rewards for injuries to opposing players. Specifically, the investigation concluded that players were awarded off-the-books incentives not only for outstanding performances, but also for knocking opposing players out of the game.
NFL Commissioner Roger Goodell was front and center in describing the findings of the league's investigation. The NFL imposed unprecedented discipline on Saints coaches and players, including substantial fines and suspensions. According to Goodell, the bounty payments were particularly troubling because they involved team leaders who "embraced this program so enthusiastically and participated with what appears to have been a deliberate lack of concern for the well being of their fellow players."
Goodell clearly seeks to make player safety a centerpiece of his tenure. But his comments on the bounty investigation have one Saints player fighting back in court. On May 17, eight-year linebacker Jonathan Vilma filed a defamation and intentional infliction of emotional lawsuit against Goodell in the U.S. District Court for the Eastern District of Louisiana. As a result of the bounty investigation, Vilma was suspended without pay for the 2012 regular season.
In his complaint, Vilma specifically challenges statements made by the league in a memorandum distributed to teams and in a news release, where it was alleged that as a Saints defensive captain, he assisted in establishing the bounty system and put up $10,000 to any player who knocked Brett Favre out of a 2010 NFC championship game. As he publicly claimed on Twitter, Vilma denies that he established a bounty program and that he contributed any money. He goes on to allege that, at best, Goodell's conclusions were based on "hearsay, circumstantial evidence and lies."
Vilma claims that Goodell's statements were "false, defamatory and injurious to Vilma's professional and personal reputation," a reputation that is tarnished to the public, to NFL clubs and to future employers outside the NFL. Expanding on that request for relief, Vilma claims that by being linked to the bounties, other teams will be less likely to sign him and sponsors will be less likely to pay him to promote their products. The lawsuit seeks unspecified monetary and punitive damages.
For its part, and while it has not filed a response to the complaint at the time of writing, the NFL issued a statement reinforcing that "our commitment to player safety and the integrity of the game is our main consideration. We recognize that not everyone will agree with the decisions that need to be made." Others note that the NFL hired a former federal prosecutor to review the evidence and that the attorney has said that the NFL's findings were corroborated by multiple independent witnesses as well as documentation. Some commentators also note that the Saints' head coach, general manager and defensive coordinator all have issued written apologies.
Vilma's lawsuit raises some interesting legal issues. Goodell's lawyers are expected to argue for immediate dismissal because Vilma's claims are pre-empted by the league's collective bargaining agreement. At issue is whether players have any right to appeal or review the commissioner's disciplinary decisions. As it stands, suspended players, including Vilma, already have availed themselves of the CBA route in grievances filed by the NFL Players Association. Those grievances focus on language within the bargaining agreement dealing with the time frame during which players may be disciplined and with disputes over who has jurisdiction to hear appeals.
If Vilma makes it past a pre-emption challenge, the focus will turn to the elements of defamation, which generally involve a false statement that is made to a third party, that causes damage to the injured party. Those looking at Vilma's lawsuit note that proving defamation and winning damages often is difficult for a public figure because he will need to prove that the league's statements were false and that they were made with actual malice or a reckless disregard for the truth. Vilma likely will respond with the generally difficult argument that the statements are on their face defamatory per se with no need to examine the circumstances any further.
Unlike many defamation disputes where the challenged statements are ones of non-actionable "opinion," the challenged statements here are detailed and specific. Goodell's lawyers are sure to point to the adage that truth is an absolute defense to a claim of defamation. To make that argument, Vilma's lawyers will insist on the opportunity to look into the sources and documentation that were part of the league's investigation. Up to now, the league has not disclosed that material.
In the coming months, football fans will be watching how these issues unfold.