Tuesday, March 6, 2012

A Legal Glimpse: The Many Layers of the Saints and Bounty Gate

Last week it was revealed by the NFL that more than 20 defensive players for the New Orleans Saints participated in a "bounty" system from 2009 to 2011, which rewarded individuals with cash for harming opposing players.


Players were paid for inflicting game-ending injuries, with $1,500 for knocking out a player and $1,000 if an opposing player was carted off the field. Payouts doubled or tripled during the playoffs. Individuals were also paid for plays such as interceptions and fumble recoveries. .

The NFL said on March 2 that the Saints’ bounty pool was set up by Williams and may have reached as much as $50,000 during the 2009 playoffs, which culminated in the team’s first Super Bowl title.

Former Saints defensive coordinator Gregg Williams administered the program with knowledge of other defensive coaches. The NFL says Saints coach Sean Payton was not a direct participant, yet was aware of the allegations and failed to stop the bounty program.

Saints owner Tom Benson did not have prior knowledge of the program, and upon notification by the league, directed GM Mickey Loomis to discontinue the program. That didn’t happen and the program continued.

Williams: His Teams & Players

Before joining the Saints, Williams was the defensive coordinator in Tennessee, Washington and Jacksonville, and the head coach in Buffalo. In January, he was hired by Rams coach Jeff Fisher (who he worked with in Tennessee) as the defensive coordinator.

Former Redskins safety Matt Bowen said Williams had a bounty scheme when he was in Washington. Former Bills safety Coy Wire told The Buffalo News that an environment of "malicious intent" was in place when he joined the team in 2002, when Williams was the head coach. Wire said Williams promoted "financial compensation" for hits that injured opponents. Wire cited a career-ending shoulder injury he inflicted on Detroit Lions running back James Stewart with a legal hit during a 2003 preseason game.

“I was showered with praise for that,” Wire told the Buffalo News. “It’s a shame that’s how it was. Now I see how wrong that was.”

One Saints player fined last season for flagrant hits was safety Roman Harper. In Week 14 against Tennessee, he made two hits that drew a total of $22,500 in fines. Harper was fined $15,000 for roughing the passer on a helmet-to-helmet hit, and another $7,500 for unnecessary roughness when he pulled down receiver Damian Williams by his helmet after a long catch and run.

Goodell Says

Commissioner Roger Goodell had this to say: “The payments here are particularly troubling because they involved not just payments for ‘performance,’ but also for injuring opposing players. The bounty rule promotes two key elements of NFL football: player safety and competitive integrity.”

Williams Says

Williams has admitted he ran a bounty program and has expressed remorse.

"It was a terrible mistake. And we knew it was wrong while we were doing it."

Legal Look at the Big Issues

This case has significant implications for the NFL. The league knows it will need to handle this in a way that sends a pointed and decisive message that bounty programs will not be tolerated. There are a few reasons why this is important to the NFL.

The two big issues are (a) circumvention of the salary cap, and (b) player safety. This second issue has a few tentacles.

Circumvention of Salary Cap

Teams are not allowed to pay players money that is not included in their contracts. Teams have to respect the salary cap, and bonuses that are paid outside the four corners of a contract are not counted against the cap. That is not allowed, and is considered a circumvention of the salary cap and opens a team up to sanctions.

Specifically, non-contract bonuses violate the NFL CBA and the Constitution and By-Laws. As per Articles 9.1(c)(8), 9.3(f) and 9.3(f) of the Constitution and By-Laws, teams can’t make payments to players not incorporated in their contracts.

Concussion Lawsuits

There is the issue of concussion lawsuits. Borrowing from LeBron, there are not 5, not 6, not 7 concussion lawsuits – there are 32 and counting. These lawsuits have been filed by retired players who allege that the NFL hid from its players the long-term neurological dangers of playing NFL football. As a result, the players say they are now suffering from dementia and brain disease.

With these lawsuits as the backdrop, the NFL is going to want to show that it is proactive when it comes to player safety. From an optics standpoint, in the context of these lawsuits, this is important for the NFL.

However, remember one thing: the concussion lawsuits are not going to distinguish between paid cheap shots, unpaid cheap shots and just NFL incidental contact that is allowed. These lawsuits focus on something a lot broader in scope - the dangers of shots to the head, concussions and their relationship with cognitive degeneration. Still, paid hits could become an aggravating circumstance.

Players Suing for Cheap Shots

NFL players victimized by paid cheap shots could sue an opposing player, coaches and team. These could be players whose careers were ended as a result of a hit or who were severely injured.

However, remember one thing – players can sue for cheap shots whether it’s paid or unpaid. The fact that a player was paid to deliver a cheap shot provides an added layer and added ammunition when suing. It would be argued that the hit was essentially planned in advance and that some people acted in concert. That’s not good.

There is a precedent. In the 1970s, Denver Broncos free safety Dale Hackbart was struck in the head and neck by Cincinnati Bengal fullback Charles Clark during a game.

After the game, X-rays revealed that Hackbart broke four vertebrae in his neck. This injury ended his football career. Hackbart sued and the Court said that the lawsuit could proceed.

By being proactive, the NFL can help avoid possible lawsuits in future or show that they take appropriate action when confronted with an assault on the field.

Criminal Charges

The two main charges would be battery and conspiracy. Batter refers to applying force to someone without their consent. So a player could be charged with battery. Conspiracy means when two or more people get together and agree to commit a crime. In this case, that could be Williams/Payton/Loomis and the players. In theory, this is possible but it won’t happen. This isn’t big enough to warrant the attention of the prosecution.

Class Action Lawsuits

Fans could get together and sue claiming that they bought tickets to games to watch players decide games based on their athletic ability and not by way of bounty. Damages would likely be limited to the price of the tickets. However, if it’s framed as a class action lawsuit, the money could add up quickly.

You may remember in 2007, a New York Jets season ticketholder sued the Patriots and coach Bill Belichick claiming that the Patriots deceived fans by secretly videotaping the Jets coaches making hand signals. The case, though, was tossed out by the courts.

Safe Work Environment & The Future of the NFL

Goodell has been big on player security (just asked Jerome Harrison). The league has adopted rules that create a safer work environment for its labourers (i.e., NFL players).

As best it can, the NFL wants to avoid parents deciding not to put their kids in football because the game is too violent. The NFL right now is doing very well. It enjoyed revenues of close to $10 billion last season and in 2014 when all its TV deals kick in, it will earn about $7 billion in TV money (or $250 million per team). The NFL doesn’t want to see its sport go into decline, and it knows that kids not playing the game may become a problem. So the league is taking steps to try and address the issue of player safety.

Sanctions on Williams & Company

Expect the NFL to come down hard on Williams, and anyone else who knew about these bounty programs, including coach Payton and GM Loomis. They could also go after players, but likely to a lesser extent.

Ultimately, we are going to see fines, suspensions and the forfeiture of draft picks. For Spygate, the NFL fined Patriots head coach Bill Belichick $500,000 (the maximum allowed by the league), the Patriots $250,000, and docked the team a first round pick in the 2008 NFL Draft.

The NFL will likely come down harder on Williams. He could be suspended for at least 8 games, although a full season would not be a surprise. Payton may also be suspended. As well, the Saints will lose draft picks and will be heavily fined.

Depending on what else they find, other teams could be targeted. After all, Williams was a coordinator for the Redskins, Jaguars and Titans, as well as the head coach of the Bills.

This case has tentacles and could well have far-reaching implications.

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