The NFL’s Biggest Bounty?

by Greenberg Glusker Fields Claman & Machtinger LLP
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As any self-respecting sports fan (or anyone else who doesn’t live here) knows by now, the NFL recently discovered that Saints coaches and players created a system by which the players would receive monetary bonuses for knocking opposing players out of a game with injury.  (And you know a scandal is serious when it gets its own Wikipedia page.)  Goodell claims Vilma was at the center of that program, going so far as to promise $10,000 of his own money to anyone who knocked Brett Favre (and later Kurt Warner) out of a playoff game.  Vilma insists that he did not take part in the bounty program, that he never offered money to his teammates to take out Brett Favre or Kurt Warner and that Goodell had no reasonable basis on which to make those allegations.  Vilma seeks unspecified damages for the harm to his reputation caused by Goodell’s statements.

As my regular readers (somebody must read this stuff, right?) should know by now, I’m a football fan, so the idea of an NFL player suing the almighty Roger Goodell is fascinating stuff.  Since becoming commissioner in 2006, Goodell has become the judge, jury and executioner regarding player (and coach) misconduct.  Players who get in trouble must go meet with Goodell (presumably to kiss the brass ring, or maybe just something that rhymes with the “brass” part) and then await his punishment without any rules or guidelines on how that punishment will be administered.  But don’t worry:  if the player (or coach) believes the punishment is unjust, he can always appeal to — guess who? — Goodell.  Although Goodell has, on occasion, reduced a player’s punishment, it happens rarely and there is little explanation of why.  (Doesn’t really seem fair to me, but I’m just a Bills fan…and Bills players never do anything wrong…  Or, in recent years, right.)  It’s safe to assume that more than one NFL player out there (like Goodell’s BFF James Harrison) would offer a chunk out of his salary to have someone take Goodell down a peg or twelve.

So, the real question for us here at Law Law Land is:  does Vilma stand any chance of winning and forcing Goodell to change his ways?  Probably not.  Here’s why.

As a high-profile athlete who has been in the public eye for the better part of a decade, Vilma is a public figure.  Because people have an interest in hearing (and speaking) about public figures, the First Amendment — yes, that old thing again — provides extra protection to people who make alleged defamatory statements about public figures.  Goodell will be the beneficiary of those protections.

First, Vilma will have to prove that Goodell’s statements are false.  But, before he got around to filing this lawsuit, Vilma wasn’t exactly trying to distance himself from the bounty scandal:  in a classic “what was he thinking” move, Vilma adopted the Sports Illustrated cover highlighting his involvement in the bounty scandal as his Twitter avatar.  Why would Jon Vilma do such a thing, you might wonder?  Apparently, if you ask him, it’s “because Jon Vilma can.”  Great.  If nothing else, I’m sure it wasn’t because his lawyer told him to do it.

Putting aside the Twitter avatar debacle, Vilma will have a hard time proving that the accusations against him are false.  In fact, if you parse his complaint carefully, Vilma doesn’t deny participating in the bounty program or even fully supporting the program established by his coaches.  All he denies is that he put $10,000 on a table and offered it to anyone who hunted down Favre or Warner.  Even that denial is kind of sketchy.  He simply says he never intended to pay anybody money for hurting a player on another team.  He doesn’t really deny offering the money.  Even if not everything that Goodell says turns out to be true, practically speaking, Vilma can only get so far with argument of “I did most of those terrible, unsportsmanlike things I was accused of…just not that particular one.”

Second, even if Vilma could prove that Goodell’s statements were false (and the Vegas odds for that are probably somewhere around those for the Saints winning this year’s Super Bowl), because he is a public figure, Vilma will have to prove that Goodell acted with “actual malice” in accusing him of being part of the bounty program.  Our most dedicated readers will recall that, while “actual malice” sounds like the name of a long-forgotten Dirty Harry sequel, under the law of defamation, it means that Vilma will have to provide that Goodell made false statements about him either knowing those statements were false or with reckless disregard for the truth.  It’s a very tough standard to meet:  essentially, Vilma will have to prove that Goodell either made the whole bounty thing up or that Goodell actually knew or had a very good reason to believe that his information and sources were unreliable.

Even given the power trip that Goodell has been on for the last six years, that seems like a stretch.  According to reports, Goodell apparently interviewed many witnesses and had tape of at least one Saints coach (former Bills’ head coach-turned-Saints defensive coordinator-turned-indefinitely suspended Gregg Williams) exhorting his players to injure players on the other team.  And while he has been coy about making his evidence public, Goodell has even gone so far as to hire a former U.S. Attorney to do an independent review of the investigation.  That doesn’t sound like reckless disregard for the truth.

And, thanks to a quirk of Louisiana law, Vilma’s case has third problem:  Louisiana has an anti-SLAPP statue.  In addition to further satisfying lawyers’ inherent love and need for ham-handed acronyms, anti-SLAPP statutes are laws designed to get rid of “Strategic Lawsuits Against Public Participation.”  Louisiana’s anti-SLAPP statute is very similar to California’s, allowing a defendant who is sued for exercising his First Amendment (i.e., free speech) rights on a matter of public interest to challenge the plaintiff’s lawsuit at the pleading stage, putting the burden on the plaintiff to prove he can actually win.  Once Goodell files his inevitable anti-SLAPP motion, Vilma will have to present enough evidence (usually without the benefit of much, if any, discovery) to convince the judge that Goodell may have acted with “actual malice.”  If he doesn’t, the judge will toss his case out and, to rub salt in the wound, Vilma will have to pay Goodell’s attorneys’ fees and costs.  (Not as bad as an exploded ACL, but pretty tough when you’re unemployed.)

Vilma is understandably frustrated by Goodell’s role as the almighty arbiter of punishments in the NFL.  So given all this, it seems like Vilma may have had all kinds of strategic reasons for filing this lawsuit, other than an expectation that he’d actually win.  Maybe he wants to smoke out the identity of the person who tattled on him (truthfully or falsely) to the NFL.  Maybe he wants to show people he is serious and earnest in denying all the misconduct he’s been linked to.  Maybe he’s just bored and needs something to do while barred from the practice field, and ruining Roger Goodell’s day gives him extra reason to get up in the morning.  Or maybe he hopes suing Goodell in federal court will convince The Great Commish to grant his appeal and reduce his suspension.

Somehow, I doubt that last part will work.  But one thing does seem certain:  Vilma won’t have Goodell paying his bills during the suspension.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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