NFLPA Book on Bounty

EXHIBIT A

Case 2:12-cv-01283-HGB-DEK Document 118-5 Filed 09/04/12 of 604

BEFORE THE CBA APPEALS PANEL

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Re: New Orleans Saints “Pay-For-

Performance/Bounty” Program

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION,

Appellant,

v. NATIONAL FOOTBALL LEAGUE,

Appellee.

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NFLPA’S BRIEF IN SUPPORT OF ITS APPEAL

August 7, 2012


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TABLE OF CONTENTS

Page(s)

PRELIMINARY STATEMENT .....................................................................................................1

JURISDICTION ..............................................................................................................................4

STANDARD OF REVIEW .............................................................................................................4

FACTUAL BACKGROUND ..........................................................................................................5

The Salary Cap System ..............................................................................................................5

The Ban On Undisclosed Consideration To Players..................................................................7

The System Arbitrator’s Jurisdiction .........................................................................................8

The Commissioner’s Limited Arbitral Jurisdiction Under the CBA .......................................10

The NFL Investigation Of The Saints “Pay-for-Performance/Bounty” Program ....................11

The Commissioner Disciplines the Saints ...............................................................................12

The Commissioner Disciplines the Players .............................................................................13

The System Arbitration ............................................................................................................15

The Commissioner Affirms The Player Discipline .................................................................17

The Federal Court ....................................................................................................................18

ARGUMENT .................................................................................................................................19 I. THE ALLEGED PLAYER CONDUCT AT ISSUE IS WITHIN THE

BROAD SCOPE OF ARTICLE 14, SECTION 1, WHICH MAKES NO DISTINCTION BETWEEN UNDISCLOSED COMPENSATION THAT IS CONTRIBUTED VERSUS RECEIVED BY PLAYERS ................................19

II. IT WAS LEGAL ERROR FOR THE SYSTEM ARBITRATOR TO IGNORE THE LAW OF THE SHOP, AND OVERRULE THE PLAIN LANGUAGE OF ARTICLE 14, SECTION 1 BASED ON HIS PERCEIVED “ANIMATING PURPOSE” OF THE PROVISION ......................26

III. EVEN IF IT WERE PROPER TO CONSIDER PURPOSE OVER THE PLAIN LANGUAGE OF THE CBA (IT IS NOT), INTERPRETING ARTICLE 14, SECTION 1 TO APPLY, REGARDLESS OF WHETHER THE PLAYER RECEIVED OR CONTRIBUTED FUNDS, IS CONSISTENT WITH THE CBA PURPOSE OF PROHIBITING UNDISCLOSED PLAYER COMPENSATION ...................................................29


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IV. THE NFL’S POLICY ARGUMENTS AGAINST THE SYSTEM ARBITRATOR HAVING JURISDICTION ARE BOTH LEGALLY IRRELEVANT AND MERITLESS ......................................................................33

V. ALL OF THE DISCIPLINE MUST BE SET ASIDE ...........................................35

CONCLUSION ..............................................................................................................................36


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TABLE OF AUTHORITIES

Page(s) CASES

Avis Rent A Car Sys. v. Garage Emps. Union, Local 272, 791 F.2d 22 (2d Cir. 1986).......................................................................................................35

In re Bills, Jets, Panthers, slip op. (Feb. 14, 2007) ............................................................................................................27

Denver Broncos v. Lelie, slip op. (Apr. 23, 2007) ............................................................................................................27

McNeil v. NFL, 790 F. Supp. 871 (D. Minn. 1992) .............................................................................................6

Morris v. New York Football Giants, 575 N.Y.S.2d 1013 (Sup. Ct. 1991) .........................................................................................11

NFLPA v. NFL, slip op. (June 4, 2012) (Burbank) .................................................................................... passim

Reape v. N.Y. News, Inc., 504 N.Y.S.2d 469 (App. Div. 1986) ........................................................................2, 20, 27, 28

Reggie White v. NFL, No. 4-92-906 (D. Minn.) .................................................................................................. passim

SEIU, Local 32BJ v. Coby Grand Concourse, LLC, No. 04 Civ. 9580(CSH), 2006 WL 692000 (S.D.N.Y. Mar. 16, 2006) ...................................35

White v. NFL, No. 4-92-906 (D. Minn.) ................................................................................................. passim

White v. NFL (30% Rule), 899 F. Supp. 410 (D. Minn. 1995) .............................................................................................4

White v. NFL (49ers Undisclosed Agreements), Civ. No. 4-92-906(DSD), slip op. at 5-6 (D. Minn. Mar. 30, 2000) ........................................27

White v. NFL (Broadcast Contracts), 766 F. Supp. 2d 941 (D. Minn. 2011) ........................................................................................4

White v. NFL (Circumvention), 92 F. Supp. 2d 918, 926 (D. Minn. 2000) ..................................................................................5

White v. NFL (Grbac-Hobert), 972 F. Supp. 1230 (D. Minn. 1997) ................................................................................. passim


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White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858 (D. Minn. 2001) ............................................................................4, 27, 34

White v. NFL (In re Vick), 533 F. Supp. 2d 929 (D. Minn. 2008) ........................................................................................4

White v. NFL (Lelie), slip op. (Nov. 16, 2006) ...........................................................................................................24

White v. NFL (Salary Cap Valuation Issues), slip op. (Sept. 28, 2005) .....................................................................................................24, 34

White v. NFL (Sauerbrun), slip op. at 4 (Apr. 18, 2006) ...............................................................................................27, 29

White v. NFL (Wally Williams), slip op. (Mar. 9, 1998) .........................................................................................................5, 28

OTHER AUTHORITIES

Elkouri & Elkouri, How Arbitration Works 172 (Alan Miles Ruben ed., 6th ed. 2003) ...............35


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PRELIMINARY STATEMENT

In the decision below, the System Arbitrator issued a decision based on a theory that had

never been briefed or argued by the parties, and that is contrary to the express terms of the

governing Collective Bargaining Agreement (“CBA”) language. This case concerns whether

Article 14, Section 1 of the CBA applies to the alleged participation of four NFL players in a

secret “pay-for-performance/bounty” system developed and administered by the New Orleans

Saints, and funded by both coaches and players, to incentivize the on-field performance of Saints

defensive players. If this provision applies to the players’ alleged conduct, then any punishment

for that conduct is exclusively within the jurisdiction of the System Arbitrator, not the NFL

Commissioner, who has claimed the right to discipline these players for “conduct detrimental” to

the NFL.

Article 14, Section 1 was drafted in extremely broad terms, providing that “[a] Club . . .

and a player . . . may not, at any time, enter into undisclosed agreements of any kind . . . or

understandings of any kind . . . involving consideration of any kind to be paid, furnished or made

available or guaranteed to the player . . . by the Club . . . either prior to, during, or after the term

of the Player Contract.” The System Arbitrator correctly held that the alleged “pay-for-

performance/bounty” program constituted an undisclosed understanding under which monies

were made available to Saints players by the club. NFLPA v. NFL, slip op. at 6 (June 4, 2012)

(Burbank) (hereinafter “Opinion”), submitted herewith as Ex. A. However, the System

Arbitrator also held, in clear error, that Article 14, Section 1 somehow contained a “distinction,

as to players, between funding the pool or making offers or pledges to contribute sums to it, on

the one hand, and accepting (or agreeing to accept) distributions from it, on the other.” Id. at 7.

Specifically, the System Arbitrator held that accepting or agreeing to accept monies from the

program would be covered by Article 14, Section 1, but agreeing to help fund the program, and


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contributing or pledging to contribute monies into it, would somehow be excluded from the

coverage of Article 14, Section 1. This interpretation – which has no basis in the language of the

provision – was in error.

First, the alleged player conduct at issue clearly falls within the scope of Article 14,

Section 1, which applies when there is an alleged undisclosed agreement or understanding,

outside of a Player Contract, that consideration will be made available to a player by a Club. The

provision makes no distinction between undisclosed consideration that is contributed versus

received.

Second, the System Arbitrator erroneously overruled the plain language of Article 14,

Section 1, based on what he perceived to be the “animating purpose” of the provision, i.e., to

prohibit “undisclosed compensation.” Ex. A, Opinion at 6-7. However, the System Arbitrator

ignored the governing law of the shop principle that the CBA is to be interpreted based upon its

plain language, without any second-guessing by the arbitrator as to whether that plain language is

consistent with the perceived “purpose” of the CBA. See White v. NFL (Grbac-Hobert), 972 F.

Supp. 1230 (D. Minn. 1997). This is in part due to the fact that the CBA contains an

unequivocal bar on the use of parol evidence in interpreting these provisions (Article 70, Section

2), in contrast to the New York case upon which the System Arbitrator inappropriately relied;

that case used parol evidence to reach the opposite result (see Reape v. N.Y. News, Inc., 504

N.Y.S.2d 469, 470 (App. Div. 1986)).

Third, even if an “animating purpose” could override the plain language of the CBA (it

may not), the System Arbitrator failed to consider that player contributions or pledges of money

are part of the exact same agreement concerning undisclosed compensation that is exclusively

subject to the System Arbitrator’s jurisdiction. In other words, a player contribution and a player

receipt are “two sides of the same coin,” and the System Arbitrator provided no textual or other

reasoned basis for treating them differently under Article 14. Under the salary cap system, NFL


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players are often requested by clubs to renegotiate their Player Contracts to give up money in a

particular season so the club may use that “room” to sign other players. Indeed, the NFL itself

contended in a prior proceeding that a player violated Article 14, Section 1 by secretly agreeing

that his compensation in a particular contract year would not be paid to him. Player

contributions of money to other players, at the behest of a Club, are thus not “unmoored” from

the function of this provision, as the System Arbitrator mistakenly believed. And, in this case, it

is alleged that the exact same “pay-for-performance/bounty” program both funded and paid

players, outside of their contracts, to incentivize them to play as the club desired.

Fourth, the “end of the world, slippery slope” policy arguments made by the NFL are

meritless. As already noted, the plain language of the CBA must control, and the System

Arbitrator has no authority to second-guess the compromises struck in that language. Moreover,

the System Arbitrator’s exercise of jurisdiction over these undisclosed payments would not

supplant any authority the Commissioner may have to discipline players for actual “conduct

detrimental,” such as throwing games, taking bribes from gamblers, etc. In contrast, the NFL’s

theory that the Commissioner can punish a player for any behavior so long as the Commissioner

chooses to label it “conduct detrimental,” regardless of whether the conduct is covered by the

exclusive jurisdiction of the System Arbitrator (and the Appeals Panel), would eviscerate the

CBA and the bargained-for procedural protections for the players. The parties carefully

negotiated a system in which neutral arbitrators like the System Arbitrator – rather than the chief

executive of the NFL owners – decide any potential punishment in those matters that have been

specifically assigned to those neutral arbitrators, including the alleged conduct at issue in this

case, payments outside players’ contracts.

Finally, given the indisputable NFL documentary evidence that the Commissioner

punished the players for their participation in a program under which they were paid “non-

contract bonuses” – which is clearly within the scope of Article 14, Section 1 and the exclusive


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jurisdiction of the System Arbitrator – all of the discipline at issue must be overturned. It is well

established that employer discipline must be vacated in its entirety when the person imposing the

discipline had no authority to impose it in the first place.

JURISDICTION

The System Arbitrator had subject matter jurisdiction over this proceeding pursuant to

Article 15, Section 1 of the CBA. Currently, Professor Stephen B. Burbank, of the University of

Pennsylvania Law School, serves as System Arbitrator. This Panel has appellate jurisdiction

over the System Arbitrator’s Opinion, pursuant to Article 15, Sections 7 and 8 of the CBA.

STANDARD OF REVIEW

The Opinion of System Arbitrator Burbank is based upon an incorrect interpretation of

the CBA language. Review by this Panel is thus de novo, and the Opinion is entitled to “no

deference.” White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858, 860 (D. Minn. 2001);

White v. NFL (Grbac-Hobert), 972 F. Supp. at 1235; White v. NFL (30% Rule), 899 F. Supp.

410, 413 (D. Minn. 1995); White v. NFL (In re Vick), 533 F. Supp. 2d 929, 932 (D. Minn. 2008)

(citing White v. NFL, 899 F. Supp. 410, 413 (D. Minn. 1995) (“Because the appeal concerns the

interpretation of the terms of the CBA, the parties agree that the standard of review is de

novo.”)).

The Appeals Panel’s appellate jurisdiction corresponds to that of Judge David S. Doty

under the Stipulation and Settlement Agreement in White v. NFL, No. 4-92-906 (D. Minn.)

(“SSA”) and the corresponding provisions of the prior CBAs. Nearly one-half of the Special

Master decisions appealed to Judge Doty from 1993 to 2011 were reversed on appeal, including

in proceedings concerning fundamental issues relating to the interpretation of the SSA and CBA,

and the scope of the undisclosed compensation rules of the SSA and CBA. See, e.g., White v.

NFL (Broadcast Contracts), 766 F. Supp. 2d 941 (D. Minn. 2011) (billions of dollars in lockout


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insurance in network TV contracts violated various provisions of the SSA and CBA); White v. NFL

(Grbac-Hobert), 972 F. Supp. at 1239 (contract provisions in literal compliance with salary cap

provisions could not be found to violate the anti-circumvention provisions of the SSA and CBA);

White v. NFL (Circumvention), 92 F. Supp. 2d 918, 926 (D. Minn. 2000) (player agents subject

to penalties under undisclosed compensation rules); White v. NFL (In re Michael Vick), 533 F.

Supp. 2d 929, 933-34 (D. Minn. 2008) (refusing to order the return of certain bonuses due to a

prominent NFL player who had been disciplined by Commissioner, and imprisoned, for conduct

relating to dog fighting). There is no basis for the Appeals Panel to defer in any way to the System

Arbitrator’s legal interpretation of the CBA language.

As to the substantive law to apply in this appeal, the CBA provides that – except to the

extent federal law governs the implementation of the CBA, which is not at issue here – the CBA

is construed and interpreted under, and shall be governed by, New York law. See CBA, Article

70, Section 1. The CBA also stipulates that, “[t]he parties shall not, in any proceeding or

otherwise, use or refer to any parol evidence with regard to the interpretation of Articles 1, 4, 6-

19, 26-28, 31, or 68-70 . . . .” CBA, Article 70, Section 2. Moreover, “evidence of activities of

the parties subsequent to the CBA cannot be used or referred to in determining the meaning of

[the listed Articles, including Article 14] of the CBA.” White v. NFL (Wally Williams), slip op.

at 5-6 (Mar. 9, 1998) (Friedenthal, Special Master), submitted herewith as Ex. B.

FACTUAL BACKGROUND

The Salary Cap System

Prior to 1993, NFL players did not have any meaningful right to choose their employer

after their contracts expired. Instead, player contract rights were essentially held in perpetuity by

an NFL club after the player entered the league, and virtually all skilled players could not

choose the first team they signed with – i.e., they were “drafted” by the team that would hold


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their rights for the entirety of the player’s career, or until the club decided the player was no

longer of use.

This restraint on competition, which substantially lowered the wages that NFL clubs paid

to players, led to many years of antitrust litigation and labor strife between NFL players and NFL

owners. In 1992, in McNeil v. NFL, 790 F. Supp. 871 (D. Minn. 1992), the players won a jury

verdict in an antitrust suit filed by a number of individual NFL players challenging the NFL’s

restrictions. That victory was followed by a class action entitled Reggie White v. NFL, No. 4-92-

906 (D. Minn.) (Doty, J.), in which the players sought injunctive and, subsequently, monetary

relief on a class basis against the NFL’s restrictions which had been adjudged illegal.

However, the NFL made it clear that, notwithstanding the jury verdict in McNeil and the

filing of the White class action, the owners would appeal and continue to resist any meaningful

free agency for players for many years to come. Ultimately, the owners and the players

compromised, under the SSA in the White class action, which was followed by the corresponding

CBA between the NFLPA and the owners incorporating the terms of the SSA. In that historic

settlement, the players for the first time achieved meaningful free agency, with almost all players

able to choose their NFL club after being employed in the NFL for an initial period of three or

four years. However, as part of that compromise, the players also had to agree to a so-called

“salary cap,” in which the player free agency market would operate within a “cap” system

whereby each team is subject to limits on how much it may spend on player salaries each year,

after complex accounting rules are applied (e.g., taking into account the need for cap flexibility

and multi-year payment provisions such as signing bonuses). The salary cap is thus a

fundamental part of the parties’ compromise.

In order to enforce the salary cap, the parties agreed upon various provisions that address

the possibility that players might be paid compensation through means intended to circumvent

the salary cap. These include provisions addressing contracts for non-playing services (e.g.,


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promotional appearances), and provisions requiring that all agreements between a club and any

player involving consideration paid, furnished, guaranteed or made available by a club or one of

its related entities must be disclosed to the NFL (and the NFLPA) so the payment arrangements

can be subject to the salary cap rules.

The Ban On Undisclosed Consideration To Players

The CBA provision that is at issue – which has been unchanged from 1993 to the present

day – is Article 14, Section 1:

Section 1. Undisclosed Terms: A Club (or a Club Affiliate) and a player (or a Player Affiliate or player agent) may not, at any time, enter into undisclosed agreements of any kind, express or implied, oral or written, or promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind: (a) involving consideration of any kind to be paid, furnished or made available or guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate either prior to, during, or after the term of the Player Contract; and/or (b) concerning the terms of any renegotiation and/or extension of any Player Contract by a player subject to a Franchise Player or Transition Player designation.

CBA, Article 14, Section 1 (emphasis added). As the provision unequivocally states, the CBA’s

ban on undisclosed terms covers not just money directly paid to a player by a team or its related

entity, but consideration of any kind to be “made available” to a player by a team or its related

entity.

In addition to this express prohibition, the CBA also requires that all agreements between

players and clubs concerning terms and conditions of employment be set forth in a Player

Contract, and that the contract include a certification with the same broad language set forth in

Article 14, Section 1:

Each of the undersigned hereby confirms that (i) this contract, renegotiation, extension or amendment sets forth all components of the player’s remuneration for playing professional football (whether such compensation is being furnished directly by the Club or by a related or affiliated entity); and (ii) there are not undisclosed agreements of any kind, whether express or implied, oral or written, and there are no promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind


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that have not been disclosed to the NFL involving consideration of any kind to be paid, furnished or made available to Player or any entity or person owned or controlled by, affiliated with, or related to Player, either during the term of this contract or thereafter.

CBA, Appendix A (NFL Player Contract), Paragraph 24(a) (emphasis added); see also id.,

Article 18, Section 1(a) (“Every Player Contract . . . shall contain a certification . . . that there

are no undisclosed agreements of any kind, express or implied, oral or written, or promises,

undertakings, representations, commitments, inducements, assurances of intent, or

understandings of any kind: (a) involving consideration of any kind to be paid, furnished or made

available or guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate either

prior to, during, or after the term of the Player Contract . . . .”); id., Article 4, Section 5(a) (“Any

agreement between any player and any Club concerning terms and conditions of employment

shall be set forth in writing in a Player Contract as soon as practicable.”).1

Moreover, club personnel must certify at the end of each year that, “after reasonable

inquiry of all owners and all employees with authority to negotiate Player Contracts,” no

undisclosed agreements contrary to these various provisions occurred. Id., Article 18, Section

2(a); id., Article 18, Section 2(b) (similar certification for agents).

The System Arbitrator’s Jurisdiction

Under the CBA, the System Arbitrator – one of seven different arbitrators assigned

different jurisdictions by the CBA – has the “exclusive” jurisdiction to enforce Article 14’s ban

against undisclosed, non-Player Contract, pay-for-performance agreements. See CBA, Article

15, Section 1 (“The parties agree that the System Arbitrator shall have exclusive jurisdiction to

enforce the terms of Articles 1, 4, 6–19, 26–28, 31, or 68–70 of this Agreement (except as

1 The CBA contains a separate set of provisions regarding the procedures to be followed when a club or its related entity makes a payment to a player for non-football services (e.g., promotional appearances), to ensure that the payment is at fair market value for those services, and thus is not a disguised payment to the player for his football services. See, CBA, Article 4, Section 5(b); id., Article 13, Section 4(b). The alleged payments at issue here, however, were clearly for football-related services – i.e., performance on the field.


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provided in those Articles with respect to disputes determined by the Impartial Arbitrator, the

Accountants, or another arbitrator).”).

It was extremely important to the players that the provisions regulating undisclosed

agreements are subject to neutral arbitration before the System Arbitrator, as opposed to NFL

Commissioner “conduct detrimental” discipline and Commissioner arbitral review. The express

terms of the CBA reflect this concern as demonstrated by the fact that the Commissioner has

very limited authority only to void non-contractual player agreements, and may do so only after a

finding of a violation by the System Arbitrator, not the Commissioner, of this Article. See

Article 14, Section 6(a) (“In the event that the System Arbitrator finds a violation of Subsections

l(a) or 1(b) of this Article, for each such violation: (i) (1) the System Arbitrator may impose a

fine of up to $500,000 on any player or player agent found to have committed such violation, and

(2) shall, unless the parties to this Agreement otherwise agree, order the player to disgorge any

undisclosed compensation found to have been paid in violation of Section 1 of this Article unless

the player establishes by a preponderance of the evidence that he was unaware of the violation;

and (ii) the Commissioner shall be authorized to void any Player Contract(s) that was (or were)

the direct cause of such violation.”).

This formulation of the Commissioner’s authority stands in stark contrast to penalties

against club employees, where the CBA does provide that the Commissioner is authorized to

impose fines and suspensions on non-player employees, up to specified maximum limits, but

even then only after the System Arbitrator has first found a violation of the CBA rule. See

Article 14, Section 6(b). Indeed, the concluding sentence of the club employee discipline

provision makes absolutely clear that the Commissioner’s disciplinary authority to suspend and

fine club employees for engaging in a non-contractual pay-for-performance program does not

extend to players, whose discipline for such conduct lies solely in the hands of the System

Arbitrator: “For purposes of this Subsection 6(b), the term ‘Club personnel’ shall not include


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players.” Id. This language clearly evidences the intent of the parties to limit severely the

authority of the Commissioner to impose any discipline in this area, which is subject to the

exclusive enforcement jurisdiction of the System Arbitrator. Id.

Further, under the CBA, the penalties for a player who violates Article 14, Section 1 do

not include a suspension (in contrast to non-player club employees, who are authorized to be

suspended by the Commissioner under these provisions), and the maximum monetary fine is

$500,000. Article 14, Section 6(a)-(b).

The adjudication process for alleged conduct encompassed by Article 14 substantively

differs than that for alleged conduct that properly falls under the purview of Commissioner

discipline. The application of Article 14, Section 1 to a player’s alleged conduct requires that a

neutral arbitrator, using the procedural protections of the System Arbitrator provisions adjudicate

the alleged conduct, and any discipline imposed by the arbitrator is defined by the clear terms of

Article 14. The discovery rights in a System Arbitrator proceeding are much more expansive

than those in a Commissioner discipline arbitration.

The Commissioner’s Limited Arbitral Jurisdiction Under the CBA

In certain very limited circumstances, the CBA provides that the NFL Commissioner,

who is the chief executive hired by the NFL owners, may serve as an arbitrator of certain

disputes. In contrast to the broad jurisdiction of the System Arbitrator, the Commissioner’s

arbitral powers under Article 46 of the CBA are limited to “conduct detrimental” arising under a

single CBA provision:

All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the


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NFLPA with the player’s approval, may appeal in writing to the Commissioner.

CBA, Article 46, Section 1(a).2

The standard NFL Player Contract, which is an Appendix to and thus part of the CBA,

contains examples of “conduct detrimental.” See CBA, Appendix A (NFL Player Contract) ¶ 15

(player subject to Commissioner “conduct detrimental” discipline “if he accepts a bribe or agrees

to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix

an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity;

uses or provides other players with stimulants or other drugs for the purpose of attempting to

enhance on-field performance”). None of these examples are even remotely close to the conduct

at issue here.

The CBA also carves out, from “conduct detrimental” discipline that the Commissioner

may arbitrate, “unnecessary roughness or unsportsmanlike conduct on the playing field with

respect to an opposing player.” CBA, Article 46, Section 1(b). Appeals of discipline imposed

for the latter conduct (such as a violent hit) are heard by neutral Hearing Officers selected by the

parties. Id., Article 46, Section 2(a).

The NFL Investigation Of The Saints “Pay-for-Performance/Bounty” Program

On March 2, 2012, NFL Security, an internal office under the authority of the NFL

Commissioner, issued a report summarizing “the findings of [its] lengthy investigation” into an

alleged “pay-for-performance/bounty” program claimed to have existed at the New Orleans

Saints during each of the 2009, 2010 and 2011 seasons. NFL Security Report, dated March 2,

2012, submitted herewith as Ex. C, at 1.3 The NFL Security Report stated that the

2 In the Article 46 context, the Commissioner serves as an arbitrator. See Morris v. New York Football Giants, 575 N.Y.S.2d 1013 (Sup. Ct. 1991) (disqualifying NFL Commissioner as arbitrator). This is undisputed. 3 While the NFLPA does not accept the accuracy of the report, it provides the alleged factual basis for the Commissioner’s punishments and contains repeated admissions by the NFL concerning the applicability of the undisclosed agreements provisions of the CBA to the alleged conduct at issue.


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Commissioner’s investigation uncovered a “Pay-for-Performance” program, developed and

administered by Saints coaches. Id. at 2.

More importantly, the Security Report contains repeated statements by the NFL that the

alleged conduct at issue is inconsistent with the CBA’s ban against undisclosed, non-contractual

payment agreements:

• “[E]mployees of the New Orleans Saints repeatedly violated the ‘Bounty Rule’ by establishing cash pools, funded primarily by players, along with occasional contributions from two assistant coaches . . . . The players then received cash payments from those pools . . . .” Id. at 1.

• Such conduct is punishable because “[t]he NFL has long had in place rules

prohibiting ‘Non-Contract Bonuses.’ Such provisions violate . . . the Collective Bargaining Agreement.” Id.

• “During the 2009, 2010, and 2011 seasons,” Saints players and coaches

“developed and administered a ‘Pay for Performance’ program . . . . All such payments violate league rules prohibiting non-contract bonuses.” Id. at 2.

• “There is no question that a bounty program of this type violates long-standing

league rules. Payments of the type made here – even for legitimate plays such as interceptions or fumble recoveries – are forbidden because they are inconsistent with the Collective Bargaining Agreement and well-accepted rules relating to NFL player contracts.” Id. at 3.

(Emphases added.)

The Security Report does not distinguish between contributions by players to the so-

called “pay-for-performance/bounty” pool, and payments received by players from the pool.

Rather, it is clear that the establishment and participation in the pool by Saints players was

contrary to the CBA’s prohibition on undisclosed non-contract bonuses.

The Commissioner Disciplines the Saints

On March 21, 2012, Commissioner Goodell suspended various members of the Saints

management and coaching staff for “design[ing],” “implement[ing],” “operat[ing],”

“contribut[ing] to,” facilitating, and deliberately concealing the alleged “pay-for-performance/

bounty” program. See Memorandum of Decision, dated March 21, 2012, submitted herewith as


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Ex. D, at 1-2. The Commissioner’s discipline decision expressly stated that the NFL’s

“investigation revealed that Saints defensive players and at least certain defensive coaches

operated a ‘pay for performance’ (or non-contract bonus) program.” Id. at 1 (emphases added).

The decision disciplining the Saints coaches could not be clearer that the first principle

allegedly violated by the “pay-for-performance/bounty” program was its alleged inconsistency

with the prohibitions against undisclosed, non-contract bonus payments to players: “In

determining discipline, I am guided by a number of policies and principles. The first is the

longstanding rule against non-contract bonuses set forth in the Constitution and Bylaws.” Id. at

4 (emphasis added). Moreover, the Commissioner concluded his analysis by issuing a new

directive to each NFL owner to “confirm after due inquiry that his club does not operate any

program of pay for performance, bounties, or other non-contract bonuses . . . [as] any such

program violates league rules . . . and is impermissible.” Id. at 7.4

As to the origin and operation of the “pay-for-performance/bounty” system, the

Memorandum of Decision is clear that it originated and was administered by the club: “Coach

Williams acknowledged that he designed and implemented the pay for performance/bounty

program with the assistance of certain defensive players . . . Coach Williams described his role

as overseeing recordkeeping, defining payout amounts, deciding who received payouts, and

distributing envelopes containing cash to players who ‘earned’ rewards.” Id. at 2.

The Commissioner Disciplines the Players

On May 2, 2012, the NFL imposed discipline on four current and former Saints players –

Scott Fujita, Anthony Hargrove, Will Smith, and Jonathan Vilma. Each player was disciplined

4 While the Commissioner’s decision disciplining the Saints coaches refers to the NFL Constitution and Bylaws and other NFL rules, with respect to players, those provisions are superseded by the CBA provisions in Article 14, which, as discussed herein, are exclusively within the jurisdiction of the System Arbitrator, not the Commissioner. See CBA, Article 2, Section 1 (“The provisions of this Agreement supersede any conflicting provisions in the Settlement Agreement, NFL Player Contract, the NFL Constitution and Bylaws, the NFL Rules, or any other document affecting terms and conditions of employment of NFL players, and all players, Clubs, the NFLPA, the NFL, and the Management Council will be bound hereby.”).


14

“for [his] role in the ‘pay-for-performance/bounty’ program that operated at the New Orleans

Saints during the 2009-2011 seasons.” Letter from Roger Goodell to Scott Fujita, dated May 2,

2012, submitted herewith as Ex. E, at 1; Letter from Roger Goodell to Anthony Hargrove, dated

May 2, 2012, submitted herewith as Ex. F, at 1; Letter from Roger Goodell to Will Smith, dated

May 2, 2012, submitted herewith as Ex. G, at 1; Letter from Roger Goodell to Jonathan Vilma,

dated May 2, 2012, submitted herewith as Ex. H, at 1. The letters purported to discipline the

players for “conduct detrimental to the integrity of and public confidence in the game of

professional football.” Exs. E–H at 2.

The Commissioner suspended Mr. Fujita for the first three games of the 2012 regular

season, Mr. Hargrove for the first eight games of the 2012 regular season, Mr. Smith for the first

four games of the 2012 regular season, and Mr. Vilma for the entire 2012 NFL season (i.e., 16

regular season games). The lost salary to the Players would be approximately $644,000 for

Mr. Fujita, $388,000 for Mr. Hargrove, $194,000 for Mr. Smith, and $1.6 million for Mr. Vilma.

The monetary loss for Mr. Fujita and Mr. Vilma would be substantially more than the $500,000

maximum monetary penalty permitted under Article 14, Section 6(a). Moreover, as noted above

(supra pp. 9-10), under the CBA, a player may not be suspended for violations of Article 14,

Section 1.

Each suspension letter states that the NFL Security Report and the Memorandum of

Decision disciplining the Saints Coaches “set forth the key facts relating to the bounty program.”

Exs. E–H at 1. As noted above, the NFL Security Report states that the alleged “pay-for-

performance/bounty” program violated the CBA’s prohibition against undisclosed, non-contract

bonus payments (Ex. C at 3), and the Memorandum of Decision disciplining the Saints coaches

states that the “first” principle guiding the discipline was the “longstanding rule against non-

contract bonuses” (Ex. D at 4).


15

Each letter also confirms that the Commissioner’s purported imposition of discipline was

based on the alleged participation of the players in a program that “included improper cash

rewards for legitimate plays (such as fumble recoveries, interceptions, and the like) and

improper cash rewards for injuring opposing players through ‘cart-offs’ and ‘knock-outs’; and

that on multiple occasions specific cash bounties were placed on opposing players.” Exs. E–H at

1 (emphasis added).

The suspension letters also confirm that the discipline was based upon each player’s

alleged “particular involvement” in the program. As to Mr. Fujita, the suspension letter states

“the record establishes that you pledged a significant amount of money to the pool during the

2009 NFL Playoffs.” Ex. E at 1. As to Mr. Hargrove, the suspension letter claims, among other

things, that “the record establishes that you actively participated in the program while a member

of the Saints.” Ex. F at 1. As to Mr. Smith, the suspension letter alleges that “the record

establishes that you assisted Coach Williams in establishing and funding the program” and

“pledged significant sums during the 2009 playoffs toward the program pool for cart-offs and

knockouts of Saints’ opposing players.” Ex. G at 1. Finally, as to Mr. Vilma, the suspension

letter states that “the record establishes that you assisted Coach Williams in establishing and

funding the program” and allegedly pledged money under the program for knockouts of certain

quarterbacks during the 2009 playoffs. Ex. H at 1.

The System Arbitration

The day after Commissioner Goodell issued the Player Discipline Letters, the NFLPA

initiated a proceeding before System Arbitrator Burbank. The NFLPA demonstrated that, even

taking the Commissioner’s discipline at face value for the purposes of the System Arbitration, it

was expressly based on “pay-for-performance” conduct within the exclusive arbitral jurisdiction

of the System Arbitrator. See Letter from Jeffrey Kessler to Stephen Burbank, dated May 3,

2012, submitted herewith as Ex. I. The NFLPA also argued that the NFL may not usurp the


16

System Arbitrator’s exclusive jurisdiction over “pay-for-performance” behavior merely by

calling it “conduct detrimental” to the league. See Letter from Jeffrey Kessler to Stephen

Burbank, dated May 25, 2012, submitted herewith as Ex. J. Otherwise, the Commissioner’s

narrow authority to serve as an arbitrator – which the parties confined to Article 46, Section 1(a)

of the CBA – could become unbounded simply by the Commissioner recasting any behavior he

wishes to arbitrate as “conduct detrimental.” Oral argument before the System Arbitrator was

heard on May 30, 2012.

On June 4, 2012, System Arbitrator Burbank held that the Players’ alleged roles in the

Saints “pay-for-performance/bounty” program were outside of his jurisdiction. See Ex. A,

Opinion at 7. In his opinion, he acknowledged that Article 14, Section 1 “contemplates and

prohibits an undisclosed agreement or understanding between a player and a Club concerning the

player’s compensation.” Id. at 6. The System Arbitrator also found that the Saints franchise was

involved “if not in paying, then in ‘ma[king] available’ amounts from the pool.” Id. And, in

rejecting one of the NFL’s primary arguments, the System Arbitrator held that the involvement

of multiple players “does not insulate the scheme at issue here from Article 14’s prohibition, if it

is otherwise applicable, since the prospect of and criteria for receiving distributions from the

pool could be deemed an ‘undisclosed . . . inducement[] . . . or understanding[]’ for all players

regarding payments that would be made available by the Club, acting through coaches.” Id.

However, System Arbitrator Burbank decided that “the conduct for which the

Commissioner imposed discipline on the Players is not covered by Article 14, Section 1 and thus

. . . the System Arbitrator lacks jurisdiction.” Id. at 7. He concluded that there is an “important

distinction . . . . as to players, between funding the pool or making offers or pledges to contribute

sums to it, on the one hand, and accepting (or agreeing to accept) distributions from it, on the

other,” but he did not point to any language in the provision in propounding this distinction. Id.

at 7. In short, he concluded that he had exclusive jurisdiction over players receiving or agreeing


17

to receive money from the alleged “pay-for-performance/bounty” pool, but not over those same

players for allegedly paying or pledging money into such a pool as part of the same alleged

program. See id. at 7-9. System Arbitrator Burbank based his decision not on any point briefed

or argued by the parties, but upon a distinction of his own creation that appears nowhere in the

language of the CBA.

System Arbitrator Burbank did hold that Mr. Hargrove’s discipline was not clearly based

on any agreement or offer to fund the pool, and invited the Commissioner to issue a

supplemental decision stating the basis of the discipline. The System Arbitrator held that, if it

were determined that “receipt of (or agreement to accept) payments from the pool plays any part

in the revised decision (or decision on appeal), the NFLPA may return to seek relief from the

System Arbitrator.” Id. at 9. The Commissioner then issued a letter that Mr. Hargrove’s

discipline was based on “active participation in the program,” and that his discipline would stand

unchanged. See Letter from Commissioner Goodell to Anthony Hargrove, dated June 8, 2012,

submitted herewith as Ex. K.

The Commissioner Affirms The Player Discipline

On July 3, 2012, the Commissioner rubber-stamped his original discipline imposed on the

Players. See Letter from Roger Goodell to Messrs. Vilma, Smith, Hargrove and Fujita (“July 3,

2012 Appeal Decision”), dated July 3, 2012, submitted herewith as Ex. L. The Commissioner

stated at the outset that “[t]he reasons for imposing your respective suspensions are set forth in

letters to each of you dated May 2, 2012 (as clarified, in the case of Mr. Hargrove, by letter dated

June 8, 2012).” Id. at 1. The Commissioner’s arbitral decision did not extensively review the

conduct for which the players were being disciplined. However, the decision reiterates the

Commissioner’s reliance on the Security Report and Memorandum of Decision – which find

violations of the CBA’s non-contract bonus prohibitions (supra pp. 12-14) – and otherwise

makes clear that the conduct being penalized was the players’ alleged overall participation in the


18

“pay-for-performance/bounty” program as a whole. See, e.g., Ex. L, July 3, 2012 Appeal

Decision at 7 (punishments for “incentivizing players” and for putting “an incentive in place”).

The NFLPA argued that the Commissioner was required to wait for a ruling by this Appeals

Panel before rendering his arbitral decision, but the Commissioner declined to do so. Transcript

Commissioner Arbitration Hearing, dated June 18, 2012 (“Goodell Hearing”), submitted

herewith as Ex. M, 16:24-17:21 (“We have filed a notice of appeal of System Arbitrator

Burbank’s decision . . . [and] [w]e believe it’s not appropriate for the Commissioner to proceed

with any discipline in light of that lack of jurisdiction. It’s certainly not appropriate to proceed

with this hearing while that appeal is pending.”).)

After ruling on various procedural issues not relevant to the present appeal, the

Commissioner concluded that “the appeals are denied and the suspensions are to be enforced as

set forth in the notice letters of May 2, 2012.” Ex. L, July 3, 2012 Appeal Decision at 8.

The Federal Court

On July 5, 2012, the NFLPA and Messrs. Fujita, Hargrove and Smith filed an action in

the U.S. District Court for the Eastern District of Louisiana seeking to vacate the

Commissioner’s arbitration decision on various grounds. Mr. Vilma had earlier filed a separate

action against the Commissioner in the same court alleging claims related to the discipline and

public comments the Commissioner made regarding Mr. Vilma. The two actions were

consolidated before Judge Helen G. Berrigan. The petition to vacate the Commissioner’s award

is pending and scheduled for oral argument on August 10, 2012. During the course of the

proceedings to date, Judge Berrigan made the following observations about the decision of the

System Arbitrator below:

I think the basis of Mr. Burbank’s conclusions are questionable. He concluded that the commissioner’s punishment was not covered under Article 14 because it was a distinction as to players between funding the pool or making the offers or pledges to contribute sums to it on the one hand and accepting or agreeing to accept distributions from it on the other. Accepting payments clearly comes


19

under the exclusive jurisdiction of the system arbitrator . . . . Mr. Burbank concluded that Mr. Goodell was punishing the players for funding the pool. I think that's kind of slicing the salami very thin to avoid the mandatory jurisdiction of the system arbitrator and not that persuasive a distinction.

Transcript of Jonathan Vilma TRO Hearing (“TRO Hearing”), dated July 26, 2012, submitted

herewith as Ex. N, 187:7-188:16; see also id. at 191:19-22 (“I think it’s worth noting that none of

the [examples of conduct detrimental set forth in all NFL players’ contracts] – bribery, fixing

games, betting, associating with gamblers, using or providing performance-enhancing drugs –

are involved in this case.”); id. at 192:2-5 (“I think the issue here is whether the commissioner

complied with the requirements of the collective bargaining agreement in imposing the

sanctions, and obviously I have a serious question as to whether he did.”) (emphases added

throughout).

ARGUMENT

I. THE ALLEGED PLAYER CONDUCT AT ISSUE IS WITHIN THE BROAD SCOPE OF ARTICLE 14, SECTION 1, WHICH MAKES NO DISTINCTION BETWEEN UNDISCLOSED COMPENSATION THAT IS CONTRIBUTED VERSUS RECEIVED BY PLAYERS

Article 14, Section 1 broadly provides that a club and a player “may not, at any time,

enter into [1] undisclosed agreements of any kind, express or implied, oral or written, or

promises, undertakings, representations, commitments, inducements, assurances of intent, or

understandings of any kind . . . [2] involving consideration of any kind [3] to be paid, furnished

or made available or guaranteed to the player, or Player Affiliate, [4] by the Club or Club

Affiliate either prior to, during, or after the term of the Player Contract.” CBA, Article 14,

Section 1. In considering this language, System Arbitrator Burbank properly stated that

(i) Article 14, Section 1 “contemplates and prohibits an undisclosed agreement or understanding

between a player and a Club concerning the player’s compensation;” (ii) the Saints were

involved “if not in paying, then in ‘ma[king] available’ amounts from the pool,” and (iii) the

involvement of multiple players “does not insulate the scheme at issue here from Article 14’s


20

prohibition, if it is otherwise applicable, since the prospect of and criteria for receiving

distributions from the pool could be deemed an ‘undisclosed . . . inducement[] . . . or

understanding[]’ for all players regarding payments that would be made available by the Club,

acting through coaches.” Ex. A, Opinion at 6.

However, System Arbitrator Burbank also concluded that “as a matter of contract

language, the alleged activities that give rise to the Commissioner’s disciplinary action do not fit

comfortably within the ambit of Article 14, Section 1.” Id. He did so on the basis that the

“animating concern” of the provision is “undisclosed compensation” that “could be used to avoid

the Salary Cap or the rules governing Rookie Compensation and the Rookie Compensation Pool,

thereby disturbing the competitive conditions to which they are thought to contribute.” Id.; see

also id. (“The concern about the integrity of the Salary Cap and the Rookie Compensation Pool

is inferable from the placement of Article 14 in the CBA” nearby salary cap and related

provisions); id. (“That the animating concern is undisclosed compensation is also confirmed by

the fact that disgorgement of ‘any undisclosed compensation found to have been paid in violation

of Section 1’ is a mandatory penalty for a violation found by the System Arbitrator, unless the

parties to the CBA otherwise agree or ‘the player establishes by a preponderance of the evidence

that he was unaware of the violation.’”). 5

Thus, the System Arbitrator held that “[e]ven if Article 14, Section 1 is properly

interpreted to prohibit players from accepting (or agreeing to accept) undisclosed payments from

a pool, primarily funded by players, for on-field performance (of whatever sort), to extend its

terms to player contributions (or pledges) to the pool is not linguistically compelled and would

wholly unmoor the language from its animating purposes. See Reape v. New York News, Inc.,

504 N.Y.S.2d 469, 470 (App. Div. 1986) (‘Since the intent of the parties in entering an

5 Since 1993 the CBA has had, in addition to a salary cap, a separate set of rules on how much money clubs may pay or agree to pay to its rookie players in any NFL season. Those rules in effect are a separate salary cap that applies only to rookies on each club, with distinct rules applicable only to rookie contracts. See CBA, Article 7.


21

agreement is a paramount consideration when construing a contract, even the actual words

provided therein may be transplanted, supplied or entirely rejected to clarify the meaning of the

contract.’).” Ex. A, Opinion at 7.

The System Arbitrator’s conclusion that the alleged player conduct at issue, for which

they were disciplined, is not within the scope of Article 14, Section 1, is incorrect and itself is

unmoored from the CBA’s text. Indeed, the distinction has no basis at all in the language of the

provision which says nothing about distinguishing between players funding or pledging such

payments at the direction of the Club, and players receiving or agreeing to receive such

payments.

System Arbitrator Burbank’s hesitancy to find jurisdiction in this controversial dispute

lost sight of the text of Article 14, Section 1. The prohibition in this provision is not focused at

all on the player’s “receipt” of consideration versus any other part of an undisclosed agreement.

Instead, the essential predicate for a violation of the provision is whether a club and one or more

of its players (or one of their related parties) have “enter[ed] into undisclosed agreements of any

kind, express or implied, oral or written, or promises, undertakings, representations,

commitments, inducements, assurances of intent, or understandings of any kind . . . .” This

language, which focuses on the prohibited undisclosed agreement, is completely disconnected

from any distinction based on whether the player is on the receiving or giving end of the

undisclosed consideration at issue. Instead, the focus of the plain language is whether there is an

undisclosed “agreement,” “understanding” or other covered representation between the player

and the club in which non-contract consideration is made available to any players. Here, as the

System Arbitrator recognized, there can be no question that the alleged “pay-for-performance/

bounty” program, and the alleged participation of the players in it, constituted an alleged

“understanding” between the players and the club that satisfied this requirement of the provision.


22

The next step in the language of the provision is the subject of the undisclosed agreement

or understanding.6 Here, the provision also made a deliberate choice. Once again, it does not

even mention the receipt of anything by the player, or any distinction based on payment or

receipt. Instead, the provision states that the covered agreement or understanding must be one

“involving consideration of any kind” that must then satisfy the other prerequisites that follow.

The parties used broad language – “consideration,” not just money – and prohibited agreements

or understandings are any that “involve[ed]” the consideration. Thus, so long as the undisclosed

agreement or understanding between the club and player is one “involving” consideration, then

this requirement of the provision has been met.

The next step in the language of the provision is that the consideration involved in the

agreement or understanding must be consideration “to be paid, furnished or made available or

guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate.” Here, if the

provision had stopped at “paid,” then the NFL might have ground to stand on, since then there

would be a sole qualifying path that would be limited to consideration paid by the club to the

player. But as even the System Arbitrator noted, this is not what the provision says. Instead, the

provision goes on to cover also consideration that is “made available” to the player by the club,

regardless of who pays or agrees to pay the consideration. On this point, System Arbitrator

Burbank correctly concluded that the “pay-for-performance/bounty” program is covered by this

language, because the program involved the Saints making available the money in the program

to the players through the involvement and direction of the coaches in the development and

administration of the program.

6 For purposes of this brief, the discussion will focus on the agreement or understanding regarding the program, as opposed to the other potential communications described by Article 14, Section 1, since there can be no serious question that an understanding or agreement to participate in the program was alleged by the NFL and the main basis of the discipline.


23

In short, the System Arbitrator failed to adhere to the actual language of the provision

itself, which by its terms contains no distinction at all – nor even a hint of it – on whether the

consideration is received or contributed by the player. To implicate Article 14, the alleged

undisclosed agreement or understanding must involve consideration made available to the player

or players by the club. Nothing more is required. The System Arbitrator committed clear error.

The lack of any distinction between money paid to or received by players also makes

logical sense as applied to this case. Once the alleged agreement to participate in the non-

contractual bonus program was made, one cannot separate out the different portions of the

alleged agreement since all players who are claimed to have agreed to participate in the program

allegedly agreed to participate in one program in which they might be a net contributor or payer

on any given week, depending on their performance or the performance of other players on the

team. There is no way to break up the overall agreement that is the predicate for the application

of Article 14, Section 1, and the text of Article 14, Section 1 does not contemplate coverage of

only part of the agreement.

In this same vein, the System Arbitrator also erred when he failed to recognize that,

where the parties wished to write provisions that focused on the consideration that a player

received, the parties did so expressly, in contrast to the broader language used in Article 14,

Section 1. For example, the CBA has an express provision that deals with payments to players

for non-football services by a club or its related parties, a similar issue involving potential

payments that could circumvent the salary cap system. There, the CBA provision specifically

refers to consideration “received by the player” in excess of fair market value, and provides a

mechanism to deal with the circumstance (i.e., counting the excess amount against the club’s

salary cap limit). See CBA, Article 4, Section 5(b); id., Article 13, Section 4(b) (“A player’s

Salary shall also include any and all consideration received by the player or his Player Affiliate

from a Club or Club Affiliate . . . .”) (emphasis added). By contrast, Article 14, Section 1 does


24

not contain any language to limit its scope to a player who “receives” undisclosed consideration

from a club or one of its related parties; instead, the provision includes much broader terms

covering agreements or understandings between a club and player “involving” consideration

“made available” to a player by a club or one of its related parties.

It is black letter law under the CBA that the parties’ use of different language in different

provisions of the CBA indicates a different result was intended. See, e.g., Grbac-Hobert, 972 F.

Supp. at 1239 (“By employing different language in different sections of the SSA, it is clear that

the parties recognized and understood the difference between ‘sole control’ and ‘likely to be

earned.’ Had the parties intended ‘likely to be earned’ to be the test for the proration of Signing

Bonuses over voidable contract years, they could have so agreed.”); White v. NFL (Salary Cap

Valuation Issues), slip op. at 6 (Sept. 28, 2005) (Burbank) (“If the parties to the (SSA and) CBA

had intended to tie acceleration to the exercise of a right to terminate, they could have provided

that voidable contract years ‘shall count . . . for purposes of proration until the player exercises

the right to terminate.’ They did not do so. Moreover, one can imagine language in a player’s

contract that might make the existence of a right to terminate depend, among other things, on

sending effective notice, but that is not the language in Mr. Walker’s contract.”), submitted

herewith as Ex. O; White v. NFL (Lelie), slip op. at 4 (Nov. 16, 2006) (Burbank) (“If the parties

had intended to restrict ‘salary escalators’ to contract provisions that directly escalate Paragraph

5 Salary, they could easily have so provided . . . .”), submitted herewith as Ex. P. Here, the

parties could have drafted Article 14, Section 1 to limit its scope to agreements by players to

“receive” the consideration at issue, or they could have limited the provision to consideration

“paid” by the Club to the player. But those language formulations were not used and the parties

did not adopt the concept of player receipt to limit the scope of Article 14, Section 1 in favor of

Commissioner jurisdiction.


25

The applicability of the provision to the player conduct at issue is also evident in the

discipline letters, which did not issue discipline based on any perceived distinction between

player receipt or contribution of monies to the alleged “pay-for-performance/bounty” pool, and

instead found participation in the overall agreement to be a basis of discipline.

For example, each of the player’s discipline letters described the establishment of the

entire program in identical fashion, drawing no distinction between payments made versus

payments received. Exs. E–H at 1 (“The record, based on numerous witness interviews and

substantial documentary evidence, clearly shows that Saints defensive players and coaches

organized, administered and funded a pay-for-performance/bounty program for three seasons;

that the program included improper cash rewards for legitimate plays (such as fumble recoveries,

interceptions, and the like) and improper cash rewards for injuring opposing players through

‘cart-offs’ and ‘knockouts’; and that on multiple occasions specific cash bounties were placed on

opposing players.”). Similarly, the descriptions of the player’s “particular involvement” in the

program referenced “participation” in the program as a grounds for discipline. See, e.g., Ex. H at

2 (imposing discipline based on alleged “general participation” in the program) (emphasis

added); Ex. G at 2 (imposing discipline based on alleged “active participation” in the program)

(emphasis added); Ex. F at 1 (discipline imposed because player allegedly “actively participated

in the program” and “knew about and participated” in the alleged program).7

In short, the Commissioner disciplined the Players for allegedly participating in an

undisclosed in the “pay-for-performance/bounty” program. But that alleged conduct is covered

7 After the System Arbitrator ruled in his Opinion that Mr. Hargrove’s suspension letter was not clear as to whether Mr. Hargrove was being disciplined for alleged payment or receipt of money in the program (a distinction the NFL did not make in disciplining any of the players), and invited the NFL to clarify the basis of the discipline, the Commissioner sent Mr. Hargrove a letter that, unsurprisingly, stated that Mr. Hargrove’s discipline was not for any receipt or agreement to receive money in the program. See Letter from Gregg Levy to System Arbitrator Burbank, dated June 8, 2012, submitted herewith as Ex. Q. We respectfully submit that this after-the-fact reformation of the discipline, after it had already been issued, is entitled to absolutely no weight, and the discipline should be assessed based on the reasons provided when it was issued.


26

by plain and unambiguous terms of Article 14, Section 1, and thus within the exclusive

jurisdiction of the System Arbitrator.

II. IT WAS LEGAL ERROR FOR THE SYSTEM ARBITRATOR TO IGNORE THE LAW OF THE SHOP, AND OVERRULE THE PLAIN LANGUAGE OF ARTICLE 14, SECTION 1 BASED ON HIS PERCEIVED “ANIMATING PURPOSE” OF THE PROVISION

Unwilling to give effect to the plain language of Article 14, Section 1, System Arbitrator

Burbank held that the provision should instead be interpreted based upon what he perceived to be

its “animating purpose.” Ex. A, Opinion at 6-7. This interpretation was contrary to the most

fundamental principles and law of the shop that govern the interpretation of the CBA, which,

unlike many other contracts, is subject to a strict bar on any parol evidence, even when a

provision is deemed ambiguous.

Specifically, ever since the Grbac-Hobert proceeding, it has been the law of the NFL

CBA that the language of the CBA must govern and cannot be overridden by the arbitrators’

view of the parties’ “purpose.” In Grbac-Hobert, the NFL had argued that certain contract

renegotiations, while within the terms of the CBA’s salary cap provisions, circumvented the

“intent” of the CBA. See 972 F. Supp. at 1235 (“The broad issue before the court is whether

conduct which is permitted by the SSA can violate the Circumvention rule?”). Special Master

Friedenthal had determined that the contract provisions at issue had circumvented the “intent of

the parties,” based on his belief that the circumvention provision was a salary cap requirement,

notwithstanding that no such language appeared in the provision. Id. at 1237.

Applying New York law, Judge Doty squarely rejected this approach to interpreting the

SSA and CBA (which mirrored the SSA’s terms in this regard):

The Special Master characterized the Hobert renegotiation and Grbac contract as “technical ploys.” However, the SSA is a product of lengthy and detailed negotiations. It is a carefully crafted document that contains numerous compromises, trade-offs and intricate rules. Sometimes the language of the SSA seems to favor one party to a substantial degree. It is not for the Special Master or the court to alter the results of the parties’ compromise, however.


27

In conjunction with the rule barring the use of parol evidence, the Circumvention provision allows the parties to rely on the plain meaning of the SSA when structuring their contractual relationships. To reach his decision, the Special Master went outside of the agreement and substituted his judgment for the unambiguous language of the SSA. It is the Special Master’s and the court’s obligation to enforce the SSA as written.

Id. at 1239 (emphasis added); see also id. at 1237-38 (“It goes without saying that the parties to

the SSA may justifiably rely on its terms to maximize their respective economic and competitive

interests. It is neither the role of the Special Master nor the court to sit in judgment of the

economics of professional football, nor to second-guess the wisdom of the bargain the parties

struck.”) (citation omitted).

This principle – that the language of the CBA controls as opposed to animating purpose –

has been applied in numerous CBA arbitral decisions since the decision in Grbac-Hobert. See,

e.g., White v. NFL (Sauerbrun), slip op. at 4 (Apr. 18, 2006) (Burbank), submitted herewith as

Ex. R; White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858, 862-63 (D. Minn. 2001);

White v. NFL (49ers Undisclosed Agreements), Civ. No. 4-92-906(DSD), slip op. at 5-6 (D.

Minn. Mar. 30, 2000), submitted herewith as Ex. S. It thus is the “law of the shop” and binding

in all future CBA arbitrations. See, e.g., Denver Broncos v. Lelie, slip op. at 24 (Apr. 23, 2007)

(Das), submitted herewith as Ex. T (“Absent a controlling court decision compelling a finding

that the analysis and rationale [in a prior arbitration award] is legally indefensible, it is the law of

the shop.”); In re Bills, Jets, Panthers, slip op. at 19 (Feb. 14, 2007) (Das), submitted herewith as

Ex. U (“the CBA contemplates a uniform ‘law of the shop’”).

Despite the above authority, System Arbitrator Burbank failed to adhere to this binding

rule of construction for the CBA. Indeed, the System Arbitrator’s reliance on and quotation of

the Reape v. New York News case demonstrates that he wildly departed from the interpretive

rules required by the Grbac-Hobert decision and all subsequent CBA authority. The System

Arbitrator quoted Reape for the proposition that “‘even the actual words provided [in a contract]

may be transplanted, supplied or entirely rejected to clarify the meaning of the contract.’” Ex.


28

A, Opinion at 7 (emphasis added) (quoting Reape, 504 N.Y.S.2d at 470). But the Grbac-Hobert

decision, which the System Arbitrator was obliged to follow, stands for exactly the opposite

principle: “In conjunction with the rule barring the use of parol evidence, the Circumvention

provision allows the parties to rely on the plain meaning of the SSA when structuring their

contractual relationships.” 972 F. Supp. at 1239 (emphasis added).

The System Arbitrator also erroneously applied the rule of construction adopted in Reape

even though that rule was formulated in the context of considering parol evidence contrary to the

terms of the actual contract, an interpretive approach that is absolutely barred under the express

terms of the CBA. Compare Reape, 504 N.Y.S.2d at 470 (“it would be unreasonable to conclude

that the defendant intended to assume a net loss for each copy delivered by the plaintiff, as the

record indicates would have happened if the plaintiff’s interpretation was adopted”) and id. at

470-71 (“the plaintiff set forth several reasons for terminating the agency relationship in his letter

of resignation, none of which mentioned the dispute over the amount of the fee which was being

paid to him”) with Grbac-Hobert, 972 F. Supp. at 1238 (“In conjunction with the rule barring the

use of parol evidence, the Circumvention provision allows the parties to rely on the plain

meaning of the SSA when structuring their contractual relationships.”) and CBA, Article 70,

Section 2 (“The parties shall not, in any proceeding or otherwise, use or refer to any parol

evidence with regard to the interpretation or meaning of Articles . . . 6-19 . . . .”) and Ex. B,

White v. NFL (Wally Williams), slip op. at 5-6 (“evidence of activities of the parties subsequent

to the CBA cannot be used or referred to in determining the meaning of [among others, Article

14] of the CBA.”).

The System Arbitrator’s relegation of the CBA’s text to secondary status behind a

perceived “animating purpose,” and his consequent creation of a distinction between monies

“received” by players versus monies allegedly “pledged” or “contributed,” is thus wrong as

matter of law. See Grbac-Hobert, 972 F. Supp. at 1236 (“[A] court may not rewrite into a


29

contract conditions the parties did not insert or, under the guise of construction, add or excise

terms.”); id. at 1237 n.5 (“It is our obligation to enforce the SSA, not rewrite it.”); see also Ex. R,

White v. NFL (Sauerbrun), slip op. at 4 (Burbank) (“I lack the power to rewrite the SSA by

substituting my view about what it should mean given the equities of a particular case for what,

according to its plain and unambiguous language, it does mean.”).

III. EVEN IF IT WERE PROPER TO CONSIDER PURPOSE OVER THE PLAIN LANGUAGE OF THE CBA (IT IS NOT), INTERPRETING ARTICLE 14, SECTION 1 TO APPLY, REGARDLESS OF WHETHER THE PLAYER RECEIVED OR CONTRIBUTED FUNDS, IS CONSISTENT WITH THE CBA PURPOSE OF PROHIBITING UNDISCLOSED PLAYER COMPENSATION

System Arbitrator Burbank based his decision on the supposition that interpreting

Article 14, Section 1 to apply to money both pledged or contributed and received by players in

the alleged “pay-for-performance/bounty” program would “unmoor” the language of the

provision from its “animating purposes” of prohibiting undisclosed player compensation. Ex. A,

Opinion at 7. Had the System Arbitrator asked the parties for any briefing and/or argument on

this purported distinction, he would have quickly found out that player contributions to

undisclosed compensation arrangements formulated by the coaches on a team are very much

“moored” to CBA purposes of prohibiting undisclosed compensation agreements and the

enforcement of the salary cap and rookie compensation rules.

To place this issue in context, it must be recognized that because of the salary cap, which

is a dollar ceiling that limits how much each team in the NFL may pay its players for a given

year, a team that seeks to improve itself by signing new players or retaining players frequently

asks other players already on the team’s roster to restructure their contracts to create more salary

cap “room” in a particular year. In these circumstances, the player effectively is asked to

contribute a portion of his salary in a given year so the team can use the salary cap “room” that is

freed up to sign other players. The decision in Grbac-Hobert involved a permitted compensation

renegotiation for this very purpose. See 972 F. Supp. at 1235.


30

In contrast to these permitted ways for players to restructure their contracts to contribute

money for the team to spend more on other players to improve team performance, which are

disclosed and accounted for under the salary cap and the rookie compensation rules, an

undisclosed agreement to “contribute” salary to be paid to another player outside of that player’s

contract would be a salary cap enforcement issue that goes to what the System Arbitrator stated

to be the animating purpose of Article 14.

In fact, the NFL has previously alleged that a player who secretly agrees to give up

compensation so other players may be paid more has violated Article 14, Section 1. The NFL

itself has thus previously rejected any distinction between a player who receives or a player who

contributes money at the club’s behest in alleging an Article 14 violation, which is not surprising

as it is the undisclosed agreement that violates both the language and purpose of this provision.

Specifically, in 1999, the NFL alleged that the San Francisco 49ers entered into

numerous undisclosed agreements with players in the 1997 season as the 49ers sought to win one

more Super Bowl: “The NFL Management Council is initiating a proceeding to address apparent

violations of the Collective Bargaining Agreement by the San Francisco 49ers . . . . In particular,

we have reason to believe that some or all of the foregoing may have engaged in efforts to

circumvent the Salary Cap, including through undisclosed agreements and commitments barred

by [Article 14, Section 1].” Letter from Neil Roman to Special Master Friedenthal, dated June

24, 1999, submitted herewith as Ex. V, at 1.8

Among its assertions, the NFL alleged that the 49ers had a secret agreement with a player

pursuant to which one of the years in his player contract was added for salary cap reasons only

(i.e., it would cause the player’s signing bonus to be amortized over an additional year, thereby

reducing the contract’s salary cap count for each year of the contract), and would not be

8 Prior to the 2011 extension of the CBA, the provisions of Article 14 were set forth in Article XXV of the prior CBAs and Article XV of the SSA.


31

honored.9 The player would thus never receive the money under the final year of the contract,

even though it was agreed to by the team and the player. See Memorandum dated August 11,

1997, submitted herewith as Ex. W (“In addition, it is understood that the sixth year of the

contract was added for cap reasons only and that the player will not be asked to honor that

year.”).10 In short, the NFL contended that an undisclosed agreement with a club by a player to

contribute money – i.e., not to receive money he was entitled to under his Player Contract – that

could then be used to pay other players, was in violation of Article 14, Section 1.

This prior position by the NFL underscores the similar salary cap concerns posed by the

conduct at issue in the instant proceeding, i.e., the club allegedly secretly agreed with players

that certain players would give up money that would be redirected to other players whom the

club wished to “incentivize” for their performance on the field, without any of this transferred

money disclosed in a player contract. The payment of such secret incentives would clearly fall

under both the language and purpose of Article 14, Section 1, since the monies allegedly paid

would be in violation of the salary cap accounting rules as they would not be disclosed.

Under the System Arbitrator’s erroneous view that there is no such salary cap

circumvention concern when the player is paying, as opposed to receiving, undisclosed money,

the provision would not apply to a team’s quarterback who makes a secret $1 million non-

contract payment – at the specific request of the team’s coach – to a free agent wide receiver that

the team wants to sign to try to win the Super Bowl (and who the quarterback wants the team to

sign to further his own career). This makes no sense as the quarterback’s conduct of funding the

secret payment would clearly involve an undisclosed agreement to pay secret compensation to

9 See Transcript of NFL’s Deposition of Member of 49ers Management, dated March 15, 2000, submitted herewith as Ex. Y, 30:17-23 ([Question from NFL Counsel to Member of 49ers Management]: “Did you understand at the time you entered into the contract on July 31, 1997 that the sixth year of [the player’s] contract was added for cap reasons only and that the player would not be asked to honor that year?”). The exhibit provided to the Appeals Panel redacts the name of the player and the relevant 49ers personnel since this information is not relevant to this proceeding, and the 49ers proceeding was ultimately settled without public disclosure of the specific facts at issue. 10 This exhibit also redacts the name of the player and the relevant 49ers personnel. See supra note 9.


32

another player outside of the Player Contract at the specific request of the team. This would be

the very core of an Article 14 violation, within the exclusive jurisdiction of the System

Arbitrator.

The same analysis demonstrates that applying Article 14, Section 1 of the CBA to the

Saints’ alleged “pay-for-performance/bounty” program would be consistent with both the

language and the purpose of the Article, regardless of whether a particular player was a payer or

receiver of money at any particular time under the program. Since the money to be secretly

contributed and paid under the program was, under even the NFL’s allegations, at least in

substantial part “for legitimate plays such as interceptions or fumble recoveries” (Ex. C, NFL

Security Report at 3), this is indistinguishable from a secret agreement to have players help fund

secret “individual incentives” not reported in any Player Contract. It is hard to identify an

understanding that would be more clearly covered by both the language and purpose of Article

14, Section 1’s prohibition of such undisclosed agreements. Cf. CBA, Article 13, Section 6(c)

& Exhibit B (listing seven allowed individual incentives which may be contained in a Player

Contract and thus accounted for under the salary cap, two of which are interceptions and

opponent fumble recoveries). The alleged payments of money into the “pay-for-

performance/bounty” program effectively allowed Saints players to receive additional incentives

that otherwise would have to have been reported to the NFL and the NFLPA in accordance with

the salary cap rules. This is no different than if the contributing players’ contracts had been

secretly renegotiated to reduce their salaries by the amounts contributed, and all of the players

had their contracts secretly renegotiated to include the additional incentive clauses. In either

case, the provisions of Article 14, Section 1 apply and the System Arbitrator, not the

Commissioner, has exclusive jurisdiction over such alleged conduct.


33

IV. THE NFL’S POLICY ARGUMENTS AGAINST THE SYSTEM ARBITRATOR HAVING JURISDICTION ARE BOTH LEGALLY IRRELEVANT AND MERITLESS

The NFL made dire warnings to the System Arbitrator that denying the Commissioner

jurisdiction over the alleged “pay-for-performance/bounty” program of the Saints would afford

players immunity for all types of nefarious conduct, like throwing games. These scare tactics are

a total red herring.

To begin with, as reviewed above (supra pp. 26-29), the governing arbitral case law

between the parties is unequivocal that the terms of the CBA, as written, must apply regardless

of whether one side or the other believes that it would yield an unpalatable result. See, e.g.,

Grbac-Hobert, 972 F. Supp. at 1237-38 (“It goes without saying that the parties to the SSA may

justifiably rely on its terms to maximize their respective economic and competitive interests. It

is neither the role of the Special Master nor the court to sit in judgment of the economics of

professional football, nor to second-guess the wisdom of the bargain the parties struck.”)

(citation omitted).

However, even if the System Arbitrator did have the power to rewrite the parties’ bargain

to address legitimate policy concerns (he does not), no such concerns would apply here.

Specifically, the decision to apply the exclusive jurisdiction of the System Arbitrator in this case

would in no way undermine the ability of the Commissioner to apply discipline in those cases in

which his “conduct detrimental” authority over player behavior actually applies. For example, if

a coach paid a player to throw a game, the Commissioner could take conduct detrimental

disciplinary action against the player for throwing the game – but not for the non-contractual

payment, which would be within the exclusive jurisdiction of the System Arbitrator. Here,

however, the NFL explicitly seeks to punish players for participating in an alleged “pay-for-

performance bounty” system – a subject that the parties delegated exclusively to the System

Arbitrator. When actual player conduct detrimental is involved, the Commissioner’s disciplinary


34

authority is unimpaired. But, as Judge Berrigan noted, conduct detrimental as described in the

NFL Player Contract is not at issue here. Ex. N, TRO Hearing Tr. 191:19-22 (“[N]one of the

[examples of conduct detrimental set forth in all NFL players’ contracts] – bribery, fixing games,

betting, associating with gamblers, using or providing performance-enhancing drugs – are

involved in this case.”).

This Panel should not accept the NFL’s argument that “conduct detrimental”

encompasses whatever conduct Commissioner Goodell says it does. To use the NFL’s parlance,

the Commissioner’s function as an arbitrator “is an office of limited jurisdiction.” See Letter

from Gregg Levy to Stephen Burbank, dated May 18, 2012, submitted herewith as Ex. X, at 3

n.1. The Commissioner does not have unchecked discretion under the CBA to supplant the

System Arbitrator’s jurisdiction – or that of any other neutral arbitrator assigned specific dispute

resolution responsibilities under the CBA – simply by slapping a “conduct detrimental” label on

the alleged player conduct. The CBA offers no textual support for any such unconstrained grant

of power to the Commissioner. Indeed, to conclude otherwise would effectively eviscerate the

exclusive jurisdiction granted to the System Arbitrator (and, ultimately, the Appeals Panel) over

subjects like non-contractual payments. Governing principles requires that such an interpretation

of the CBA, which would undermine one CBA provision at the expense of another, be avoided.

See White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d at 860 (“Further, the court must give

effect and meaning to every term of the contract, making every reasonable effort to harmonize all

of its terms. The contract must also be interpreted so as to effectuate, not nullify, its primary

purpose.”) (citation omitted); Ex. O, White v. NFL (Salary Cap Valuation Issues), slip op. at 4

(Sept. 28, 2005) (Burbank ) (“In [interpreting the SSA and CBA], I must try to avoid an

interpretation that either would create conflict between contractual provisions or render any such

provision a nullity.”).


35

V. ALL OF THE DISCIPLINE MUST BE SET ASIDE

Finally, in view of the unambiguous written record establishing that the Commissioner

punished the Players for participating in an agreement with the Saints to pay “non-contract

bonuses,” all of the discipline must be overturned because the Commissioner was without

jurisdiction to impose it in the first place. See Avis Rent A Car Sys. v. Garage Emps. Union,

Local 272, 791 F.2d 22, 25-26 (2d Cir. 1986) (reversing arbitration award and remanding for

new hearing where arbitrator had no jurisdiction to interpret provisions in one of two collective

bargaining agreements between the parties: “[A]rbitration depends on the consent of the parties

to the contract. . . . Courts generally enforce such [arbitration] clauses strictly, vacating awards

entered by arbitrators whose qualifications or method of appointment fail to conform . . . .”);

SEIU, Local 32BJ v. Coby Grand Concourse, LLC, No. 04 Civ. 9580(CSH), 2006 WL 692000,

at *5 (S.D.N.Y. Mar. 16, 2006) (vacating arbitration award because one party “decided to ignore

the . . . arbitrator specified in the CBA, and instead unilaterally selected a different arbitrator to

hear the . . . dispute”); Elkouri & Elkouri, How Arbitration Works 172 (Alan Miles Ruben ed.,

6th ed. 2003) (“[Where] an arbitrator’s appointment did not conform to the agreement on which

he based his jurisdiction, the defect was held to have rendered him powerless to act.”). The

Panel should thus rule that the conduct at issue is within the exclusive jurisdiction of the System

Arbitrator and the discipline imposed by Commissioner Goodell is null and void. If the NFL

then wishes to initiate an Article 14 proceeding before System Arbitrator Burbank, it would be

free to do so.


36

CONCLUSION

For all of the foregoing reasons, the Players respectfully request that the decision of the

System Arbitrator be reversed and that the discipline of Commissioner Goodell, which was

without jurisdiction, be set aside in its entirety.

Dated: August 7, 2012 /s/ Jeffrey L. Kessler _

Counsel for National Football League Players Association

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION Thomas DePaso Heather M. McPhee 1133 20th Street, NW Washington, DC 20036 (202) 756-9136 [email protected] [email protected] WINSTON & STRAWN LLP Jeffrey L. Kessler David G. Feher David L. Greenspan 200 Park Avenue New York, NY 10166 (212) 294-6700 [email protected] [email protected] [email protected]


EXHIBIT A


__________________ NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Claimant, v. NATIONAL FOOTBALL LEAGUE Respondent __________________ BEFORE ACTING SYSTEM ARBITRATOR STEPHEN B. BURBANK

Re: New Orleans Saints “Pay-For-Performance/Bounty” Program OPINION APPEARANCES: FOR THE NFL PLAYERS ASSOCIATION:

WINSTON & STRAWN LLP By: Jeffrey L. Kessler, Esq.

200 Park Avenue New York, N.Y. 10166 FOR THE NFL: COVINGTON & BURLING LLP By: Gregg H. Levy, Esq.

1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401


2

By a demand for arbitration dated May 3, 2012, the National Football League Players Association (“NFLPA”) commenced this proceeding against the National Football League (“NFL”) pursuant to the Collective Bargaining Agreement between the NFLPA and the NFL dated August 11, 2011 (“CBA”). The NFLPA challenges the authority of the Commissioner of the NFL (“Commissioner”) to impose discipline on four current and former New Orleans Saints (“Saints”) players – Scott Fujita, Anthony Hargrove, Will Smith, and Jonathan Vilma (collectively, “the Players”) -- growing out of their alleged involvement in a pool from which Saints players were allegedly paid both for legitimate football activities (e.g., interceptions) and for conduct that incapacitated opponents, either temporarily (“cart-offs”) or for the duration of a game (“knockouts”). The NFL responded on May 18; the NFLPA replied on May 25, and a hearing was held on May 30.

Claiming authority under the standard Player Contract1 and Article 46 of the CBA,2 the Commissioner found that the Players had engaged in “conduct detrimental to the integrity of, and public confidence in, the game of professional football,” and suspended each of them without pay for a number of games during the 2012 regular season. The Commissioner’s May 2, 2012 letters to the Players each included the following paragraph describing in general the facts revealed by the record before him:

1 The standard Player Contract provides in pertinent part: Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game … or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely and/or to terminate this contract. CBA, App. A at ¶ 15. See id., Art. 4, § 1(requiring standard Player Contract to be “used for

all signings”). 2 Article 46 provides in pertinent part: All disputes involving … action taken against a player by the Commissioner

for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.

CBA, Art. 46, § 1(a).


3

The record, based on numerous witness interviews and substantial

documentary evidence, clearly shows that Saints defensive players and coaches organized, administered and funded a pay-for-performance/bounty program for three seasons; that the program included improper cash rewards for legitimate plays (such as fumble recoveries, interceptions, and the like) and improper cash rewards for injuring opposing players through “cart-offs” and “knockouts”; and that on multiple occasions specific cash bounties were placed on opposing players.3

In addition, the letters contained different paragraphs describing the individuals’ alleged participation in the pool, as prelude to statements concerning the basis for the discipline imposed. The relevant portions of those letters are:

Fujita

With respect to your particular involvement, the record establishes that

you pledged a significant amount of money to the pool during the 2009 Playoffs. While the evidence does not establish that you pledged money toward a specific bounty on any particular player, the “pool” to which you pledged that money paid large cash rewards for “cart-offs” and “knockouts.” It is my determination that your actions constitute conduct detrimental… .4 ****

Hargrove

With respect to your particular involvement, the record establishes that you actively participated in the program while a member of the Saints. Your declaration makes clear that the program existed at the Saints, and establishes that you knew about and participated in it. In addition, although you later denied it, the circumstances strongly suggest that you told at least one player on another club about the program, and confirmed that Vikings quarterback Brett Favre was a target of a bounty. Moreover, and perhaps most important, you admitted that you intentionally obstructed the league’s investigation into the program by being untruthful to investigators. Your declaration acknowledges that you lied, but claims that you were instructed to do so by the coaching staff. Assuming that to be the case, it in no way absolved you from your obligation to cooperate with the investigation, particularly with respect to matters involving player safety and the integrity of

3 NFLPA Initiating Letter Brief, Exh. C at 1, Exh. D at 1, Exh. E at 1, and Exh. F at 1. 4 Id., Exh. C at 2. The Commissioner suspended Mr. Fujita for the first three games of the

2012 regular season. See id.


4

the game. It is my determination that your participation in the bounty program and deliberate effort to impede the league’s investigation both constitute conduct detrimental… .5 **** Smith

With respect to your particular involvement, the record establishes that\

you assisted Coach Williams in establishing and funding the program during a period in which you were a captain and leader of the defensive unit. More disturbing, multiple sources confirm that you pledged significant sums during the 2009 playoffs toward the program pool for cart-offs and knockouts of Saints’ opposing players. It is my determination that your active participation in the bounty program, role in its establishment and funding, and the offer of significant sums toward the program pool, all constituted conduct detrimental… .6 **** Vilma

With respect to your particular involvement, the record establishes that, as a captain of the defensive unit, you assisted Coach Williams in establishing and funding the program. More disturbing, several independent sources confirm that during the 2009 NFL Playoffs you offered a $10,000 bounty to any player who knocked quarterback Kurt Warner out of the Divisional Playoff game and later pledged that same amount to anyone who knocked Brett Favre out of the NFC Championship game. It is my determination that your general participation in the bounty program, your role in its funding, and the specific offer of bounties against specific players, all constituted conduct detrimental… .7 ****

The NFLPA contends that the conduct for which the Players were suspended is covered by

Article 14, Section 1 of the CBA, the enforcement of which is within the exclusive jurisdiction of

5 Id., Exh. D at 2. The Commissioner suspended Mr. Hargrove for the first eight games of the 2012 regular season. See id.

6 Id., Exh. E at 2. The Commissioner suspended Mr. Smith for the first four games of the

2012 regular season. See id. 7 Id., Exh. F at 2. The Commissioner suspended Mr. Vilma for the entire 2012 season,

effective immediately. See id.


5

the System Arbitrator under Article 15, Section 1.8 Article 14, Section 1 provides in pertinent part: A Club (or a Club Affiliate) and a player (or a Player Affiliate or player

agent) may not, at any time, enter into undisclosed agreements of any kind, express or implied, oral or written, or promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind: (a) involving consideration of any kind to be paid, furnished, or made available or guaranteed to the player, or Player Affiliate, by the Club or Club Affiliate either prior to, during,

or after the term of the Player Contract… . CBA, Art. 14, § 1.

In addition, the NFLPA seeks to enforce Article 14, Section 6(c), under which suspensions

are not permitted penalties “for conduct in violation of Section 1 of this Article.” The sole penalties permitted for such conduct (as to players) are set forth in Section 6(a), as follows:

In the event that the System Arbitrator finds a violation of Subsections

1(a) or 1(b) of this Article, for each such violation: (i) (1) the System Arbitrator may impose a fine of up to $500,000 on any player or player agent found to have committed such violation, and (2) shall, unless the parties to this Agreement otherwise agree, order the player to disgorge any undisclosed compensation found to have been paid in violation of Section 1 of this Article unless the player establishes by a preponderance of the evidence that he was unaware of the violation; and (ii) the Commissioner shall be authorized to void any Player Contract(s) that was (or were) the direct cause of such violation.

CBA, Art. 14, § 6(a). The NFLPA argues that the discipline that the Commissioner imposed on the Players was “predominantly based on the undisclosed ‘pay for performance’ feature of the alleged bounty system.” NFLPA Reply at 1. Central to that argument is the view that two documents to which the Commissioner referred in his letters to the Players informing them of their suspensions are of equal probative value in determining the gravamen of the discipline as are the explanations in the letters themselves. The two documents are the March 2, 2012 “Report of NFL Security on Violations of ‘Bounty’ Rule by New Orleans Saints” (“NFL Security Report”), NFL Initiating Letter Brief, Exh. A, and the March 21, 2012 “Memorandum of Decision: In the Matter of Bounty Violations by New Orleans Saints” (“Memorandum of Decision”). Id., Exh. B. As counsel for the NFLPA acknowledged at the May 30 hearing, however, it should make no difference which feature of the

8 The NFLPA also invokes Article 4, Section 5(a) of the CBA, which provides that “[a]ny agreement between any player and any Club concerning terms and conditions of employment shall be set forth in writing in a Player Contract as soon as practicable,” but does not impute to it any significance independent of Article 14, Section 1 for these purposes.


6

conduct in question was paramount for the Commissioner if, as the NFLPA contends, all of that conduct is within the prohibition of Article 14, Section 1. See May 30, 2012 Tr. at 76 (“Article 14 does not say that it matters for what purpose [i.e., legitimate plays or “cart-offs”] the payments are being made.”).

Simply as a matter of contract language, the alleged activities that gave rise to the Commissioner’s disciplinary action do not fit comfortably within the ambit of Article 14, Section 1, whether one focuses on the “pay for performance” (legitimate football activities) or the “bounty” (“cart-offs” or “knockouts”) feature of the pool. Section 1 evidently contemplates and prohibits an undisclosed agreement or understanding between a player and a Club concerning the player’s compensation. Undisclosed compensation terms could be used to avoid the Salary Cap or the rules governing Rookie Compensation and the Rookie Compensation Pool, thereby disturbing the competitive conditions to which they are thought to contribute. The concern about the integrity of the Salary Cap and the Rookie Compensation Pool is inferable from the placement of Article 14 in the CBA – immediately following the articles that prescribe the Salary Cap and the accounting rules for the Salary Cap – linkage that is confirmed by Article 14, Section 3 (authorizing System Arbitrator proceedings for alleged violations of the Salary Cap and Rookie Compensation Pool provisions, as well as for alleged violation of the ban on circumvention) and by Article 18 (prescribing certifications, including certification that Player Contract “sets forth all components of the player’s remuneration”). That the animating concern is undisclosed compensation is also confirmed by the fact that disgorgement of “any undisclosed compensation found to have been paid in violation of Section 1” is a mandatory penalty for a violation found by the System Arbitrator, unless the parties to the CBA otherwise agree or “the player establishes by a preponderance of the evidence that he was unaware of the violation.”

Article 14, section 1 clearly does not reach an agreement among players to reward on-field conduct (of any sort) out of a pool funded and maintained by players without involvement of Club personnel. Yet, as the NFLPA points out in reply to arguments made by the NFL, the allegation that coaches were involved in the activities that prompted the Commissioner’s discipline of the Players – indeed that one of them established and managed the pool – and that their superiors were aware of and did little if anything to stop them, suggests that “the Club” was involved for purposes of Article 14, Section 1, if not in paying, then in “ma[king] available” amounts from the pool.9 Moreover, the involvement of multiple players does not insulate the scheme at issue here from Article 14’s prohibition, if it is otherwise applicable, since the prospect of and criteria for receiving distributions from the pool could be deemed an “undisclosed … inducement[] … or understanding[]” for all players regarding payments that would be made available by the Club, acting through coaches.

Although it is thus possible to bring some the conduct alleged in the NFL Security Report

9 The NFL Security Report found that, although players primarily funded the pool, two

assistant coaches occasionally contributed to it (as on one occasion did “one individual from outside the club”). NFLPA Initiating Letter Brief, Exh. A at 1.


7

within the reach of Article 14, Section 1, I need not decide that question, since I have concluded that, with one possible exception, the conduct for which the Commissioner imposed discipline on the Players is not covered by Article 14, Section 1 and thus that the System Arbitrator lacks jurisdiction.

For this purpose, the important distinction is not between “pay-for-performance”

distributions and “bounties.” It is rather the distinction, as to players, between funding the pool or making offers or pledges to contribute sums to it, on the one hand, and accepting (or agreeing to accept) distributions from it, on the other. Even if Article 14, Section 1 is properly interpreted to prohibit players from accepting (or agreeing to accept) undisclosed payments from a pool, primarily funded by players, for on-field performance (of whatever sort), to extend its terms to player contributions (or pledges) to the pool is not linguistically compelled and would wholly unmoor the language from its animating purposes. See Reape v. New York News, Inc. 504 N.Y.S.2d 469, 470 (App. Div. 1986) (“Since the intent of the parties in entering an agreement is a paramount consideration when construing a contract, even the actual words provided therein may be transplanted, supplied or entirely rejected to clarify the meaning of the contract.”).

It is important that the System Arbitrator insist upon exclusive jurisdiction when the CBA

confers it. It is also important, however, that the System Arbitrator not usurp jurisdiction that is conferred on other decision makers. See CBA, Article 15, Section 2(e) (limiting System Arbitrator’s jurisdiction to terms of enumerated articles). Counsel for the NFLPA acknowledged that the same nucleus of operative facts may give rise to conduct that violates both Article 14, Section 1 and the prohibition against conduct detrimental, and that the appropriate disciplinary process depends upon which aspect is sought to be punished.10 So here.

Unlike the NFLPA, I do not regard the NFL Security Report, the Memorandum of

Decision, and the Commissioner’s May 2, 2012 letters as equally probative of the gravamen of the discipline imposed on the Players. In his letters to the Players, the Commissioner indicated that the NFL Security Report and the Memorandum of Decision “set forth the key facts regarding the bounty program.”11 As counsel for the NFL observed at the hearing, only two of the Players are mentioned by name in the NFL Security Report, one of them only in connection with his denial that a bounty program existed, and no player is mentioned by name in the Memorandum of

10 “[I]f a player threw a game, that aspect of the conduct would be punishable by the Commissioner, not noncontract payments. If he was given a noncontract payment, that would still be for [the System Arbitrator], but the fact that a game was thrown? That’s conduct detrimental.” May 30, 2012 Tr. at 27. See also id. at 27-28 (“Same thing if someone had a firearm. It doesn’t matter that there was a noncontract payment. There would be an aspect that could be punished, but they’re very limited in [ ] terms of [the] type of behavior that is not given to others.”).

11 NFLPA Initiating Letter Brief, Exh. C at 1, Exh. D at 1, Exh. E at 1, and Exh. F at 1. The Commissioner did not rely on, and is not bound by, any legal analysis or legal conclusions in the NFL Security Report.


8

Decision. See May 30, 2012 Tr. at 48. Moreover, in the concluding section of the former, the author(s) determined that “the evidence appears to establish ‘conduct detrimental’ in violation of the Constitution and Bylaws” and specifically that “[t]he players who contributed funds and targeted players on opposing teams are guilty of conduct detrimental.” NFLPA Initiating Letter Brief, Exh. A at 4. Finally, the Memorandum of Decision concerned, and concerned only, the appropriate discipline for the Club and Club personnel, reserving the question of discipline, if any, for players. See id., Exh. B at 4, 6.

It makes little if any difference, however, once one has the relevant distinction in mind.

With the possible exception of Mr. Hargrove, there is no reason to believe that the Commissioner proceeded because of undisclosed payments to the Players (or their undisclosed agreement to accept payments). The Commissioner’s letter to Mr. Hargrove leaves open the possibility that the “participation” for which (in part) discipline was imposed involved receipt of (or agreement to accept) payments from the pool.12 His letters to the other three individuals state clearly that he imposed discipline because of the various roles that they allegedly played in establishing and/or funding a pool that rewarded on-field conduct calculated to injure opponents, and that also included bounties on specific opponents.

In that regard, it is not the case, as suggested by counsel for the NFLPA, that the Commissioner’s only interest with respect to “the bounty part” is to “punish for unsportsmanlike conduct on the playing field.” See May 30, 2012 Tr. at 25. Under the NFLPA’s view of the CBA’s jurisdictional architecture, punishment of players who, with minimal involvement by Club personnel, provided financial incentives for -- as opposed to themselves engaging in -- on-field conduct that was designed to cause injury would be possible, if at all, only under a provision (Article 14, Section 1) that is animated by concern about undisclosed payments to players and that does not distinguish between payments for legitimate plays and those intended to incapacitate opponents. If the language of the CBA required that result, I would be bound to implement it. But, as discussed above, with the possible exception of Mr. Hargrove, I do not believe that Article 14, Section 1 reaches the behavior of the Players that the Commissioner has sought to punish. In addition, if there were doubt on that score, I would regard this as a situation appropriate for giving a “practical and reasonable interpretation to the language employed and the parties' reasonable expectations with respect thereto,” by reconciling Article 14, Section 1 and the Commissioner’s power to impose discipline for conduct detrimental under Article 46. Malleolo v. Malleolo, 731 N.Y.S.2d 752, 753 (App. Div. 2001). See also National Conversion Corp. v. Cedar Bldg. Corp., 23 N.Y.2d 621, 625 (N.Y. 1969) (“All parts of an agreement are to be reconciled, if possible, in order to avoid inconsistency.”).

12 See supra text accompanying note 5. But see May 30, 2012 Tr. at 69 (counsel for the NFLPA observing, “[a]ll that [the Commissioner] has on Mr. Hargrove is that he gave money into the program. He doesn’t link him to giving any hits, he doesn’t link him to saying I’m going to particularly do something for cart-offs.”). The Commissioner also (and, apparently, primarily) imposed discipline on Mr. Hargrove for intentional obstruction of the league’s investigation. See supra text accompanying note 5.


9

The NFLPA is understandably concerned that the Commissioner’s claims of power to

discipline for conduct detrimental not be permitted to subvert protections for players won in the collective bargaining process. Alert to that risk, I have nonetheless concluded that Article 14 cannot reasonably be interpreted to address the phenomenon of players providing or offering to provide financial incentives to injure opponents and thus that, when alleged to have done so, they are not entitled to the bargained-for protections (as to process and permissible penalties) that Article 14 provides.13

In sum, with respect to Mr. Fujita, Mr. Smith and Mr. Vilma, I conclude that the System

Arbitrator lacks jurisdiction. I will retain jurisdiction as to Mr. Hargrove pending further action by the Commissioner either in a revised letter or in connection with Mr. Hargrove’s appeal. The action called for -- if the Commissioner continues to believe that discipline is appropriate and again chooses to rely on Mr. Hargrove’s alleged participation in the pool in addition to his obstruction of the league’s investigation -- is to specify the nature of that alleged participation. If receipt of (or agreement to accept) payments from the pool plays any part in the revised decision (or decision on appeal), the NFLPA may return to seek relief from the System Arbitrator.

In light of the pendency of appeals from the Commissioner’s decisions, it is appropriate to

emphasize -- with respect to all of the Players -- that nothing in this opinion is intended to convey a view about the underlying facts or the appropriateness of the discipline imposed. s/Stephen B. Burbank

Stephen B. Burbank June 4, 2012

13 Even though counsel for the NFL was careful not to suggest that he was speaking for the

Commissioner in this respect, his answers to questions probing the limits of the Commissioner’s power were measured. See May 30 Hearing Tr. at 56 (“[M]y own view is that … the Commissioner could not discipline a player for exercising free agency rights to which the league had agreed in the [CBA]); see also id. at 54-55.


EXHIBIT B


REGGIE 'WHITE, et al.,

P 1 air. tiffs,

v.

NA TIO~AL FOOTBALL LEAGL"E, et al.,

Defendants.

---~----------------------------------.-----------" APPEARA..'iCES:

FOR THE WHJTE CLASS: 'WElL, GOTSHAL & MANGES BY: Jeffrey L. Kessler 767 Fifth Avenue New York, N.Y. 10153-0119

FOR THE PLAYERS ASSOCIATIO~: '!\'FL PLAYERS ASSOCIATIO~ BY: R.ic.hard A. Bert!J.elsen, Esq. 2021 L Street, N.W. Was.bi.ngton, D.C 20036

FOR THE NFL MA.'-:AGEMENT COu");CIL:

COVD;GTON & BURLING BY: Neil Roman 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washlngton, D.C. 20044

JHF; OEC 1SION NO. 8

BEFORE SPECIAL MASTER

JACK H. FRIEDENTHAL

RE: WALLY WILLIAMS

NFLCASE#8

.·.\,


• •

.----

. ·-. ··-- ' . "'"""' '' NU.bii::IC 1"",.:1/t::l

I. THE BACKGROUND OF THE DISPUTE:

By agreement of the National Football League Players Association (NFLPA) and the National Football League Management Co~il G'I"FLMC). the deadline for a team to declare one of its playas as a. Franchise Player for the 1998 League Yea! was on or before February 12, 1998. The Baltimore Ravens Club designated Wally Williams as its Franchise Player at approximately 8:15P.M. on Febnwy 12, 1998. The NFLPA claims that the designation was ineffective because of a tacit agreement of long standing between the NFLMC and the NFLPA tl1at imposed a deadline of 4:00P.M. on the last day of the designation period after which no designation would take effect. There is no dispute that without such an agreement as to a specific deadline, a Franchise Player could be designated up until midnight of the final date for such designations.

II THE NATURE OF THE ISSUES:

Tt.o:e are two basic issues involved in tlus dispute: ·

1. Does the last sentence of Section 19 of Article LV of the ~"FL Collective Bargaining Agreement (CBA) require that to be effective, an agreement to impose a 4:00P.M. deadline under Article XX, Section 1, must be in "Wl'iting?

2. If the answer to 1, above is "no,'' does the available evidence establish an Ul'lv.Titte.n agreement between the ~~LMC and the ~'FLPA to set a deadline of4.00 P.M.?

III THE ARGUMENTS:

A. THE lUQVWl~fi.NT Of A WJUIT~N AGREE.ME."'lT

The last sentence of Section 19 of CBA Article LV reads, "None of the Articles of this Agreement m~y be changed, altered or amended other than by a written agreement." Section 1, of Article XX reads in part, "any ... (Franchise Player) designation must be made between February 1 and February lS of each League Year or during such other period as may be agreed on by the NFL and the NFLPA."

The ~"FLMC argues that any change in the date or imposition of a time deadline must be in writing under Section 19 above. The NFLPA argues that the imposition of a deadline does not result in a "changed, altered or amended" CBA because Section 1 of Article XX already contains within il the words "as may be agreed upon by the NFL and the NFLPA." Of eow-se, any alteration of the CBA is permitted if the: parties agree. But the NFLPA's argument implies that this cannot be considered an ordinary change, alteration or amendment because that would render the quoted words in Section 1 superfluous. Therefore it w~uld follow that Section 19 of Article LV is inapplicable. And since Section 1 of Article XX docs not specify that the agreement needs to be in writing, an oral agreement would be proper and enforceable.


~.

~···, I

r

GWU L~W CENT~R D~RN NO.Eoi::!l:: F',4/8

Tite exact meaning of the quoted langu~oge of Article XX, Section 1 is not spelled out. If read to permit a non-'W'ritten agreement it would conflict directly with the policy as expressed in Article LV. Section 19. One cannot use parol evidenu to interpret the CBA contract, including what it means to "agree" in Article XX, Section 1. but on~ ~~Jock t.p tlte language of other provisions of the CBA itself to determine just what is meant. (See CBA Article LV, Section 19, and the couri;s decision in the Hobert\Grbacll matter, White, et Illy. National FootbeJlleague, et ~Civil ~o. 4-92-906, slip opinion dated J~uy 30, 1997, pp. 12-13: "Special Master's decision . . . (is] restricted to interpreting lenguage used in the ... (CBA] as a matter of law without recomse to extrinsic evidence regardin& the parties' intent.'')

The overriding policy as estabLished by Section 19 is clenr; alterations of the specific terms oft.lle CBA a.."e to be in writing. Article XX, Section 1 does not ilnply that a change of the date or time for a Franchise Player designation is not to be considered an alteration of specified provisions. And Section 1 itself does not specify that such a change of' terms can be oral or by , · other than an agreement in writing. The statement that the parties can agr~e to ·alter the period of the desigDation can, and shouldl be tt\ken only to emphasize the fact that the dates spelled out in Section 1 are not to be considered carved in stone. A requireme11t that an agreement between the :";FLY!C and the ~"FLPA be in writing does no violence to Section 1 and aeates harmony betweer: that Section and Section 19 of Article LV.

In addition, Section 1 specifies dates, i.e., "between February 1 and February lS of each League Year l" not times of day. TI1e provision for change reads, "or such other period as may be agreed on by the NFL and the ~'FLPA., By including the word "sw:.h, "the proviso appears to relate only to a different period of days, not times. Thus, it can fairly be said that a time designation (other than ll'lldnight) is an alteration of Section l that falls within Section 19 of Article LV.

Therefore, in looking at the CBA as a whole) and in particular the policy expressed by Section 19 of Article LV, I find that the alleged imposition of a 4:00 P.M. deadline could not be effective unless there was a Mitten agrec::m.ent to that effect.

B TKE F AlLURE TO EST ABUSH TU EXISTENCE OF AN AGREEMENT TO IMPOSE A 4:00P.M. DL\DiJ1'"E:

Class Counsel is comet in stating that the ban on parol evidence in Article LV 1 Section 19, to interpnt the CBA does not bar evidenoe to establl&h the existence or nonexistence of a subsequent UD'M'itten agreement, assuming that such an agreement is not barred by the last sentence of Section 19. However, even asSLu:ning that imposition of a 4:00P.M. deadline did not require a written agreement by the pl,l'ticsi the facts set forth on behalf of the NFLPA do not establish by a preponderance of the evidence the existence ofa.ny agreement to that effect.

2

......


i"l""~ • .1.~ • • -:=:::: f; ICt::!"'f"l bWW L..H"" \..t..N I t..r< Ut..I-IN f'oi0.5B0 P.S/9

1. Counsel relies on a series of internal NFL documents, provided each year during the existence of the CBA, that infonn the individual Clubs that they have until4;00 P.M. on the last day of the designation period to tnake a designation. Obviously, this alone does not consti~te an agreement with the ~"FLPA. See Waterways Ltd. v. Barelays Bank, 202 A.D.2d 64,74, 615 ~.Y.S.2d 8986, 892-93 (1994), There is no evidence that the NFLPA was asked to agree to the contents of these communications or that it did so in any positive way. The same is true of the fact that newspaper stories sometimes have stated that such a deadline exists. The failure of the NFLPA somehow to raise the issue is not enough to establish an agreement. This is not a situation v.'here agreement can be determined by silence; indeed the failur~ ever to raise the issue Wltil now ca.o be taken as went to the fact that it is up to the ~'FLMC to do as it wishes with regard to establishing a.n4 Mving a time deadline.

2. Class Counsel4rgUeS that an agreement on the 4:00P.M. deadline between the NFLPA and the ~"FLMC is shown by an oral exchange among Mr. Levy, the attorney for the N'FLMC, the Special Master, and Mr. Kessler, Class Counsel fof'lhe Players, in a .:" case heard on February 15, 1994, Neither the language nor the cireums1ances bear that out.

As quoted by Class Counsel in its brief in the current matter (see Letter of Class Counsel, Jeffrey Kessler, dated March 2, 1998 to Special Master Friedcnthal, pp. 3-5), Mr. Levy begins the 1994 exchange by stating:

Yes. In that regard, I might note that the League has ~et for its own administrative convenience a deadline for clubs to notify the Man•gemcnt Council of their franchise playc.T designations. And our plan, we assume no one hB.S any problem with that. is to suspend that deadline for purposes of this proceeding to allow you whatever time you think is necessary to resolve the issue. (Emphasis supplied by Class Counsel.)

The discussion then continued as follows:

SPECIAL MASTER:

MR. LEVY:

MR. KESSLER:

In other words, even beyond midnight?

No. We don't plan beyond midnight. (Emphasis supplied by Class Counsel.)

'I'M agreement says the 15th. I don't think we have the power to suspend beyo~d Chat. What the LeaiDJe is saying. tMy internally set 4:00p.m. as their deadline. but they are wiUing to gjye you t~ time. obviously to decide today. (Emphasis supplied by Class Counsel.)

3


' ' '' ......... -- ... -

The above st~.tements hardly establish the existence of an agreement between the ~~LMC and the NFLPA as to a 4:00 P.M. deatUine. The phrase ''we assume no one has any problem with that" can simply be regarded as a statement that it was within the prerogative of the NFL to waive the ~e and that no one else had a right to object. Moreover, the failure of Class Co\lll.Sel directly to address the matter em just as weU be considered as an admission of Class Counsel that it has no right to interfere with wh~t Class Counsel specifically recognizes as the League's "ir.ternally set ... deadline." Class Counsel goes on to say, "they [the NPLMC] are willing to give you the time." This appears to be a firm recognition that the power is solely within the power of the NFLMC. At oo point does Class Counsel say an~ to the effect that "We conC'Ul'" or "We give our permission."

There is an additional argument arising from Class Counsel's statement in regard to going beyond midnight: ''The agreement says the 15th. I don't think:~ have the power to suspend beyond that" [Emphasis ~de d.] The reason for this statement must be that there was . no agreement to alter the time for making a Franchise Player designation ~ set.forth in Article , XX, Section 1 of the CBA (and, incide.ntally, a belief' that they could not alter it by an oral agreement on the spot). A! noted above, Class Counsel then went on to speak of the suspension ofth.e 4:00P.M. deadline as follows, "they (the NFL] are willing to give you the time." [Emphasis added.] The use of the word "we" with regard to the suspension past midnight contrasted with the word "they'' with regard to the suspension of the 4:00P.M. deadline shows that the ~FLP A did not believe that it had an agreement as to the laner.

Finally, in Mr. Levy's initial statement, he states that the NFLMC suspends the deadline "for purposes ofllria proceeding." [Emphasis added.] In his brief Class CoWlSel refers to the fact that another player, on a different team, who was not involved in a proceeding of any kind, was, on the sam.e evening after 4:00P.M., designated a Franchise Player. (See Letter from Class Counsel to Jack Fried~thal, dated, March 2, 1998, p. 6 n.l, Alld Exhibit J to that Letter.) The suspension for "this proceeding" obviously did not cover the designation of the second playc:r and Class Counsel provides no evidence whatsoever that the NFLP A agreed in advance to that designation or objected to it or raised an issue as to its propriety. If silent acq,u.iescence is to be considered ~fficient to establish an agreement, then Class Counsel could be said to have agreed that the ~"FLMC could waive any 4:00P.M. deadline on it.s own.

3. There b additional evidence to contradict of Class counsel's evidence of the existence of a subsequent agreement to establish the 4:00P.M. deadline.

In a brief submitted on behalf of the Baltimore Ravens (See Letter from Ralph S. Tyler to Jack Friedenthal, dated March 2, 1998, p. 3 and Exhibit 2) there is a \Witten letter agreement prepared by the NFLMC and signed by counsel for the NFLPA that, among other things, sets February 12, 1998 as the last day on which a Franchise Player can be ciesignated. Th.erc can be no doubt that this written agreement is a valid alteration of the date ofFebruary 15 set out in Article XX. Section 1 of the CBA. It does not, however, specify a 4:00P.M. deadline or any other time deadline.

4


\

P,?/8

To overcome any implication that a written agreement pursuant to Article XX, Section 1 that changes the day, but does not include a time deaciline, would obviate a previous time: dea..dlin.e (assuming one exist~), Cl~s Col.Ulsel notes that a preamble paragraph states: "ln order to maintain a schedule similar to prcvio\1$ years, we recommend the following dates for the 1998 League Year." Class Counsel relies on the word "similar" to imply the continuation of the alleged deadline. Of course "similar', does not mean "identical." On the other hand, the document refers only to "dates" and would not by itself entirely preclude the existence of a time deadline if there was strong evidence that a separate agreement ~or such a deadline existed.

The NFLMC also refers to a summer 1997-1998 NFLPA Player Planner, provided to the players and including A calc:n4a.r of important dates. In the calendar reference to Febr.1ary 12, 1998, it states that that is the last date by which a player can be designated a Franchise Player, but it says nothing about a 4:00P.M. deadline. However, regarding other dates on the calendar, specific time detuilines are set forth, e.g., on August 24 club rosters must be cut to no more than 53 players by 4:00P.M. Eastern D~tylight Time, on Augu~. 25th clubs must establish their practice squads by 4:00 P.M. Eastem Daylight Time and on August 29 clubs are required to name their 49 player active list by 7:00P.M. Ee.stern Daylight Tilne. Not only does t..'l;is list of dates and times indicate that the NFLP A does not believe that thae is an agreement to a 4:00P.M. deadline for designating Franchise Players, b1.tt it is also significant to establish that players have sound reason to discount newspaper reports that such a 4:00P.M. deadline exists.

4. Class Counsel also argues that even if no agreement \\'aS reached by the panies as to an alternate 4:00P.M. Qeadline P\.lrsuant to Artcie XX, Section l, parol evidence is permitted to shaw a course of perform~ce subsequent to a contract (in this case the CBA itself) to establish an understanding of the parties as to that contract. He cites a number of authorities for this proposition. (See Letter from Class Counsel, Jeffny Kessler, to Jack Friedentbal, dated March 2, 1998, p. 6.) A number of these authorities support the proposition that pnrol evidence em establish a subsequent agreement between parties, and as to that fact we agree, as we said at the outset. However, that is irrelevant to the argument made here that even in the absence of a subsequent agreement, parol evidence of subsequent conduct can be used to show the meaning of the initial contract itself, which seems to be the thesis of Class Counsel as supponed by Viae om. lnt'l. Inc. y. Lorimax Production&. Inc., 486 F. Supp. 95, 98 n.3 (S.D.N.Y. 1980).

The problem with the argurn~t is that it ignores the difference between "parol evidence" aud the "parol evidence rule." Parole evidence is eyjdcnce outside the foW' comers cf the a document to est&bli£h the meaning oftbe document. The parol evidence rule is a legal determination of when pwl evidence can or cannot be utilized. The parol evidence rule permits, i:l certain cases, the admission of parol evidence to establish subsequent conduct by the parties to a contract in order to prove what the parties meant by the terms of the contract. However, under Section 19 of Article LV of the CBA, application of the parol evidenc~ rule is superced~ by a flat prohibition of the use of parol evidence. Section 19 reads "the parties shall not, in any proceeding or otherwise, use or refer to w parol evidence with regard to the interpretation or

s


08/16/2005 12 35 FAX 2028570673 litJ 008/008

mnanlng ... [of spoci:Q.cd Articlea includin& Article 'XX) oftbia Agtctmumt." [E.t:nphmiia added.] A., Jud.Re Ooty bas held in prior matters in the Wbltw gMO, this provilion bar11bc UICI of ... IllY ~ evldencc rcprdina tba pftltic3' intmlt.'' (See. e.g., the liPlctlWb!l@ Matter. Whim ct Bl. Y.&.Nnt!onal Football L"''QQ. et uL. alip opinion deed July 30, 1997. pp. 12 .. 13.) lhus, evidence qf activities of the panics aubequcnt to tlK: CBA cannot be U&Cd or R:ibn'ed to in detm:minl.og the melllling of Article X:X of the CBA.

EYen if parol cvidr:noo could bo Q.'!ed to establiJlh, by Mlbsequent con.cfuc;t. an ~on of Section 1 of Article XX. th.e:rc is no cvid.ence to ahow that a 4:00P.M. dt:adline could be read into Section I. The NFLPA itaclfM&tak'mno smps that wouldremlt in mowing its operalions are ln line with such - pra.ctioe and the NFL '• action~ coobadiot the pru.etice in seven.I ways. 'l1u:l t 994 excbangc bet'Ol'C the ~ matter as quoted in pamgraph 2. abaw: show clearly that tb.e NFLMC oond.dmd thtJ matter as OM of administrative convcn.iiiiiiCC fur the Lcagt.te aod said so openly. And we have alroady notsd that Ute: NFL on II!WeT8l ocouioaa. Including the prcaent one, unUatcrally ~ the role.

FiDally, Clus CoUDBel rai3cs an ~thai: rhe Playen are third·pw:ty btmcticlarica, preiJUIDAbly to a oon1ract between the NFLMC uad its me~nber telllUI. The 4:00 P.M. dcadline was IH't by 1he NFLMC. Them is oo indication t1w th14 was the result of a oontraot between the NFLMC and the Clubs. The deadline was simply impoiiCd by the NFLMC. The it was DOl considcrl:d a bindina con1:1'8G1 between them is clltAbli~ by the fact that the Baltimore Ravons roqucstcd to ao bayond the 4:00P.M. dcsadli.aa IIDd d1e requeet wa,g eriiJlted. And n dhcuased Jn paragmph 2, above, in 1994. the NFLMC alao unilaterally ponnittcd a. Clttb to m.a.lc.e a desjpnrion after 4:00 P.M. In nctit:hl!r cue is ~ any indicttloa that t:M other non~ invol-ved CluhA were ukcd fbr permission whioh would haw been the: cue if they were pqrtica to

a ogreemcut.

v DtCISION~

~U$lt to CAB Artiele LV. Section 19 and the policy there l'Citlccted, an Agrcoment under Sodion l of Article XX tn establish 11. time for the qcaignatl.on of FranchirJe Pla)'ft" mUJt be in writing. Since no MJCh written qreem.entexim M to B4:00 P.M. deadline, a deBiQDIIdon up until xnidnight on february 12. 1998, was appropriate and effecdve,

Even if P. written DiJtlement WIIB not requited. the prepondenmoe of tho evidence fiilla to establish tfurt the pmlies enta;ed Into any ~ment rha1 provided for the 4;00 P.M. dcadlint or that the Pl&yets arc otherwise entitled to rely upon 5llllh a ~dJine.

Therefore the designation of Wally Williams u a Franchise Player WB& timely, valid, and effc:cti'lfe.

6

R Fricdanthal ial Muter

March 9, 1998


EXHIBIT C


EXHIBIT D


CONFIDENTIAL

–

NOT FOR PUBLIC DISTRIBUTION

March 21, 2012

MEMORANDUM OF DECISION

IN THE MATTER OF BOUNTY VIOLATIONS BY NEW ORLEANS SAINTS

On March 2, 2012, my office released the findings of a lengthy investigation into the payment of non-contract bonuses to defensive players of the New Orleans Saints. As summarized in the ConfidentialReport issued by NFL Security, our investigation revealed that Saints defensive players and at leastcertain defensive coaches operated a “pay for performance” (or non-contract bonus) program duringthe 2009, 2010, and 2011 NFL seasons.

League rules have long prohibited payment of non-contract bonuses. This is true whether such bonusesare referred to as “pay-for-performance” – a cash reward for a “big play,” such as an interception,fumble recovery, or goal-line stop – or a “bounty” – a payment for actions directed at an opposingplayer. There is a thin line between the two, and our investigation disclosed that the Saints players andcoaches crossed that line. Their pay for performance program became a bounty system under whichplayers were rewarded with cash for “knock-outs” and “cartoffs”

– plays on which an opposing player was forced to leave the game. At times,the bounties even targetedspecific players by name.

In my March 2 memorandum to owners and club presidents, I advised that I intended tohold furtherproceedings before imposing discipline on those involved with this program. In the intervening weeks,our office has conducted further investigation, and I have met, sometimes on multiple occasions, withmany of the key individuals involved. I have also discussed this matter with the leadership of the NFLPlayers Association, as well as with individual players.

The additional investigation confirmed in all respects the findings set forth in the Security Department’sreport. This memorandum will first summarize the principal findings as they relate to the club and thenon-player employees. It will then address the disciplinary and remedial steps that I am directing today.


The investigation has conclusively established the following:

1. The Saints defensive team operated a pay-for-performance/bounty program during the 2009-11seasons. Under that program, players regularly made cash “donations” to a pool, sometimes in the formof “fines” for mental errors, loafing, penalties, and the like. At least one assistant coach (defensivecoordinator Gregg Williams) occasionally contributed to the pool.

2. Payments were made from the pool for plays such as interceptions or fumble recoveries. Paymentswere also made for plays resulting in opposing players having to leave the game due to injury. Inaddition, specific players were sometimes targeted. Our investigation confirmed that bounties wereplaced on four quarterbacks of opposing teams – Brett Favre, Cam Newton, Aaron Rodgers, and KurtWarner. Multiple sources have confirmed that several players pledged funds toward bounties onspecific opposing players. For example, defensive captain Jonathan Vilma offered $10,000 to any playerwho knocked Brett Favre out of the NFC Championship game in 2010.

3.

Coach Williams acknowledged that he designed and implemented the pay for performance/bountyprogram with the assistance of certain defensive players. Coach Williams did so after being told bySaints Head Coach Sean Payton that his assignment was to make the Saints’ defense “nasty.” CoachWilliams described his role as overseeing recordkeeping, defining payout amounts, deciding whoreceived payouts, and distributing envelopes containing cash to players who “earned” rewards.

4.

In each of the 2009-2011 seasons,New Orleans was among the top five teams in the league in roughingthe passer penalties. In 2009 and 2011, the Saints were also among the top five teams in unnecessaryroughness penalties; in 2010, the Saints ranked sixth in this category. In the January 16,2010 divisionalplayoff game against the Arizona Cardinals, Saints defensive players were assessed $15,000 in fines forfouls committed against opposing players. The following week, in the NFC Championship game againstthe Minnesota Vikings, Saints defensive players were assessed $30,000in fines for four separate illegalhits, several of which were directed against quarterback Brett Favre.

5.

Coach Williams now acknowledges that when he was first questioned about this matter in early 2010,he intentionally misled NFL investigators. In addition, he has acknowledged that he made no effort tostop the bounty program after he became aware of the league’s investigation.

6.

Coach Williams furtherconfirmed that the program continued during the 2010 and 2011 seasons, andthat he occasionally contributed funds to the pool in both of those seasons.

7.


Assistant Head Coach Joe Vitt acknowledged that he was aware of theprogram in 2009-2011. Headmitted that, when interviewed in early 2010, he “fabricated the truth” to NFL investigators anddenied that any payfor performance or bounty program existed at the Saints.

8.

Coach Vitt said that one of his primary roles was to monitor the activity of Coach Williams. He did so atthe direction of Coach Payton, who apparently had less than full confidence in Coach Williams. DespiteCoach Vitt’s knowledge of the bounty program, his understanding of the terms “knockout”

and “cart-off,” his witnessing Coach Williams handing out envelopes that he believed to contain cash,and hisacknowledgement that the defensive meeting preceding the 2010 NFC Championship game mayhave “got out of hand” with respect to Brett Favre, Coach Vitt claimed that he never advised CoachPayton or General Manager Mickey Loomis of the pay for performance/bounty program.

9. A summary prepared following a Saints’ preseason game included the statement, “1 Cart-off – Crankup the John Deer Tractor” in reference to a hit on an opposing player. Similar statements are reflected indocuments or slides prepared in connection with other games. A review of the game films confirms thatopposing players were injured on the plays identified in the documents.

10.When interviewed in 2012, Head Coach Payton claimed to be entirely unaware ofthe pay-for-performance/bounty program, a claim contradicted by others. Further, prior to the Saints’ openinggame in 2011, Coach Payton received an email from a close associate that stated in part, “put me downfor $5000 on Rodgers.” When shown the email during the course of the investigation, Coach Paytonstated that it referred to a “bounty” on Green Bay quarterback Aaron Rodgers.

11.In early 2010, Mr. Loomis advised Coach Payton that the league office was investigating allegationsconcerning a bounty program at the Saints. Coach Payton said that he met with his top two defensiveassistants, Coach Williams and Coach Vitt, in advance of their interviews with league investigators andtold them, “Let’s make sure our ducks are in a row.” Remarkably, Coach Payton claimed that he neverinquired of Coach Williams and Coach Vitt as to what happened in their interviews, never asked them ifa “pay for performance” or bounty program was in fact in place, and never gave any instructions todiscontinue such a program.

12.In January 2012, Coach Payton was advised by Mr. Loomis that the league office had reopened theinvestigation. (This likely occurred following a meeting in New Orleans on January 6, 2012, betweenleague staff and Saints owner Tom Benson, at which the reopened investigation was discussed with Mr.Benson.) Coach Payton made a cursory inquiry, but took no action to ensure that any bounty programwas discontinued.


13.General Manager Mickey Loomis was not present at meetings of the Saints defense at whichbounties were discussed and was not aware of bounties being placed on specific players. Mr. Loomisbecame aware of the allegations regarding a bounty program no later than February 2010, when he wasnotified of the investigation into the allegations during a meeting with NFL Executive Vice President-Football Operations Ray Anderson. He was directed to ensure that any such program ceasedimmediately. By his own admission, Mr. Loomis did not do enough to determine if a pay forperformance/bounty program existed or to end any such program that did exist.

14.Mr. Benson notified Mr. Loomis in January 2012 that the league’s investigation had been reopened.Mr. Benson reiterated his position that a bounty program was unacceptable and instructed Mr. Loomisto ensure that if a bounty program existed at the Saints, it stop immediately. By his ownadmission, Mr.Loomis responded to this direction by making only cursory inquiries of Coaches Payton and Williams. Henever issued instructions to end the bounty program to either the coaching staff or the players.

15.There is no evidence that Saints ownership had any knowledge of the pay for performance or bountyprogram, and no evidence that any club funds were used for the program. Ownership made clear that itdisapproved of the program, gave prompt and clear direction that it stop, and gave full and immediatecooperation to league investigators.

Taken as a whole, the record establishes the existence of an active bounty program during the 2009,2010, and 2011 seasons in clear violation of league rules and principles, a deliberate effort to concealthe program’s existence from league investigators, and a clear determination to maintain the programnotwithstanding express direction from club ownership that it stop as well as ongoing inquiries from myoffice.

Set forth below is the disciplinary action that I have decided to take in respect of the Saints organizationand the non-player employees whose conduct I have determined to be in violation of league rules andoperating principles. I have not yet decided on what, if any, disciplinary action to take regarding playerswho were involved in the bounty program. Those decisions will be made in accordance with theprocedures set forth in our Collective Bargaining Agreement with the NFLPA.

In determining discipline, I am guided by a number of policies and principles. The first is thelongstanding rule against non-contract bonuses set forth in the Constitution and Bylaws. Because of theimportance of this rule, clubs are reminded of its provisions every year prior to the start of the season.


For example, before the2011 season, clubs received a memo citing Sections 9.1 (C)(8) and 9.3 (F) and (G)of the Constitution and Bylaws, and were expressly advised that:

“No bonus or award may directly or indirectly be offered, promised, announced,or paid to a player forhis or his team’s performance against a particular team or opposing player or a particular group thereof.No bonuses or awards may be offered or paid for on-field misconduct (for example, personal fouls to orinjuries inflicted on opposing players.)” (Emphasis added.)

In addition, a 2007 amendment to the Constitution and Bylaws obligated coaches and supervisoryemployees “to communicate openly and candidly with the principal owner and/or his designatedrepresentative; to ensure that club ownership is informed on a complete and timely basis of all mattersaffecting theclub’s operations; . . . and to avoid actions that undermine or damage the club’sreputationor operating success.” (Section 9.3(A)(3)). It is apparent that neither the club’s Head Coachnor the General Manager has complied with the terms of this resolution.

The obligation to supervise the staff is also expressly set forth in Coach Payton’s employmentagreement. Coach Payton’s contract states that his duties expressly include “the supervision anddirection of the players and coaches.” In light of hiscontractual authority and responsibility, CoachPayton either knew or should have known of the pay for performance/bounty program, as his publicstatement of March 7 acknowledged. The findings of our investigation show he failed to discharge hiscontractual responsibilities.

The actionsset forth above clearly violate the Constitution and Bylaws and other league operatingprinciples and constitute conduct detrimental to the league and professional football. The existence of apay for performance/bounty program undermined the integrity of the game. These violations werecompounded by the failure of Coach Payton to discharge his responsibility to supervise the players andcoaches and his effort to maintain a posture of “plausible deniability” by (a) failing to inquire into thefacts concerning the pay for performance/bounty program even though he was aware of the league’sinquiries in both 2010 and 2012; (b) falsely denying that the program existed; (c) countenancing andencouraging the false denials by instructing assistants to “make sure our ducks are in a row”; and (d)ignoring instructions from the league office and club ownership to ensure that no such program existed.


Mr. Loomis, as he acknowledged, did not respond in an effective way to either the inquiries from myoffice or the direction of the club’s ownership. Instead, he satisfied himself with only limited inquiriesthat neither sought nor obtained an accurate understanding of the facts. As he correctly recognizedwhen I met with him, he let his club and ownership down.

In addition to the clear and continuing violations of league rules, operating agreements, and principles,and the decision of club staff to lie to league investigators (or as Coach Vitt putit, to “fabricate thetruth”), bounty programs are squarely contrary to one of the most important initiatives in the league –the protection of player health and safety. Our game is undeniably a physical one. There are collisionson every play. Every player and coach understands that injuries are a part of professional football, asthey are in all contact sports. But there is no

place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doingso. And while I do not address player conduct today, I am profoundly troubled by the fact that players –including player leaders – assisted in the development of thisprogram and so enthusiastically embracedand participated in it. A bounty program is irreconcilable with our commitment to create a culture ofsportsmanship, fairness and safety, and has no place in our game.

Finally, and consistent with prior decisions I have made, I believe that it is appropriate to imposediscipline on the club, even though ownership was not aware of the bounty program, made clearthat itdisapproved of any such program and gave clear direction that it stop, and gave full cooperation to ourinvestigation. I believe, and have frequently expressed the view, that clubs – meaning ownership – areresponsible for the conduct of their employees, particularly when, as here, those employees are at thehighest levels of the organization.

Based on this record, I have determined to impose the following discipline:

1. The New Orleans Saints are fined $500,000. A check in this amount is to be sent to the attention ofJoe Siclare, the league CFO, no later than March 31, 2012. In addition, although our investigation has notdisclosed evidence that would permit a definitive finding of competitive effects, because theviolationinvolves a competitiverule, the Saints will also forfeit their selections in the second round of the2012 and 2013 NFL drafts.

2.

Saints HeadCoach Sean Payton is suspended without pay for the 2012 NFL season, effective April 1,2012.


3.

Saints General Manager Mickey Loomis is suspended without pay for the first eight regular seasongames of the 2012 NFL season and fined an additional amount such that the fine and forfeited pay willtogether total $500,000. Unless other arrangements satisfactory to me are made, this additional amountwill be withheld in equal installments from Mr. Loomis’s pay beginning on April 1, 2012, with the fullamount to be paid no later than the end of the 2012 season.

4.

Former Saints (and current St. Louis Rams) defensive coordinator Gregg Williams is suspendedindefinitely from further employment in the NFL, effective immediately. I will review Coach Williams’status at the conclusion of the 2012 NFL season, and will consider at that time whether, and if so onwhat terms, to reinstate him.

5.

Saints assistant head coach Joe Vitt is suspended for the first six games of the 2012 season and fined anadditional amount such that the fine and forfeited pay will together total $100,000. This additionalamount will be withheld in equal installments from Mr. Vitt’spay beginning on April1, 2012, with the fullamount to be paid no laterthan the end of the 2012 season.

6.

Each of these individuals, as well as the Saints organization, will be expected to cooperate with my officein respect of any further proceedings in this matter. In addition, each is expected to participate in effortsled by my officeto develop programs that will instruct players and coaches at all levels of the game onthe need for respect for the game and those who participate in it, on principles of fair play, safety, andsportsmanship, and to ensure that bounties will not be part of football at any level.

I am also directing that each principal owner meet with his head coach and

(i) confirm after due inquiry that his club does not operate any program of pay for performance,bounties, or other non-contract bonuses, (ii) instruct his coach that any such program violates leaguerules and operating agreements and is impermissible, and (iii) ensure that if such a program exists, it isterminated immediately. Each principal owner and head coach shall file this certification byMarch 30,2012, using the form provided for that purpose. Going forward, the annual certifications required ofeach club under the Integrity of the Game Policy will be modified to include specificreferences to non-contract bonuses, including bounties and pay for performanceprograms. This prohibition of pay forperformance programs includes not simply bounties of the kind identified here, but any form of non-


contract bonus payment. We are all accountable for ensuring adherence to these rules and forpromoting integrity and safety in our game.

I do not presently intend to impose sanctions on other clubs where Coach Williams was employed andwhere bounty allegations have been made. While our staff has interviewed people in connection withallegations of bounty programs at other clubs, we have not established evidence showing that theprograms at other clubs involved targeting opposing players or rewarding players for injuring anopponent. The inability to determine the precise nature of the conduct at other clubs and theresponsibility of the individuals involved, combined with the significant sanction imposed today on thecommon actor (Coach Williams), make it unnecessary presently to consider discipline on other clubs oremployees. If additional information comes to my attention that discloses specific bounties offered forinjuring specific opposing players, I will revisit this matterand consider whether additional discipline iswarranted.

The Saints and each of the disciplined individuals may appeal this decision by advising me in writing oftheir wish to do so. Any notice of appeal must be received no later than April 2, 2012. If a timely appealis noticed, Iwill schedule a hearing at which I will preside and the club or individual may presentevidence or argument in support of the appeal.

At a later time, I will address the question of sanctions for players and others involved in the Saintsbounty program. Any sanctions will be imposed consistent with the provisions of the CollectiveBargaining Agreement. Whatever decision is ultimately made, I remain deeply troubled by whatoccurred here. While all club personnel play to win the game, they must not let the quest for victory socloud their judgment that they willingly and willfully engage in conduct on the field intended to injurefellow players.

ROGER GOODELL Commissioner


EXHIBIT E


NATIONAL FOOTBALL LEAGUE

Mr. Scott Fujita c/o CLEVELAND BROWNS 76 Lou Groza Boulevard Berea, Ohio 44017

Dear Mr. Fujita:

May 2, 2012 ROGER GOODELL

Commissioner

This will set forth my decision regarding discipline for your role in the "pay-forperformance/bounty" program that operated at the New Orleans Saints during the 2009-2011 seasons. You were a member ofthe Saints' playing squad during the 2009 and 2010 seasons.

We have shared with the NFLPA the March 2 report of our Security Department and the March 21 Memorandum of Decision, both of which set forth the key facts relating to the bounty program. We have also met with representatives of the NFLPA on several occasions and have reviewed additional details with them in the course of those meetings.

We offered you an opportunity to be interviewed prior to any decision being made concerning possible discipline. Through your counsel at the NFLP A, you declined this opportunity. We then asked the NFLPA to facilitate a meeting and interview with you, which the NFLPA declined to do as well. Accordingly, I will address the issue of discipline based on the record that is before me.

The record, based on numerous witness interviews and substantial documentary evidence, clearly shows that Saints defensive players and coaches organized, administered and funded a pay-for-performance/bounty program for three seasons; that the program included improper cash rewards for legitimate plays (such as fumble recoveries, interceptions, and the like) and improper cash rewards for injuring opposing players through "cart-offs" and "knockouts"; and that on multiple occasions specific cash bounties were placed on opposing players.

With respect to your particular involvement, the record establishes that you pledged a significant amount of money to the pool during the 2009 NFL Playoffs. While the evidence does not establish that you pledged money toward a specific bounty on any particular player, the "pool" to which you pledged that money paid large cash rewards for "cart-offs" and "knockouts."

3~5 Park Avenue, New York, New York 1015~ Tel (212} ~50·2000 Fax {212} 681·7574


Mr. Scott Fujita May2, 2012 Page2

It is my determination that your actions constitute conduct detrimental to the integrity of and public confidence in the game of professional football. Accordingly, pursuant to my authority under Article 46 of the Collective Bargaining Agreement and your NFL Player Contract, you are suspended without pay for your club's first three games of the 2012 regular season. This suspension will take effect upon the final roster reduction on August 31, 2012: until that time, you may participate in all off-season activities, including preseason games.

If you wish to appeal this decision, you may do so by sending written notice to Adolpho Birch at (212) 84 7 •0819 within three business days of this letter. If a timely appeal is noticed, I will promptly hold a hearing at which you may be represented by counsel and present evidence in support of your appeal.

cc: Tom Heckert Adolpho Birch DeMaurice Smith

n~y9kJ4l ~GOODELL



EXHIBIT F


EXHIBIT G


EXHIBIT H


EXHIBIT I


CONFIDENTIAL

–

NOT FOR PUBLIC DISTRIBUTION

March 21, 2012

MEMORANDUM OF DECISION

IN THE MATTER OF BOUNTY VIOLATIONS BY NEW ORLEANS SAINTS

On March 2, 2012, my office released the findings of a lengthy investigation into the payment of non-

contract bonuses to defensive players of the New Orleans Saints. As summarized in the Confidential

Report issued by NFL Security, our investigation revealed that Saints defensive players and at least

certain defensive coaches operated a “pay for performance” (or non-contract bonus) program during

the 2009, 2010, and 2011 NFL seasons.

League rules have long prohibited payment of non-contract bonuses. This is true whether such bonuses

are referred to as “pay-for-performance” – a cash reward for a “big play,” such as an interception,

fumble recovery, or goal-line stop – or a “bounty” – a payment for actions directed at an opposing

player. There is a thin line between the two, and our investigation disclosed that the Saints players and

coaches crossed that line. Their pay for performance program became a bounty system under which

players were rewarded with cash for “knock-outs” and “cartoffs”

– plays on which an opposing player was forced to leave the game. At times,the bounties even targeted

specific players by name.

In my March 2 memorandum to owners and club presidents, I advised that I intended tohold further

proceedings before imposing discipline on those involved with this program. In the intervening weeks,

our office has conducted further investigation, and I have met, sometimes on multiple occasions, with

many of the key individuals involved. I have also discussed this matter with the leadership of the NFL

Players Association, as well as with individual players.

The additional investigation confirmed in all respects the findings set forth in the Security Department’s

report. This memorandum will first summarize the principal findings as they relate to the club and the

non-player employees. It will then address the disciplinary and remedial steps that I am directing today.


The investigation has conclusively established the following:

1. The Saints defensive team operated a pay-for-performance/bounty program during the 2009-11

seasons. Under that program, players regularly made cash “donations” to a pool, sometimes in the form

of “fines” for mental errors, loafing, penalties, and the like. At least one assistant coach (defensive

coordinator Gregg Williams) occasionally contributed to the pool.

2. Payments were made from the pool for plays such as interceptions or fumble recoveries. Payments

were also made for plays resulting in opposing players having to leave the game due to injury. In

addition, specific players were sometimes targeted. Our investigation confirmed that bounties were

placed on four quarterbacks of opposing teams – Brett Favre, Cam Newton, Aaron Rodgers, and Kurt

Warner. Multiple sources have confirmed that several players pledged funds toward bounties on

specific opposing players. For example, defensive captain Jonathan Vilma offered $10,000 to any player

who knocked Brett Favre out of the NFC Championship game in 2010.

3.

Coach Williams acknowledged that he designed and implemented the pay for performance/bounty

program with the assistance of certain defensive players. Coach Williams did so after being told by

Saints Head Coach Sean Payton that his assignment was to make the Saints’ defense “nasty.” Coach

Williams described his role as overseeing recordkeeping, defining payout amounts, deciding who

received payouts, and distributing envelopes containing cash to players who “earned” rewards.

4.

In each of the 2009-2011 seasons,New Orleans was among the top five teams in the league in roughing

the passer penalties. In 2009 and 2011, the Saints were also among the top five teams in unnecessary

roughness penalties; in 2010, the Saints ranked sixth in this category. In the January 16,2010 divisional

playoff game against the Arizona Cardinals, Saints defensive players were assessed $15,000 in fines for

fouls committed against opposing players. The following week, in the NFC Championship game against

the Minnesota Vikings, Saints defensive players were assessed $30,000in fines for four separate illegal

hits, several of which were directed against quarterback Brett Favre.

5.

Coach Williams now acknowledges that when he was first questioned about this matter in early 2010,

he intentionally misled NFL investigators. In addition, he has acknowledged that he made no effort to

stop the bounty program after he became aware of the league’s investigation.

6.

Coach Williams furtherconfirmed that the program continued during the 2010 and 2011 seasons, and

that he occasionally contributed funds to the pool in both of those seasons.

7.


Assistant Head Coach Joe Vitt acknowledged that he was aware of theprogram in 2009-2011. He

admitted that, when interviewed in early 2010, he “fabricated the truth” to NFL investigators and

denied that any payfor performance or bounty program existed at the Saints.

8.

Coach Vitt said that one of his primary roles was to monitor the activity of Coach Williams. He did so at

the direction of Coach Payton, who apparently had less than full confidence in Coach Williams. Despite

Coach Vitt’s knowledge of the bounty program, his understanding of the terms “knockout”

and “cart-off,” his witnessing Coach Williams handing out envelopes that he believed to contain cash,

and hisacknowledgement that the defensive meeting preceding the 2010 NFC Championship game may

have “got out of hand” with respect to Brett Favre, Coach Vitt claimed that he never advised Coach

Payton or General Manager Mickey Loomis of the pay for performance/bounty program.

9. A summary prepared following a Saints’ preseason game included the statement, “1 Cart-off – Crank

up the John Deer Tractor” in reference to a hit on an opposing player. Similar statements are reflected in

documents or slides prepared in connection with other games. A review of the game films confirms that

opposing players were injured on the plays identified in the documents.

10.When interviewed in 2012, Head Coach Payton claimed to be entirely unaware ofthe pay-for-

performance/bounty program, a claim contradicted by others. Further, prior to the Saints’ opening

game in 2011, Coach Payton received an email from a close associate that stated in part, “put me down

for $5000 on Rodgers.” When shown the email during the course of the investigation, Coach Payton

stated that it referred to a “bounty” on Green Bay quarterback Aaron Rodgers.

11.In early 2010, Mr. Loomis advised Coach Payton that the league office was investigating allegations

concerning a bounty program at the Saints. Coach Payton said that he met with his top two defensive

assistants, Coach Williams and Coach Vitt, in advance of their interviews with league investigators and

told them, “Let’s make sure our ducks are in a row.” Remarkably, Coach Payton claimed that he never

inquired of Coach Williams and Coach Vitt as to what happened in their interviews, never asked them if

a “pay for performance” or bounty program was in fact in place, and never gave any instructions to

discontinue such a program.

12.In January 2012, Coach Payton was advised by Mr. Loomis that the league office had reopened the

investigation. (This likely occurred following a meeting in New Orleans on January 6, 2012, between

league staff and Saints owner Tom Benson, at which the reopened investigation was discussed with Mr.

Benson.) Coach Payton made a cursory inquiry, but took no action to ensure that any bounty program

was discontinued.


13.General Manager Mickey Loomis was not present at meetings of the Saints defense at which

bounties were discussed and was not aware of bounties being placed on specific players. Mr. Loomis

became aware of the allegations regarding a bounty program no later than February 2010, when he was

notified of the investigation into the allegations during a meeting with NFL Executive Vice President-

Football Operations Ray Anderson. He was directed to ensure that any such program ceased

immediately. By his own admission, Mr. Loomis did not do enough to determine if a pay for

performance/bounty program existed or to end any such program that did exist.

14.Mr. Benson notified Mr. Loomis in January 2012 that the league’s investigation had been reopened.

Mr. Benson reiterated his position that a bounty program was unacceptable and instructed Mr. Loomis

to ensure that if a bounty program existed at the Saints, it stop immediately. By his ownadmission, Mr.

Loomis responded to this direction by making only cursory inquiries of Coaches Payton and Williams. He

never issued instructions to end the bounty program to either the coaching staff or the players.

15.There is no evidence that Saints ownership had any knowledge of the pay for performance or bounty

program, and no evidence that any club funds were used for the program. Ownership made clear that it

disapproved of the program, gave prompt and clear direction that it stop, and gave full and immediate

cooperation to league investigators.

Taken as a whole, the record establishes the existence of an active bounty program during the 2009,

2010, and 2011 seasons in clear violation of league rules and principles, a deliberate effort to conceal

the program’s existence from league investigators, and a clear determination to maintain the program

notwithstanding express direction from club ownership that it stop as well as ongoing inquiries from my

office.

Set forth below is the disciplinary action that I have decided to take in respect of the Saints organization

and the non-player employees whose conduct I have determined to be in violation of league rules and

operating principles. I have not yet decided on what, if any, disciplinary action to take regarding players

who were involved in the bounty program. Those decisions will be made in accordance with the

procedures set forth in our Collective Bargaining Agreement with the NFLPA.

In determining discipline, I am guided by a number of policies and principles. The first is the

longstanding rule against non-contract bonuses set forth in the Constitution and Bylaws. Because of the

importance of this rule, clubs are reminded of its provisions every year prior to the start of the season.


For example, before the2011 season, clubs received a memo citing Sections 9.1 (C)(8) and 9.3 (F) and (G)

of the Constitution and Bylaws, and were expressly advised that:

“No bonus or award may directly or indirectly be offered, promised, announced,or paid to a player for

his or his team’s performance against a particular team or opposing player or a particular group thereof.

No bonuses or awards may be offered or paid for on-field misconduct (for example, personal fouls to or

injuries inflicted on opposing players.)” (Emphasis added.)

In addition, a 2007 amendment to the Constitution and Bylaws obligated coaches and supervisory

employees “to communicate openly and candidly with the principal owner and/or his designated

representative; to ensure that club ownership is informed on a complete and timely basis of all matters

affecting theclub’s operations; . . . and to avoid actions that undermine or damage the club’s

reputationor operating success.” (Section 9.3(A)(3)). It is apparent that neither the club’s Head Coach

nor the General Manager has complied with the terms of this resolution.

The obligation to supervise the staff is also expressly set forth in Coach Payton’s employment

agreement. Coach Payton’s contract states that his duties expressly include “the supervision and

direction of the players and coaches.” In light of hiscontractual authority and responsibility, Coach

Payton either knew or should have known of the pay for performance/bounty program, as his public

statement of March 7 acknowledged. The findings of our investigation show he failed to discharge his

contractual responsibilities.

The actionsset forth above clearly violate the Constitution and Bylaws and other league operating

principles and constitute conduct detrimental to the league and professional football. The existence of a

pay for performance/bounty program undermined the integrity of the game. These violations were

compounded by the failure of Coach Payton to discharge his responsibility to supervise the players and

coaches and his effort to maintain a posture of “plausible deniability” by (a) failing to inquire into the

facts concerning the pay for performance/bounty program even though he was aware of the league’s

inquiries in both 2010 and 2012; (b) falsely denying that the program existed; (c) countenancing and

encouraging the false denials by instructing assistants to “make sure our ducks are in a row”; and (d)

ignoring instructions from the league office and club ownership to ensure that no such program existed.


Mr. Loomis, as he acknowledged, did not respond in an effective way to either the inquiries from my

office or the direction of the club’s ownership. Instead, he satisfied himself with only limited inquiries

that neither sought nor obtained an accurate understanding of the facts. As he correctly recognized

when I met with him, he let his club and ownership down.

In addition to the clear and continuing violations of league rules, operating agreements, and principles,

and the decision of club staff to lie to league investigators (or as Coach Vitt putit, to “fabricate the

truth”), bounty programs are squarely contrary to one of the most important initiatives in the league –

the protection of player health and safety. Our game is undeniably a physical one. There are collisions

on every play. Every player and coach understands that injuries are a part of professional football, as

they are in all contact sports. But there is no

place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doing

so. And while I do not address player conduct today, I am profoundly troubled by the fact that players –

including player leaders – assisted in the development of thisprogram and so enthusiastically embraced

and participated in it. A bounty program is irreconcilable with our commitment to create a culture of

sportsmanship, fairness and safety, and has no place in our game.

Finally, and consistent with prior decisions I have made, I believe that it is appropriate to impose

discipline on the club, even though ownership was not aware of the bounty program, made clearthat it

disapproved of any such program and gave clear direction that it stop, and gave full cooperation to our

investigation. I believe, and have frequently expressed the view, that clubs – meaning ownership – are

responsible for the conduct of their employees, particularly when, as here, those employees are at the

highest levels of the organization.

Based on this record, I have determined to impose the following discipline:

1. The New Orleans Saints are fined $500,000. A check in this amount is to be sent to the attention of

Joe Siclare, the league CFO, no later than March 31, 2012. In addition, although our investigation has not

disclosed evidence that would permit a definitive finding of competitive effects, because the

violationinvolves a competitiverule, the Saints will also forfeit their selections in the second round of the

2012 and 2013 NFL drafts.

2.

Saints HeadCoach Sean Payton is suspended without pay for the 2012 NFL season, effective April 1,

2012.


3.

Saints General Manager Mickey Loomis is suspended without pay for the first eight regular season

games of the 2012 NFL season and fined an additional amount such that the fine and forfeited pay will

together total $500,000. Unless other arrangements satisfactory to me are made, this additional amount

will be withheld in equal installments from Mr. Loomis’s pay beginning on April 1, 2012, with the full

amount to be paid no later than the end of the 2012 season.

4.

Former Saints (and current St. Louis Rams) defensive coordinator Gregg Williams is suspended

indefinitely from further employment in the NFL, effective immediately. I will review Coach Williams’

status at the conclusion of the 2012 NFL season, and will consider at that time whether, and if so on

what terms, to reinstate him.

5.

Saints assistant head coach Joe Vitt is suspended for the first six games of the 2012 season and fined an

additional amount such that the fine and forfeited pay will together total $100,000. This additional

amount will be withheld in equal installments from Mr. Vitt’spay beginning on April1, 2012, with the full

amount to be paid no laterthan the end of the 2012 season.

6.

Each of these individuals, as well as the Saints organization, will be expected to cooperate with my office

in respect of any further proceedings in this matter. In addition, each is expected to participate in efforts

led by my officeto develop programs that will instruct players and coaches at all levels of the game on

the need for respect for the game and those who participate in it, on principles of fair play, safety, and

sportsmanship, and to ensure that bounties will not be part of football at any level.

I am also directing that each principal owner meet with his head coach and

(i) confirm after due inquiry that his club does not operate any program of pay for performance,

bounties, or other non-contract bonuses, (ii) instruct his coach that any such program violates league

rules and operating agreements and is impermissible, and (iii) ensure that if such a program exists, it is

terminated immediately. Each principal owner and head coach shall file this certification byMarch 30,

2012, using the form provided for that purpose. Going forward, the annual certifications required of

each club under the Integrity of the Game Policy will be modified to include specificreferences to non-

contract bonuses, including bounties and pay for performanceprograms. This prohibition of pay for

performance programs includes not simply bounties of the kind identified here, but any form of non-


contract bonus payment. We are all accountable for ensuring adherence to these rules and for

promoting integrity and safety in our game.

I do not presently intend to impose sanctions on other clubs where Coach Williams was employed and

where bounty allegations have been made. While our staff has interviewed people in connection with

allegations of bounty programs at other clubs, we have not established evidence showing that the

programs at other clubs involved targeting opposing players or rewarding players for injuring an

opponent. The inability to determine the precise nature of the conduct at other clubs and the

responsibility of the individuals involved, combined with the significant sanction imposed today on the

common actor (Coach Williams), make it unnecessary presently to consider discipline on other clubs or

employees. If additional information comes to my attention that discloses specific bounties offered for

injuring specific opposing players, I will revisit this matterand consider whether additional discipline is

warranted.

The Saints and each of the disciplined individuals may appeal this decision by advising me in writing of

their wish to do so. Any notice of appeal must be received no later than April 2, 2012. If a timely appeal

is noticed, Iwill schedule a hearing at which I will preside and the club or individual may present

evidence or argument in support of the appeal.

At a later time, I will address the question of sanctions for players and others involved in the Saints

bounty program. Any sanctions will be imposed consistent with the provisions of the Collective

Bargaining Agreement. Whatever decision is ultimately made, I remain deeply troubled by what

occurred here. While all club personnel play to win the game, they must not let the quest for victory so

cloud their judgment that they willingly and willfully engage in conduct on the field intended to injure

fellow players.



EXHIBIT J


WINSTON Sz STRAWN ELP

BEIJING

CHARLOTTE

CHICAGO

GENEVA

HONG KONG

HOUSTON

LONDON

LOS ANGELES

200 PARK AVENUE NEW YORK, NY 10166

+1 (212) 294-6700

FACSIMILE +1 (212) 294-4700

www.winston.com

MOSCOW

NEWYORK

NEWARK

PARIS

SAN FRANCISCO

SHANGHAI

WASHINGTON, DC

Jeffrey L. Kessler Partner

212-294-4698 [email protected]

May 25, 2012

VIA EMAIL

System Arbitrator Stephen Burbank University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104

Dear Professor Burbank:

The NFL's May 18 letter brief ("Opposition") cannot overcome two indisputable points that compel granting the requested relief: (i) the Commissioner's purported discipline is, on its face, predominantly based on the undisclosed "pay for performance" feature of the alleged bounty system; and (ii) penalties for such undisclosed "pay for performance" agreements involving Clubs and players fall squarely within the exclusive province of the System Arbitrator and, thus, outside of the Commissioner's jurisdiction to discipline players for conduct detrimental. Any other conclusion would render the exclusive jurisdiction of the System Arbitrator meaningless as the Commissioner could simply declare anything assigned to another CBA arbitrator to be "conduct detrimental" within the Commissioner's jurisdictional reach. The Commissioner, however, does not have such unbounded jurisdiction.

In a futile effort to avoid the above conclusion, the NFL's Opposition attempts an about-face from the Commissioner's stated reasons for suspending Messrs. Fujita, Hargrove, Smith, and Vilma. But it is the NFL's Security Report, Memorandum of Decision, and the four Player Discipline letters — not Mr. Levy's Opposition brief — that define the grounds for the Commissioner's suspensions. Those governing documents, which set forth the basis for the Commissioner's actions, leave no doubt, as shown below, that the alleged non-contractual payments were the central basis of the discipline imposed.

Those same League documents also acknowledge that alleged "[p]ayments of the type made here . . . are forbidden because they are inconsistent with the Collective Bargaining


WINSTON & STRAWN LLP

May 25, 2012 Page 2

Agreement and well-accepted rules relating to NFL player contracts." (NFL Security Report at 3 (Ex. A to NFLPA May 3, 2012 Ltr. to System Arbitrator ("NFLPA Moving Br.")).) The NFL's Opposition improperly tries to retreat from this concession, too. Among other things, the NFL argues — based on a protracted discussion of the meaning of the word "the" — that Article 14, Section 1 prohibits undisclosed payments involving a Club and "the player" (singular), but that a Club-organized system involving undisclosed payments to many players (plural), would somehow be permissible under the CBA. This reading of Article 14, Section 1 is absurd, belied by the NFL's own admission, and should be rejected out of hand.

So too should the System Arbitrator dismiss the NFL's dire warnings of Your Honor affording players immunity from nefarious conduct, like throwing games, if the NFLPA prevails in this proceeding. The NFL's hyperbole misses the point. If a coach paid a player to throw a game, the Commissioner could certainly take disciplinary action against the player for throwing the game — but not for the non-contractual payment, which would be within the exclusive jurisdiction of the System Arbitrator. Here, however, the NFL explicitly seeks to punish players for the "pay for performance" aspect of the alleged "bounty" system — a subject that the parties delegated exclusively to the System Arbitrator. An order from the System Arbitrator declaring that the NFL cannot punish the alleged non-contractual payments is therefore warranted. Further, the System Arbitrator should set aside the discipline the Commissioner proposed because it is predominantly and inextricably based on the alleged "pay for performance" system.

This proceeding does not seek a "get-out-of-jail free card." (Opp'n at 6.) The NFL could seek to punish the alleged non-contractual bonus payments by initiating a proceeding against the players before the System Arbitrator. And, to the extent that there is any remaining conduct outside the exclusive jurisdiction of the System Arbitrator that the NFL seeks to punish — namely, the alleged unsportsmanlike conduct against other players on the field — such allegations could be pursued before Hearing Officers Shell and Cottrell under CBA Article 46, Section 1(b). 1 But, as described below, what the Commissioner cannot do is expand the reach of his limited Article 46 authority by re-labeling non-contractual payments and/or on-the-field unsportsmanlike conduct as constituting "conduct detrimental," subject to a Commissioner arbitration.

The CBA lays out a carefully bargained-for structure in which all arbitrations are before a neutral arbitrator except for the narrow category of conduct delegated to the Commissioner in Article 46. The allegations here do not, by the NFL's own account, fit within that category. Rather, this is a matter within the exclusive jurisdiction of the System Arbitrator, and the NFL cannot avoid that result simply because the Commissioner declares the conduct alleged to be "conduct detrimental."

Any System Arbitrator or Hearing Officer Shell/Cottrell discipline would, however, be bound by the Non-Injury Grievance Arbitrator's forthcoming determination about the scope of the NFL's release of pre-August 2011 player conduct. (See May 3, 2012 NFLPA Ltr. Initiating Non-Injury Grievance, at 2-3 ("NFLPA Non-Injury Ltr.") (attached hereto as Ex. 1).)


WINSTON & STRAWN ELP

May 25, 2012 Page 3

I. The Commissioner's Purported Discipline Is Unquestionably Based On Alleaed "Non-Contract Bonuses"

Attempting to rewrite recent history, the NFL claims in its Opposition that the Commissioner did not intend to base his punishments on non-contractual payments. (Opp'n at 5.) This contention is 100% contrary to the written record that the NFL created to establish the basis of the purported discipline. The NFL Security Report, Memorandum of Decision and Player Discipline letters confirm that, above all else, the Commissioner sought to punish players for the alleged "improper cash rewards" — regardless of the nature of the performance being compensated.

For example, in its Security Report, where the NFL alleges what it describes as the "key facts" underlying the discipline (Opp'n at 5), the League unambiguously states that the Commissioner's discipline is principally based on agreements between the Club and players to make non-contractual payments available to players:

• "[E]mployees of the New Orleans Saints repeatedly violated the 'Bounty Rule' by establishing cash pools, funded primarily by players, along with occasional contributions from two assistant coaches. . . . The players then received cash payments from those pools . . . ." (NFL Security Report at 1.)

• Such conduct is punishable because "Nile NFL has long had in place rules prohibiting 'Non-Contract Bonuses.' Such provisions violate both the NFL Constitution and By-Laws and the Collective Bargaining Agreement." (Id.)

• "During the 2009, 2010, and 2011 seasons," Saints players and coaches "developed and administered a Tay for Performance' program . . . . All such payments violate league rules prohibiting non-contract bonuses." (Id. at 2.)

• "There is no question that a bounty program of this type violates long-standing league rules. Payments of the type made here — even for legitimate plays such as interceptions or fumble recoveries — are forbidden because they are inconsistent with the Collective Bargaining Agreement and well-accepted rules relating to NFL player contracts." (Id. at 3.)

(Emphases added throughout.)

The NFL's Memorandum of Decision imposing discipline against the Club, its General Manager, and its coaches, is also replete with assertions that the core conduct at issue is the "payment of non-contract bonuses":


WINSTON & STRAWN LEP

May 25, 2012 Page 4

6 "[O]ur investigation revealed that Saints defensive players and at least certain defensive coaches operated a 'pay for performance' (or non-contract bonus) program . . ." (NFL Memorandum of Decision at 1 (Ex. B to NFLPA Moving Br.).)

"In determining discipline, I am guided by a number of policies and principles. The first is the longstanding rule against non-contract bonuses . . . ." (Id. at 4.)

(Emphases added throughout.)

Each of the four Player Discipline letters serves as yet further confirmation that the focus of the Commissioner's discipline is the non-contractual payment aspect of the "bounty" program:

6 The "Saints defensive players and coaches organized, administered and funded a pay for performance/bounty program for three seasons . . . the program included improper cash rewards for legitimate plays (such as fumble recoveries, interceptions, and the like). (See Player Discipline Letters at 1 (Exs. C-F to NFLPA Moving Br.) (emphases added).)

Indeed, the Commissioner's explicit acknowledgement that payments even "for legitimate plays" underlie his purported discipline lays bare the futility of the NFL's attempt to sever the non-contractual payments from the so-called "bounty" discipline. Because the Commissioner's discipline rests, unequivocally, on these alleged non-contractual payments, the System Arbitrator must set it aside.

II. It Is The NFL's Theory Of Unbounded Commissioner Discipline That Is Absurd

As the NFL's Opposition makes clear, the League's position about the reach of Commissioner Goodell's jurisdiction is, in a nutshell, that "conduct detrimental" encompasses whatever conduct Commissioner Goodell says it does. The NFL's position is untenable, especially in the face of CBA provisions that specifically delegate the conduct that the NFL seeks to punish — a Club-directed system of "payments for perfoimance" — to the exclusive jurisdiction of the System Arbitrator. (See CBA, Art. 15, § 1 (granting the System Arbitrator exclusive jurisdiction over Article 14, Section 1).)

To use the NFL's parlance, the Commissioner's function as an arbitrator "is an office of limited jurisdiction." 2 (Opp'n at 3 n.1) But, under the view the NFL is taking in this proceeding,

2 In the Article 46 context, the Commissioner serves as an arbitrator. See Nat'l Hockey League Players Ass'n v. Bettman, No. 93 Civ. 5769, 1994 WL 738835, at *27 (S.D.N.Y. Nov. 9, 1994) ("It is true that the relationship between [Commissioner] Bettman and [player] Sather was, in one respect, different from the ordinary arbitrator-party relation. . . . Nonetheless this relationship does not undermine [Commissioner] Bettman's capacity to sit as an arbitrator in these disputes . . . ."). The NFL has already



May 25, 2012 Page 5

the Commissioner would have unchecked discretion to supplant the System Arbitrator's jurisdiction — or that of any other neutral arbitrator assigned specific dispute resolution responsibilities under the CBA — simply by slapping a "conduct detrimental" label on the alleged player conduct. The CBA offers no textual support for any such unconstrained grant of discretion to the Commissioner, and any such result would be absurd and clearly was not intended by the CBA parties. Indeed, to conclude otherwise would effectively eviscerate the exclusive jurisdiction granted to the System Arbitrator over subjects like non-contractual payments and free agency. See White v. NFL (In re Kyle Richardson), 149 F. Supp. 2d 858, 860 (D. Minn 2001) ("Further, the court must give effect and meaning to every term of the contract, making every reasonable effort to harmonize all of its terms. The contract must also be interpreted so as to effectuate, not nullify, its primary purpose."); White v. NFL (Salary Cap Valuation Issues), slip op. at 4 (Sept. 28, 2005) (Burbank ) ("In [interpreting the SSA and CBA], I must try to avoid an interpretation that either would create conflict between contractual provisions or render any such provision a nullity.").

For example, under the NFL's theory of unlimited Commissioner power, the Commissioner could decide that a player exercising free agency rights in a particular situation is "conduct detrimental" to the League because it upsets "competitive balance" in the Commissioner's view. It would, however, be ridiculous to conclude that the System Arbitrator could not set aside any purported Commissioner discipline in that situation because the Commissioner has no authority over free agency rights and protections under the CBA. Yet that is precisely the argument the NFL advances here in claiming that the Commissioner can declare non-contractual payments to constitute conduct detrimental.

The Commissioner's conduct detrimental powers simply do not extend to situations in which the alleged behavior falls squarely within a CBA provision (or provisions) delegated to a different CBA arbitrator (or arbitrators). 3 For example, the combination of alleged non-contractual payments (within the exclusive jurisdiction of the System Arbitrator) and unsportsmanlike on-the-field conduct against other players (within the exclusive jurisdiction of

acknowledged this. (Tr. of Non-Injury Grievance Hr'g at 42:20-22, In re New Orleans Saints (May 16, 2012) (NFL counsel referring to the Commissioner as an "arbitrator" in the discipline context) (attached hereto as Ex. 2).)

3 Here, putting aside the non-contractual payments, the only remaining conduct that could theoretically be at issue is the alleged unsportsmanlike conduct on the field against other players. (NFL Security Report at 1.) If the NFL seeks to discipline the players for such conduct, the NFLPA agrees with the League that the System Arbitrator does not have jurisdiction to decide whether to impose that discipline, nor to decide who may impose it. Instead, it would be within the jurisdiction of the Non-Injury Grievance Arbitrator to determine that the on-the-field unsportsmanlike conduct at issue is within the exclusive purview of the Article 46, Section 1(b) Hearing Officers, who have jurisdiction to discipline players for "unsportsmanlike conduct" and "unnecessary roughness." (CBA, Art. 46, § 1(b) ("Wines or suspensions imposed upon players for unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player or players" — "shall be" determined by the Commissioner's designee and is then appealable to hearing officers Art Shell and Ted Cottrell))



May 25, 2012 Page 6

Hearing Officers Shell and Cottrell) does not somehow shift those clearly delineated jurisdictional powers from the appointed CBA arbitrators to the Commissioner. Put another way, one plus one does not equal three. Such a result would render meaningless the jurisdiction of those arbitrators to whom the parties have unambiguously granted authority over specified matters.

Your Honor is no stranger to the possibility that a common set of circumstances can give rise to parallel proceedings before multiple CBA arbitrators, each of whom has jurisdiction over a different aspect of the dispute. For example, in the case of Ashley Lelie, the Special Master exercised jurisdiction over Class Counsel's and the NFLPA's contention that the Denver Broncos violated the "forfeiture" provisions under the CBA with respect to Lelie's option bonus payment, while the Non-Injury Grievance Arbitrator exercised jurisdiction over the NFL's and Broncos' allegations that Lelie was required to return portions of his signing bonus and pay fines levied against him for failing to report to the Broncos' mandatory minicamp and training camp. Broncos v. Lelie (Apr. 23, 2007) (Das); White v. NFL (Lelie) (Nov. 16, 2006) (Burbank). Clearly, the Commissioner could not have declared that Mr. Lelie's "hold out" was conduct detrimental to the League and thereby have taken the determinations about his option bonus, signing bonus, and Club fines out of the hands of the Special Master and Non-Injury Grievance Arbitrator. But that is what the NFL seeks to do here.

Against this backdrop, it should be clear that the NFL's hypotheticals — a parade of purported horribles — are red herrings. (See Opp'n at 6.) As noted at the outset of this Memorandum, the NFLPA does not deny the Commissioner's authority to punish for conduct detrimental (subject to, e.g., CBA and Player Contract requirements and limitations) a player who throws a game or sells weapons in a Club locker room. In such circumstances, however, the Commissioner could neither punish the player for any "pay for performance" aspect of the conduct, nor could he usurp the System Arbitrator's exclusive jurisdiction over such behavior. Moreover, the NFL's hypotheticals hold no currency in the case at bar, in which the NFL has stated repeatedly that the Commissioner's discipline rests on — and is not merely tangentially related to — non-contractual payments.

III. There Is No Question That The Alleged Non-Contractual Payments At Issue Implicate Article 14, Section 1 Of The CBA

Despite previously asserting that "[p]ayments of the type made here . . . are forbidden because they are inconsistent with the Collective Bargaining Agreement" (NFL Security Report at 3), the NFL now argues that the alleged non-contractual bonus payments at issue do not come within the purview of Article 14, Section 1. The NFL had it right the first time.



May 25, 2012 Page 7

A. The Club Was A Chief Participant In The "Undisclosed Agreements Involving Consideration To Be Paid" To Players

The NFL contends that Article 14, Section 1 does not cover a scheme in which players "pledge or contribute money," "organize]] or fund[1" a bounty scheme, or "offer[] or contribut[e] money to reward other players for injuring opponents." (Opp'n at 4 (emphasis omitted).) But that is not the "pay for performance/bounty" system that the NFL alleged. Rather, the "key facts" purportedly unearthed in the NFL's "lengthy investigation" resulted in the allegation that the payments at issue were organized, determined, partially funded, and actually paid by the Club.

In disciplining the Saints Club ($500,000 fine and draft pick forfeitures), Saints General Manager Mickey Loomis (8-game suspension and fine such that the fine and forfeited pay will total $500,000), Saints Head Coach Sean Payton (one-year suspension), Saints Assistant Head Coach Joe Vitt (6-game suspension and fine such that the fine and forfeited pay will total $100,000), and former Saints Defensive Coordinator Greg Williams (indefinite suspension), the League stated that:

O The "pay for performance/bounty" system was "developed," "operated," and "administered" by Saints coaches. (NFL Security Report at 2 (stating that it was "coaches who administered the program" and "develop[ed] an ongoing program to pay bonuses to players"); NFL Memorandum of Decision at 1, 4.)

O Coach Williams "designed and implemented the pay for performance/bounty program" after being told by Coach Payton that "his assignment was to make the Saints' defense 'nasty." (NFL Memorandum of Decision at 2.)

O Coach Williams was responsible for "overseeing recordkeeping, defining payout amounts, deciding who received payouts, and distributing envelopes containing cash to players who 'earned' rewards." (Id.) Coach Williams also personally made contributions to the pool. (Id.)

• Coach Vitt acknowledged that he was aware of the program in 2009-2011 and he witnessed Coach Williams "handing out envelopes that he believed to contain cash." (Id. at 3.)

O Despite the "obligation to supervise the staff," which is "expressly set forth in Coach Payton's employment agreement," he did nothing to stop the payments. (Id. at 5.) He also personally received an email from a "close associate" offering a $5,000 bounty on quarterback Aaron Rodgers. (Id. at 3.)



May 25, 2012 Page 8

• General Manager Mickey Loomis likewise "did not do enough to determine if a pay for performance/bounty program existed or to end any such program that did exist." (Id. at 4.) He "never issued instructions to end the bounty program to either the coaching staff or the players" and "satisfied himself with only limited inquiries that neither sought nor obtained an accurate understanding of the facts." (Id. at 4, 6.)

The NFL now stresses the Commissioner's determination "that there was no evidence that Club ownership was even aware of the pool, or that any Club funds were used in it." (Opp'n at 4.) That argument misses the point. As a matter of law, the above-described conduct by high-level Saints coaches and executives is the responsibility of, and must be attributed to, the Club. The League has already acknowledged as much in imposing Club discipline:

While it is clear that ownership was unaware of the bounty program . . . , the club nonetheless is guilty of conduct detrimental by virtue of the actions of its employees, which continued over a period of years, and the failure of its senior executives to address the matter in a responsible way. The Commissioner has repeatedly held that clubs bear a responsibility for the conduct of their employees, and that misconduct by employees — particularly by employees in responsible and leadership positions — will be attributed to the club for purposes of discipline.

(NFL Security Report at 4; NFL Memorandum of Decision at 6 ("I believe, and have frequently expressed the view, that clubs — meaning ownership — are responsible for the conduct of their employees, particularly when, as here, those employees are at the highest levels of that organization.").) Accord Am. Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 566 (1982) ("principals are liable when their agents act with apparent authority and commit torts analogous to the [wrongful conduct] presented by this case"); Elkouri & Elkouri, How ARBITRATION WoRKs 548, 551 (Alan Miles Ruben ed., BNA Books 6th ed. 2003) ("A principal may be held responsible for the act of its agent within the scope of the agent's general authority even though the principal has not specifically authorized the act in question; it is enough if the principal empowered the agent to represent it in the general area within which the agent acted;" "[a]n arbitrator will hold a party bound by the act of its agent, though unauthorized, if the party is found to have clothed the agent with 'apparent' or 'ostensible' authority to act."); see also, e.g., Rocks & Jeans, Inc. v. Lakeview Auto Sales & Serv., Inc., 584 N.Y.S.2d 169, 170 (App. Div. 1992) (employer liable for wrongful conduct of employee acting with apparent authority); Hatton v. Quad Realty Corp., 473 N.Y.S.2d 827, 830 (App. Div. 1984) (same).

The NFL cannot credibly deny the fact that the alleged "pay for performance/bounty" program involved agreements between the Club and players involving consideration to be paid to players. To the contrary, the Club, by the NFL's own contentions, is principally responsible for the conduct in question.



May 25, 2012 Page 9

B. According To NFL Allegations, The Players Who Agreed With The Club To Operate Under A "Bounty" System Are The Same Players Who Received The Payments At Issue

In another attempt to avoid Article 14, Section 1, the NFL claims that this provision applies only to an undisclosed agreement between a Club and a player concerning compensation to be paid by the Club "to that player." (Opp'n at 4.) In other words, "the definite article 'the' obviously refers back to the same player who entered into the agreement." (Id.)

That is precisely what the NFL has alleged here. According to the NFL's own description of the "pay for performance/bounty" program, the players who participated in the agreement with Club representatives to "establish cash pools" are the same players who then "received" or were eligible to receive "cash payments" from Coach Williams. (See, e.g., NFL Security Report at 2 ("[D]efensive players and coaches developed and administered a Pay for Performance' program under which the participating players regularly made cash 'donations' to a pool," and those same participating defensive players then "received improper cash payments of two kinds.").) There is no alternative way to interpret the NFL's allegations. And, there is no allegation, for example, that one set of players purportedly agreed to operate under a "bounty" program and the Club then made payments to some different or separate group of players.

Under the NFL's very narrow view, Article 14, Section 1 would be ineffectual in situations where a group of players (as opposed to a single player) agreed with the Club to make extra-contractual consideration available to that same group of players. (See Opp'n at 4 (arguing that the provision applies only to an "undisclosed agreement between a Club (or Club Affiliate) and a particular player concerning compensation to be paid by the Club (or Club Affiliate) to that player").) The NFL's position would create the non-sensical result of nullifying Article 14, Section 1 in a variety of non-contractual bonus situations just because more than one player is allegedly involved. There is no doubt, however, that the CBA parties intended otherwise, i.e., for the plain language of Article 14, Section 1 to apply with full force in situations where (as here) a Club and players allegedly enter into undisclosed agreements involving consideration that is made available to those same players.

Indeed, the NFL itself argues that the parties intended Article 14, Section 1 to address the "failure to disclose payments from a Club to a specific player, which could have the effect of avoiding a charge to the Salary Cap." (Opp'n at 6 (emphasis omitted).) Accepting this premise, it would make absolutely no sense for the parties to have intended to punish an undisclosed payment to a particular player, but to leave unpunished a system involving undisclosed payments to multiple players.



May 25, 2012 Page 10

IV. The System Arbitrator Should Set Aside All Of The Discipline

Given the written record establishing that the Commissioner principally punished players for the "non-contract bonuses," all of the discipline must be overturned because the Commissioner was without jurisdiction to impose it in the first place. See Avis Rent A Car Sys. v. Garage Emps. Local 272, 791 F.2d 22, 25-26 (2d Cir. 1986) (reversing arbitration award and remanding for new hearing where arbitrator had no jurisdiction to interpret provisions in one of two collective bargaining agreements between the parties: "[A]rbitration depends on the consent of the parties to the contract. . . . Courts generally enforce such [arbitration] clauses strictly, vacating awards entered by arbitrators whose qualifications or method of appointment fail to conform . . . ."); SEIU, Local 32BJ v. Coby Grand Concourse, LLC, No. 04 Civ. 9580(CSH), 2006 WL 692000, at *5 (S.D.N.Y. Mar. 16, 2006) (vacating arbitration award because one party "decided to ignore the . . . arbitrator specified in the CBA, and instead unilaterally selected a different arbitrator to hear the . . . dispute"); Elkouri & Elkouri at 172 ("[Where] an arbitrator's appointment did not conform to the agreement on which he based his jurisdiction, the defect was held to have rendered him powerless to act.").

As we stated up front, this proceeding is not intended to secure a "get-out-of-jail free card." The NFL is free to initiate a proceeding before the System Arbitrator over the alleged non-contractual payments and, to the extent the League wishes to punish any alleged unsportsmanlike conduct component of the alleged "bounty" system, it may initiate a proceeding before Hearing Officers Shell and Cottrell. The current proposed discipline, however, cannot stand.

For all of these reasons, and for those set forth in the NFLPA's May 3, 2012 Moving Brief, the System Arbitrator should order that the Commissioner's discipline against the players be set aside and that he is without authority to issue new discipline against the players based on the "pay for performance" aspect of the alleged conduct.

Respectfully submitted,

cc: Gregg Levy, Esq. Benjamin Block, Esq. DeMaurice Smith, Esq. Richard Berthelsen, Esq. Tom DePaso, Esq. Heather McPhee, Esq. Peter Ginsberg, Esq.


EXHIBIT 1


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1

NATIONAL FOOTBALL LEAGUE----------------------------------------XIN RE:

NEW ORLEANS SAINTS----------------------------------------X(A R B I T R A T I O N)

May 16, 20121:00 p.m.

345 Park AvenueNew York, New York

BEFORE: SHYAM DAS, ARBITRATOR

Joseph Charles, Court Reporter


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42

jurisdiction and that is the issue that I

will start with.

As you know, your jurisdiction is

defined in Article 43. That is on page

187 of the CBA. Jeffrey read it to you.

I think he read it to you incorrectly

including the limitation on your

jurisdiction. There were a few times

where Jeffrey described your authority,

and the authority of the non-injury

grievance arbitrator, as the broadest

possible authority, I think, and one of

general authority. I may not exactly

have what he said, precise, but I think

that was the gist.

The gist was that you are the

broadest Arbitrator under the CBA and we

submit, obviously, that for the purposes

of the dispute that is at issue in this

grievance, you are not. The broadest

arbitrator under the CBA for this is

Commissioner Goodell. And that is made

clear in Article 46. And that's first of

all made clear in the definition. It

says definition in Article 43, of the


EXHIBIT K


EXHIBIT L


NATIONAL FOOTBALL LEAGUE

July 3, 2012

Via Electronic Mail & Overnight Delivery

Mr. Jonathan Vilma c/o Peter Ginsberg, Esq. Peter R. Ginsberg Law, LLC 12 East 491

h Street, 301h Floor

New York, NY 10017

Mr. Will Smith c/o Heather McPhee, Esq. NFL Plalers Association 1133 20 Street, NW Washington, DC 20036

Gentlemen:

Mr. Anthony Hargrove c/o Heather McPhee, Esq. NFL Pla~ers Association 1133 201 Street, NW Washington, DC 20036

Mr. Scott Fujita c/o Heather McPhee, Esq. NFL Plalers Association 1133 20 Street, NW Washington, DC 20036


Pursuant to Article 46 of the Collective Bargaining Agreement, this sets forth my decision on your appeals of the suspensions imposed for your respective roles in the pay-forperformance/bounty program operated at the New Orleans Saints during the 2009-2011 seasons. The reasons for imposing your respective suspensions are set forth in letters to each of you dated May 2, 2012 (as clarified, in the case of Mr. Hargrove, by letter dated June 8, 2012).1

Article 46, which governs this proceeding, reflects the agreement of the NFLPA and the NFL to maintain the Commissioner's longstanding authority to determine whether a player has engaged in conduct detrimental to the integrity of, or public confidence in, the game of professional football and to determine the appropriate discipline for such conduct. That authority is also reflected in your respective Player Contracts at paragraph 15.

Article 46 also reflects the agreement that appeals from discipline for conduct detrimental would be heard and resolved exclusively by the Commissioner, as well as agreement on the procedures that govern any such appeal. And, in both Article 46 and Article 3 § 2 of the CBA, the Players Association and League agreed that the Commissioner's determinations on appeal in

1 The appeal hearing was held on June 18,2012. Messrs. Fujita, Hargrove and Smith, represented by NFLPA outside counsel Jeffrey Kessler, attended the hearing. Mr. Vilma, represented by Peter Ginsberg, attended a portion of the hearing. The hearing record was left open through June 22,2012, to afford you and your representatives an opportunity for further submissions.

345 Park Avenue, New York, New York 10154 Tel (212) 450-2000 Fax (212) 681·7574


Messrs. Vilma, Hargrove Smith & Fujita

July 3, 2012 Page 2

such matters would be final. None of this is new: the process has been in place for more than thirty years.

In evaluating your appeals, my responsibilities include interpreting and implementing Article 46 and other relevant provisions of the CBA. Bearing in mind those responsibilities, I have taken into account a number of items including (1) the two confidential investigation reports provided to you; (2) the exhibit binder materials provided to you; (3) the corresponding presentation by Mary Jo White at the appeal hearing; and (4) any additional materials that you, your lawyers and/or the Players Association offered. In particular, I have evaluated, in the context of Article 46, the objections and arguments that your lawyers made at the hearing and by written submission.

For the reasons that follow, I find no basis for altering your suspensions.

Throughout this entire process, including your appeals, and despite repeated invitations and encouragement to do so, none of you has offered any evidence that would warrant reconsideration of your suspensions. Instead, you elected not to participate meaningfully in the appeal process. As Mr. Kessler stated at the hearing: "The NFL[PA] and the players [Messrs. Fujita, Hargrove and Smith] have reluctantly concluded that they will not participate in any proceedings regarding the merits at this hearing today. (Hrg. Tr. 16:12-19.)2

Although you claimed to have been "wrongfully accused with insufficient evidence," your lawyers elected not to ask a single question of the principal investigators, both of whom were present at the hearing (as your lawyers had requested); you elected not to testify or to make any substantive statement, written or oral, in support of your appeal; you elected not to call a single witness to support your appeal; and you elected not to introduce a single exhibit addressing the merits of your appeal. Instead, your lawyers raised a series of jurisdictional and procedural objections that generally ignore the CBA, in particular its provisions governing "conduct detrimental" determinations. I address these ppints in turn.

JURISDICTION

Your lawyers have argued that I lack jurisdiction to resolve your appeals. That argument is flatly inconsistent with the CBA. Article 46 § 1 (a) provides:

"All disputes involving ... action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player's approval, may appeal in writing to the Commissioner."

Two recent decisions confirm that the CBA vests such authority exclusively in the Commissioner. First, by decision dated June 4, 2012 (and supplemented by decision dated June 12, 2012), System Arbitrator Stephen Burbank rejected the argument that the System Arbitrator,

2 Mr. Vilma's counsel joined in that position. (Hrg. Tr. 27:10-11 ("Mr. Kessler speaks for me as well.")).




July 3, 2012 Page 3

rather than the Commissioner, has jurisdiction over discipline for conduct of the kind at issue here. The Players Association has sought review of the System Arbitrator's decision, but that decision is binding unless stayed, reversed or modified by the Appeals Panel. See CBA Art. 15 § 2(d).

Second, the Players Association separately challenged my jurisdiction in a non-injury grievance, arguing (1) that the CBA prohibited suspensions for any conduct occurring prior to August 4, 2011; and (2) that Art Shell or Ted Cottrell, my designees who are responsible for reviewing fines or suspensions for "unnecessary roughness or unsportsmanlike conduct on the playing field," have exclusive jurisdiction over this matter. Arbitrator Das denied that grievance on June 8, 2012. That decision is final and binding. See CBA Art. 43 § 8.

I understand that you continue to maintain that this appeal must be heard by Mr. Shell or Mr. Cottrell. There are two reasons why that position is wrong. First, the Players Association abandoned this argument after raising it before Arbitrator Das. But more to the point, as I have made clear, you were not disciplined for unnecessary roughness or unsportsmanlike conduct on the playing field, the only subjects on which Messrs. Shell and Cottrell hear appeals. You were instead disciplined for conduct detrimental to the integrity of, or public confidence in, the game of professional football. The conduct for which you were disciplined took place in locker rooms and meeting rooms, not on the playing field. Thus, as provided by the CBA, this appeal is within my exclusive jurisdiction.

RECUSAL

Mr. Kessler also argued that "since the union has not agreed to the Commissioner hearing these matters and because the Commissioner has publicly appeared on television and in other fora defending the discipline prior to this arbitrable hearing, we don't believe under the governing law that he can serve as an arbitrator without the appearance of bias rendering the proceedings a nullity." (Hrg. Tr. at 18:22-19:6.)

To the contrary, that is precisely what the Union agreed to in Article 46 § 1 of the CBA. It did so following extensive discussion and negotiation. The Players Association and the League agreed not to inteiject a third-party into the review process, but instead to leave in place the longstanding practice of review by the Commissioner of "[a]ll disputes involving" Commissioner action regarding conduct detrimental.

The CBA also makes clear that any appeal to the Commissioner will come only after notice to the player and the Players Association setting forth the basis for his disciplinary action. Accordingly, prior announcement of the basis for discipline cannot render the Commissioner incapable of hearing an appeal due to the appearance of bias or for any other reason.

In short, I was no less capable of hearing these appeals in an unbiased manner than I have been of hearing, under this CBA and its predecessor, numerous other appeals involving conduct detrimental. Nor, given the review process to which the parties agreed in the CBA, was there any basis for asserting an appearance of bias.

The request for recusal is therefore denied.




July 3, 2012 Page4

PROCEDURAL OBJECTIONS

Mr. Kessler questioned whether "these proceedings have afforded the essence of the CBA requirements for industrial due process and a fair hearing." (Hrg. Tr. at 19: 15-18.) In his view, while the CBA explicitly affords each player a right to (i) notice of the action that constitutes conduct detrimental and a hearing on his appeal; (ii) disclosure of exhibits to be relied on at the appeal hearing; (iii) representation by counsel; and (iv) a right to call witnesses and introduce evidence in support of the appeal, it implicitly also requires (a) that each player have an opportunity to confront and cross-examine wituesses; (b) that club employees and others with knowledge of the events be compelled by the Commissioner to attend the appeal hearing; and (c) that each player have access to the NFL's internal investigatory records (here, materials reviewed by NFL Security in preparing the report summarizing its findings).

None of these arguments is based on the text of Article 46 or any other provision of the CBA. Nor is there any basis for these arguments in the parties' prior course of dealing. While the parties to the CBA could have provided for rights and procedures of the kind that Mr. Kessler suggests, they instead opted for a different process of dispute resolution-one that ensures expeditious resolution of issues affecting the integrity of, and public confidence in, the sport, and that does so by vesting in the Commissioner the authority to take decisive action to preserve that integrity and public confidence.

As to wituesses, each of you was, in fact, free "to present, by testimony or otherwise, any evidence relevant to the hearing." CBA Art. 46 § 2(b). I would have welcomed and considered any such evidence. But you chose not to testify and not to call any witnesses, including the lead investigators who were present and available for questioning throughout the appeal hearing. If you believed that testimony from one or more of the Saints coaches or your teammates would have supported your appeal, you were free to ask them to attend and testify without concern for any adverse consequences for testifying truthfully.

The complaint that I did not compel current or former Saints coaches or other witnesses to testify is not well-taken. Nothing in the CBA requires such an order. Indeed, the parties have had multiple collectively bargained systems of dispute resolution in place for decades, but none of those systems, which have been restated and ratified on several occasions, has provided for compulsory process of that kind. Moreover, I am not aware of any club employee, player or other witness ever having been compelled to attend or testify at an appeal hearing under Article 46 or its collectively bargained predecessors.

Nor does the CBA provide for discovery of the NFL's investigatory records in proceedings involving "conduct detrimental." Rather, a party is only entitled to "exhibits upon which [the NFL or the NFLPA or player] intend[s] to rely" at the appeal hearing. Art. 46 § 2(f)(ii). In contrast, I invite your attention to the more extensive discovery procedures with respect to non-injury grievances; in those proceedings, for example, each party must submit to the other "copies of all documents, reports and records relevant to the dispute." Art. 43 § 5(b). See also Art. 21 § 8(b)(i) (requiring production of "all tape, film, other recorded evidence or other documentation any representative deems relevant to a possible violation"). The rights and obligations under Article 46 for appeals of Commissioner discipline are much narrower,




July 3, 2012 PageS

reflecting a dispute resolution process that is more focused and expedited than others under the CBA. 3

Without regard to the terms of the CBA, I find no basis whatsoever for the assertion that "exculpatory evidence" was withheld by the NFL. 4 Aside from being unfounded, the suggestion that the NFL would withhold exculpatory documents-or that I would tolerate the withholding of such documents-is irrational. My responsibilities as Commissioner include ensuring the integrity of, and public confidence in, the game of professional football. From a public confidence perspective, I would very much have preferred for the investigation to find evidence demonstrating that there was no pay-for-performance/bounty program in which you had a role; there was no such evidence uncovered in the investigation. Moreover, none was offered by any of you at any point during the investigation or appeals process.

Finally, there should be no issue about the investigation's reliance on one or more confidential sources in addition to the multiple sources identified for you and your counsel. Affording confidentiality to players or others seeking to remain anonymous in these and similar circumstances-and securing their candid assessment of the issues, free from peer pressure and other impediments-serves the interest of maintaining the integrity of, and public confidence in, the game of professional football; failure to provide such confidentiality would discourage future potential whistleblowers from coming forward. 5 This concern is especially acute when the conduct at issue has the potential to increase the likelihood of player injuries or to undermine the integrity of competition on the field. It bears emphasis, however, that no element of my findings or discipline was based solely on information obtained from a source whose identity was not disclosed to you and your lawyers.

MOTION TO EXCLUDE EXHffiiTS

Messrs. Kessler and Ginsberg sought to exclude sixteen exhibits discussed at the hearing on the ground that their production was untimely, i.e., that the NFL had produced the exhibits some 68 or 69 hours-rather than 72 hours-prior to the hearing's start.

3 Your decision not to participate in the appeals process apparently was based on the belief that you have a continuing right to challenge your discipline until you receive all relevant materials generated by the investigation. The CBA makes clear that there is no such right; the Commissioner's ruling on any appeal of a conduct detrimental finding is final. 4 To the contrary, prior to the appeal hearing and in response to the Players Association's request, the NFL provided your lawyers with materials obtained from Duke Naipohn, who was with the Saints for part of the 2011 season. I have taken into account the fact that Mr. Naipohn, whom you were free to call to testify at the hearing, informed NFL investigators that he does not believe that there was a pay-for-performance/bounty program in place at the Saints in 2011, the only year with which he would be familiar. Even with regard to the 2011 season, Mr. Naipohn's statement does not cause me to believe that my findings, which were based on multiple sources and corroborating documents, were unfounded or erroneous. 5 In fact, I note that the League's original investigation of this matter in early 2010 was stymied by the failure of witnesses, including Mr. Hargrove, to respond candidly. The investigation was reopened only after a confidential source came forward.




July 3, 2012 Page6

Article 46 § 2(t)(ii) of the CBA provides that any exhibits on which a party intends to rely be produced no later than "three (3) calendar days prior to the hearing,'' not 72 hours before the hearing commences. (When the parties to the CBA intended for a 72-hour rule to apply, such as in Article 15 § 5, they did so expressly.) The parties' course of dealing under Article 46 and its predecessors has never reflected an understanding that 72-hours' advance production was required, and your lawyers have not cited any prior instance in which exhibits produced or identified on the calendar day three days prior to the hearing were deemed untimely.

Mr. Ginsberg argued that, under New York law, a three-day requirement must be read to require 72 hours' notice, but that does not appear to be the Jaw. I am advised that the New York Court of Appeals, for example, has held that notices served on the afternoon of June 6 timely provided five days' notice for a hearing scheduled for 11:00 a.m. on June 11. In re Niel, 106 N.Y.S. 479,479-80 (1907). And New York courts generally have rejected the notion that one day's notice must equate to 24 hours' notice. See, e.g., Lehman Bros. Holding, Inc. v. Melton, 2010 WL 1293783, at *2-3 (N.Y. Dist. Ct. Apr. 10, 2010).

In any event, there could be no reasonable claim of prejudice due to the timing of the disclosure. When your counsel raised the objection, the hearing was adjourned for several hours; none of the exhibits was introduced or discussed until more than 72 hours after they had been provided.

INVOLVEMENT OF CLUB OFFICIALS

On the merits of the appeal, Mr. Kessler argued that the suspensions should be overturned because you "simply followed what [your] supervisors directed [you] to do." (Hrg. Tr. at 24:22-23.) No evidence was offered at the hearing to support that assertion, and it was contradicted by multiple individuals interviewed during the investigation. Even so, I took into account the actions of the coaches in reaching my findings and determining appropriate discipline.

Mr. Hargrove submitted a declaration stating that he was directed by coaches to deny the existence of the program when questioned by NFL Security. Coach Vitt denied that assertion despite its having been corroborated by other witnesses; indeed, one of those witnesses stated that, in agreeing to deny the existence of the program, Mr. Hargrove had said: "I can lie with the best of them." I need not resolve that conflict to decide Mr. Hargrove's appeal. Assuming for the moment that he was given such a direction, it does not excuse Mr. Hargrove from being truthful to NFL investigators when asked specifically about the existence of the program. Mr. Hargrove's conduct was all the more troubling because if he had been forthcoming when questioned in 2010, the program-and the enhanced risk of injury that it entailed-could have been stopped much sooner.

SUPPLEMENTAL SUBMISSION BY THE NFLPA

On June 22, 2012, Mr. Kessler submitted a supplemental letter asserting that following the June 18 appeal hearing, Coach Vitt and Mr. Ornstein made public statements contradicting aspects of the League's evidentiary presentation. I have read and considered the materials referenced in Mr. Kessler's letter.




July 3, 2012 Page 7

The statements attributed to Coach Vitt are consistent with the view that he expressed to NFL investigators and at his appeal hearing: that "cart-offs," "whacks" and "knockouts" referred only to "clean" hits. But whether a hit was ultimately subject to a penalty for unsportsmanlike conduct or unnecessary roughness is irrelevant for these purposes: incentivizing players for hits that injure or increase the risk of injury to opposing players undermines the integrity of, and public confidence in, the game of professional football.

I also took into account the statement attributed to Coach Vitt that he had "never heard a player talk about putting Favre out of the game or injuring another player." While Coach Vitt failed to offer any details to the League regarding the meeting at issue, three other witnesses each independently told NFL investigators that Mr. Vilma had, in fact, made such a pledge.

Mr. Kessler also argues that because Coach Vitt reportedly denied having "pledged money for any type of incentive program for the Saints NFC Championship game against the Vikings," the reliability of Hearing Exhibit 10 is in doubt. That exhibit reflects the handwritten notes of an eyewitness to the meeting at which Mr. Vilma made the pledge regarding Mr. Favre; it is fully consistent with what three witnesses told NFL Security about Mr. Vilma's statements at the meeting.

Moreover, the video from that game corroborates other evidence that there was such a pledge: a Saints player-whom NFL Security reasonably concluded was Mr. Hargrove but whom others believe may have been a different player-said "Give me my money" immediately after Coach Vitt reported (incorrectly) that Mr. Favre had been knocked out of the game with a broken leg. For purposes of addressing Mr. Hargrove's appeal, I need not resolve the issue of who made the statement. Instead, I am prepared to assume-as he apparently stated publiclythat he did not make it. But that statement is relevant because, regardless of which player said it, it corroborates other evidence that there was an incentive in place for knocking Mr. Favre out of the game and that the members of the Saints defense, including Mr. Hargrove, were well aware of that fact. The identity of the player who made the statement was immaterial to my decision on your appeals and did not affect the level of discipline imposed on Mr. Hargrove.

Mr. Ornstein's public comments provide no basis for reconsidering the suspensions. Indeed, the referenced report states that Mr. Ornstein "admits that the Saints had a pay-forperformance program in 2009." And while the report indicates that he now denies corroborating the evidence that Mr. Vilma had offered $10,000 for a hit that knocked Mr. Favre out of the game, at least two other credible witnesses confirmed that Mr. Vilma made such an offer. And Mr. Ginsberg's denial on behalf of Mr. Vilma does not constitute evidence that would offer a persuasive basis for overturning his suspension.

Finally, I am aware of public statements by both the Players Association and Mr. Vilma's attorney to the effect that they have performed their own comprehensive investigations into the pay-for-performance/bounty program. Despite numerous requests that they share the findings or other information from those investigations, nothing has ever been provided to me.

* * *




July 3, 2012 Page 8

In sum, I did not make my determinations here lightly. At every stage, I took seriously my responsibilities under the Collective Bargaining Agreement. I determined the discipline for each of you (1) only after a long, detailed and professional investigation by NFL Security's experienced investigators; (2) only after the results of that investigation were carefully reviewed by an independent expert, former United States Attorney Mary Jo White; (3) only after I heard the appeals of the Saints' coaches and staff regarding discipline for their roles in the program; (4) only after representatives of NFL Security, along with Mr. Pash and Mr. Birch, spoke with Players Association attorneys at length regarding the investigation; and (5) only after giving each of you multiple opportunities to meet with the NFL investigators and to share with them your version of the events surrounding the program. The suspensions imposed were reasonable action taken to preserve public confidence in, and the integrity of, the game of professional football.

Under the CBA, an Article 46 appeal is the exclusive means for any player against whom conduct detrimental action is taken by the Commissioner to present evidence or reasons as to why the discipline should not be imposed, or to present mitigating circumstances or hardship arguments for why the discipline should be set aside or reduced. You had every opportunity and incentive to put forth any and all reasons why you believe that you were "wrongfully accused." Nonetheless, you refused to cooperate at all with the investigation and, although you noticed appeals and attended the appeal hearing, you elected neither to address the record reviewed at the hearing nor to present any evidence to support altering the discipline imposed. As a result, there is nothing that would warrant a modification of your suspensions.

Accordingly, the appeals ar" denied and the suspensions are to be enforced as set forth in the notice letters of May 2, 2012. While this decision constitutes my final and binding determination under the CBA, I of course retain the inherent authority to reduce a suspension should facts be brought to my attention warranting the exercise of that discretion. The record confirms that each of you was given multiple chances to meet with me to present your side of the story. You are each still welcome to do so.

cc: Jeffrey Kessler, Esq. DeMaurice Smith, Esq.

Sincerely,

~~ ROGER GOODELL



EXHIBIT M


12 ------------------------------------x

NATIONAL FOOTBALL LEAGUE3 PLAYERS ASSOCIATION,4 Claimant,5 v.6 NATIONAL FOOTBALL LEAGUE,7 Respondent.8 -------------------------------------x9

10 Monday, June 18, 2012111213 Hearing held before Commissioner Roger Goodell,14 345 Park Avenue, New York, New York, commencing15 at 10:12 a.m., before Eileen Mulvenna,16 CSR/RMR/CRR, Certified Shorthand Reporter,17 Registered Merit Reporter, Certified Realtime18 Reporter and Notary Public of the State of New19 York.202122232425

Page 1

VERITEXT REPORTING COMPANY212-279-9424 www.veritext.com 212-490-3430


12 A P P E A R A N C E S:34

WINSTON & STRAWN, LLP5 Attorneys for the

200 Park Avenue6 New York, New York 10166-4192

BY: JEFFREY KESSLER, ESQ.7 [email protected]

JONATHAN AMOONA, ESQ.8 [email protected]

ANGELA A. SMEDLEY, ESQ.9 [email protected] PETER R. GINSBERG LAW, LLC

Attorneys for Jonathan Vilma12 12 East 49th Street, 30th Floor

New York, New York 1001713 BY: PETER R. GINSBERG, ESQ.

[email protected] CHRISTOPHER DEUBERT, ESQ.

[email protected] NATIONAL FOOTBALL LEAGUE

Attorneys for the NFL17 345 Park Avenue

New York, New York 1015418 BY: ADOLPHO A. BIRCH, III, ESQ.

[email protected] DEBEVOISE & PLIMPTON, LLC

Attorneys for the League21 919 Third Avenue

New York, New York 1002222 BY: MARY JOE WHITE, ESQ.

[email protected] PHIL FORTINO, ESQ.

[email protected] SEAN HECKER, ESQ.

[email protected]

Page 2



12 A P P E A R A N C E S (Continued):34 AKIN GUMP STRAUSS HAUER & FELD, LLP

Attorneys for the League5 Robert S. Strauss Building

1333 New Hampshire Avenue, N.W.6 Washington, DC 20036-1564

BY: DANIEL L. NASH, ESQ.7 [email protected] A L S O P R E S E N T:

10 JEFFREY PASH, Executive Vice President National Football League

1112 HEATHER McPHEE, Associate General

Counsel NFLPA1314 TOM DePASO, NFLPA15 WILL SMITH, Player16 JONATHAN VILMA, Player17 SCOTT FUJITA, Player18 ANTHONY HARGROVE, Player19 JEFFREY MILLER, NFL Security20 JOE HUMMEL, NFL Security2122232425

Page 3



1 - Proceedings -2 COMMISSIONER GOODELL: Thank you all3 for coming. I want to be respectful of4 your time, so we'll get started quickly5 here.6 As you know, the purpose of today's7 hearing is to hear from the players. And8 contrary to the reports and some of the9 statements, I do want to hear from the

10 players. So I respectfully hope that you11 will speak up.12 In order to make this an orderly13 process, I'm going to ask Jeff Pash, our14 general counsel, to make sure that he lays15 out the ground rules here and makes sure16 that any of the -- what I'll call17 procedural issues that may be raised he18 will resolve as we go through this.19 And as a hearing officer, I'll20 listen carefully, but I will also take the21 opportunity to ask questions because that's22 what we are here for.23 MR. PASH: Okay. Thanks,24 Commissioner.25 Good morning, everyone.

Page 4



1 - Proceedings -2 I think many of you have3 participated in hearings of this type4 before so you understand the process. And5 just to outline what we'll do this morning,6 because this is the first opportunity that7 we've had to meet with the players, we've8 asked Mary Jo White, who is at the far end9 of the table, to make a presentation and

10 review for you and your counsel the11 evidence and summarize what the evidence is12 that underlies the disciplinary decisions13 that the Commissioner handed down about six14 weeks or so ago.15 And I think many of you know who16 Mary Jo is, but just briefly, she was17 retained by our office to assist in the18 investigation, review the evidence. She's19 currently a partner and the chairman of the20 litigation department in a law firm in21 New York called Debevoise & Plimpton.22 And for about a decade, she served23 as the US Attorney for the Southern24 District of New York where she was in25 charge of that office and, before that, was

Page 5



1 - Proceedings -2 also the chief assistant and acting3 US Attorney in the Eastern District of4 New York.5 We've sent to everyone last week the6 exhibits and have provided some other7 material at earlier stages, including the8 report of the security department and the9 Commissioner's Memorandum of Decision in

10 March of this year when discipline was11 issued regarding coaches, the general12 manager, and the club, the Saints itself.13 And we've also sent, I think, some14 material that we got from Mr. Niphon.15 We'll just ask to have marked as16 Exhibit A -- I guess, Adolpho, it's this17 binder; is that correct?18 MR. KESSLER: Before we actually19 proceed, I think Peter might want to put a20 few things on the record, if that's all21 right, as a preliminary matter --22 MR. PASH: Before we proceed to any23 actual --24 MR. KESSLER: Before we do anything,25 yes. Before we go to --

Page 6



1 - Proceedings -2 MR. PASH: Okay. I'll put that3 aside for a moment, and let me just finish4 these comments.5 MR. KESSLER: Sure.6 MR. PASH: What we'll do after7 Jeffrey and Peter then make their comments8 is we'll ask Mary Jo to go through the9 evidence with you. She'll be putting

10 things up on the screen. And I'm not quite11 sure how long her presentation will be, but12 I would just ask that you let her go13 through her presentation, review the14 evidence with you, and then we'll give15 people an opportunity for opening16 statements, call witnesses, whatever you'd17 like to do at that point.18 So you wanted to --19 MR. GINSBERG: My name is Peter20 Ginsberg. I'm here on behalf of Jonathan21 Vilma.22 As two preliminary matters, we've23 already set forth in some detail, and I24 know Mr. Kessler will address after me in25 detail, the fact that, Commissioner, you do

Page 7



1 - Proceedings -2 not have jurisdiction to entertain this3 proceeding. And for all the reasons that4 we have previously set forth, Commissioner,5 we don't believe this is a proper6 proceeding.7 Second of all, Commissioner, by8 today's date, we are making a motion to9 preclude the introduction or description of

10 any of the supposed evidence that was11 provided to us under Article 46 of the CBA.12 Your office, Commissioner, was13 required to have provided us with any14 evidence or any documents that would be15 used in today's proceedings within three16 calendar days under New York law. And we17 have case law to support refutably under18 New York law three calendar days means19 72 hours.20 Today's proceeding was scheduled for21 10 a.m. We were served with these22 documents at 1:33 p.m. That's not23 72 hours. So pursuant to the CBA and24 New York law, we are making a motion to25 preclude the introduction of any evidence

Page 8



1 - Proceedings -2 or the description of any of the supposed3 evidence at today's proceedings.4 I'm handing to the Commissioner and5 Mr. Pash a letter dated June 18, 2012, an6 affirmation of Christopher Deubert in7 support of the motion to preclude.8 Commissioner Goodell, on behalf of9 Mr. Vilma, I think it's important for us to

10 address in these proceedings before we11 close the record.12 We have been willing to meet with13 you for months now if you, sir, were14 prepared to exchange fairly and thoroughly15 in a process in which we could have a16 discourse and you, Commissioner, could come17 to a better understanding of what, in fact,18 occurred with the New Orleans Saints.19 If you had presented us with a20 modicum of due process, if you had elicited21 or evidenced any willingness to share the22 evidence with us, we were more than23 prepared to exchange in a full dialog.24 Instead, Commissioner, you have deprived us25 of the most fundamental rights.

Page 9



1 - Proceedings -2 You have provided us with no3 evidence, either in a timely fashion or4 otherwise, to support any of the horrific5 accusations and allegations that you have6 made about Mr. Vilma. You have been7 unwilling to exchange in any fair dialog or8 any fair exchange.9 You have made serious allegations.

10 And in light of those allegations, in light11 of what you claim to be important to the12 NFL and in light of you, sir, your supposed13 concern for the integrity of this sport and14 in light of the consequences to Jonathan15 Vilma, both personally and professionally,16 we have, as you know, found this process17 and these proceedings to be shocking and18 shameful.19 From the very beginning, Mr. Vilma20 asked you to do two things, Commissioner21 Goodell. One was to investigate as22 thoroughly as I could what lay behind your23 supposed accusations. And the other thing24 Mr. Vilma asked you to do was to listen to25 him. Because he was prepared to tell the

Page 10



1 - Proceedings -2 whole truth about your supposed -- about3 your accusations.4 We have, in fact, engaged in a5 thorough investigation. It has been6 stymied in part, sir, because you having7 issued gag orders to people with evidence,8 former coaches, people with New Orleans9 Saints, you have made threats to keep them

10 from talking to us. You have refused to11 have them even participate in today's12 proceedings.13 But, nonetheless, Commissioner14 Goodell, we have talked to dozens of15 people, literally dozens of people16 regarding your allegations. We have spent17 months gathering information. And we have18 compared that information to your19 descriptions, your public descriptions as20 well as your descriptions that you took21 pursuant to your authority pursuant to the22 CBA, and those are two very different23 things.24 But in comparing what you have25 accused Mr. Vilma of with the information

Page 11



1 - Proceedings -2 that we have gathered, we have found the3 following, Commissioner Goodell:4 First of all, you have distorted5 publicly and in your submissions the facts.6 As just a few of the examples, let's focus7 on the Ornstein e-mails. In one of the8 Ornstein e-mails that you have previously9 described, Mr. Ornstein told you directly,

10 sir, that that e-mail was a joke and had no11 substance.12 The other e-mail, Commissioner13 Goodell, that you had included in this14 untimely package of information, as15 Mr. Ornstein told you specifically, related16 to a Gregg Williams' charity. It had17 nothing to do with the bounty program. Yet18 you have chosen to describe that e-mail as19 some sort of evidence that Mr. Ornstein was20 participating in the bounty program.21 You have still included that e-mail,22 notwithstanding Mr. Ornstein's direct23 statement to you to the contrary, as24 supposed evidence of this bounty program.25 We have already seen the way you

Page 12



1 - Proceedings -2 have distorted Anthony Hargrove's3 declaration in the media. You have taken4 words that Gregg Williams used, colorful5 words like "cart-offs" and "whacks" and6 "killed ahead," and have chosen publicly to7 distort the meaning of those words,8 notwithstanding the fact that Mr. Williams9 and others had told you that those terms in

10 no way relate to illegal hits or any bounty11 program; that you have decided, sir, to12 misrepresent what those words, in fact,13 mean.14 There is also substantial evidence15 that both Mike Cerullo and Gregg Williams16 have retracted directly and affirmatively17 and without equivocation any claims they18 have previously made about a bounty19 program. You have not disclosed to us20 those retractions. You have certainly not21 included it in any of your untimely22 evidence.23 And that, sir, is yet another piece24 of evidence of your willingness to distort25 this entire investigation.

Page 13



1 - Proceedings -2 Your office leaked to the press a3 couple weeks ago a supposed ledger which4 theoretically provided evidence of a bounty5 program. And when the media analyzed this6 supposed ledger, it became clear,7 apparently even to the NFL office, that8 since no players were identified in that9 supposed ledger, there was no tying of that

10 ledger in any way to a bounty program.11 You have chosen, after airing it out12 publicly, not even to include that ledger13 in the documents you provided in an14 untimely fashion with regard to this15 proceeding.16 Sir, we have looked at the objective17 evidence as well as looked at the Gregg18 Williams videos as well as spoken to19 people. And we have looked at the20 statistics. We have looked at game film.21 We have looked at penalties. We have22 concluded, and I think it is irrefutable,23 that there is nothing objective that can24 support what you have accused Mr. Vilma of25 having done publicly.

Page 14



1 - Proceedings -2 Commissioner Goodell, Jonathan Vilma3 has never participated in a bounty program.4 He has never put up any money designed to5 hurt an opposing player. He has never6 received any money for hurting another7 player. He has never intended to hurt8 another player. And he has never in any9 way provided any incentive for any of his

10 teammates to have hurt another player.11 Commissioner Goodell, what you have12 done is to make some horrible accusations13 about Mr. Vilma's person, about his14 integrity and about his professionalism.15 You have imposed a misplaced punishment16 and, sir, you have cast a shadow not only17 on Mr. Vilma personally and professionally,18 but, I dare say, on the NFL and on the19 office of the Commissioner in engaging in20 these proceedings.21 There's just one, and just one, just22 result in this proceeding, and that is for23 you to rescind any punishment against24 Mr. Vilma and to apologize in public for25 what you have done.

Page 15



1 - Proceedings -2 Thank you. With that, I move to3 close the record.4 MR. PASH: Mr. Kessler, do you want5 to comment?6 MR. KESSLER: Yes.7 Jeffrey Kessler appearing on behalf8 of the National Football League Players9 Association and also in particular on

10 behalf of Scott Fujita and Anthony Hargrove11 and Will Smith.12 The NFLPA and the players that I13 identified have reluctantly concluded that14 they will not participate in any15 proceedings regarding the merits at this16 hearing today. This was not an easy17 decision for them because they believe they18 have been wrongly accused with insufficient19 evidence; but, for a number of reasons,20 which I will now go through, which we would21 like on the record in formal motions, we22 don't believe it's appropriate to proceed23 with this hearing today.24 First of all, as the Commissioner25 knows, we have already filed a proceeding

Page 16



1 - Proceedings -2 contesting the Commissioner's jurisdiction3 over this discipline because we believe the4 discipline is based in this case in5 significant part on its pay-for-performance6 aspects, which we believe are within the7 exclusive jurisdiction of the System8 Arbitrator pursuant to Articles 14 and 159 of the collective bargaining agreement.

10 We have filed a notice of appeal of11 System Arbitrator Burbank's decision to the12 contrary on that point. We believe it's13 not appropriate for the Commissioner to14 proceed with any discipline in light of15 that lack of jurisdiction. It's certainly16 not appropriate to proceed with this17 hearing while that appeal is pending, as we18 believe that there is a reasonable19 likelihood that the appeal's panel will20 reverse the System Arbitrator's decision on21 that matter.22 Secondly, we also believe there is23 no jurisdiction because, to the extent that24 discipline was based on matters concerning25 unsportsmanlike conduct that was being

Page 17



1 - Proceedings -2 allegedly induced on the playing field,3 that that jurisdiction would be covered4 under Article 46, Section 1(b), not5 Section 1(a), and that means the6 appropriate hearing should be before the7 hearing officer, such as Mr. Shell, and not8 before Commissioner Goodell on either of9 these matters.

10 The bottom line is, this type of11 behavior is not within the scope that the12 NFLPA believes it agreed to to be subject13 to Commissioner review. We believe this is14 within the scope and was bargained for for15 a neutral arbitrator review, either before16 System Arbitrator Burbank or before the17 hearing officers pursuant to Article 46.18 As a result, we also are making a19 formal motion at this time for the20 Commissioner to recuse himself from these21 proceedings. And the reason for that is,22 since the union has not agreed to the23 Commissioner hearing these matters and24 because the Commissioner has publicly25 appeared on television and in other fora

Page 18



1 - Proceedings -2 defending the discipline prior to this3 arbitrable hearing, we don't believe under4 the governing law that he can serve as an5 arbitrator without the appearance of bias6 rendering the proceedings a nullity.7 To prevent that from happening, we8 would ask that the Commissioner step down,9 to the extent that these proceedings

10 continue, as the decision-maker and that a11 neutral decision-maker be appointed in his12 place.13 The next point is, apart from the14 jurisdiction and appearance for bias15 issues, we do not believe these proceedings16 have afforded the essence of the CBA17 requirements for industrial due process and18 a fair hearing.19 The reason for this is that both20 Article 46 and the player contract,21 paragraph 15 clearly provide for a right to22 a hearing with counsel present. And we23 believe the essence of that hearing24 contains certain matters that are being25 denied to the players here.

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1 - Proceedings -2 In particular, we're not being given3 the opportunity to confront and4 cross-examine the actual witnesses who have5 evidence on this. We understand that we're6 going to hear from security people who7 interviewed others, or we might be hearing8 a presentation from counsel, outside9 counsel for the NFL, we learned, but we're

10 not going to have a right to confront the11 witnesses, the coaches, who we've asked12 for, and we're not being given the right to13 look at all of the evidence that was14 reviewed by even the security officials in15 preparing the report, and we're not being16 given the right to be given access to what17 might be exculpatory evidence regarding18 this.19 We have asked in prior20 correspondence for the following:21 On June 11, we sent a letter asking22 for the following witnesses to be present:23 Sean Payton, Gregg Williams, Joe Vitt,24 Mickey Loomis, Blake Williams, Michael25 Cerullo, Joe Hummel and Jeff Miller.

Page 20



1 - Proceedings -2 I believe out of that group, the3 only one I -- the only two I understood are4 here today are Mr. Hummel and Mr. Miller.5 I believe that's correct. And they only6 would have hearsay knowledge based on their7 investigations, as they obviously are not8 participants in any of the alleged events.9 The failure to produce the other

10 coaches, who we believe, under the11 direction of the NFL, could be compelled to12 be here, we believe denies the players the13 right to confront anything other than14 hearsay evidence without any opportunity to15 cross-examine the people who could actually16 respond to cross-examination, since17 Mr. Hummel and Mr. Miller would not be18 capable of responding other than reporting19 on whatever hearsay they have gathered from20 others.21 Second, in that same letter, we22 asked for copies of all evidence that is23 relevant. 18,000 documents have been24 identified by the NFL in their security25 report. We've been given less than 200.

Page 21



1 - Proceedings -2 We assume that much of that evidence may be3 helpful to the players, yet we have not4 been given access to any of it.5 We have no idea how much of that was6 given to Commissioner Goodell in making his7 initial disciplinary record about this. He8 was certainly given the security report,9 which purports to be based on those 18,000

10 documents. We believe we're entitled to11 get access to that.12 We also believe we're entitled to13 any exculpatory information that might be14 there. In that regard, in a letter dated15 June 14, 2012, the NFLPA asked for16 materials provided from Mr. Duke Niphon,17 who was interviewed by the NFL in18 connection with this matter.19 We understand Mr. Niphon has20 provided exculpatory information, and we do21 not believe all that information, at least22 according to Mr. Niphon, that was given to23 the NFL has been turned over to us despite24 our request.25 We have also asked in that same

Page 22



1 - Proceedings -2 letter for the notes from the witness3 interviews that were done. We have a few4 transcribed notes. We don't know how those5 were selected, but certainly not all the6 notes that were done. And we don't know7 who made those notes, so we don't8 understand that. But we have no way of9 doing this.

10 We also assume all the coaches had11 notes taken of their interviews. To the12 extent they were done, none of those have13 been produced despite our request. We14 don't know if there was a transcript of a15 hearing, of an appeal hearing that the16 coaches went to, Mr. Payton and others.17 That has not been produced to us.18 Basically, other than the less than19 200 documents, we have not received20 anything else from the NFL that decides on21 that.22 We join in the motion filed by23 Mr. Vilma regarding the failure to produce,24 but the little that was produced, within25 72 hours, and note that we asked for an

Page 23



1 - Proceedings -2 adjournment of this hearing for a scant3 three days and were denied that request as4 well despite the fact that the documents5 were provided late.6 We also would note that to the7 extent that counsel for the NFL is going to8 make some presentation based on evidence9 that we've not been given, we will move to

10 preclude that presentation because, under11 the CBA, that should be provided as well.12 Finally, I would note that despite13 the fact that the NFL reports recognize14 that the actions here were a result of a15 program that was -- alleged program that16 was designed by Coach Williams, was17 directed by Coach Williams, was known to18 the senior executives of the team and was19 at best condoned, if not actually promoted,20 by those senior executives, that the idea21 of imposing any discipline on employees who22 simply followed what their supervisors23 directed them to do is also contrary to24 established legal principles, and that we25 don't see any recognition of that in terms

Page 24



1 - Proceedings -2 of the discipline that's been imposed.3 In that regard, I would refer the4 NFL to Elkouri & Elkouri, How Arbitration5 Works, and in particular to look at6 pages 1,000 to 1,001 and some of the case7 law that is cited in Elkouri, and what you8 will find is that even when there is only9 prior tolerance or prior knowledge or prior

10 approval or failure to supervise, it is11 routinely decided that employees should not12 bear the disciplinary responsibility.13 Because if their employer is14 directing them to do something, it ill15 behooves the employer to punish them for16 what someone else has done. And in your17 report on the team and the managers, you18 already found that this was designed and19 directed there.20 So we believe that for that reason21 as well, the discipline is legally22 defective.23 For all those reasons, it is our24 reluctant conclusion that in order to25 preserve all of our rights and our ability

Page 25



1 - Proceedings -2 to challenge this and also in order --3 because we don't believe this proceeding4 should proceed fairly, that we will not be5 able to participate in the merits portion6 of the hearing, which is why we wanted to7 make these comments at the very outset.8 So I thank you for taking this time.9 I apologize for the length it took to go

10 through this, but I did feel the need to11 make this record at the outset.12 So thank you very much.13 Now, I guess you should proceed as14 you intended to.15 MR. PASH: Do either Adolpho or Dan16 Nash, either one of you want to make any17 comment in response to what either18 Mr. Ginsberg or Mr. Kessler have said?19 MR. NASH: I have a question. I20 guess the question would be, when you say21 you're not participating in the merits,22 does that mean you're going to leave?23 MR. KESSLER: We'll sit here, but24 we're not going to participate in any way.25 We won't ask any questions. We're not

Page 26



1 - Proceedings -2 going to do any cross-examination. We're3 not going to present any evidence or4 witnesses of our own.5 We're doing what we believe is6 consistent with preserving all of our7 jurisdictional and procedural things8 without accepting the validity of9 participating in the merits process.

10 MR. GINSBERG: Mr. Kessler speaks11 for me as well.12 MR. BIRCH: Let me address one13 technical point.14 Subsequent to sending over the15 Niphon information, we were able to find16 that he had submitted a declaration through17 one of the coaches at the hearing. And18 that declaration, we have it, we're happy19 to give you copies, it actually included20 the material that was -- that was sent, but21 I sent over two pages and summarized that22 same point.23 So we found that -- because it was24 not part of anything that security did, it25 was ultimately found through the appeal of

Page 27



1 - Proceedings -2 Coach Vitt, so the fact is that it is3 succinct.4 MR. KESSLER: Thank you. We5 appreciate that. We'll take whatever you6 want to give us.7 MR. BIRCH: (Handing documents to8 Mr. Kessler.)9 MR. PASH: Did you have anything

10 else?11 MR. BIRCH: With respect to the12 question regarding whether Article 46 1(a)13 or (b) applies, I believe that matter was14 resolved and the Commissioner was15 determined to have authority to hear the16 appeals on this case under Article 46.17 I believe that's all I have I would18 say as to direct response.19 MR. PASH: I think what we'll do20 now, in deference to the concern that21 Mr. Ginsberg raised and was echoed by22 Mr. Kessler, is we'll adjourn the hearing,23 and we will reconvene at 1:45 p.m.24 MR. GINSBERG: Mr. Pash, I can't do25 it at 1:45 today. We're scheduled for

Page 28



1 - Proceedings -2 today at 10 o'clock.3 MR. PASH: Well, you can preserve4 your objection to the delivery of the5 documents, and we'll meet it and make sure6 you have the full 72 hours that you have7 said you're entitled to. We'll respect8 your position. We're trying to meet it.9 If you want to waive your objection

10 to the delivery of the documents at11 1:33 p.m., we'll proceed now. We're trying12 to satisfy and trying to address your13 position.14 MR. GINSBERG: Mr. Pash, you had a15 legal obligation to have produced these16 documents by 10 a.m. on Friday morning.17 You, sir, have abrogated that18 responsibility. We're not prepared to19 adjourn these proceedings.20 This is the time scheduled. You had21 a legal obligation to satisfy what the NFL22 was legally obligated to satisfy. No23 documents, no evidence was produced in a24 timely fashion.25 MR. PASH: Mr. Ginsberg --

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1 - Proceedings -2 MR. BIRCH: There is one other point3 I wanted to raise, was that, while you --4 while Mr. Ginsberg has suggested that5 New York law applies as to the calculation6 of the time period, we operate under the7 collective bargaining agreement.8 Under that agreement, there's9 absolutely no basis to suggest even that

10 the provision of those documents at 1:45 on11 the date specified and indeed on the date12 that the Players Association requested13 those documents is in any way -- there's14 not a single case precedent or appeal that15 would even remotely suggest that that is a16 requirement that we face.17 MR. PASH: And, again, we're18 prepared to adjourn the hearing until 1:4519 to ensure that, even if the position that's20 been articulated is legally appropriate,21 that there's a full 72 hours.22 If you're saying that you're23 unavailable and you would like us to24 proceed with the appeal now, we'll do so;25 but I want to make it clear that we're

Page 30



1 - Proceedings -2 prepared to adjourn until that time to make3 sure that the full 72 hours that you have4 said is required would be available.5 MR. GINSBERG: Mr. Pash, I think my6 position is clear. Anything that was not7 produced by 10 a.m. Friday cannot be used8 in this hearing, nor can there be any9 description or illusion to anything that

10 was not produced within the 72 hours.11 (Discussion held off the record.)12 MR. PASH: We'll go back on the13 record.14 With respect to the pending motion15 that has been offered on behalf of16 Mr. Vilma, that motion will be denied17 because his collective bargaining agreement18 has never imposed a strict 72-hour rule.19 It's operated along these lines for quite20 some time, and that there are no decisions21 of arbitrators or other hearing officers22 that would impose that requirement.23 However, as an accommodation, we24 will adjourn the hearing until 1:45 p.m.25 and resume at that time. That will satisfy

Page 31



1 - Proceedings -2 the 72-hour requirement if, in fact, it3 exists.4 And I would simply note that we said5 there would be a beginning at 10 o'clock,6 but we didn't say anything about finishing7 at noon or one or two or any other8 particular time. And we had set aside9 considerable time today in order to have

10 this hearing and allow all four players an11 opportunity to make their points to the12 Commissioner.13 We didn't know if you were going to14 be bringing in witnesses. We didn't know15 what evidence you might be bringing in. So16 we had set aside a considerable amount of17 time to allow for the hearing today.18 And we're going to go ahead and19 adjourn till 1:45, and we will resume the20 hearing at that point, with Mrs. White's21 summary of the evidence.22 MR. GINSBERG: Mr. Pash, our23 position regarding the legality of the24 appropriateness of the adjournment I25 believe is clear.

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1 - Proceedings -2 Just as a point of observation, my3 understanding, Mr. Pash, is that you are4 here, sir, as an adviser to the5 Commissioner. The idea that we had6 adjournment to discuss the procedural7 infirmity in the proceedings and then, as8 the Commissioner's adviser, to then confer9 with the witnesses who are being presented,

10 I respectfully submit that that presents11 additional evidence of the bias in these12 proceedings that Mr. Kessler and I did13 address.14 The Commissioner, you purportedly15 are here as neutral arbitrators. And I16 think that is procedurally inappropriate.17 So I'd like the record also to18 reflect that that's how this matter was19 resolved, by you conferring with the20 witnesses who you're representing for this21 to present evidence in the proceeding.22 MR. PASH: Well, I conferred with23 people who have been identified and I24 believe your co-counsel referred to as our25 outside counsel. So I don't think there's

Page 33



1 - Proceedings -2 anything inappropriate in that at all; but3 this will not be the first thing that you4 and I disagree on, Mr. Ginsberg.5 Okay. So we're adjourned until6 1:45.7 (Hearing adjourned at 10:53 a.m.)89

10111213141516171819202122232425

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1 - Proceedings -2 A F T E R N O O N S E S S I O N3 (1:25 p.m.)4 MR. PASH: Okay. We'll resume.5 And for the record, everyone who was6 here for the morning session is still here,7 other than I think Mr. Ginsberg and8 Mr. Vilma. I think everyone else who was9 here in the morning is still here.

10 MR. KESSLER: I think that's11 correct. And I guess, Jeff, we'd like, for12 the record, to rule one way or the other on13 the request of the recusal before14 proceeding.15 MR. PASH: Actually --16 MR. BIRCH: Actually, before that,17 it does look like some people from18 Mr. Ginsberg's office are still here.19 MR. DEUBERT: Correct.20 MR. BIRCH: In what capacity are you21 still here?22 MR. DEUBERT: We're here simply to23 observe.24 MR. PASH: I think with respect to25 the pending motion, that we're going to

Page 35



1 - Proceedings -2 take those motions under submission and3 make a ruling on them at a later time.4 MR. KESSLER: If you want any5 briefing on the recusal issue, let us know.6 So we can submit something at your7 discretion or whatever you require, we'll8 give you.9 MR. PASH: Okay. Before we begin, I

10 just confirm that positions are where they11 were.12 Is there anything that, Mr. Kessler,13 you would like to say on behalf of the14 players your office is representing or15 Mr. Ginsberg's office would like to say on16 behalf of Mr. Vilma at this time, or are17 you adhering to the points you articulated18 prior to the adjournment?19 MR. KESSLER: We are adhering to the20 points we articulated -- I assume for the21 League players and the union that I22 represent, we are adhering to the points23 that we articulated beforehand.24 And going forward, we will listen to25 whatever the League is going to present,

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1 - Proceedings -2 but we do not intend to participate at all3 in the merits. If there are other4 procedural objections we have, we'll raise5 them while we're here; but otherwise, that6 would be the only point I will make.7 I guess I would ask, just for our8 own purposes, to know what the League9 intends to present today. We understand

10 this will be a presentation by your outside11 counsel. I don't know if you intend to put12 on any witnesses or what your day is like,13 just so we know.14 MR. PASH: I think we're going to go15 ahead and give that presentation, but I16 don't believe that any live testimony is17 going to be had.18 MR. KESSLER: Okay. Good.19 MR. PASH: And then I appreciate, as20 you said, you're just here observing, but21 on behalf of Mr. Vilma, is there anything22 that you would like to put on the record?23 MR. DEUBERT: We believe the record24 for Mr. Vilma is closed. And as25 Mr. Kessler said, we will not participate

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1 - Proceedings -2 in any of the merits.3 MR. PASH: Then as we said earlier,4 we're going to ask Mary Jo White to give5 you a presentation reviewing the evidence6 that underlies the disciplinary decision7 that the Commissioner made.8 And so I will turn the floor over to9 Mary Jo at this time.

10 MS. WHITE: Thanks, Jeff.11 Let me just say at the outset that12 the League has previously disclosed all of13 the exhibits that we're going to be14 referencing in this summary that I give15 today, just so you're aware of that at the16 outset.17 I think we probably should begin,18 for record purposes -- I don't think we got19 to that this morning -- and ask the20 reporter to mark as NFL Exhibit A a21 collection containing the exhibits provided22 previously to the players and their23 representatives.24 The individual exhibits within this25 NFL Exhibit A are marked 1 through 16 to

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1 - Proceedings -2 correspond to what you were given3 previously.4 (NFL Exhibit A, Binder of Exhibits 15 through 16, marked for identification.)6 MS. WHITE: We're also going to ask7 that the correspondence binder be marked as8 Exhibit B, and those individual items are9 numbered 1 through 13. And we have copies

10 which we'll distribute to everybody now.11 (NFL Exhibit B, Binder of12 Correspondence Exhibits 1 through 13,13 marked for identification.)14 MS. WHITE: Sitting to my right is15 Jeffrey Miller, the League's vice president16 and chief security officer. What he and17 I -- and Jeff, I should say, really18 supervised the NFL's investigation and19 conducted large parts of it. And what he20 and I will be doing today in part is21 putting the evidence, in those exhibits22 you've been provided with, in context, with23 descriptions of firsthand accounts provided24 to NFL investigators by eyewitnesses to the25 conduct that is the basis for the

Page 39



1 - Proceedings -2 sanctions.3 And as just an aid to really follow4 this summary, we're going to be projecting5 some slides on the screen that will track6 our summary.7 So I guess with that, Jeff, I would8 just ask you to give us an overview of the9 NFL security's investigation into this

10 matter.11 MR. MILLER: Thanks, Mary Jo.12 Our investigation began in early13 2010 when Vikings head coach, Brad14 Childress, reported on January 26, 2010,15 that one of his players had told him the16 previous day that the Saints defense placed17 a $10,000 bounty on Vikings quarterback18 Brett Favre during the 2009 NFC19 championship game played on January 24,20 2010, and on Kurt Warner during the21 preceding week's divisional playoff game on22 January 16, 2010.23 The NFL immediately launched an24 investigation interviewing several persons25 believed to have knowledge, including

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1 - Proceedings -2 former Saints player Anthony Hargrove,3 former defensive coordinator Gregg4 Williams, and assistant head coach Joe5 Vitt.6 At that time, all denied knowledge7 of an alleged bounty on Brett Favre or any8 bounty on any other player or any9 pay-for-performance/bounty program, and the

10 investigation was discontinued due to a11 lack of evidence.12 Subsequently, in November 2011, a13 knowledgable source provided us with a14 firsthand account of a15 pay-for-performance/bounty program operated16 by the New Orleans Saints defense. He also17 provided the League with corroborating18 evidence and documents.19 In the course of our investigation,20 we spoke to a number of witnesses who gave21 accounts that confirmed that the New22 Orleans Saints defense operated a23 pay-for-performance/bounty program.24 These witnesses included former25 defensive coordinator Gregg Williams;

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1 - Proceedings -2 assistant head coach Joe Vitt; Michael3 Ornstein, a nonplayer who's often present4 in the Saints facility and locker room and5 participated in some of the relevant6 conduct.7 They also included other sources8 associated with the New Orleans Saints with9 firsthand knowledge. All of these

10 witnesses voluntarily cooperated with the11 investigation and, given their positions12 with and/or relationships to the team, each13 had firsthand knowledge of the events about14 which they provided information.15 MS. WHITE: Let me interject for a16 second here.17 In order to safeguard their18 identities, some sources will not be19 referred to today by name, but generally20 will be identified by their function and/or21 their relationship to the New Orleans22 Saints.23 MR. MILLER: In addition to speaking24 to these witnesses, we also, with the25 consent of the New Orleans Saints,

Page 42



1 - Proceedings -2 retrieved numerous relevant documents from3 the New Orleans Saints' computer system.4 These documents, some of which we will5 review today, provide evidence consistent6 with and corroborate the statements made by7 the witnesses.8 MS. WHITE: These again are exhibits9 you've been previously provided, and they

10 are now part of NFL Exhibit A.11 MR. MILLER: In connection with the12 investigation, we retained an outside13 computer forensic firm to analyze the14 electronic documents we collected from the15 Saints' computer system, as well as certain16 other electronic documents provided to us.17 With respect to each of the18 electronic documents used today and19 previously relied upon by the Commissioner,20 the forensic firm verified that the21 documents were, in fact, created22 contemporaneously using the New Orleans23 Saints' computer system.24 Based on the witness' demeanor, the25 level of detail of their accounts, and the

Page 43



1 - Proceedings -2 consistency of the witness accounts with3 each other and with the contemporaneous4 documents, we were able to reach factual5 conclusions in which we have a high degree6 of confidence.7 MS. WHITE: Mr. Miller, can you tell8 us very briefly what your own background is9 and give us some indication of how many

10 witness interviews you've conducted.11 MR. MILLER: Prior to coming to the12 NFL, I served in law enforcement with the13 Pennsylvania State Police from 1984 through14 2008. During those years, I held every15 rank in the department, including serving16 as commissioner from 2003 through 2008.17 Over the course of my career, I18 conducted hundreds, if not thousands, of19 witness interviews related to criminal20 offenses, such as narcotics offenses,21 crimes against persons, death22 investigations and internal affairs23 matters, to name a few.24 MS. WHITE: Thank you.25 Before getting into the details of

Page 44



1 - Proceedings -2 the evidence, I'd just like to summarize up3 front the key factual findings of the NFL's4 investigation. And the slide that's on the5 board now summarizes the major conclusions6 of the NFL's investigation. And for the7 record, let me just read it.8 The New Orleans Saints defense9 established a pay-for-performance/bounty

10 program. Coaches and players, including11 Jonathan Vilma, Anthony Hargrove, Will12 Smith and Scott Fujita, participated in13 that program. The program was active for14 2009, 2010 and 2011, those NFL seasons.15 The program included offering significant16 financial rewards to players for hits17 risking injury and hits resulting in18 injuries.19 Witness statements evidence that20 during the 2009 playoffs, significant21 financial bounties were specifically22 offered on opposing quarterbacks Kurt23 Warner and Brett Favre. Contemporaneous24 documentation, which we'll get into,25 corroborates the bounty on Brett Favre.

Page 45



1 - Proceedings -2 During a 2010 NFL investigation, the3 interviewed New Orleans Saints personnel4 falsely denied knowledge of any bounty or5 pay-for-performance/bounty program.6 As was mentioned I think by Mr. Pash7 earlier, I was asked to review the evidence8 and findings of the NFL's investigation. As9 an initial matter, prior to the

10 Commissioner's decision, I found that there11 was overwhelming evidence that members of12 the Saints defense participated in a13 pay-for-performance/bounty program during14 2009, 2010 and the 2011 NFL seasons.15 Additionally, consistent evidence16 has also emerged since the Commissioner17 issued his decisions. As recently as about18 a week ago, for example, admissions by New19 Orleans Saints linebacker Scott Shanle that20 the program existed were published in the21 New Orleans Times-Picayune. A copy of that22 article was produced to you previously as23 Exhibit 16.24 It's clear, from contemporaneous25 documents and evidence reviewed by NFL

Page 46



1 - Proceedings -2 investigators, including, for example, the3 evidence in Exhibits 5 and 6 previously4 produced to you, that Mr. Shanle was also a5 participant in the6 pay-for-performance/bounty program.7 During the investigation, multiple8 independent sources with firsthand9 knowledge, including Mr. Williams, provided

10 NFL investigators with a description of how11 the program worked. And documents obtained12 in the NFL's investigation corroborated13 those accounts.14 Gregg Williams acknowledged to NFL15 investigators that when he came to the New16 Orleans Saints in 2009, he decided to17 implement a pay-for-performance/bounty18 program for members of the defensive unit.19 He also acknowledged that the20 program was run for the 2009, 2010 and 201121 seasons.22 He further acknowledged that the New23 Orleans Saints' pay-for-performance/bounty24 program in and of itself constituted a25 non-player-specific bounty program in that

Page 47



1 - Proceedings -2 the Saints players were rewarded monetarily3 for on-field hits that resulted in an4 opposing player being knocked out of the5 game because of an injury.6 He also stated that the program7 violated NFL policies and that he was8 rolling the dice with players' safety and9 that someone could have been maimed.

10 Mr. Vitt also acknowledged the11 existence of the program in an interview12 with NFL investigators, stating that13 Mr. Williams introduced the program during14 a team meeting in 2009.15 According to Mr. Vitt, Mr. Williams16 told the defensive players that the program17 would reward on-field performance,18 including big hits such as whacks,19 cart-offs and knockouts. This description20 is consistent with that given by21 Mr. Williams to the NFL investigators.22 Mr. Miller, let me turn to you for a23 second for a question.24 Did Coach Williams talk about the25 role of any particular players in helping

Page 48



1 - Proceedings -2 him establish the program we've been3 talking about?4 MR. MILLER: Coach Williams said5 that before he brought the program to the6 entire defense, he first brought in his7 cocaptains on defense, Will Smith and8 Jonathan Vilma, and he ran his idea for the9 program past them first.

10 MS. WHITE: According to Gregg11 Williams, the New Orleans Saints'12 pay-for-performance/bounty program was a13 voluntary program, meaning that players14 could opt not to participate in it.15 Mr. Vitt said the same to NFL16 investigators.17 Mr. Williams further explained that18 the program was initially funded by pledges19 from himself, Jonathan Vilma, Will Smith,20 certain other players and Mike Ornstein, an21 individual with close ties to the New22 Orleans Saints organization who was given23 access to team meetings.24 The seeding funds were put into a25 kitty, which was further funded by dues

Page 49



1 - Proceedings -2 paid by participating players in the amount3 of a hundred dollars per game.4 Mr. Williams also informed NFL5 investigators that he, Mr. Vilma and6 Mr. Smith each put a thousand dollars into7 the pay-for-performance/bounty kitty at the8 beginning of the 2010 and 2011 seasons.9 In addition to the seed money and

10 dues, fines were assessed on participating11 players for poor game performance and were12 deposited into the kitty. For example,13 players were fined if they missed an14 opportunity for a big play, MOBP. You'll15 see that referenced in some of the exhibits16 you've already seen and that we'll be17 talking about today. Also fined for18 committing a mental error, referred to as19 ME, or showing a lack of hustle on the20 field, referred to as LOHF [ph.]21 Payouts which were to be increased22 during the playoffs could be earned for a23 variety of different kind of plays,24 including potentially injury-risking or25 injury-causing plays.

Page 50



1 - Proceedings -2 Gregg Williams assigned monetary3 values to certain plays on the field. This4 slide that you see on the screen summarizes5 the basic structure of the program,6 including the inflows of funds into the7 program and the outflows.8 As you can see, players earned9 payouts from the pay-for-performance/bounty

10 fund based on the program's terms. For11 example, players could obtain payments of12 $200 for a fumble recovery, which you see13 on the slide. The program also rewarded14 players for other plays that posed a risk15 of injury to opposing players or actually16 injured them.17 For example, players could be18 rewarded with a thousand dollars for a19 cart-off, we talked about that before;20 $1500 for a knockout; or $200 for a whack21 or smack, which were understood to be22 particularly explosive hits.23 Coach Williams and other witnesses24 also recalled that payout amounts were to25 be increased during the playoffs. For

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1 - Proceedings -2 example, Mr. Williams recalled that3 cart-offs were valued at $2,000 during4 playoff games.5 As mentioned, the program rewarded6 players for potentially injury-risking7 plays such as explosive hits called smacks8 or whacks. The program also provided for9 rewards for injury-producing plays such as

10 cart-offs, hits that resulted in a player11 temporarily leaving the game because of an12 injury; and for knockouts, hits that13 resulted in a player leaving the game for14 the duration of the game because of an15 injury.16 Numerous contemporaneous documents17 corroborate these facts, and I thought I18 would now just go through some of those19 examples.20 This slide, which is Exhibit 121 previously produced to the players and22 their representatives, depicts23 contemporaneous handwritten notes taken for24 the 2009 season by a member of the New25 Orleans Saints defensive coaching staff

Page 52



1 - Proceedings -2 indicating the amount of seed money that3 certain players, including Mr. Vilma and4 Mr. Smith, agreed to pay into the kitty.5 And as you'll see on the slide,6 $2,000 for Mr. Vilma; 1500 for Mr. Smith;7 and at the bottom before the total 5,0008 for Mr. Ornstein.9 It also reflects a pledge in the

10 right -- upper right-hand corner by11 Mr. Fujita to pay $500 to members of the12 defensive line, that's the "DL" on the13 slide, for sacks and forced fumbles.14 That's the "FF" there.15 A question has been raised I think16 in some of the correspondence that was17 exchanged on Friday as to whether the NFL18 is in possession of handwritten versions of19 these notes and others provided to you in20 typed form. The answer is yes. They have21 been produced in typed form, again to22 safeguard the identities of sources.23 Part of the documentary evidence24 collected by NFL investigators was this25 e-mail on the next slide, which is on the

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1 - Proceedings -2 screen, dated October 12, 2009, from Mike3 Ornstein to Gregg Williams. And this is4 excerpted from Exhibit 2 previously5 provided. It corroborates the amount of6 seed money Mr. Ornstein agreed to7 contribute to the pool for the 2009 season.8 The e-mail, which is recovered from9 the Saints' computer system, indicates that

10 Mr. Ornstein had paid $1500 to11 Mr. Williams, with 3500 total still owed.12 The pledged amount total -- the13 pledged amounts total $5,000, exactly the14 amount of the handwritten -- that the15 handwritten notes indicate he pledged as16 seed money for the17 pay-for-performance/bounty kitty. And18 that's reflected on Slide 7, which we've19 just gone back to for a second.20 The next document, which is part of21 Exhibit 3 previously provided to you, was22 also recovered from the Saints' computer23 system. It's a PowerPoint slide dated24 November 12, 2009. As you see, it is a25 slide on green background with dollar signs

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1 - Proceedings -2 also in the background. That is how each3 of the slides like this were recovered from4 the New Orleans Saints' computer system.5 Witnesses, including Mr. Williams6 and another source from the New Orleans7 Saints defensive coaching staff, have said8 that PowerPoint slides such as this were9 shown during defensive squad meetings each

10 week.11 November 12, 2009, just for some12 context, was a few days after the Saints'13 30 to 20 win over the Carolina Panthers on14 November 8, 2009, and prior to the team's15 Week 10 game against the St. Louis Rams on16 November 15, 2009.17 You'll see the reference at the18 bottom of the slide, "We need Rams dues by19 Friday."20 The slide shows both game fees that21 were assessed against two players based on22 errors in the game against the Panthers and23 remind certain players of the weekly dues,24 the hundred dollars per game, they still25 owed to the kitty for past games.

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1 - Proceedings -2 The New York Giants, Miami and3 Atlanta games, which are also you can see4 referenced on this slide, already had been5 played in the three weeks prior to the6 Carolina game.7 Next is another of these PowerPoint8 slides recovered from the Saints' computer9 system. This one is included in Exhibit 4

10 previously provided to you. The electronic11 file is dated October 29, 2009, a few days12 after the Saints play the Miami Dolphins on13 October 25, 2009, and a few weeks before14 the Week 8 game against the Atlanta15 Falcons.16 It shows fees assessed against17 particular players for the Miami game, as18 well as for two prior games against the New19 York Jets and New York Giants. You can see20 that the fines were assessed for penalties,21 mental errors, that's that "ME"; missed22 opportunities for big plays, that's "MOBP";23 and LOHFs, which is again entirely24 consistent with the witness' statements25 about how the program worked.

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1 - Proceedings -2 You see, for example, on this3 particular slide that Mr. Smith is shown to4 owe $400 from the New York Giants and New5 York Jets games and that Mr. Hargrove was6 assessed $400 for two LOHFs and a mental7 error in the Miami game.8 This next slide shows additional9 evidence recovered again from the Saints'

10 computer system. It's an excerpt from11 Exhibit 5 previously produced to you. It12 is a ledger relating to a game against the13 New York Giants, which was played on14 October 18, 2009. That's Week 6 of the15 season.16 The forensic review showed that the17 document itself was last modified on18 October 20, 2009. The notes indicate that19 one player, Roman Harper, you see that in20 Item 1, was to receive a thousand dollars21 for a cart-off. And, again, that's a play22 resulting in an opposing player leaving the23 field due to injury and missing at least24 one play.25 The game film for that game reflects

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1 - Proceedings -2 that New York Giants running back Raymond3 Jacobs was tackled by Harper in the second4 quarter and left the field with a shoulder5 injury.6 The ledger also shows, in Item 2,7 that Mr. Vilma was credited with $200 for a8 whack, an explosive hit, although he also,9 as the ledger shows, owed more money than

10 that to the kitty for mental errors and a11 penalty.12 Item 7 on this ledger shows that13 Mr. Smith was assessed a $200 fee for a14 mental error in that game.15 The next slide shows a portion of a16 similar electronic document provided by a17 member of the New Orleans Saints coaching18 staff and previously produced to you in19 full, this is an excerpt, as Exhibit 6,20 again which is a ledger of fees assessed21 and payouts owed for the Week 7 October 25,22 2009, game against the Miami Dolphins.23 The forensics review showed that24 this document was created on the Saints'25 computer system and last modified on

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1 - Proceedings -2 October 31, 2009.3 The notes show that four members of4 the defensive team were to receive payouts,5 in part for one or more whacks. If you6 look at Item 7 on this document, you see7 that Jonathan Vilma was one such player8 credited with two whacks, $200 each. After9 deducting $200 for a mental error, this

10 document shows that Mr. Vilma was owed a11 $200 payout.12 Also in Item 3, this document shows13 money owed to and fees owed by Mr. Hargrove14 in the pay-for-performance/bounty program.15 At least three witnesses interviewed16 by NFL security, all from the New Orleans17 Saints defensive coaching staff and18 including Coach Williams, stated that they19 personally participated in the process of20 paying players owed rewards under the21 pay-for-performance/bounty program after22 each game that the Saints won in the 2009,23 2010 or 2011 seasons.24 All said that the monies in the25 kitty were kept in a locked cash box

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1 - Proceedings -2 secured in Mr. Williams' office.3 Mr. Vitt also told NFL investigators4 that he saw Mr. Williams with envelopes he,5 that is to say Mr. Vitt, assumed contained6 payout cash from the program.7 One of the witnesses described how8 the process worked after Saints wins.9 Mr. Williams would announce the recipients

10 of the cash at a defensive team meeting11 prior to the game after the one in which12 the payout was earned.13 A staffer or assistant to14 Mr. Williams would then hand out the cash15 payments to the recipients in envelopes16 addressed to them.17 The next slide actually pictures one18 example, it's on the screen now, of the19 payment envelope where the handwritten20 notations again have been typed, as I21 explained before.22 So this is Exhibit 7, previously23 produced to you, which shows a payment24 envelope for a $200 payment to Mr. Vilma.25 The amount -- the net amount he was owed

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1 - Proceedings -2 for two whacks plus $200 after accounting3 for one mental error and minus $200 for the4 Miami game.5 This envelope appears to contain6 Mr. Vilma's payout for the Miami game. As7 you can see, the amounts written on the8 envelope correspond with the previous9 document we just reviewed on the previous

10 slide --11 Will you go back to that for a12 second.13 -- in Item 7, as you'll see it.14 Back to the next slide.15 And as noted on the envelope at the16 bottom, Mr. Vilma evidently returned this17 particular payment to the pool.18 Again, I should note here that the19 NFL investigators are in possession of the20 original of this envelope that's been typed21 and shown on the screen at the moment.22 As we've said previously, the League23 first investigated the bounty allegations24 in early 2010. Documents and a number of25 witnesses indicate that notwithstanding an

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1 - Proceedings -2 awareness of the League's investigation,3 the Saints' pay-for-performance/bounty4 program continued beyond the 2009 system --5 season, sorry, and was operated in the 20106 and 2011 NFL seasons.7 Multiple witnesses with firsthand8 knowledge, including Mr. Williams and9 another member of the defensive coaching

10 staff, acknowledged to NFL investigators11 that the program continued in the 2010 and12 2011 seasons.13 One of these sources informed NFL14 investigators that payments were made from15 the kitty after every Saints win, including16 payments for injury-producing plays like17 cart-offs. The source also stated that18 Mr. Williams insisted that all discussions19 about the administration of the program20 remain secret and records relating to21 particular games were destroyed immediately22 after the game.23 Mr. Williams acknowledged that he24 assumed all records were discarded after25 each game.

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1 - Proceedings -2 The League interviewed a witness3 named Duke Niphon, who credibly claimed to4 be present at some Saints team meetings5 during the 2011 NFL season, a claim that he6 substantiated by showing photos to League7 investigators via the Internet.8 In March 2012, Mr. Niphon reached9 out to the NFL. He described himself as a

10 trained respiratory therapist and a person11 also expert in sleep disorders, who is the12 CEO/president of the Sleep Point Company13 located in Kansas.14 He explained that he was a friend of15 Gregg Williams and was asked to speak to16 the team during training camp for the 201117 season. Thereafter, he said he attended18 many of the games in the 2011 season and19 was given free access to the Saints players20 for purposes of understanding the demands21 and stress placed on NFL players and22 coaches.23 Mr. Niphon told League investigators24 that although he was present at locker room25 meetings during the 2011 NFL season, he

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1 - Proceedings -2 never saw evidence of players receiving3 payments for injury-producing plays.4 Mr. Niphon said that he was not5 present at any meetings during either the6 2009 or the 2010 season and he acknowledged7 that he was not present at all defensive8 meetings during the 2011 season.9 In addition, he acknowledged to NFL

10 investigators having personally seen on11 occasion envelopes in the Saints locker12 room at some of the defense meetings he did13 attend, which he assumed contained cash,14 although he did not know that or what the15 cash was for or what the basis -- his basis16 was for believing that there was cash in17 the envelopes that he saw.18 The envelopes he saw he said were19 not distributed in his presence. His20 account of his recollections of what he21 witnessed in the 2011 season was not22 considered by NFL investigators to23 contradict the clear recollections of those24 who actually participated in the program.25 This electronic document from

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1 - Proceedings -2 Exhibit 8 previously produced to you lists3 several players who had contributed money4 into the program kitty near the start of5 the 2011 season, including Mr. Vilma. And6 it is consistent again with the witness7 accounts that the NFL investigators8 received.9 The fact that the

10 pay-for-performance/bounty program11 continued into the 2011 season is further12 evidenced by public statements made by13 filmmaker Sean Pamphilon after the14 Commissioner's decision on May 2, 2012.15 On May 31, 2012, Mr. Pamphilon16 posted an essay on his blog entitled, "When17 You Kill the Head, the Body Doesn't Die."18 A copy of this essay was previously19 provided as Exhibit 15. In that essay,20 Mr. Pamphilon reports that he was present21 at a meeting of the New Orleans Saints22 defense on January 13, 2012, the night23 before their 2011 season playoff game24 against the San Francisco 49ers on25 January 14, 2012.

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1 - Proceedings -2 During the meeting, Mr. Pamphilon3 wrote, this is a quote, "Gregg Williams4 began passing out envelopes for bonuses.5 At least one seemed to be for a whack hit,6 but most were performance-based for7 turnovers. As the money was to be doled8 out, many of the players began playfully9 screaming, 'Give it back, give it back'."

10 Mr. Pamphilon voluntarily played for11 NFL investigators a video, an audio account12 of this particular 2011 season defensive13 meeting.14 I guess, Mr. Miller, I'll turn to15 you and ask you whether you were present16 when he did so.17 MR. MILLER: I was.18 MS. WHITE: Can you describe very19 briefly what it showed, the video showed.20 MR. MILLER: The video showed Coach21 Williams -- he can be heard on the video22 handing out payment for players for big23 plays in the previous game. And this24 occurred during a defensive meeting prior25 to the playoff game against the 49ers.

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1 - Proceedings -2 MS. WHITE: In addition to the3 slides like the next one, which is about to4 be up on the screen, which is from5 Exhibit 9 previously produced, depicting6 rolled-up money appear in presentations of7 the defense as late as 2011.8 A member of the defensive coaching9 staff told NFL investigators that slides

10 like this one were routinely included in11 the defensive squad's PowerPoint12 presentations and were meant to portray the13 money available under the14 pay-for-performance/bounty program.15 This one would appear to have been16 included in the PowerPoint presentation17 prior to the 2010 season playoff game18 against the Seattle Seahawks, which was19 played on January 8, 2011. And that20 PowerPoint has been produced to you as21 Exhibit 9.22 So in addition to the evidence that23 we've just gone through demonstrating that24 the four players sanctioned by the25 Commissioner participated in a Saints

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1 - Proceedings -2 pay-for-performance/bounty program that3 rewarded injury-risking or injury-inducing4 plays, whacks, cart-offs and knockouts, the5 NFL investigation also found direct6 evidence that certain members of the Saints7 defense pledged specific sums of money to8 any defensive player who knocked opposing9 quarterbacks out of the game during the

10 2009 playoffs.11 According to multiple firsthand12 sources who League investigators13 interviewed, Mr. Vilma offered such14 rewards. One of the witnesses present at15 the defense meetings prior to the16 divisional playoff game with the Arizona17 Cardinals on January 16, 2010, at which18 this happened, described the events to the19 NFL investigators in a statement this way.20 And it's on the screen and I'll read it for21 the record.22 "In the NFC" -- this is a quote.23 "In the NFC divisional playoffs, the24 Saints faced the Arizona Cardinals. During25 a meeting of the defense the night before

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1 - Proceedings -2 the game in January 2010, Jonathan Vilma, a3 Saints defensive captain, asked for4 permission to address the team, which was5 granted. Mr. Vilma, in the course of6 giving a motivational speech to the team,7 stated, while raising his hands, each of8 which held stacks of bills, that he had two9 five stacks, which I understood to mean

10 $10,000, for anyone who knocked Cardinals11 quarterback Kurt Warner out of the game."12 The substance of this account that13 Mr. Vilma offered a $10,000 payment to any14 player who knocked Kurt Warner out of the15 game was independently confirmed by16 Mr. Ornstein, who was present at the17 meeting.18 In addition, Mr. Williams and19 Mr. Ornstein and another member of the20 Saints defensive coaching staff, all of21 whom were present at the meeting, all22 stated to NFL investigators that Mr. Vilma23 pledged $10,000 to any player who knocked24 Brett Favre out of the next week's NFC25 championship game against the Minnesota

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1 - Proceedings -2 Vikings.3 All three witnesses stated that the4 amount of this bounty was $10,000.5 Williams also admitted that he personally6 pledged $5,000 to any player who knocked7 Brett Favre out of the game.8 According to one of the witnesses9 present at the meeting, the bounty offered

10 by Mr. Vilma prior to the NFC championship11 game inspired additional players to pledge12 money for injury-producing hits or13 potentially injury-producing hits against14 opposing players or for other types of15 plays during the game.16 Mr. Vitt told NFL investigators that17 this meeting, quote, got out of hand,18 unquote. NFL investigators were informed19 that a member of the defensive coaching20 staff kept track of the various pledges21 made by players at this meeting.22 The slide that's on the screen now23 shows again a typed version of24 contemporaneous handwritten notes taken25 during the meeting. That's from Exhibit 10

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1 - Proceedings -2 previously produced to you.3 In these contemporaneous notes,4 Mr. Vilma, if you look at the top of that5 note, is shown to have pledged $10,000 on6 the quarterback. Mr. Smith and Mr. Fujita7 are shown to have pledged, if you look at8 the bottom of that note, $5,000 and $2,000,9 respectively, to the general program pool.

10 In addition, NFL footage from the11 NFC championship game confirms that the12 Saints players were keenly aware of the13 existence of the bounty on Mr. Favre during14 this game.15 What we're about to show is game16 footage of several plays during a17 third-quarter possession by the Vikings18 followed by sideline footage captured by19 NFL films, in which Mr. Hargrove's voice is20 captured.21 For ease of understanding, his22 remarks are shown in captions.23 (Video played.)24 MS. WHITE: That clip is actually25 from Exhibit 14, which was previously

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1 - Proceedings -2 produced to you.3 So what this film footage showed to4 the NFL investigators was that after5 Mr. Hargrove is told that Mr. Favre might6 have broken his leg and may not be7 returning to the game, Mr. Hargrove smiles8 or winks and states, "Bobby, pay me my9 money."

10 When taken together with evidence we11 already reviewed of the bounty for knocking12 Brett Favre out of the game, the League13 investigators understandably drew the14 inference that Mr. Hargrove's statement15 references the bounty on Brett Favre.16 "Bobby" is Saints player Bobby17 McCray, who had made the hit on Favre on18 the previous play, for which it appeared19 Mr. Favre would not return to the game20 because of an injury.21 Mr. Hargrove's statement on the film22 corroborates the witness accounts that23 there was a bounty payable for a hit on24 Brett Favre that resulted in him being25 knocked out of the game. It is also

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1 - Proceedings -2 evidence of Mr. Hargrove's knowledge of3 that bounty and the4 pay-for-performance/bounty program,5 contrary to what he told NFL investigators6 in early 2010.7 Just for context, just to note, in8 this game, three tackles made by the Saints9 players on Brett Favre were later fined by

10 the League. Mr. Hargrove was fined $5,00011 for lifting and stuffing his opponent to12 the ground.13 Mr. McCray was fined for two hits on14 Favre for a total of $20,000. One was a15 fine for unnecessary roughness. Another16 was for a hit on the quarterback on a play17 when Favre threw an interception and18 Mr. McCray delivered a blow to the knee19 area of the quarterback.20 As noted, Gregg Williams and another21 Saints defensive coaching staff member22 confirmed to NFL investigators that the23 Saints pay-for-performance/bounty program24 continued for the 2010 and 2011 seasons.25 Documentary evidence that the

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1 - Proceedings -2 investigators found on the Saints' system3 confirms this and suggests that the4 practice of placing specific bounties on5 specific opposing players also may have6 continued beyond the 2009 season, including7 after the League commenced its 20108 investigation, although neither9 Mr. Williams, nor any other witness

10 recalled an instance in the 2010 and/or the11 2011 seasons where a bounty had been placed12 on a specific opponent.13 One defensive staff member recalled14 that there were one or two times in 201015 and 2011 when a player pledged additional16 amounts to a quarterback cart-off, a17 cart-off or another specific play, but18 didn't recall who or in what games.19 The next PowerPoint slide comes from20 a defensive team presentation from21 January 7, 2011, prior to the January 8,22 2011, NFC wildcard game against the Seattle23 Seahawks. And incidentally, the red circle24 and the typed name was added to the slide25 just for explanation.

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1 - Proceedings -2 It features the picture of former TV3 personality and professional bounty hunter4 Duane 'Dog' Chapman and encourages players,5 if you look in the red circle, to do their6 job and collect bounty money, three dollar7 signs with an exclamation point.8 As you can see at the top of this9 slide, they're images of key offensive

10 Seahawks players, including quarterback11 Matt Hasselbeck; wide receiver Mike12 Williams, number 17; and running back13 Marshawn Lynch, number 24, next to the14 photo of a sniper scope.15 On another document in Exhibit 916 previously produced to you is a slide that17 contains the language, quote, "Eliminate18 number 17/number 24."19 That's on -- just to give you the20 document number in Exhibit 9, NFLSL00056.21 One defensive staff member said that22 the payment amounts doubled or tripled for23 the Seahawks game, that Coach Williams24 wanted Matt Hasselbeck hit as often as25 possible, but said he could not recall if

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1 - Proceedings -2 any players pledged extra funds for3 cart-offs or quarterback cart-offs for this4 game.5 He did say that during the 2010 and6 2011 seasons, if the team won, Saints7 players always received financial rewards8 for, among other plays, cart-offs and9 quarterback cart-offs.

10 What I'd like to do now is just very11 briefly summarize the evidence that the NFL12 security investigators obtained regarding13 the role of each of the four players so you14 have that kind of collected in one place.15 We'll start with Jonathan Vilma.16 This slide summarizes the evidence with17 respect to him, much of which we've already18 discussed. Gregg Williams stated that19 Mr. Vilma contributed seed money to the20 pay-for-performance/bounty kitty at the21 start of each of the 2009, 2010 and 201122 NFL seasons.23 This information is corroborated by24 handwritten notes provided by another25 source that show Mr. Vilma committed to pay

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1 - Proceedings -2 $2,000 into the kitty at the start of the3 2009 season. That's Exhibit 1 --4 You might turn to that film and come5 back to it.6 -- which we already reviewed.7 You'll see the red circle was put on by us8 just to illustrate.9 It's also corroborated by the

10 defensive presentation slide recovered from11 the Saints' computer system indicating that12 Mr. Vilma contributed money to the pool13 during the 2011 season. And that's14 Exhibit 8.15 Phil, do you want to go to that next16 one.17 Again, we've talked about that one18 before.19 Numerous documents that were created20 contemporaneously using the Saints'21 computer system, including Exhibits 5 and22 6, again we've reviewed already, show23 Mr. Vilma's participation in the24 pay-for-performance/bounty program.25 Exhibit 7, again which we've seen

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1 - Proceedings -2 before and talked about, is the payout3 envelope for Mr. Vilma for the Miami game.4 And finally, at least three sources,5 including Mr. Williams, all stated that6 Mr. Vilma pledged a $10,000 bounty against7 Brett Favre during the 2009 playoffs.8 Two sources said he also placed a9 $10,000 bounty on Kurt Warner in the

10 divisional playoff game.11 So to summarize, the evidence12 discovered during the NFL's investigation13 supports the conclusion that Mr. Vilma, a14 defensive team captain, actively15 participated in the16 pay-for-performance/bounty program,17 including by providing substantial sums as18 seed money for the kitty and offered a19 $10,000 bounty to any defensive player who20 knocked Kurt Warner and later Brett Favre21 out of the 2009 NFC playoff games.22 Exhibit 10, which we looked at,23 shows handwritten notes reflecting the24 $10,000 pledge on the quarterback Brett25 Favre for the Minnesota game.

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1 - Proceedings -2 It's entitled, "Mini Game" at the3 top. And again the red circle we've put4 on.5 Next Mr. Hargrove.6 If you go to that slide.7 Several documents indicate that8 Mr. Hargrove was assessed for fees in9 connection with the Saints'

10 pay-for-performance/bounty program.11 Exhibit 4, which we've seen already,12 indicates that for Mr. Hargrove.13 And then Exhibits 11 and 12 --14 If you can go to those, Phil.15 -- are additional examples showing16 the same thing. If you see, this one is17 from the Atlanta game. "Due from the18 Atlanta game, Hargrove, 200," and then19 Exhibit 11 is a similar example.20 The sideline film we viewed earlier21 showed to the investigators that22 Mr. Hargrove was aware of the bounty that23 had been placed on Mr. Favre and a willing24 participant in the25 pay-for-performance/bounty program.

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1 - Proceedings -2 Despite his participation in the3 program and his knowledge of the bounty4 placed on Brett Favre, Mr. Hargrove falsely5 denied the existence of the program when6 interviewed by NFL investigators in 2010.7 Mr. Hargrove later acknowledged this lie in8 his declaration in which he explains his9 misstatements by pointing to his former

10 coaches who instructed him to deny the11 existence of the Saints'12 pay-for-performance/bounty program and13 bounties and that he did so.14 I'll just go through the slides,15 Phil.16 Other independent evidence from a17 source present at a meeting in early 201018 supports Mr. Hargrove's statement that he19 was asked to and willingly agreed to20 falsely deny the existence of the program.21 And just for the record, let me read the22 slide that's on the screen.23 Quote, "I subsequently was present24 at a meeting between Mr. Vitt and Anthony25 Hargrove, a defensive player, during which

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1 - Proceedings -2 Mr. Vitt instructed Mr. Hargrove to deny3 any knowledge of the program if he was4 interviewed by the NFL investigators.5 Mr. Hargrove agreed to lie to the6 investigators saying, to the best of my7 recollection and in substance, 'I can lie8 with the best of them'."9 Moving on to Mr. Smith, this slide

10 summarizes the evidence with respect to11 him. As we have reviewed, the evidence12 establishes that Mr. Smith, also a13 defensive team captain, participated in the14 Saints' defense pay-for-performance/bounty15 program and contributed substantial sums to16 the program kitty in excess of those17 contributed by the average participant.18 Mr. Williams stated that Mr. Smith19 pledged seed money to fund the program at20 its inception and at the beginning of each21 season. This statement about the 200922 season is corroborated by contemporaneous23 handwritten notes, that's Exhibit 1, which24 you've seen before, showing $1500 -- a25 $1500 pledge contribution.

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1 - Proceedings -2 Documentary evidence obtained from3 the Saints and authenticated by forensic4 experts shows that Mr. Smith was assessed5 game fees for errors in several different6 games, establishing that he participated in7 the program.8 We've looked at Exhibit 4 already.9 And Exhibit 13 shows dues are owed

10 to the program by Mr. Smith, again the red11 circle being added by us.12 Mr. Williams also confirmed that13 Mr. Smith pledged significant sums during14 the 2009 playoffs, but could not recall15 whether it was for player-specific bounties16 or other aspects of the17 pay-for-performance/bounty program.18 Next slide shows Exhibit 10, that19 Mr. Smith contributed $5,000 to the general20 pool prior to the Vikings game. And again21 we've reviewed that previously.22 Mr. Fujita. The evidence23 establishes that Mr. Fujita participated in24 the Saints' defense25 pay-for-performance/bounty program and

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1 - Proceedings -2 contributed substantial sums to the program3 kitty in excess of those contributed by the4 average participant.5 Documentary evidence shows that6 Mr. Fujita was assessed game fees related7 to the program, and that's shown in the8 next slide, which comes from Exhibit 11,9 which has been previously produced to you.

10 That shows $200 in game fees owed by11 Mr. Fujita from the second Tampa Bay12 Buccaneers game in the 2009 season.13 In addition, a Saints coach informed14 NFL investigators that Mr. Fujita pledged15 additional sums for, quote, big plays16 during the 2009 NFL playoffs. This17 statement was corroborated by another18 source.19 Contemporaneous handwritten notes,20 which is our Exhibit 1, dating from the21 start of the 2009 season show that22 Mr. Fujita pledged a significant sum,23 approximately a thousand dollars, to the24 pool for sacks and forced fumbles.25 Finally, handwritten notes from the

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1 - Proceedings -2 2009 NFL playoffs show that Mr. Fujita was3 among several players who pledged a4 substantial sum of money, $2,000 in his5 case, to the general pool to be used -- a6 pool which was used in part to reward7 players if there were injury-inducing plays8 such as cart-offs or knockouts.9 So based on --

10 Actually, Mr. Miller, let me ask you11 one question before I just conclude this12 summary.13 And that is, during the course of14 your investigation, did any of the sources15 of your information ever retract what they16 had to say with respect to any of the four17 players we're discussing today?18 MR. MILLER: No.19 MS. WHITE: So just to conclude,20 based on all the evidence, both documentary21 as well as information coming from22 witnesses with firsthand knowledge, the23 factual findings of the investigation upon24 which the Commissioner based his25 disciplinary decisions are, in my view,

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1 - Proceedings -2 fully supported by the evidence found3 during the NFL's investigation.4 It should be noted, I think as it5 was earlier, that none of the players6 agreed to an interview with the League7 investigators or provided any evidence to8 the investigators casting doubt on or9 contradicting the findings of the

10 investigation.11 That concludes my summary.12 MR. PASH: Mr. Kessler, do you have13 any comment that you would like to make?14 MR. KESSLER: As I mentioned, we15 won't participate in the merits discussion.16 I would note for the record, per my earlier17 objections, that much of the material18 presented by Ms. White is materials that we19 asked for that have not been provided.20 Particularly we received no21 handwritten notes in any contemporaneous22 fashion. We received no witness23 statements. The witness statements are24 referred to.25 In any case, the identity of

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1 - Proceedings -2 witnesses have not been identified so the3 players could not even begin to mount a4 defense to confront their accuser.5 We note that we did hear now that6 statements were allegedly made by Coach7 Williams and Coach Vitt. We ask for both8 of them to be produced as witnesses.9 They're not here so that plaintiffs have no

10 chance to confront those individuals.11 And we heard about forensic evidence12 and we received no forensic evidence and,13 therefore, we believe all of the evidence14 related to these matters are not properly15 before this proceeding and the proceeding16 is improper and not consistent with the17 notions of fairness in this hearing and,18 therefore, should be excluded.19 And I'll just note that the rest of20 Ms. White's remarks are basically oral21 arguments, which is not evidence.22 That concludes my remarks about23 that.24 MR. PASH: On behalf of25 Mr. Ginsberg's office?

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1 - Proceedings -2 MR. DEUBERT: We would adopt what3 Mr. Jeffrey Kessler said.4 MR. PASH: I'm pretty sure I know5 the answer, but any of the -- this is your6 hearing. Would any of the players like to7 say anything? Or take any questions?8 MR. KESSLER: On the advice of9 counsel, the players have been advised that

10 they will not be participating in the11 merits of the case.12 MR. PASH: There have been13 references -- Mr. Ginsberg referenced this14 this morning, that there have been15 references from representative Players16 Associations on independent investigations17 that were performed by Mr. Ginsberg and by18 the Players Association.19 And notwithstanding the procedural20 issue that might be raised, we would21 certainly be willing to receive the results22 of those investigations or a report if you23 wanted to present those to the Commissioner24 as part of the record on the appeal. So25 I'll just make that offer --

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1 - Proceedings -2 MR. KESSLER: Again, for the reasons3 we discussed, since we don't believe this4 is a proper procedure at this point, we're5 not going to participate in the merits and,6 therefore, will not be submitting any7 merits evidence.8 MR. PASH: Would you like to, on9 behalf of the Players Association, file any

10 kind of post-hearing memorandum?11 MR. KESSLER: At this point, I think12 we've stated our objections. If the13 Commissioner or you have any areas that14 you'd like us to further address on the15 procedural or jurisdictional objections or16 objections on bias or other matters, we'd17 be happy to further elaborate; but if you18 feel you have an adequate statement of19 those objections in order to rule upon20 them, we have not requested any opportunity21 for --22 MR. PASH: Is that true for23 Mr. Ginsberg's office on behalf of24 Mr. Vilma as well?25 MR. DEUBERT: The same.

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1 - Proceedings -2 MR. PASH: Why don't we take about a3 two-minute recess, and the Commissioner can4 consider if there's anything he would like5 to ask anyone before we conclude.6 (Recess from the record.)7 MR. PASH: I guess we'll go back on8 the record.9 And as we've been discussing it

10 during the break, I think, Jeffrey, and11 I'll make the same offer to Mr. Ginsberg's12 office as well, we'll -- assuming there's13 nothing further today, which it sounds like14 there's nothing further today, we will hold15 the record open until 5 p.m. on Friday.16 And the Players Association or, on17 behalf of Mr. Vilma, Mr. Ginsberg's office18 is free to file any paper that it wishes in19 support of either the procedural objections20 that you've raised or the bias issue. Or21 if, on reflection, you want to file22 something commenting on the merits, you're23 welcome to do that as well.24 So whatever submission that people25 would like to make by 5 p.m. on Friday,

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1 - Proceedings -2 we'll accept it. If you conclude that3 you're not going to make a submission,4 that's obviously your choice as well. But5 we'll hold the record open. You'll have a6 chance to look at the transcript. If you'd7 like to file something, we'll be happy --8 the Commissioner would be happy to receive9 it.

10 MR. KESSLER: Thank you very much.11 MR. PASH: If there's nothing12 further, thanks very much. And appreciate13 your time.14 (The hearing adjourned. The time is15 3 p.m.)16171819202122232425

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12 E X H I B I T S3 PAGE4 Exhibit A Binder of Exhibits 1 405 through 166 Exhibit B Binder of Correspondence 407 Exhibits 1 through 1389

10111213141516171819202122232425

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12 C E R T I F I C A T E3 STATE OF NEW YORK )4 ss:5 COUNTY OF NEW YORK )6 I, Eileen Mulvenna, CSR/RMR/CRR and7 Notary Public within and for the State of New8 York, do hereby certify that the foregoing9 proceedings were taken before me on June 18,

10 2012;11 That the within transcript is a true12 record of said proceedings;13 That I am not connected by blood or14 marriage with any of the parties herein nor15 interested directly or indirectly in the matter16 in controversy, nor am I in the employ of any17 of the counsel.18 IN WITNESS WHEREOF, I have hereunto19 set my hand this 19th day of June, 2012.202122 ____________________________23 Eileen Mulvenna, CSR/RMR2425

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&

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give 7:14 27:19 28:636:8 37:15 38:4,1440:8 44:9 66:9,975:19

given 20:2,12,16,1621:25 22:4,6,8,2224:9 39:2 42:1148:20 49:22 63:19

giving 69:6

go 4:18 6:25 7:8,1216:20 26:9 31:1232:18 37:14 52:1861:11 77:15 79:6,1480:14 89:7

going 4:13 20:6,1024:7 26:22,24 27:227:3 32:13,18 35:2536:24,25 37:14,1738:4,13 39:6 40:488:5 90:3

good 4:25 37:18goodell 1:13 4:2 9:8

10:21 11:14 12:3,1315:2,11 18:8 22:6

governing 19:4granted 69:5green 54:25gregg 12:16 13:4,15

14:17 20:23 41:3,2547:14 49:10 51:254:3 63:15 66:373:20 76:18

ground 4:15 73:12group 21:2guess 6:16 26:13,20

35:11 37:7 40:766:14 89:7

gump 3:4

h

h 91:2hampshire 3:5hand 53:10 60:14

70:17 92:19handed 5:13handing 9:4 28:7

66:22hands 69:7handwritten 52:23

53:18 54:14,1560:19 70:24 76:2478:23 81:23 83:1983:25 85:21

happened 68:18happening 19:7happy 27:18 88:17

90:7,8hargrove 3:18 16:10

41:2 45:11 57:559:13 72:5,7 73:1079:5,8,12,18,2280:4,7,25 81:2,5

hargrove's 13:271:19 72:14,21 73:280:18

harper 57:19 58:3hasselbeck 75:11,24hauer 3:4head 40:13 41:4

42:2 65:17hear 4:7,9 20:6

28:15 86:5heard 66:21 86:11hearing 1:13 4:7,19

16:16,23 17:17 18:618:7,17,23 19:3,1819:22,23 20:7 23:1523:15 24:2 26:627:17 28:22 30:1831:8,21,24 32:10,1732:20 34:7 86:1787:6 88:10 90:14

hearings 5:3hearsay 21:6,14,19heather 3:12hecker 2:24held 1:13 31:11

44:14 69:8helpful 22:3helping 48:25hereunto 92:18high 44:5hit 58:8 66:5 72:17

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hold 89:14 90:5hope 4:10horrible 15:12horrific 10:4hour 31:18 32:2hours 8:19,23 23:25

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i

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identities 42:1853:22

identity 85:25iii 2:18illegal 13:10illusion 31:9illustrate 77:8images 75:9immediately 40:23

62:21implement 47:17important 9:9 10:11impose 31:22imposed 15:15 25:2

31:18imposing 24:21improper 86:16inappropriate 33:16

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inception 81:20incidentally 74:23include 14:12included 12:13,21

13:21 27:19 41:2442:7 45:15 56:967:10,16

including 6:7 40:2544:15 45:10 47:2,948:18 50:24 51:653:3 55:5 59:1862:8,15 65:5 74:675:10 77:21 78:5,17

increased 50:2151:25

independent 47:880:16 87:16

independently69:15

indicate 54:15 57:1861:25 79:7

indicates 54:9 79:12indicating 53:2

77:11indication 44:9indirectly 92:15individual 38:24

39:8 49:21individuals 86:10induced 18:2inducing 68:3 84:7industrial 19:17inference 72:14infirmity 33:7inflows 51:6information 11:17

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informed 50:4 62:1370:18 83:13

initial 22:7 46:9initially 49:18

injured 51:16injuries 45:18injury 45:17 48:5

50:24,25 51:15 52:652:9,12,15 57:2358:5 62:16 64:368:3,3 70:12,1372:20 84:7

insisted 62:18inspired 70:11instance 74:10instructed 80:10

81:2insufficient 16:18integrity 10:13

15:14intend 37:2,11intended 15:7 26:14intends 37:9interception 73:17interested 92:15interject 42:15internal 44:22internet 63:7interview 48:11

85:6interviewed 20:7

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interviewing 40:24interviews 23:3,11

44:10,19introduced 48:13introduction 8:9,25investigate 10:21investigated 61:23investigation 5:18

11:5 13:25 39:1840:9,12,24 41:10,1942:11 43:12 45:4,646:2,8 47:7,12 62:268:5 74:8 78:1284:14,23 85:3,10

investigations 21:744:22 87:16,22

investigators 39:2447:2,10,15 48:12,2149:16 50:5 53:2460:3 61:19 62:10,1463:7,23 64:10,2265:7 66:11 67:968:12,19 69:2270:16,18 72:4,1373:5,22 74:2 76:1279:21 80:6 81:4,683:14 85:7,8

irrefutable 14:22issue 36:5 87:20

89:20issued 6:11 11:7

46:17issues 4:17 19:15item 57:20 58:6,12

59:6,12 61:13items 39:8

j

jacobs 58:3jamoona 2:8january 40:14,19,22

65:22,25 67:1968:17 69:2 74:21,21

jeff 4:13 20:2535:11 38:10 39:1740:7

jeffrey 2:6 3:10,197:7 16:7 39:15 87:389:10

jets 56:19 57:5jkessler 2:7jo 5:8,16 7:8 38:4,9

40:11job 75:6joe 2:22 3:20 20:23

20:25 41:4 42:2join 23:22joke 12:10

[hold - joke] Page 8



jonathan 2:7,113:16 7:20 10:1415:2 45:11 49:8,1959:7 69:2 76:15

june 1:10 9:5 20:2122:15 92:9,19

jurisdiction 8:2 17:217:7,15,23 18:319:14

jurisdictional 27:788:15

k

kansas 63:13keenly 71:12keep 11:9kept 59:25 70:20kessler 2:6 6:18,24

7:5,24 16:4,6,726:18,23 27:10 28:428:8,22 33:12 35:1036:4,12,19 37:18,2585:12,14 87:3,888:2,11 90:10

key 45:3 75:9kill 65:17killed 13:6kind 50:23 76:14

88:10kitty 49:25 50:7,12

53:4 54:17 55:2558:10 59:25 62:1565:4 76:20 77:278:18 81:16 83:3

knee 73:18knocked 48:4 68:8

69:10,14,23 70:672:25 78:20

knocking 72:11knockout 51:20knockouts 48:19

52:12 68:4 84:8know 4:6 5:15 7:24

10:16 23:4,6,1432:13,14 36:5 37:8

37:11,13 64:14 87:4knowledgable 41:13knowledge 21:6

25:9 40:25 41:642:9,13 46:4 47:962:8 73:2 80:3 81:384:22

known 24:17knows 16:25kurt 40:20 45:22

69:11,14 78:9,20

l

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50:19language 75:17large 39:19late 24:5 67:7launched 40:23law 2:11 5:20 8:16

8:17,18,24 19:425:7 30:5 44:12

lay 10:22lays 4:14league 1:2,6 2:16,20

3:4,10 16:8 36:2136:25 37:8 38:1241:17 61:22 63:2,663:23 68:12 72:1273:10 74:7 85:6

league's 39:15 62:2leaked 14:2learned 20:9leave 26:22leaving 52:11,13

57:22ledger 14:3,6,9,10

14:12 57:12 58:6,958:12,20

left 58:4leg 72:6legal 24:24 29:15,21legality 32:23

legally 25:21 29:2230:20

length 26:9letter 9:5 20:21

21:21 22:14 23:2level 43:25lie 80:7 81:5,7lifting 73:11light 10:10,10,12,14

17:14likelihood 17:19line 18:10 53:12linebacker 46:19lines 31:19listen 4:20 10:24

36:24lists 65:2literally 11:15litigation 5:20little 23:24live 37:16llc 2:11,20llp 2:4 3:4located 63:13locked 59:25locker 42:4 63:24

64:11lohf 50:20lohfs 56:23 57:6long 7:11look 20:13 25:5

35:17 59:6 71:4,775:5 90:6

looked 14:16,17,1914:20,21 78:22 82:8

loomis 20:24louis 55:15lynch 75:13

m

mail 12:10,12,18,2153:25 54:8

mails 12:7,8maimed 48:9

major 45:5maker 19:10,11making 8:8,24 18:18

22:6manager 6:12managers 25:17march 6:10 63:8mark 38:20marked 6:15 38:25

39:5,7,13marriage 92:14marshawn 75:13mary 2:22 5:8,16

7:8 38:4,9 40:11material 6:7,14

27:20 85:17materials 22:16

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22:18 28:13 33:1840:10 46:9 92:15

matters 7:22 17:2418:9,23 19:24 44:2386:14 88:16

mccray 72:17 73:1373:18

mcphee 3:12mean 13:13 26:22

69:9meaning 13:7 49:13means 8:18 18:5meant 67:12media 13:3 14:5meet 5:7 9:12 29:5,8meeting 48:14 60:10

65:21 66:2,13,2468:25 69:17,21 70:970:17,21,25 80:1780:24

meetings 49:23 55:963:4,25 64:5,8,1268:15

member 52:2458:17 62:9 67:8

[jonathan - member] Page 9



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members 46:1147:18 53:11 59:368:6

memorandum 6:988:10

mental 50:18 56:2157:6 58:10,14 59:961:3

mentioned 46:652:5 85:14

merit 1:17merits 16:15 26:5,21

27:9 37:3 38:285:15 87:11 88:5,789:22

miami 56:2,12,1757:7 58:22 61:4,678:3

michael 20:24 42:2mickey 20:24mike 13:15 49:20

54:2 75:11miller 3:19 20:25

21:4,17 39:15 40:1142:23 43:11 44:7,1148:22 49:4 66:14,1766:20 84:10,18

mini 79:2minnesota 69:25

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moment 7:3 61:21monday 1:10monetarily 48:2monetary 51:2money 15:4,6 50:9

53:2 54:6,16 58:959:13 65:3 66:767:6,13 68:7 70:1272:9 75:6 76:1977:12 78:18 81:1984:4

monies 59:24months 9:13 11:17morning 4:25 5:5

29:16 35:6,9 38:1987:14

motion 8:8,24 9:718:19 23:22 31:1431:16 35:25

motions 16:21 36:2motivational 69:6mount 86:3move 16:2 24:9moving 81:9multiple 47:7 62:7

68:11mulvenna 1:15 92:6

92:23

n

n 2:2 3:2,9 35:2,2,2n.w. 3:5name 7:19 42:19

44:23 74:24named 63:3narcotics 44:20nash 3:6 26:16,19national 1:2,6 2:16

3:10 16:8near 65:4need 26:10 55:18neither 74:8net 60:25neutral 18:15 19:11

33:15

never 15:3,4,5,7,831:18 64:2

new 1:14,14,18 2:62:6,12,12,17,17,212:21 3:5 5:21,24 6:48:16,18,24 9:1811:8 30:5 41:16,2142:8,21,25 43:3,2245:8 46:3,18,2147:15,22 49:11,2152:24 55:4,6 56:256:18,19 57:4,4,1358:2,17 59:16 65:2192:3,5,7

nfc 40:18 68:22,2369:24 70:10 71:1174:22 78:21

nfl 2:16 3:19,2010:12 14:7 15:1820:9 21:11,24 22:1722:23 23:20 24:7,1325:4 29:21 38:20,2539:4,11,24 40:9,2343:10 44:12 45:1446:2,14,25 47:10,1448:7,12,21 49:1550:4 53:17,24 59:1660:3 61:19 62:6,1062:13 63:5,9,21,2564:9,22 65:7 66:1167:9 68:5,19 69:2270:16,18 71:10,1972:4 73:5,22 76:1176:22 80:6 81:483:14,16 84:2

nfl's 39:18 45:3,646:8 47:12 78:1285:3

nfl.com 2:18nflpa 3:12,14 16:12

18:12 22:15nflsl00056 75:20night 65:22 68:25niphon 6:14 22:16

22:19,22 27:15 63:3

63:8,23 64:4non 47:25nonplayer 42:3noon 32:7notary 1:18 92:7notations 60:20note 23:25 24:6,12

32:4 61:18 71:5,873:7 85:16 86:5,19

noted 61:15 73:2085:4

notes 23:2,4,6,7,1152:23 53:19 54:1557:18 59:3 70:2471:3 76:24 78:2381:23 83:19,2585:21

notice 17:10notions 86:17notwithstanding

12:22 13:8 61:2587:19

november 41:1254:24 55:11,14,16

nullity 19:6number 16:19 41:20

61:24 75:12,13,1875:18,20

numbered 39:9numerous 43:2

52:16 77:19

o

o 3:9 35:2,2,2o'clock 29:2 32:5objection 29:4,9objections 37:4

85:17 88:12,15,1688:19 89:19

objective 14:16,23obligated 29:22obligation 29:15,21observation 33:2observe 35:23

[member - observe] Page 10



observing 37:20obtain 51:11obtained 47:11

76:12 82:2obviously 21:7 90:4occasion 64:11occurred 9:18 66:24october 54:2 56:11

56:13 57:14,1858:21 59:2

offenses 44:20,20offensive 75:9offer 87:25 89:11offered 31:15 45:22

68:13 69:13 70:978:18

offering 45:15office 5:17,25 8:12

14:2,7 15:19 35:1836:14,15 60:2 86:2588:23 89:12,17

officer 4:19 18:739:16

officers 18:17 31:21officials 20:14offs 13:5 48:19 52:3

52:10 62:17 68:476:3,3,8,9 84:8

okay 4:23 7:2 34:535:4 36:9 37:18

open 89:15 90:5opening 7:15operate 30:6operated 31:19

41:15,22 62:5opponent 73:11

74:12opportunities 56:22opportunity 4:21

5:6 7:15 20:3 21:1432:11 50:14 88:20

opposing 15:5 45:2248:4 51:15 57:2268:8 70:14 74:5

opt 49:14oral 86:20order 4:12 25:24

26:2 32:9 42:1788:19

orderly 4:12orders 11:7organization 49:22original 61:20orleans 9:18 11:8

41:16,22 42:8,21,2543:3,22 45:8 46:346:19,21 47:16,2349:11,22 52:25 55:455:6 58:17 59:1665:21

ornstein 12:7,8,9,1512:19 42:3 49:2053:8 54:3,6,1069:16,19

ornstein's 12:22outflows 51:7outline 5:5outset 26:7,11 38:11

38:16outside 20:8 33:25

37:10 43:12overview 40:8overwhelming

46:11owe 57:4owed 54:11 55:25

58:9,21 59:10,13,1359:20 60:25 82:983:10

p

p 2:2,2 3:2,2,9p.m. 8:22 28:23

29:11 31:24 35:389:15,25 90:15

package 12:14pafortino 2:23page 91:3

pages 25:6 27:21paid 50:2 54:10pamphilon 65:13,15

65:20 66:2,10panel 17:19panthers 55:13,22paper 89:18paragraph 19:21park 1:14 2:5,17part 11:6 17:5 27:24

39:20 43:10 53:2354:20 59:5 84:687:24

participant 47:579:24 81:17 83:4

participants 21:8participate 11:11

16:14 26:5,24 37:237:25 49:14 85:1588:5

participated 5:315:3 42:5 45:1246:12 59:19 64:2467:25 78:15 81:1382:6,23

participating 12:2026:21 27:9 50:2,1087:10

participation 77:2380:2

particular 16:9 20:225:5 32:8 48:2556:17 57:3 61:1762:21 66:12

particularly 51:2285:20

parties 92:14partner 5:19parts 39:19pash 3:10 4:13,23

6:22 7:2,6 9:5 16:426:15 28:9,19,2429:3,14,25 30:1731:5,12 32:22 33:333:22 35:4,15,24

36:9 37:14,19 38:346:6 85:12 86:2487:4,12 88:8,2289:2,7 90:11

passing 66:4pay 17:5 41:9,15,23

45:9 46:5,13 47:647:17,23 49:12 50:751:9 53:4,11 54:1759:14,21 62:3 65:1067:14 68:2 72:873:4,23 76:20,2577:24 78:16 79:1079:25 80:12 81:1482:17,25

payable 72:23paying 59:20payment 60:19,23

60:24 61:17 66:2269:13 75:22

payments 51:1160:15 62:14,16 64:3

payout 51:24 59:1160:6,12 61:6 78:2

payouts 50:21 51:958:21 59:4

payton 20:23 23:16penalties 14:21

56:20penalty 58:11pending 17:17 31:14

35:25pennsylvania 44:13people 7:15 11:7,8

11:15,15 14:19 20:621:15 33:23 35:1789:24

performance 17:541:9,15,23 45:946:5,13 47:6,17,2348:17 49:12 50:7,1151:9 54:17 59:14,2162:3 65:10 66:667:14 68:2 73:4,2376:20 77:24 78:16

[observing - performance] Page 11



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performed 87:17period 30:6permission 69:4person 15:13 63:10personality 75:3personally 10:15

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personnel 46:3persons 40:24 44:21peter 2:11,13 6:19

7:7,19pginsberg 2:13ph 50:20phil 2:23 77:15

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placing 74:4plaintiffs 86:9play 50:14 56:12

57:21,24 72:1873:16 74:17

played 40:19 56:557:13 66:10 67:1971:23

player 3:15,16,17,1815:5,7,8,10 19:2041:2,8 47:25 48:452:10,13 57:19,2259:7 68:8 69:14,2370:6 72:16 74:1578:19 80:25 82:15

players 1:3 4:7,105:7 14:8 16:8,12

19:25 21:12 22:330:12 32:10 36:1436:21 38:22 40:1545:10,16 48:2,8,1648:25 49:13,20 50:250:11,13 51:8,11,1451:15,17 52:6,2153:3 55:21,23 56:1759:20 63:19,21 64:265:3 66:8,22 67:2470:11,14,21 71:1273:9 74:5 75:4,1076:2,7,13 84:3,7,1785:5 86:3 87:6,9,1587:18 88:9 89:16

playfully 66:8playing 18:2playoff 40:21 52:4

65:23 66:25 67:1768:16 78:10,21

playoffs 45:20 50:2251:25 68:10,23 78:782:14 83:16 84:2

plays 50:23,25 51:351:14 52:7,9 56:2262:16 64:3 66:2368:4 70:15 71:1676:8 83:15 84:7

pledge 53:9 70:1178:24 81:25

pledged 54:12,13,1568:7 69:23 70:671:5,7 74:15 76:278:6 81:19 82:1383:14,22 84:3

pledges 49:18 70:20plimpton 2:20 5:21plus 61:2point 7:17 17:12

19:13 27:13,22 30:232:20 33:2 37:663:12 75:7 88:4,11

pointing 80:9points 32:11 36:17

36:20,22

police 44:13policies 48:7pool 54:7 61:17 71:9

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poor 50:11portion 26:5 58:15portray 67:12posed 51:14position 29:8,13

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61:19 71:17possible 75:25post 88:10posted 65:16potentially 50:24

52:6 70:13powerpoint 54:23

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practice 74:4precedent 30:14preceding 40:21preclude 8:9,25 9:7

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preparing 20:15presence 64:19present 19:22 20:22

27:3 33:21 36:2537:9 42:3 63:4,2464:5,7 65:20 66:1568:14 69:16,21 70:980:17,23 87:23

presentation 5:97:11,13 20:8 24:824:10 37:10,15 38:567:16 74:20 77:10

presentations 67:667:12

presented 9:19 33:985:18

presents 33:10preserve 25:25 29:3preserving 27:6president 3:10

39:15 63:12press 14:2pretty 87:4prevent 19:7previous 40:16 61:8

61:9 66:23 72:18previously 8:4 12:8

13:18 38:12,22 39:343:9,19 46:22 47:352:21 54:4,21 56:1057:11 58:18 60:2261:22 65:2,18 67:571:2,25 75:16 82:2183:9

prglaw.com 2:13,14principles 24:24prior 19:2 20:19

25:9,9,9 36:1844:11 46:9 55:1456:5,18 60:11 66:2467:17 68:15 70:1074:21 82:20

probably 38:17procedural 4:17

27:7 33:6 37:487:19 88:15 89:19

procedurally 33:16procedure 88:4proceed 6:19,22

16:22 17:14,16 26:426:13 29:11 30:24

proceeding 8:3,6,2014:15 15:22 16:2526:3 33:21 35:1486:15,15

proceedings 4:1 5:16:1 7:1 8:1,15 9:1,3

[performance - proceedings] Page 12



9:10 10:1,17 11:111:12 12:1 13:114:1 15:1,20 16:116:15 17:1 18:1,2119:1,6,9,15 20:121:1 22:1 23:1 24:125:1 26:1 27:1 28:129:1,19 30:1 31:132:1 33:1,7,12 34:135:1 36:1 37:1 38:139:1 40:1 41:1 42:143:1 44:1 45:1 46:147:1 48:1 49:1 50:151:1 52:1 53:1 54:155:1 56:1 57:1 58:159:1 60:1 61:1 62:163:1 64:1 65:1 66:167:1 68:1 69:1 70:171:1 72:1 73:1 74:175:1 76:1 77:1 78:179:1 80:1 81:1 82:183:1 84:1 85:1 86:187:1 88:1 89:1 90:192:9,12

process 4:13 5:49:15,20 10:16 19:1727:9 59:19 60:8

produce 21:9 23:23produced 23:13,17

23:24 29:15,23 31:731:10 46:22 47:452:21 53:21 57:1158:18 60:23 65:267:5,20 71:2 72:275:16 83:9 86:8

producing 52:962:16 64:3 70:12,13

professional 75:3professionalism

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EXHIBIT N


1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA JONATHAN VILMA * Docket 12-CV-1283-HGB c/w * 12-CV-1718 and 12-CV-1744 * versus * Pertains to 12-CV-1718

* * New Orleans, Louisiana

ROGER GOODELL * * July 26, 2012

* * * * * * * * * * * * * * * * *

EVIDENTIARY HEARING BEFORE THE HONORABLE HELEN G. BERRIGAN UNITED STATES DISTRICT JUDGE

Appearances: For Jonathan Vilma: Williams Law Group, LLC

BY: CONRAD WILLIAMS III, ESQ. J.C. ZAINEY JR., ESQ.

435 Corporate Drive, Suite 101 Houma, Louisiana 70360

For Jonathan Vilma: Peter R. Ginsberg Law, LLC

BY: PETER R. GINSBERG, ESQ. 12 East 49th Street, 30th Floor New York, New York 10017

For the NFL: Jones Swanson Huddell & Garrison, LLC BY: GLADSTONE N. JONES III, ESQ.

CATHERINE E. LASKY, ESQ. HARVEY S. BARTLETT III, ESQ. LYNN E. SWANSON, ESQ.

601 Poydras Street, Suite 2655 New Orleans, Louisiana 70130

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Appearances: For the NFL: Covington & Burling, LLP (DC)

BY: GREGG H. LEVY, ESQ. BENJAMIN C. BLOCK, ESQ.

1201 Pennsylvania Avenue, NW Washington, DC 20004

For the NFLPA, Frilot, LLC Scott Fujita, BY: JOSEPH N. MOLE, ESQ. Anthony Hargrove, MEREDITH SIMONEAUX, ESQ. and Will Smith: 1100 Poydras Street, Suite 3700

New Orleans, Louisiana 70163 For the NFLPA, Winston & Strawn, LLP (NY) Scott Fujita, BY: JEFFREY L. KESSLER, ESQ. Anthony Hargrove, 200 Park Avenue and Will Smith: New York, New York 10166

Official Court Reporter: Toni Doyle Tusa, CCR, FCRR 500 Poydras Street, Room HB-406 New Orleans, Louisiana 70130 (504) 589-7778 [email protected]

Proceedings recorded by mechanical stenography using computer-aided transcription software.

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I N D E X

PAGE

Jonathan Vilma Direct Examination By Mr. Ginsberg 7 Cross-Examination By Mr. Jones 67 Redirect Examination By Mr. Ginsberg 76

Troy Evans

Direct Examination By Mr. Williams 79 Cross-Examination By Mr. Jones 85 Redirect Examination By Mr. Williams 86

Randall Gay

Direct Examination By Mr. Williams 87 Cross-Examination By Mr. Jones 95

Joe Vitt

Direct Examination By Mr. Ginsberg 96 Cross-Examination By Mr. Levy 128

Scott Shanle


Sedrick Ellis


Jonathan Casillas


Roman Harper


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4

MORNING SESSION

(July 26, 2012)

(The following proceedings were held in open court.)

THE COURT: Have a seat, please.

THE DEPUTY CLERK: Civil Action 12-1283 and

consolidated cases, Section C, Jonathan Vilma versus Roger

Goodell.

MR. WILLIAMS: Good morning, Your Honor. Duke

Williams and Chris Zainey of New Orleans for Jonathan Vilma. I

would like to introduce to the Court our co-counsel, Mr. Peter

Ginsberg, Ginsberg Law, from New York.

MR. GINSBERG: Thank you for the honor of letting me

appear, Your Honor.

THE COURT: Nice to meet you.

MR. JONES: Good morning, Your Honor. Glad Jones on

behalf of the National Football League, with my partner Lynn

Swanson. I'd likewise like to introduce to you Mr. Gregg Levy

and Mr. Ben Block on behalf of the National Football League.

THE COURT: Nice to meet you too.

MR. MOLE: Your Honor, Joe Mole here with my

associate Meredith Simoneaux. I would like to introduce to the

Court Mr. Jeffrey Kessler for the National Football League

Players Association. We are here to support Mr. Vilma and

assist the Court in any way we can. We are party to the

consolidated action.

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MR. KESSLER: Good morning, Your Honor.

THE COURT: I just wanted to make sure we were

straight on the ground rules. I just don't want noise. If

y'all have cell phones and that sort of thing, just put them on

vibrate. I have no problem if you want to text or communicate

with people, but, please, just no noise.

I also wanted to just explain the folks in the

jury box. These are externs that have been working with me

this summer, for the last six weeks or so. Tomorrow is

actually their last day, but they have been helping me

immensely.

This is Alex Sloan, who is my law clerk, who has

been helping me with this case from the beginning.

I understand we are going to have just witnesses

initially. I know Mr. Vilma wants to testify, then we will

have witnesses again at 12:30. Is that --

MR. GINSBERG: Yes, Your Honor, that's correct. We

were a little unsure of the schedule when we were on the

telephone with you the day before yesterday. We do have two

other players who are here waiting to testify. So it might be

a little more seamless than we expected when we talked to you

on the telephone.

THE COURT: They need to be sequestered, of course.

Are they in the courtroom?

MR. WILLIAMS: They are already in the jury room.

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THE COURT: If you want to call them first, to get

them back to whatever they're doing.

MR. WILLIAMS: They are okay. We are going to put

Mr. Vilma on first and have him testify. Then we'll move on to

them.

MR. GINSBERG: They are actually former players, so

they are not missing training camp.

THE COURT: Okay.

MR. JONES: Your Honor, at the conclusion of the

witness presentation by Mr. Williams and Mr. Vilma, we may want

to argue some of the jurisdictional issues.

THE COURT: I actually have a series of questions for

both sides for this afternoon when we get into that.

MR. JONES: Mr. Levy, our co-counsel, will be

addressing that.

THE COURT: I assumed we would do all the witnesses

first and then go to that this afternoon.

MR. JONES: That makes sense.

MR. GINSBERG: Your Honor, we call Jonathan Vilma.

THE COURT: Ms. County, who you will learn quickly is

an incredibly competent employee of mine and reminds me of

things I need to do -- the two players that are in the back

should not be talking about this case now that they are

sequestered, so if you need to go back there and let them know.

MR. WILLIAMS: I'll go back.

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THE COURT: They can talk about anything else, but

they can't be talking about their testimony.

JONATHAN VILMA,

having been duly sworn, testified as follows:

THE DEPUTY CLERK: Please state your full name and

correct spelling for the record.

THE WITNESS: Jonathan Vilma, J-O-N-A-T-H-A-N,

V-I-L-M-A.

THE COURT: You may have a seat. Mr. Vilma, there's

a pitcher of water right there and cups. You are welcome to

that at any time.

THE WITNESS: Thank you, Your Honor.

DIRECT EXAMINATION

BY MR. GINSBERG:

Q. Jonathan, where were you born?

A. I was born in Miami, Florida.

Q. Where did you go to college?

A. The University of Miami.

Q. Jonathan, did you graduate from Miami?

A. Yes, I did. I graduated in 2004.

Q. What was your major?

A. My major was finance and my minor was marketing.

Q. Did you play some football in Miami?

A. A little bit of football.

Q. For all four years?

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JONATHAN VILMA - DIRECT

A. Yes.

Q. Jonathan, what position did you play?

A. I played middle linebacker all four years.

Q. Were you drafted by the NFL?

A. Yes. I was drafted in 2004, first round, by the New York

Jets.

Q. Jonathan, how long have you been playing professional

football?

A. I've been playing since 2004. It's been eight years now.

Q. Have you been a starter except when you were injured, when

you have had injuries, for all --

A. Yes, I've been there, a starter my whole career.

Q. Have you also played middle linebacker your whole career?

A. Yes, sir.

Q. Jonathan, for those of us who are not as familiar with

football, would you describe what that position is.

A. The middle linebacker is like the quarterback of the

defense. What we do is we get in the huddle, we get the call

from the defensive coordinator, we relay the call. We have to

figure out the down and distance, what the offense is, their

personnel, what they are lined up in.

Once I get the call to the defense, I turn around. I

observe the offense, what they are lining up in. I give the

strength call to get the defense lined up. Once the defense is

lined up, I listen for checks from the offense. If they check

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into a certain play, given what we are doing defensively, I may

check out of our defense, get us into a better play.

For example, if we are in a blitz and the offense

knows we are in a blitz, I'll check out of it and get into a

coverage. Vice versa, if we are in a coverage, I will check

into a blitz if the offense realizes that.

After surveying the offense, I try to tell the

tendencies and relay that to the defense, whether it's a run

play or a pass play.

Q. You said something about checking the strength. What do

you mean by that?

A. Depending on how we break down the offense, we'll

determine a player to be the strength where we set our defense

to. So it's usually the tight end, and the tight end lines up

on the right side. We are going to assume that's going to be

the strength of their offense for that play, and I will line up

my guys to the right.

Q. When you talk about checks, that's just changing the

formation you're in as a defense?

A. Yes.

Q. Are you also the captain of the New Orleans Saints

defense?

A. Yes, over the past three years.

Q. What does it mean to be captain?

A. Well, to me, being captain -- one, I don't take lightly

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being captain -- is you must lead by example. You have to be

one of the hardest workers. I have to be the best leader. You

have to be able to understand the different personalities on

your team and relate to everyone. You have to be able to know

when it's time to push some guys, time to back off some guys.

It will be Sean Payton, or back then it was Gregg

Williams, my defensive coordinator. They would come to me if

they felt there were any locker room issues -- come to myself

or Drew if there were any locker room issues, if they felt the

guys weren't going hard enough or if they wanted just the pulse

of the team, if the guys were tired, if the guys were a little

beat up or worn down.

So being captain, it's a big role, in my opinion, and

I take it very seriously.

Q. Drew is Drew Brees, I assume?

A. Yes, Drew Brees. Sorry.

Q. The two of you are the two captains of the New Orleans

Saints?

A. Yes, sir.

Q. What's it like to be a professional football player?

A. For me, being a professional football player, it's a dream

come true. I always tell people to do what you love, love what

you do. If you are doing that, it never feels like work. For

the past eight years, I have never felt like I've been working;

I've felt like I've been having fun. I love to compete. I

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love to get after it. That's the fun of the game, to prepare

for the game, prepare for your opponent, and then to go out

there and be able to win.

Q. Has it also opened doors for you in other parts of your

life?

A. Yes, it has.

Q. In what way?

A. It has opened doors in pretty much every facet outside of

football, whether it's charity work, whether it's business

ventures; even opening doors as far as going back to the

University of Miami and being able to talk to some people

there, and really giving back to the University of Miami as

well.

Q. In what way do you give back to Miami?

A. I recently donated to the University of Miami to the

sports facility. We are rebuilding the sports facility to keep

up with, you know, the bigger Division 1 players of the world

that can do this every year. Now, we can't do it every year,

but we -- I donated myself. Alex Rodriguez has donated to the

baseball team. That was great for me, to keep in touch and

show how much I appreciated being at the University of Miami.

Q. You also mentioned charitable work. What were you

referring to?

A. I'm referring to my foundation. I have the Jonathan Vilma

Foundation, which the main purpose is to go down and build

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schools in Haiti. We already built one school. We have

actually almost completed our second school in Haiti. The

first school is for grades 7 through 9, holds over 700

students. They are being taught in French. The goal is for

them to now take that -- I'm sorry. In Haiti, the language is

Creole, the main dialect. You can't take that overseas, so

it's hard to -- it's hard to relate. You have to break that

language barrier. So we are teaching them in French so that

when they go from middle school now to high school, which is

the second school that we built, which goes from grades 10 to

13, from there they will be able to go overseas with French and

go from there.

Q. You said you are almost done building a second school down

there?

A. Yes. We are about 95 percent complete. I received an

e-mail actually yesterday saying that we are pretty much done.

Q. What grades is the second school for?

A. The second school will be grades 10 through 13. So the

kids that we started off with in grades 7 through 9 will then

go to our school that's being built. It will be 10 to 13, and

from there they can go to college.

Q. How many students in toto will be helped by those two

schools?

A. Well, right now it's over 700 students graduating and move

on to the second school, and we plan to have another 700. So

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it will be around 1,400 kids.

Q. How much money has your foundation donated to building

those schools?

A. I have raised over $400,000 -- $300,000 to $400,000.

Q. How do you raise money for the schools?

A. Well, I have people that -- it gets a lot of press. So I

have people that come and actually go onto a Web site and

donate. I have had people call me. I have had former

teammates call me and ask how they can help. That was great.

The main thing that I do is I have a -- the first

week of November in New Orleans, I have a celebrity waiter

charity event where I teamed up with Morton's, and that's where

I raised most of my money for the charity.

Q. Do your teammates participate in the Morton's fund-raiser?

A. Yes, they do. I usually ask about 15 to 20 of my

teammates if they will come and be celebrity waiters for the

day. Really, all that entails is just delivering food to the

people who came and bought tables. It's really just a good

time. They go, they serve the food, take pictures. Everybody

is having a great time. We have a silent auction, a live

auction later on. Music is playing. It's an all-around fun,

enjoyable time.

Q. In addition to providing money to the schools, do you also

give your time?

A. Oh, yes, I definitely give my time.

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Q. How much time, approximately, do you give to your

foundation?

A. During the season I give most of my time to the celebrity

charity waiter event. In the off-season -- I actually just

came back from Haiti this past April. I spent three days there

checking out the school, the facilities, talking to the

students. And I plan to do about two or three trips a year in

the off-season, to go down to Haiti.

Q. How did you get interested in Haiti?

A. Both of my parents were born and raised in Haiti. My

mother moved when she was in high school, my father moved when

he was in college, to the States. Of course, I have family

down there. I have aunts, uncles, cousins, relatives. And

Haiti has been a second home to me.

When the earthquake hit in 2010, that was, in my

opinion, my calling to now come down, go down and help. And,

of course, my family, it's especially important to them. And

if it's important to my family, it's definitely going to be

important to me. I have gone down there. I've made it not a

one- or a two-year or one off thing. This is for years to

come.

Q. Are your parents still alive?

A. Yes.

Q. Has your mom worked outside of the house?

A. Yes, yes. She was a social worker for the county. She

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lives in Miami, Florida. She just retired this past April.

Q. After how many years?

A. 36. Don't quote me on that.

Q. How about your dad? Does he work?

A. Yes. My dad, he is a CPA, works with the IRS, and he has

been working -- he says he is going to retire. I don't know

when. He says December, but I don't believe him. He has been

working for them 30-some-odd years.

Q. Jonathan, do you have any children?

A. Yes.

Q. How many?

A. I have one daughter. She's 2 1/2.

Q. Is there a second foundation you have been involved with?

A. Yes. It's also part of -- under the Jonathan Vilma

Foundation. It's for financial literacy. And this one is for

my colleagues, my peers and guys that are in college, to

understand just the basics of finance, you know, just simple

how you do a checking account, savings account, why it's good

to save your money instead of spending your money, just to

really get to understand they can be -- they can get to a point

where they don't have to rely on everything their accountant,

their agent, their financial advisors say. They can actually

speak with them and question them and get the answers they need

about their money.

Q. How long have you been doing that work, Jonathan?

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A. I've been doing that since 2006.

Q. Do you also have business interests outside of football?

A. Yes, I do.

Q. What are they?

A. The most recent one right now is Brother Jimmy's

restaurant. When I was playing in New York, I used to frequent

Brother Jimmy's. It's a barbecue casual bar/sports bar. We

have six locations in New York City. And I used to go and I

loved it. I actually met the founder -- his name is Jimmy --

when I was in New York. And we talked, we talked, we talked,

and we finally flirted around with saying let's build one in

Miami and bring the franchise down there. This was about three

years ago. And then two years ago, we actually put it into

practice, and now we are opening August 16.

Q. Let me turn now to your physical condition. How are you

doing?

A. I'm always good.

Q. Would you say you're a hundred percent as far as your

physical condition?

A. Right now I'm about 75, 80 percent.

Q. Why is that?

A. September 16, it was right before a Chicago game, I had

one of those weird, freak accidents with my left knee, and come

to find out I had lost cartilage. Some of the cartilage popped

off in my knee, and I played through it throughout the season.

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After the season I knew I was going to have to get surgery, and

I had what was called an OATS procedure. It's an

osteoarticular transfer system procedure where they take

cartilage from your nonweight-bearing side of your knee and

replace the cartilage that was lost on your weight-bearing

side.

Q. Did you miss any games because of your injury?

A. I missed five games this past season.

Q. During the course of the season, did you have some

surgical procedures performed on you so you could play?

A. Yes. I had arthroscopic surgery after -- it was

November 7, 2011. I believe it was after the Tampa Bay game

that we played at home, and I went down that Monday and had the

surgery.

Q. What kind of surgery was that?

A. It was just to clean out the particles. The floating

cartilage causes irritation. It was causing swelling. It was

limiting my movement in my knee, limiting my running gait, and

I had to get that cleaned out so I could get back to trying to

play.

Q. I know it's not a pleasant thought for you, but I want you

to focus on what it was like during the season last year,

trying to rehab and trying to keep playing. About how many

hours a day did you devote at the Saints facility to getting

your body into shape?

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A. At least 13 hours. I would get there about 6:00 a.m.

Well, I will just tell you my schedule. That will be easier.

6:00 a.m., I would get there. I would rehab from 6:00 a.m. to

7:00 a.m. I would get a workout in with some of my teammates

from 7:00 to 7:30. 7:30, I go back, I would rehab a little bit

before the 8:00 meeting. 8:00, we would have our team meeting.

From 8:00 to 8:15 at our team meeting, we have our special

teams meeting right after that. Special teams, I wasn't

involved with, so I would go run, eat some breakfast real

quick, go back and get some more treatment until our offensive

and defensive meeting that was around 9:00, 9:10. We have our

offense and defensive meetings from 9:10 until practice time.

Once practice started, right before practice I would

leave the meeting to go get some more treatment. Then when

practice started, I would do a little bit of cardio and then go

out and watch practice. I wasn't able to practice Wednesday

and Thursday. Wednesday and Thursday I would do one period.

Friday and Saturday I wouldn't practice. And then Sunday we

would play.

So I would then go out and watch practice. After

practice I would go and get treatment again. I would squeeze

in a little lunch. I would then watch film up until the review

of the practice film at 3:15. Review of the practice film, I

would be there. After the review of the film, I would then go

back, get some more treatment, get a little dinner.

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Q. What was last year like for you?

A. It was tough. It was probably the toughest year I had.

Q. Was it important for you to spend so much time at the

facility while you were rehabbing or did you have to keep

interacting with your teammates during that time?

A. Yes. Again, you don't want excuses. Especially being the

captain, I don't have time for excuses. I still have to get my

guys ready whether I'm playing or not. I have to make sure

they are watching film, that they're doing everything they need

to do to get ready for the game. On top of that, I need to get

to treatment. I need to be as best as I possibly could for the

games. It's just part of rehab. It's part of your

responsibility.

Q. What was it like when you had to sit out games?

A. That was tough. I don't like doing it. It was very

tough. But again, it doesn't do anybody on the Saints any good

if I'm around pouting. So I would then grab a clipboard, a

game plan. I would break down the offense as I see it from the

sideline and try to relay it as quickly as possible to the

defense guys when they come back after a series.

I'm not the type to receive a lot of information

during the game, so I didn't want to bombard them with a lot of

information, but I would give them just little tidbits to keep

their eyes on.

Q. Who would make the decision whether you could play on any

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particular week?

A. I want to say me, but that's not really accurate. It was

really Sean Payton and Joe Vitt. I would always tell them,

"I'm fine. I'm fine. I can play." I got away with that for

about two or three games. And then finally they stepped in,

"You're not playing."

Q. Would you and Coach Vitt sometimes go head to head about

these decisions of whether you are going to play or not?

A. That was the only time me and Joe Vitt ever argued, is

because he wants to protect me from myself, and I just want to

play. He hid my jersey one time for a home game so that I

couldn't suit up and play.

Q. When did you find out he had hid your jersey from you?

A. He didn't tell me until afterwards that he hid my jersey.

But I went into the Superdome and looked at my locker and I

couldn't figure out where's my jersey. So I go and I run to

Joe, "Where's my jersey? I'm playing today." And he is acting

dumbfounded, like he had no idea. Then, of course, come to

find out Monday -- it was against Houston. We won the game.

Come to find out Monday, he told them to leave my jersey at the

facility.

Q. To keep you from playing?

A. Yes.

Q. Let me now ask you about the OATS procedure you had after

the season. That was taking cartilage from one part of your

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knee and putting it back into your knee?

A. Yes.

Q. What was the process like after you had the OATS

procedure?

A. The rehab process? You know, it was tough. It's one of

the major surgeries, and I was on crutches for six weeks. What

happens in the procedure is not only do they take cartilage,

they take out a little piece of bone, and they plug it back in.

When they plug back in the cartilage and bone, you have to be

nonweight-bearing for basically six weeks to let that bone

heal. And then from there, the cartilage doesn't get as much

blood supply, so the cartilage takes a little bit more time.

But you are allowed to do range-of-motion movements,

nonweight-bearing, strength-training movements, functional

movements, everything up until around that four-month mark

where you are allowed to finally start putting a little bit of

a load on and gradually progress.

Q. Did you have a follow-up procedure within the last month

or so?

A. Yes, I did.

Q. Where did that procedure take place?

A. The first week of July, I went to Düsseldorf in Germany.

I had heard about -- well, actually, I didn't hear about it.

Alex Rodriguez told me about it when I told him what happened

with my knee.

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Q. The guy who plays baseball in New York?

A. Yeah, that guy. He told me that he had a lot of success

with a doctor named Dr. Peter Wehling in Düsseldorf, Germany.

He said that he rushed back from his -- he had a meniscus

injury in his knee and he had the surgery and he rushed back.

And he said that it was sore, aching, it would swell up on him

sometimes.

And he heard about this procedure from Kobe Bryant,

and Kobe Bryant urged him to go see Dr. Wehling. He said he

went to Dr. Wehling, had tremendous results, and he urged me to

go see him. And I went the first week of July.

What he does there is different from the States.

What he does is he attacks a different problem, I should say,

or issue that you are having than a lot of surgeons do. What

that is, he treats inflammation. He believes, if you take out

the inflammation, that that starts the healing process all over

again, allows you to heal. You don't have pain, things like

that.

So I went July 2. He drew my blood. From there, the

procedure, he takes the blood, heats it up to a certain level,

and that gives you the IL-1Ra. Those are basically your

anti-inflammatories. He takes those and he cultivates that.

When he cultivates that, he then reinjects it back into your

body. It's your blood, it's your everything. And what he is

doing, he is countering any inflammation you have in the knee

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that causes your discomfort or pain.

He was very clear, it doesn't regenerate cartilage;

it doesn't do anything for the bone. But what it does is take

away the inflammation that's aggravating it, and it's now

allowing it to heal.

Q. Did the procedure seem to help you?

A. Yes. Yes, I did very well, very well. I couldn't jog

without pain. I was at about the 4 1/2-, 5-month mark, and I

was still having a little pain when I was jogging. I went up

there and came back. I've been jogging since. I still have a

little soreness because it's the first time I'm loading up my

knee since playing football back in January. That was great to

feel that way. It's been a while.

Q. Now, Jonathan, under normal circumstances, who would be

watching over your rehab from the OATS procedure and from the

Düsseldorf process?

A. It would be Scottie Patton. He is the head trainer for

the Saints.

Q. Is it important for Mr. Patton to be involved in your

rehab?

A. For me it's crucial because Scottie Patton -- when I was

up at 6:00 a.m. and doing all my treatment for those 13 hours,

it was Scottie that was there with me. Scottie saw me every

day, literally every day. He saw my knee. He saw how I was

feeling physically, emotionally, mentally. And he was the one

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that could gauge whether I could play, whether I can't play,

all those things.

When I finally got the major surgery after the

season, I was with Scottie, and we would put together like a

two-week game plan essentially of where I should be, some

numbers I should try to hit, some strength numbers, functional

movements I should be doing, all those things. And then from

there, if I hit my goals in those two or three weeks, we would

sit down again, map out another game plan for the next two or

three weeks, and just keep taking it in stages until I'm able

to practice and play.

Q. Does Mr. Patton have a particular expertise, both

objectively and subjectively, with regard to how you should be

moving and your running gait and those types of measurements to

determine your rehabilitation process?

A. Yes. Objectively, he is the head trainer. He has been

our head trainer, I believe, since 2000. He has been there

with me since I got to the Saints. So objectively, it only

makes sense that he is going to know what he is talking about.

I'm going to trust him.

Subjectively, seeing the injury on an MRI is

different than watching a player or the person go through the

rehab and go through their movements. So even if the MRI is

saying, well, he should be fine or he should be playing, but he

is there to see me every day and he sees that my running gait

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is off for whatever reason or I'm still having a little

stiffness or a little soreness, then he is going to back me off

regardless of whatever it says on paper. So he has to be there

to be able to watch me and see my movements.

And vice-versa. The MRI may say, hey, look, he is

not healed up. But I'm telling Scottie I'm fine; and I'm not

lying this time, I'm really fine, I can go out there and do

some things. So for Scottie to be there and be able to watch

me every day, he will know whether or not I'm ready to play.

He will probably know better than I would.

Q. Does your four-year history with him put him in a unique

position to perform those functions?

A. Yes.

MR. GINSBERG: Your Honor, we provided and filed with

the Court previously an affidavit from Scottie Patton. I

assume I don't have to reintroduce those. Is that right?

THE COURT: No, I believe it's in. Yes.

MR. GINSBERG: Thank you.

BY MR. GINSBERG:

Q. Jonathan, I want to turn now to early May 2012. Was that

when you learned that you had been suspended from football?

A. Yes.

Q. Jonathan, what is your punishment?

A. I was suspended immediately for a year.

Q. Were you barred from the facility?

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A. Yes.

Q. Jonathan, you said you were suspended for a year. Does

that mean you can automatically come back in a year and start

playing football again if the suspension is upheld?

A. No. I would have to reinstate with Roger Goodell.

Q. So Mr. Goodell not only suspended you, but he has to let

you back into the league after the year?

A. Yes.

Q. How did you learn that you had been suspended from

football?

A. I learned on ESPN that I was suspended.

Q. I'm going to talk to you about the months leading up to

your learning that you had been suspended. When did you first

learn that Mr. Goodell was investigating whether you had

embraced a program designed intentionally to injure opposing

players?

A. I first learned in March, whatever day it was that they

sent the letter of their findings to all 32 teams. I got a

call from our PR director, and he said that "Hey, I don't know

what to tell you, but the NFL is about to release this report."

I said, "What is it?"

He said, "Something about a bounty. I don't really

know anything else about that. But I just want to let you know

that your name is in it and it's going to be reported."

Q. In fact, over the course of the next several weeks and

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several months, was it reported publicly? Was information

about the investigation reported publicly?

A. Yes.

Q. During those weeks and months, did Commissioner Goodell

himself say what he thought you had done?

A. Yes, he did.

Q. Let me show you what we have identified as Exhibits 1, 2,

and 3 for identification.

MR. GINSBERG: Your Honor, there's a March 21 report,

Exhibit 1; a March 21 press release, Exhibit 2; and a May 2

press release, Exhibit 3.

THE COURT: Okay.

MR. GINSBERG: May I approach the witness?

THE COURT: Sure.

BY MR. GINSBERG:

Q. Jonathan, do you recognize those three documents?

A. Yes, I do.

Q. Were those all documents that you recognized, having seen

them in the public media?

A. Yes. These documents -- I was given an e-mail from the

director of PR, our director of PR, Greg Bensel, of this, and

he said this was going to the NFL teams. He didn't say

anything about it going publicly or to any of the media

outlets. I would say within hours of me reading this, it was

on ESPN, NFL Network, and literally everywhere.

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Q. Were all three of those documents, in fact, released to

the public media?

A. Yes.

Q. In addition to those three documents, were there other

press releases and other statements from Mr. Goodell regarding

what he thought you did in the bounty program?

A. Yes, there was.

MR. GINSBERG: Your Honor, I offer Exhibits 1, 2, and

3 into evidence.

THE COURT: I think they are already admitted, but

they are admitted. Okay. They are admitted.

MR. GINSBERG: Thank you, Your Honor.

BY MR. GINSBERG:

Q. Jonathan, I just want you to focus on what Mr. Goodell

said about you.

A. Uh-huh.

Q. What did Mr. Goodell say that you did?

A. He said that --

Q. I'm sorry. Let me interrupt you one more time.

A. Okay.

Q. Just focus only on what you heard him say publicly to the

media.

A. What he said publicly, which resonated with me, was I

willingly embraced a bounty culture with intent to injure. He

also said that I enthusiastically enjoyed entering into this

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program.

Q. Did he say that you had embraced the program?

A. Yes, he did.

Q. Did he say what the program was that he said that you had

embraced?

A. He said I embraced a pay-to-injure bounty program.

Q. Did he explain publicly what that program consisted of?

A. He said that program consisted of myself and my teammates

and Gregg Williams specifically targeting out opponents with

money and going out with the intent to injure them.

Q. Did Mr. Goodell say that you had held up $10,000 and put

them on the heads to secure the injury of Brett Favre and

Kurt Warner?

A. Actually, more specifically, what he said was I had $5,000

in each hand, I was waving it around, and I slammed them on the

table saying, "This is for whoever knocks out Brett Favre."

For Kurt Warner, he said I waved $5,000 in each hand for

Kurt Warner.

Q. Did Mr. Goodell say that he was investigating that, or did

he say that his conclusion was that you had embraced the

program to secure the injury of particular opposing players?

A. Mr. Goodell said that that was his conclusion from his

findings. He didn't ask me if I did it or didn't do it. It

was already reported in these reports, and it was already sent

to all the media outlets.

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Q. These conclusions that Mr. Goodell made publicly about

your involvement in the bounty program, did they come before

you had the opportunity to go through a process in which

Mr. Goodell would be the arbitrator?

A. Yes. It came before literally everything regarding myself

and the process with Goodell.

Q. Jonathan, did you ever participate in a program designed

to secure the injury of opposing players?

A. That's 100 percent false.

Q. Was there ever with the New Orleans Saints a program, as

Mr. Goodell concluded publicly, by which players put money on

specific opposing players to reward your teammates for injuring

those players?

A. There was never a program -- in the three years that Gregg

Williams was there, me being the captain, there was never a

program for a bounty.

Q. Have you ever offered money to a teammate to hurt another

player?

A. I have never offered money to a teammate to hurt a player.

Not with the Saints, not with the Jets, not in my whole career.

Q. Jonathan, have you ever encouraged a teammate to hurt

another player?

A. Again, in my whole career I have never encouraged a

teammate to hurt another player.

Q. Have you ever taken money as a reward for hurting another

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player?

A. I have never received a dime for ever hurting another

player.

Q. Have you ever waved $10,000 in your hands and asked your

teammates to hurt Brett Favre or Kurt Warner or anybody else?

A. Never.

Q. As best as you know, has any teammate of yours ever put

money up to secure the injury of an opposing player?

A. None of my teammates have ever done that. They have never

implied that. They have never tried to do that. If it were to

happen, me being a captain, I wouldn't allow it.

Q. Was there a bounty program, as Mr. Goodell concluded

publicly?

A. There was not a bounty program.

Q. How does it make you feel that Mr. Goodell accused you --

not only accused you, but publicly concluded that you had

engaged in a program to hurt an opposing player?

A. What Roger Goodell has done publicly, he has basically

hurt me and what I stand for to the very core of who I am. For

eight years in the NFL, if you ever asked about Jonathan Vilma,

Jonathan Vilma played hard. He was a respected player. He was

smart. He was cerebral. How was he off the field? He was a

great person off the field, somebody that exemplified what

being a football player is.

This was up until March of this year. Everything

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that I have worked for is now basically thrown down the toilet

because anytime you ask about me now, it's bounty this, bounty

that, you're a criminal, you shouldn't play anymore.

It hurts. It hurts. It's tough to swallow because

this is not who I am, and it's not right, it's not accurate. I

don't understand where this came from. For me to now try to

pull back what I have taken eight years to do is next to

impossible.

Q. There has been a lot of media attention to a person by the

name of Gregg Williams. Who is Mr. Williams?

A. Gregg Williams was my defensive coordinator from 2009 to

2011.

Q. Describe him.

A. Gregg Williams was probably one of the best defensive

coordinators I had. He was a great motivator. Gregg Williams,

he did a lot for me. He embraced me. He gave me the defense.

He allowed me to go out there, right, wrong, or indifferent,

make decisions. And for a coach to put his job on the line to

allow me to go out there and do what I did defensively speaks

volumes. I think he's a great coach.

Q. What was his demeanor?

A. Gregg Williams was very blunt. He was very upfront. He

was going to do literally whatever he had to do to get us

motivated, to get us to listen to him and go out there and play

hard.

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Q. Was he prone to screaming and yelling and using

vulgarities?

A. That's to put it lightly, yes.

Q. Without offending anybody, can you describe the sorts of

things that he would say and do?

A. Without offending anyone in the courtroom, I can give one

example of -- in 2009 we had played the Washington Redskins.

We actually won that game to win the division. And in that

game they were doing -- it's called a smoke route for us

defensively. Basically, if the offense saw that we are

blitzing, they would take the ball real quick and throw it to

one of the receivers. So you essentially have about eight guys

coming this way, you throw the ball that way, and it's

one-on-one with a cornerback, and they would get 8 or 10 yards.

So what they were doing is they were calling it --

they were hiking the ball quickly so that I couldn't check out

of our blitz and then get the ball over. At the end of the

day, they ended up with about 300-some yards passing, and it

was all on these smoke routes, smoke routes, smoke routes.

So we come back the next week, and Gregg Williams for

the whole week of practice, he's setting off fire alarms

because we need to get ready for smoke routes, and he sees

smoke everywhere. He would bring chalk to practice, and he

started smacking it and blowing it all in our faces because

there's smoke everywhere and we are getting beat by smoke and a

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smoke route.

So he would do little things like that where he

wanted to get our attention and emphasize how important it was

to heed what he was talking about.

Q. Was there certain terminology that Mr. Williams used that

you have been reading about in the press?

A. Oh, yes.

Q. Who's Pierson Prioleau?

A. Pierson Prioleau was one of my former teammates. We won a

Super Bowl together back in 2009. His last year playing was

2010, I believe. And he was with Gregg Williams when Gregg

Williams was at Buffalo as head coach, Washington Redskins as a

defensive coordinator, Jacksonville as a defensive coordinator.

And I was with Pierson and Gregg at the Saints when Gregg was

the defensive coordinator.

Q. Mr. Prioleau has filed an affidavit in this case,

identified and entered, I guess, as Exhibit 23. In that

affidavit, first of all, he says that you never engaged in the

bounty program, as Mr. Goodell has accused you, and that he

attended every defensive meeting while he was with the Saints

and that's how he knows there was no such program.

He also, in paragraph 10, said that he had been

coached by Gregg Williams with Buffalo from 2001 to 2003, with

the Redskins from 2005 to 2007, Jacksonville in 2008, and then

the Saints in 2009 and 2010.

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Jonathan, then Mr. Prioleau said, in paragraph 13,

and I quote: Gregg's rantings were exactly the same for every

team we were on together: the Bills, the Redskins, the

Jaguars, and Saints. His statements were no better and no

worse; in fact, usually the same with the Saints.

Is that your understanding based upon the discussions

you have had with Pierson and your other teammates who have

played for Mr. Williams on other teams?

A. Yes. I remember specifically when Gregg first got there

in 2009 and he started on one of his rants. And for lack of a

better term, he was talking crazy. We were like, what is wrong

with this guy?

After the meeting we are all scratching our heads

like, is this guy for real? Is this guy crazy?

And Pierson came over and he told me, "Look, don't

worry about Gregg. He is just doing that to get your

attention. You notice that he has everyone thinking about what

he was saying after the meeting."

I'm like, "Yeah, you're right."

He said, "That's what he does. He gets your

attention. He wants to get your attention. Whether it's the

first meeting or the last meeting at 6:00 at night, he is going

to find a way to keep your attention." He said, "So just don't

worry about all that. We go out, play hard, but just know that

there's a method to his madness."

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I said, "Okay."

Q. I'm going to talk to you about some of the terminology

that Mr. Williams used to use. In doing that, I would like to

show you what's been identified as Exhibits 15, 16, 17, 18, and

24.

THE DEPUTY CLERK: Judge, was Exhibit 23 admitted?

THE COURT: Pardon me?

THE DEPUTY CLERK: Was Exhibit 23 admitted?

THE COURT: If it's not admitted already, it's

admitted now. Some of these are in other parts of the record

somewhere else. In fact, why don't we just go ahead and admit

the entire exhibit list that you presented. That's all

admitted.

MR. GINSBERG: Thank you, Your Honor.

THE DEPUTY CLERK: Exhibits 1 through 26 are

admitted?

THE COURT: Yes. Well, I have 1 through 24. It's 1

through 24. Go ahead.

BY MR. GINSBERG:

Q. With the Court's permission, Jonathan, I'm going to

approach and show you Exhibits 15, 16, 17, 18, and 24.

MR. GINSBERG: May I approach, Your Honor?

THE COURT: Uh-huh.

BY MR. GINSBERG:

Q. Jonathan, let's start with 15. First of all, before this

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case started, had you ever seen this document?

A. I don't believe I did, no. Well, I have seen this in our

meetings, yes. Okay.

Q. Exhibit 15 on the top says "2010, Kill the Head Totals."

A. Yes.

Q. Are you familiar with the term "kill the head"?

A. Yes.

Q. What does that mean?

A. "Kill the head" is simply when you're -- when a running

back is running the ball or any ball carrier running the ball,

once they get tackled, you don't want them to fall forward. If

you fall forward, then they're facing the end zone they are

going to.

So what you do is you tackle them. You hope that

your other guys come, and you have them fall sideways, have

them fall backwards, diagonal, it doesn't matter. It's just

mentally you don't want them to every play get confidence that

they are going to run the ball, they're going to fall forward,

and then go on whichever way they want. Shoestring tackles,

all those things gives an offense confidence.

So "kill the heads" was us going out there making

sure they fell sideways, diagonal, backward, whatever it was;

that as long as their head wasn't facing the end zone, that's

for us a win psychologically.

Q. Is it also true that if they are going north/south and

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they are tackling north/south, they might gain extra yardage?

A. Of course, which is probably the next exhibit here.

Q. Was there anything about "kill the head" that implied or

encouraged or meant that any New Orleans Saint was supposed to

injure anybody on the opposing team?

A. Not at all. Not at all.

Q. Mr. Vilma, you seem to be the leader of the "kill the

heads".

A. Damn right. That's the way it's supposed to be.

Q. Exhibit 16, this is --

A. I don't have 16. I have 17.

Q. Look on the other side of 17. Just flip it over.

A. I see it.

Q. Sorry. Actually, before we get to that, let me ask you

about Exhibit 24 because Exhibit 24 has a term that seems to

have gained a lot of attention in the media.

A. Uh-huh.

Q. This document refers to a New York Giants game. Do you

see that?

A. Yes.

Q. By the name "Harper" -- I assume that's Roman Harper?

A. Yes.

Q. There's the term "cart-off, 1,000/impact play." Do you

see that?

A. Yes.

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Q. Did Mr. Williams used to use the word "cart-off"?

A. Yes, he did.

Q. Jonathan, what does "cart-off" mean?

A. A cart-off is when you tackle a running back, ball

carrier, whoever it is, and you tackle them so hard -- excuse

me. You legally tackle them so hard, tough, however it was,

that they could have had the wind knocked out of them and they

ended up missing a couple plays.

So you go -- Harper -- whoever it was on that day, he

hit someone clean, legal, no penalty on the play. He hit

someone so hard that they got the wind knocked out of them.

They weren't able to play the next couple plays. That was a

cart-off for him.

Q. Are you guys supposed to tackle hard enough to knock the

wind out of somebody?

A. That's what we are aiming for.

Q. Well, when NFL Sports and ESPN broadcast these shows

about --

A. Jacked Up, NFL's Hardest Hits, correct.

Q. Is that the kind of cart-off Mr. Williams was talking

about?

A. That's exactly the kind of cart-off.

Q. Is that the kind of hit that the NFL in its own commercial

enterprise was trying to gain ratings for?

A. Yes.

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Q. Was Mr. Williams' term "cart-off," as far as you could

tell, in any way meant to encourage you and your teammates to

hurt anyone?

A. Not at all. So for Harper, if you look and it's cart-off,

$1,000, if he would have gotten a penalty on that play, he

wouldn't have received $1,000 or whatever the amount was. In

fact, he would have been penalized by Gregg Williams the

following week, and he would owe money to us, to the defense.

Q. Let me ask you about that. When you say Harper got $1,000

for a cart-off, what are you referring to?

A. I'm referring to a pay-for-performance.

Q. What is a pay-for-performance?

A. Well, I will backtrack. In 2009 when Gregg got there,

right before the season started, he came to me, Will, Fujita,

and he said, "Look, guys, I have this thing that I've been

doing with other teams, and I think it will be really great

with us. I think you guys are talented enough, and it will be

a lot of fun. I have this pay-for-performance where guys put

their money to a pool, and we have item-by-item --

interceptions, sacks, sack-fumble, fumble recoveries, etc.,

etc. -- where guys get paid. They get paid out of the pot.

It's only after a win, and it's great to motivate the guys and

it's fun. He said he had a lot of success with it when he did

it with other teams.

So he was basically telling us that we are going to

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do it, and we'll let everyone know and bring their money in for

the pot. We said, "Cool. We like it."

Q. What kind of plays did Mr. Williams give money as a

reward?

A. He gave plays for anything positive, whether it was, like

I said, a fumble recovery, a forced fumble, a sack,

interception, interception for a touchdown, fumble recovery for

a touchdown, the whacks. I think I mentioned forced fumbles

already, but all the positive impact plays that a defensive

player can do within a game.

And then on top of that, if you had any mental

errors, you were fined. If you had any penalties, you were

fined. Because his biggest thing was never hurt the team.

Penalties hurt the team. He didn't want it. He didn't like

it. So we would get penalized for it, and now you have to put

money into the pot.

Q. When Mr. Williams crafted this game of paying out $200 or

$500 or $1,000, was it in any way to encourage or reward you

guys for injuring another player?

A. Not at all. He never mentioned injuring players. He

talked about positive plays that we can make.

Q. Turn to Exhibit 16, if you would. Exhibit 16 uses the

word "whack." Are you familiar with that item?

A. Yes, I am.

Q. What is a whack?

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A. A whack is a legal tackle that's below the waist. It's

usually like around the knees, legs. That's it, that's a

whack.

Q. Are you supposed to hit somebody below the knees or the

legs to hurt them?

A. No. It's a regular tackle.

So I don't know how many people have the exhibit, but

if you look at it, you notice that the leaders in whacks were

safeties and cornerbacks. The linebacker and D linemen, they

don't usually whack. I'm old school, I don't believe in going

low on a player if you are a linebacker. That's a pride thing,

in my opinion.

So you have these guys where let's say he's a running

back, he gets to the outside. The running backs are 230;

cornerback, 180 pounds. They are not going to tackle them

high, so they just go low and take his legs out real quick.

All legal, all clean.

Q. You didn't get any of those, did you?

A. No. No. I don't go low. Someone is going to get run

over or something's going to happen. I'm not going low.

Q. Turn to 17. That's entitled a "YAC Report," Y-A-C?

A. Yes.

Q. What is a YAC?

A. YAC is "yards after contact."

Q. What do you mean by that?

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A. That means as soon as a player made contact with the ball

carrier, how many yards did he gain after that. What I was

alluding to before comes big in the Exhibit 15 with the "kill

the heads" because if they fall forward, that counted as YAC

against us. It would be 2 to 3 yards of YAC against us. If

you make a tackle, that was YAC for however many yards it was

until someone tackled them.

Q. You're on the top of that list.

A. Yeah, I know. I know.

Q. That's not a good thing.

A. Where's the 2010 one? It was a lot better then.

Q. Jonathan, you talked about this sort of pay for good

plays --

A. Yes.

Q. -- interceptions or fumble recoveries. Did you have a

similar program when you were playing with the Jets?

A. Of course. Every team did.

Q. Have you talked to your teammates about whether, in fact,

every team has that kind of program?

A. Yeah. From when I was a rookie, that was what we do.

Q. Paying out a couple hundred dollars or so for good plays,

is that a team-run plan, a team-run game?

A. No. Like I say, Gregg was the one that told us about it.

Usually that's how you get it organized. Maybe you have a

player do side bets, but to get organized, you need like a

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coach to come in and say this is what we are doing.

Q. What was Mr. Williams' reaction if a player was penalized?

A. He hated it. He didn't like it. Especially if it was

something like jumping offsides, anything where it wasn't about

the impact of the game or -- he couldn't stand it, he didn't

like it, and that's exactly why he would penalize us for it.

Q. How about if it was intentional roughing of the passer?

A. No. I mean, if it happened, he didn't like it at all. At

all.

Q. How about applying some kind of dirty hit on somebody?

A. No, not at all.

Q. No reward for that kind of play?

A. No. You get penalized. And frankly speaking, if you

weren't -- if you were a young guy, he would probably take you

out of the game for a couple plays.

Q. Did Mr. Williams talk about crossing the line?

A. Yes. He said never to cross the line. He said get to it,

never cross the line, never hurt your team.

Q. Did you have an understanding of what he meant when he

said never hurt your team?

A. It was strictly on the penalties. He wanted us to play as

hard as possible between the white lines, fair; but as soon as

you got the penalties, I'm telling you he couldn't stand that;

and the mental errors, he couldn't stand that. Substitution

errors was another thing he couldn't stand. That was a

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reflection of coaching.

Q. Leading up to the day of our appeal hearing with

Mr. Goodell, did you ever have an opportunity to tell him how

wrong he had been in concluding publicly that you had engaged

in a program designed to hurt other players?

A. No, I did not. I never had a chance.

Q. I'm going to show you a group of exhibits, and we'll go

through them quickly, one by one. Let me show you Exhibits 5

through 12.


THE COURT: Uh-huh.

BY MR. GINSBERG:

Q. Exhibit 5 is a letter from me to Mr. Goodell on March 21,

correct?

A. Yes.

Q. And that asks Mr. Goodell for the opportunity to meet with

him, correct?

A. Yes.

Q. Was that done with your permission?

A. Yes.

Q. Did we receive a response to Exhibit 5?

A. I don't know if it's in the other exhibits, but I remember

them telling us that we weren't going to get anything that we

were asking for. So that would be the only response.

Q. What do you mean, we weren't going to get anything we had

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been asking for?

A. Well, if I can backtrack a little bit, when my coaches

went up to speak with Goodell and security, they said that they

were blindsided, that they didn't know what they were really

stepping into the meeting for. So they didn't know what the

meeting was about when they went up there and they spoke. They

said they basically got bombarded with a bunch of questions

about this bounty stuff, and they were so taken aback that they

first were confused, what's going on.

Then when they tried to start defending themselves

and saying that's not true, that's not true, or this is false,

they were accused of lying. Basically, the meeting got ugly,

from what the coaches told me, and it ended -- it didn't end

well. I'm not going to say how it ended as far as the

language.

From hearing that from when the coaches told me that,

I just wanted a basic sense of what I was going up there for

and what they were going to ask me, the questions or anything

like that, so I didn't get blindsided myself and then when I

try to defend myself, be accused of lying.

Q. If you look at Exhibit 6, the letter from me to

Mr. Birch -- do you know who Mr. Birch is?

A. Do I know? Yes, I do.

Q. This identifies him as the senior vice president of law

and labor policy. Is that accurate?

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A. Yes.

Q. Do you see in that letter that we requested from the NFL

that we be provided with the basis that the NFL had concluded

it had grounds to investigate you?

A. Yes. Just the simple whatever documents they had or

testimony from whoever the witnesses they spoke to, just really

simple stuff so that I could prepare myself. That's all.

Q. In that letter as well, on your behalf, I denied the

allegations that we had been reading about and the conclusions

we had been reading about from Mr. Goodell; is that right?

A. Yes.

Q. Then if you turn to Exhibit 7, did we also raise some

legal and jurisdictional issues with Mr. Goodell regarding the

process that he was invoking?

A. Yes, you did.

Q. On April 5 we received a written response from Mr. Birch,

correct?

A. Yes. Exhibit 8?

Q. Yes, Exhibit 8.

A. Yes.

Q. Was that a written denial of our request for materials or

information relating to this investigation?

A. Yes, it was -- or yes, it is a written denial.

Q. If you turn to Exhibit 9, on May 7 we wrote again to

Mr. Goodell, correct?

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A. That's correct.

Q. And reiterated that we were requesting information about

the investigation?

A. Yes.

Q. Did we identify 17 different categories of information

that we believed we needed to respond to what we had read

Mr. Goodell had already concluded about your involvement in

this program?

A. Yes, because now, by this time -- the early ones were the

infantile stages of what in the world is going on, from our

very first letter back in March and then progressively moved on

each month. So by this time, you know, we had a really good

idea of what they were talking about from all the media and

press clippings. So we asked specifically for everything that

they were talking about.

Q. Then if you turn to Exhibit 10, we wrote again to the NFL

on May 11; is that right?

A. Yes.

Q. We had been told by Mr. Birch that he thought that the

NFLPA had provided some documentation to us?

A. Correct.

Q. In fact, we did not have that documentation?

A. Not at all.

Q. On May 23 Mr. Birch gave us the report that we -- that had

previously been referred to by him, correct?

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A. Yeah. We got the report. This was the report that I

received from the e-mail from my PR director for the Saints,

the one that got spit out to all of the media, and this was

what he was giving us as the evidence that he had given to the

union regarding the bounties and specifically me.

Q. We already had that information because the NFL had

already released it publicly, correct?

A. Yeah. Everyone had it: Me, you, my mom, grandmother,

everybody.

Q. On May 23, also, Mr. Birch told us we didn't have any

right to any other information, correct?

A. That's correct.

Q. Finally, Mr. Goodell, about three months after he had

first proclaimed that you were guilty of embracing a program

designed to injure opposing players, scheduled an appeals

hearing for you, correct?

A. Yes.

Q. We wrote to Mr. Goodell on June 15; is that right? I

direct your attention to Exhibit 12.

A. Yes.

Q. In that letter we laid out a legal argument regarding

whether he had jurisdiction over the appeal, correct?

A. That is correct.

Q. We asked, as a matter of fundamental fairness, that

certain witnesses be made available at the hearing, correct?

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A. That's correct.

Q. We reiterated our request --

A. Yes.

Q. -- for documentation as well?

A. Yes, we did.

Q. Let me direct your attention to the appeal hearing. That

was on a Monday, correct?

A. Monday, June 18.

Q. About 55 hours or so before that appeal hearing, we

finally received some documents, correct?

A. That is correct.

Q. Now, had you read in the media what Mr. Goodell had

represented that he had reviewed in terms of numbers of

documents and numbers of pages of documents regarding this

alleged bounty program that had proved your guilt?

A. Yeah. From day one he said that they had 50,000 pages,

18,000 documents of evidence, and that over a 3-year period,

that's what he used to come to the decisions on the coaches and

the players.

Q. So less than three days before your appeal hearing, did we

receive 50,000 pages and 18,000 documents that Mr. Goodell had

considered in his investigation?

A. No, we did not.

Q. What did we receive?

A. We received 16 documents, about 100-some-odd pages. Less

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than 200; I know that.

Q. Did we receive any witness statements?

A. No, we did not.

Q. Did we receive any original documentation?

A. No, we did not.

Q. Did we receive any unaltered or unredacted documentation?

A. No. Basically, what we were stepping into was everything

either handwritten -- I mean, excuse me, typed up by I don't

even know who. Someone from the NFL. No witnesses. It was

Mary Jo White, who was their outside counsel, and their

security people, and those were the witnesses. I don't really

know how they are witnesses, but those were the people that

were going to speak at the appeals hearing.

Q. So none of the people who had firsthand evidence were

going to be presented at the hearing; is that right?

A. Nobody.

Q. Even with regard to Mary Jo White and Jeff Miller, the

security person, were they going to be sworn in as witnesses?

A. No. Nobody was going to be sworn in.

Q. Had you read before you went to the appeal hearing a

statement by Mary Jo White about our request for information?

A. Yes, I did.

Q. What do you recall that Mary Jo White said about our

request to have an understanding of what the accusations were?

A. She called our request for evidence as a red herring

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because we know what we did and we don't need the evidence.

Q. This is a former United States attorney who called your

request for information about your supposed guilt a red

herring?

A. Yes.

Q. How did that make you feel, that Mr. Goodell's lawyer was

making those pronouncements in the press?

A. I don't know if it made me feel a certain way. It was

expected. The NFL paid her, so she is obviously going to do

what they ask. I really wasn't surprised, to be honest with

you, by it.

Q. Did we appear for the hearing on June 18?

A. Yes, we did.

Q. If you look at Exhibit 13, do you recognize -- do you have

13 in front of you?

A. I don't think I have 13.

Q. Let me give you Exhibit 13. I'm sorry.


THE COURT: Uh-huh.

BY MR. GINSBERG:

Q. Do you recognize Exhibit 13?

A. Yes, I do.

Q. What do you recognize that to be?

A. This is our letter to the NFL stating that they did not

present us evidence within 72 hours. If I'm correct, they're

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mandated by New York law to present evidence within 72 hours,

which was supposed to be 10:00 a.m., Friday, of the evidence.

They gave us the evidence at around 1:30, 2:00 that day, so we

filed a motion to not allow that evidence into the hearing.

Q. Jonathan, let me try to set the stage for the appeal

hearing. We walked in and we went to the NFL offices, correct?

A. Correct.

Q. There's a huge conference room, right?

A. Correct.

Q. Then on one side of the table were you and your teammates

and former teammates who were accused of engaging in this

bounty program, correct?

A. Correct.

Q. And far too many lawyers?

A. Correct.

Q. Then on the other side of the table there were

representatives of the NFL, correct?

A. Correct.

Q. Then Mr. Goodell was in the front of the table, right?

A. Mr. Goodell and Jeff Pash.

Q. Who is Jeff Pash?

A. I don't know his legal title. I guess he is the second

guy or right-hand man.

Q. At the NFL?

A. Oh, yes, yes. To Roger Goodell, yes.

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Q. You understand that the adversary party in this

arbitration was the NFL, correct?

A. Correct.

Q. Mr. Goodell was supposed to be the arbitrator, correct?

A. Supposed to be the neutral arbitrator.

Q. When we made our motion to preclude based on the NFL's

late delivery of documents --

A. Yes.

Q. -- did Mr. Goodell have a conversation in private with

anybody in that conference room?

A. Yes, he did.

Q. Who did he talk to?

A. He talked to Jeff Pash, who was to his left. He whispered

over to Jeff Pash to his left.

Q. So Mr. Goodell consulted with one of the opposing people

at the hearing about our motion, correct?

A. Correct. He only talked to Jeff Pash. He didn't speak to

us. And then from Jeff Pash they then spoke to Mary Jo White,

Joe Hummel; and then from there, that's when they finally

addressed us.

Q. We weren't allowed to participate in those conversations,

correct?

A. No.

Q. Was it clear by that point that the witnesses with

firsthand knowledge that we had asked to appear were not going

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to be made available?

A. That's correct.

Q. Was it clear that no witness, even the third-hand

witnesses who were there, were going to be presented for

cross-examination?

A. That's correct. Jeff Pash said that basically -- excuse

me. Actually either Goodell or Pash, I can't remember, but one

of them said, "We are here. You can listen to Mary Jo White

and Hummel. They're going to give their presentation, and you

can cross-examine them if you like."

Q. They weren't going to be sworn in?

A. No.

Q. Did we also on our side present to Mr. Goodell a

representation regarding our factual position about his

allegations and his conclusions?

A. Yes, we did.

THE COURT: May I interrupt just a second? Was that

verbally done? How was that done?

MR. GINSBERG: Yes, Your Honor. The proffer that we

made, the representations that we made were verbal at the

hearing.

THE COURT: Okay.

BY MR. GINSBERG:

Q. Incidentally, Jonathan, did you read in the media the next

day that the very statements that Mr. Miller, the NFL

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investigator, had given and Mary Jo had given later on at the

hearing about the supposed evidence was exactly the

presentation they subsequently gave to the press?

A. Yes. We took a recess until the time, which was -- 1:33.

So I guess we took a recess until around that time. You and

me -- Peter and myself, we didn't show up. The other three

players did go back. I don't know with who as the counsel.

They were given this presentation by Mary Jo White.

After they left, the NFL then invited 12 media people

to go to the conference room, and Mary Jo White, I'm assuming,

then now gave the same presentation that she gave to the

players that afternoon.

Q. Jonathan, I'm going to turn to one of the pieces of

evidence or supposed evidence that the NFL had provided and

that seemed to be the focus of the NFL's case.

A. Do I have it here?

Q. No. I'm going to give it to you. It's Exhibit 14.


THE COURT: Uh-huh.

BY MR. GINSBERG:

Q. If there's such a thing as a smoking gun, did you

understand this to be the NFL's smoking gun?

A. It was supposed to be this and the video of Anthony

Hargrove where they said that he says, "Give me my money."

Q. We are going to talk about that video as well.

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A. Okay.

Q. Exhibit 14 says "Minny Game." I assume that's the

Minnesota game?

A. Right, correct.

Q. Supposedly this was transcribed from handwritten notes?

A. Yes.

Q. Did the NFL ever disclose whose notes these were?

A. No.

Q. Did the NFL ever show us the notes?

A. No, they did not.

Q. Is there any way that we could determine whether this

transcription was accurately transcribed?

A. No.

Q. Do you have an understanding as to where this document

came from?

A. I have an understanding that it came from Mike Cerullo.

Q. Who is Mike Cerullo?

A. Mike Cerullo was a coaching assistant, which is actually

different from being an assistant coach. I guess the hierarchy

is different, pay grade is different. So he was a coaching

assistant. He was, from what I could tell, basically the guy

that would do the PowerPoints for Gregg Williams. He would do

the cards and the PowerPoints for Joe Vitt in our linebacker

meetings.

Q. How long did Mr. Cerullo work for the Saints?

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A. To my knowledge, Mr. Cerullo worked for at most a year,

two years.

Q. What happened to him?

A. He got fired.

Q. Do you know why?

A. Mr. Cerullo would leave, and he would have these

quote/unquote emergencies that he would leave for, and

apparently these emergencies were made up. And he wasn't there

at a crucial time. He wasn't there for the week of the Super

Bowl, for one of his emergencies, and he was fired.

Q. What was his reaction when he was fired?

A. Apparently him and Joe Vitt did not get along. Joe Vitt

couldn't stand that he was not available. "This is your job,

and you have to make time. Everyone has their problems.

Everyone has their issues. You suck it up and you move on."

He wanted to get revenge on Joe for Joe firing him, basically.

Q. Is that what he said, that he wanted to get revenge on

Joe Vitt?

A. That is what he said.

Q. This document suggests that you put $10,000 on a

quarterback. Do you see that?

A. Yes, it does, top of the line.

Q. Is that true?

A. No, that's not true.

Q. It says that someone named Grant also put $10,000 on a

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quarterback.

Incidentally, do you understand that this supposedly,

according to what the NFL said, came from the pregame meeting

before the Minnesota playoff game?

A. This was supposed to come from the night of the -- the

Saturday night before we played Minnesota, this was supposed to

come from that defensive meeting where -- the meeting where I

had the $5,000 in each hand and slammed it on the table.

That's what this was supposed to come from.

Q. Did Charles Grant put $10,000 on a quarterback at that

meeting?

A. No, he did not. Charles Grant was not even present at the

meeting because he was on IR. He had torn his tricep in the

Carolina game the last week of the season and he was put on IR,

so he wasn't there.

Q. Was there a Mr. Ornstein at that meeting?

A. Yes, Mike Ornstein was at the meeting.

Q. Have you read statements from Mr. Ornstein rigorously

denying that he engaged in putting money on anybody at any

time?

A. Yes. I actually asked Mike Ornstein about this when I saw

this evidence, when I left back to Miami, and he vehemently

denied this $10,000 that's on this letter.

Q. It says "Joe Vitt, $5,000."

A. Yes. We all know publicly Joe Vitt came out and said that

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was wrong and that was not accurate. He even talked to Roger

Goodell about it. And the NFL also came out and said that this

was not accurate about Joe Vitt's $5,000.

Q. Of course, Mr. Fujita was also punished at the same time

you were, correct?

A. That is correct.

Q. What's his reaction to this transcribed, redacted

document?

A. Scott Fujita publicly, privately has been very disturbed

by this ledger, by the process and how he has been unfairly

accused.

Q. Have you had a chance to talk to the other people whose

names are on this document?

A. Yes. You have Will Smith, $5,000, general pool. Of

course, he denies that. We have Randall Gay, $2,000, who is

actually here, so I don't even have to tell you. I know he is

going to deny that. Roman Harper you will speak to or he will

testify later on today, $5,000, general pool. That's obviously

false. There's $2,500, we don't even know who. Tracy Porter,

he is now with the Denver Broncos. That's not true. We had

Darren Sharper for $5,000, pick six; under it, QB hits. I

don't really know what that means, but the $5,000, Darren

Sharper has denied it. He is going to try to be here today. I

know he has a TV engagement. And then pick six, Jabari Greer,

$5,000, he was as confused as I was when I asked him about it.

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Q. I want to turn for a moment to whether there's any

objective evidence supporting the conclusions that Mr. Goodell

reached regarding the bounty program, the existence of the

bounty program.

How many fines, Jonathan, have you received from the

way you played football during the three years that Mr. Goodell

claims that you were engaged in the bounty program?

A. I received two fines.

Q. For what?

A. One fine was for roughing the passer. I believe the other

fine was for a face mask.

Q. Were you trying to hurt anybody at the time?

A. No, I was not.

Q. Did you receive any money for those plays?

A. I did not receive any money.

Q. In four years, Jonathan, how many personal fouls have you

received?

A. I have received three personal fouls in four years.

Q. Is that a lot or a little for an NFL player?

A. That is the bottom third of the NFL during that time

frame.

Q. How about the Saints overall in terms of injuring other

players? Are there statistics for how many players the teams

hurt on the opposing teams?

A. Yeah. Statistically, we were 31 out of 32 teams. We were

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the second-least team to have injured an opposing player in

that three-year span.

Q. So if there was a bounty program, it wasn't working very

well?

A. We didn't listen.

Q. Jonathan, how has the suspension affected you?

A. In what way? Physically, mentally, emotionally?

Q. All of them.

A. You name it. The suspension -- I can start physically. I

need to be around Scottie. That's plain and simple. I need to

get to him so I can get my game plan and get going. I want to

play. That's easy.

Mentally, I haven't had an off-season. This has been

by far the toughest off-season because whether I'm dealing with

the knee -- 6:00 in the morning, I'm dealing with the knee from

6:00 to 9:00. Then from 9:00 to you call it, I'm dealing with

this. Then, of course, my daughter still wants to play.

Emotionally, it's been tough because, again, this is

not who I am. I don't know where this came from. This is not

me. This is not who I am. This is the complete opposite of

what I prided myself on as a football player for eight years.

To go from, as I said before, being here to now here

emotionally is tough. No one wants to hear a sob story, so it

is what it is.

Q. You have played for eight years. How many years does an

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average linebacker in the NFL play for?

A. Less than four.

Q. What's it like not to be at training camp today?

A. It's the first time in 16 years I haven't been at training

camp, dating back to high school, so it's different. It's

different.

Q. Is it important for you, as a middle linebacker and

captain and just the kind of person you are, to be at training

camp from the very beginning?

A. Yes. Well, for one, I'm one of the rare ones that

actually likes training camp. I enjoy it. I enjoy being

around my teammates. I enjoy the camaraderie, the competition.

Two, I don't have the job of a corner where they have

to stay with their receiver and understand the routes and they

are done, you put them on an island and leave them alone. I'm

the general. I have to get everything right. If something

doesn't go right, the first person you look at is me. Then you

go to the defensive coordinator, then you go to the head coach.

So I have to be there to get going.

Q. Does the suspension cause you concern about the charities

and the foundation you talked to us earlier about?

A. Yes. Specifically for my charity event that I do the

first week of November, if I'm not here and I can't talk to my

players or my teammates, then they are not going to be there,

and that was the biggest source of my funding for my charity.

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So if I can't get that this year, it will be tough to start

building the next schools down in Haiti.

Q. Incidentally, if you are suspended, are you allowed to

continue to have interaction with the people from the Saints?

A. No. I know the NFL has said, yeah, I'm allowed to work

with the trainer, but -- theoretically, yes. You put it in

practice, it's not practical. You can't do it.

You can't have 60 guys that you need to attend to --

and I'm talking about Scottie and the training staff -- they

have to attend to every day, and then pull one of those guys

aside -- it would mainly be Scottie because that's who I need.

But pull one of those guys aside and send them to wherever I am

to train for two or three hours a day, that's -- practically,

it's not possible.

Q. Are you concerned you won't be able to have your

fund-raiser for the foundation if you are suspended?

A. Yes, very concerned.

Q. What's your relationship with Sean Payton?

A. Me and Sean were great until I couldn't talk to him

anymore. I had been talking with him throughout the whole

process. It was very tough, what he was going through, and

this was before I had got suspended. I was just as mad for

Sean as Sean was for himself, if not madder, because I don't

understand -- let me backtrack. I get it. He is the head

coach. Everything trickles down from there. But I don't

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understand how that guy wasn't in any of the meetings -- he

gets completely blindsided by the NFL. Any time he tried to

say, "Well, that's not right," he is accused of lying. I don't

get that. And maybe there was more to it than that, I don't

know, but all I know is that he was put in a very tough

situation.

Q. Have you talked to him recently?

A. I can't.

Q. Why not?

A. He has been barred from speaking with us, "us" as in the

team, Saints, anybody.

Q. Mr. Goodell has barred the head coach from talking to his

friends and his teammates and his colleagues?

A. That's correct. That's correct.

Q. What does the city of New Orleans mean to you?

A. To say the least, I met my girlfriend here. My daughter

is here. I won a Super Bowl here. The fans have been great,

to say the least, from day one. Even when we weren't playing

our best in 2008, they were still with us. They were by far

better than Jets fans. It's been great.

Q. I'll stipulate to that.

A. I told Joe, I told Sean, I told everybody I want to retire

here. This is what I was looking for when I started with the

Jets in 2004, a team like this, a dream like this.

Q. Do you give time and make contributions to the community

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here?

A. Of course.

Q. How would the suspension affect your ability to do that?

A. I can't do any of that. I have to find a place to rehab

because, as I said, it's not going to be practical -- it's not

going to happen. The Saints aren't going to send someone every

day. It's not going to happen. So I have to find a place to

rehab my knee and go from there.

Q. Has the suspension also had an impact on the business that

you talked to us about before with the restaurants?

A. Yes. Yes.

Q. In what way?

A. I was not able to get financing for my restaurant,

Brother Jimmy's. We applied for financing, everything was

fine. They sent back the letter saying, "Financially he is

okay, but with everything that's going on with him right now,

we would just rather stay away from it." That's what they

wrote in a letter.

Q. Has the suspension had any impact on endorsements you've

had?

A. I lost two endorsements. Verizon chose not to deal with

me anymore. And JACO, which is a clothing company, also chose

to not be in this mess.

Q. Jonathan, what would it be like for you to walk into

training camp tomorrow?

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A. (Indicating.) That says it all.

MR. GINSBERG: May I have a moment, Your Honor?

THE COURT: Uh-huh.

MR. GINSBERG: Your Honor, I have no further

questions. Thank you.

THE COURT: It's 11:35. I offer a break, if you want

to take a break, or we can continue on. It's up to you.

MR. JONES: Your Honor, I'm ready to go forward.

THE COURT: Go ahead. I'm fine too.

CROSS-EXAMINATION

BY MR. JONES:

Q. Good morning, Mr. Vilma.

A. How are you doing?

Q. My name is Glad Jones. I represent the National Football

League. I have a few questions for you.

Do you have Exhibits 15, 24, 16, 17 and --

A. Slow down one second.

Q. Let's start with 15 --

A. All right.

Q. -- which Mr. Ginsberg was just asking you about. It's the

"kill the head."

A. Okay. Got it.

Q. Do you have that before you?

A. Yes, I have it right here.

Q. Did you have that on June 18 when you were in New York?

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A. Did I have this on June 18?

Q. Yes, by June 18.

A. By June 18?

Q. Uh-huh.

A. If you're referring to when you sent it late, yeah.

Q. Okay. I just want to confirm that you had it on June 18,

that document. All right.

Did you take the time to explain to the commissioner

what you have explained to the Court today --

A. Uh-huh.

Q. -- about what "kill the head" meant?

A. No, I did not.

Q. Let me ask the same question with regard to Exhibit 24,

cart-offs.

A. Yes.

Q. Did you have that document on June 18 --

A. Yes.

Q. -- when you were in New York before the commissioner?

A. Yes.

Q. All right. Did you take the time to explain, like you

have done to the Court this morning, what "cart-off" meant to

the commissioner and Mr. Pash and the others that were present

that morning?

A. Well, with the presentation that you guys were giving, it

was to my understanding that Mary Jo White, Joe Hummel, and I

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believe Jeff Miller were going to give presentations and we

were allowed to cross-examine them. So speaking to Roger

Goodell I do not believe was even an option; and if it was, I

didn't hear that.

Q. We will wrangle about that later. I'm just asking -- I

want to confirm, with all due respect --

A. Yes.

Q. -- on June 18 did you explain to Mr. Goodell and anyone

from the NFL in that process which was ongoing on that day --

A. Yes.

Q. -- what a cart-off meant as set forth in Exhibit 24?

A. No, I did not.

Q. We can speed through here for a second. Exhibit 16,

"whacks."

A. Give me a second.

Q. Take your time.

A. Got it.

Q. Did you explain what a whack was and that you didn't have

very many of those, right?

A. No, I did not have very many.

Q. Right. That's below the knees and principally the

safeties, correct, that have a number of those?

A. A legal hit below.

Q. Did you have that document on June 18 and explain, as you

have done to the Court today, what a whack was?

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A. Yeah, the same thing. The procedure wouldn't allow for

that.

Q. Now, Exhibit 17, YAC report, yards after contact, same

question: Did you have the document and did you make any

explanation to the NFL on that particular day?

A. Same question, same answer.

Q. Finally, Exhibit 14, the smoking gun, Mr. Ginsberg, the

document that he referred to --

A. Yes.

Q. -- did you have that document in your possession that day

on June 18 when you were there before the NFL --

A. Same answer to the same question.

Q. The answer is you had them all on June 18 --

A. Not on time.

Q. -- and you did not make any explanation to the

commissioner of the National Football League; is that correct?

A. It's correct that they were late, so we couldn't use them.

We were precluded not to use them, and you guys denied that

after speaking with each other.

Q. All right. Thank you. I would like to turn for just a

moment to your affidavit that you submitted.

MR. JONES: I believe, Your Honor, it's Exhibit 19.

BY MR. JONES:

Q. Do you have one, Mr. Vilma?

A. No, I do not.

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MR. JONES: Your Honor, may I approach?

THE COURT: Uh-huh.

THE WITNESS: Thank you.

MR. GINSBERG: Your Honor, do you have one?

THE COURT: I do.

BY MR. JONES:

Q. We talked a little bit in your testimony, Mr. Vilma, about

rehabilitation.

A. Yes.

Q. I would like us to focus in on that for just a moment. If

you would take a look at your affidavit at paragraph 25. It

doesn't have page numbers on it, at least my copy doesn't. If

you would just go there to paragraph 25.

A. Correct.

Q. Are you with me?

A. Yes.

Q. Did you read this affidavit before you signed this?

A. Yes.

Q. Did your lawyers assist you in preparing this affidavit?

A. Yes, they did.

Q. Was it Mr. Ginsberg's office?

A. Yes.

Q. Did you make your very best effort to make sure that the

information that you were going to put forth in this affidavit

was true and accurate information?

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A. Yes, it was.

Q. When you read this, you read it for that purpose because

you knew it was going to be signed and submitted to

Judge Berrigan in the Eastern District of Louisiana?

A. Yes.

Q. Let's take a look at paragraph 25, and I would like to

read it to you. It says, "For the first time in my NFL career,

I suffered an injury last season." Do you see where I'm

referring to?

A. Yes, sir.

Q. This affidavit was signed very recently. I'm assuming

there you are talking about last season being 2011?

A. Yes, sir.

Q. "I suffered an injury last season that caused me to miss

playing in an NFL game." Did I read that correctly?

A. Yeah. Am I allowed to -- I don't need to go into the

details.

Q. Just a moment. Let me ask the question. Just a moment,

if that's okay. It's my turn for just a second, Mr. Vilma.

A. All right.

Q. You read that before you signed this affidavit, correct?

A. I overlooked it.

Q. You continue, "I was hurt on September 16, 2011, during a

noncontact practice drill," correct?

A. That is correct.

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Q. The fact of the matter, Mr. Vilma, is that you had a knee

injury in October of 2007 when you were playing for the

New York Jets, correct?

A. That is very correct.

Q. So what we can take away from this, at least the first

part of this, is that paragraph 25 is not exactly accurate.

A. That's correct.

Q. You overlooked that, correct?

A. Yes. Well, actually, Peter and myself, after we submitted

it, I told -- actually I didn't tell him. My mother told me

that 25 was off. I said, "Well, I overlooked that."

Q. Did you call your lawyer and tell him that your mother

said it was incorrect?

A. No. I said I overlooked it.

Q. Let me just be clear with the Court. Those two sentences

are not correct?

A. That is correct.

Q. What happened was that you did have an injury in October

of 2007 when you were playing for the New York Jets. I think

it was a game against the Cincinnati Bengals. Correct?

A. Yes, sir.

Q. You were injured, and the specific injury that occurred

then was a knee injury.

A. Yes.

Q. It was a season-ending injury, correct?

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A. Yes, it was.

Q. What happened was that you were put on the Injured

Reserve, correct?

A. That's correct.

Q. You shortly, after having the injury in November, went

down to Miami -- where you are from, correct?

A. Yeah.

Q. And you had surgery in Miami, correct?

A. That's correct.

Q. Then just so our timetable is correct, you were traded to

the New Orleans Saints in late February of 2008?

A. Yes, sir.

Q. You had a pretty good season in 2008 when you came back to

the Saints, didn't you?

A. Thank you.

Q. Wasn't bad in 2009 either, was it?

A. Thank you.

Q. When did we win the Super Bowl?

A. 2009.

Q. 2009. Now, you had the surgery as a result of that injury

that occurred in October of 2007 sometime in early November; is

that right?

A. Yes.

Q. What was the doctor's name who did that?

A. Dr. John Uribe.

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Q. Is that a doctor you chose?

A. Yes.

Q. Yes. Then you were placed on Injured Reserve, correct?

Between the time of November and February, you

rehabbed in Miami, correct?

A. I actually rehabbed both Miami and New York. Then I was

traded and I went to the Saints. They did a physical on me,

checked my knee out and again did a game plan, two or three

weeks, and I would periodically go back and forth.

Q. So the Jets directed and monitored the rehab when you were

down in Miami after that surgery in November of 2007?

A. Right. They said what I was supposed to be doing. The

physical trainer down in Miami followed the protocol.

Q. In fact, you mentioned just a few moments ago that the

trainers here and the Saints have directed or monitored or

given you objectives every two or three weeks. That's what you

told Mr. Ginsberg, correct?

A. Yes, sir.

Q. That's been ongoing, correct?

A. No, it hasn't been ongoing.

Q. In 2007, so the Court is clear, you rehabbed partially in

Miami after that injury and partially in New York?

A. That is correct.

MR. JONES: Your Honor, may I have one moment?

THE COURT: Uh-huh.

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MR. JONES: Mr. Vilma, thank you for your testimony.

That's all the questions we have. Thank you.


REDIRECT EXAMINATION

BY MR. GINSBERG:

Q. I guess it's clear I'm not a Jets fan. Was that an honest

error, that we had missed your previous injury?

A. Yeah. I sent an e-mail to you, said I overlooked it.

Q. With regard to the appeal again, did your attorney, me,

make a proffer to Mr. Goodell that the documents they had

provided were inaccurate and unreliable because they were all

redacted and that you engaged in no bounty program and that the

documents 15, 16, 17, whatever -- I guess they only gave us

either 16 or 18 documents -- none of them accurately reflected

the conclusions that Mr. Goodell had already reached?

A. That is correct.

Q. I apologize because you said the other smoking gun was the

Hargrove video, correct?

A. Yes.

Q. At that hearing Mary Jo -- at the appeal Mary Jo White was

saying, "Well, look, you can see Hargrove saying, 'Where's my

money?'" Correct?

MR. JONES: Your Honor, may I make an objection?

This isn't something I raised on cross-examination, so I'm

going to be precluded from asking him anything. We didn't talk

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JONATHAN VILMA - REDIRECT

about "where is our money" in the exhibit.

THE COURT: I think that's right.

MR. GINSBERG: Well, it is right. I forgot. May I

have the Court's indulgence for a couple real quick questions?

THE COURT: Go ahead.

You can recross if you want to.

MR. JONES: Thank you. Let's let him finish his

questions. I will see.

BY MR. GINSBERG:

Q. The video was portrayed as Mr. Hargrove saying, "Where's

my money?" Correct?

A. Correct.

Q. What happened after the appeal hearing and after the

suspensions were handed down by Mr. Goodell regarding that

video?

A. Well, two things. The first thing was, when they invited

the media in to see the evidence and present it the way they

presented it to the other players -- because I wasn't there --

Mary Jo White is quoted as saying, "You can see Hargrove's lips

moving when he says, 'Give me my money.'"

That was completely inaccurate. If you watch the

video -- I don't know if you have seen the video, but you see

Hargrove say "Bobby"; you see Remy Ayodele block the camera's

view, and you hear someone say, "Give me my money."

The second thing that happened was Hargrove very

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JONATHAN VILMA - REDIRECT

emphatically went the next day or the day after on to the front

of the NFL office and gave this long speech. Within the long

speech he said he could swear on anything you want, swear on

his life that he didn't say, "Give me my money." I don't know

if the NFL even responded to that.

After that, after everyone had seen the video, you

had a bunch of people saying that this doesn't look like

Hargrove saying, "Give me my money"; it looks like someone

saying, "Give me my money," but not Hargrove.

MR. GINSBERG: Thank you.

THE COURT: Any recross?

MR. JONES: No, ma'am.

THE COURT: You may step down.

THE WITNESS: Do I take these?

THE COURT: Just give them back to your counsel.

It's 10 minutes to noon. We can continue on. I

know you have some other witnesses. It's entirely, again, up

to you all.

MR. JONES: Your Honor, our preference would be to

go -- if their witnesses are here, we certainly don't want to

jeopardize the time, and we're happy to go straight through.

MR. GINSBERG: Your Honor, could we get a 5- or

10-minute bathroom break?

MR. JONES: We won't object to that.

THE COURT: Let's take 10 minutes, and then we will

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be back at noon.

(Recess.)

TROY EVANS,




THE WITNESS: Troy Evans, T-R-O-Y, E-V-A-N-S.

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good morning, Mr. Evans.

A. Good morning.

Q. As you know, I'm Duke Williams, and I represent Mr. Vilma.

I just have a few questions for you this morning.

Where did you go to college?

A. University of Cincinnati.

Q. Did you play football in college?

A. Yes, sir.

Q. All four years?

A. Yes, sir.

Q. Did you get a degree from the University of Cincinnati?

A. Yes, sir.

Q. What was that degree in?

A. Business finance.

Q. What's your current occupation?

A. I started a school bus company. Owner of a school bus

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TROY EVANS - DIRECT

company.

Q. Is that in the Cincinnati area? Is that where you still

live?

A. Yes, sir.

Q. Did you play for the New Orleans Saints?

A. Yes, sir.

Q. Could you tell the Court what years you played for the

Saints.

A. I believe it was 2007 'til 2010.

Q. What position did you play when you were with the Saints?

A. I was a linebacker.

Q. Were you also special teams captain when you were with the

Saints?

A. Yes, sir, all the years.

Q. Could you just describe briefly what you do as special

teams captain.

A. It's a leadership role on the team that was voted on by

the players and just a position of leadership where you try to

lead by example both on and off the field.

Q. You were also a linebacker; is that correct?

A. Yes, sir.

Q. In your capacity as a special teams player and special

teams co-captain, could you describe briefly for the Court what

special teams do.

A. Special teams is the play in between the plays. It's a

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TROY EVANS - DIRECT

very high-speed, high-intensity, physical play usually

involving kicking the ball in some way, transferring the ball

from offense to defense before or after scores.

Q. Did you play on both sides on special teams or just --

A. All of them, yes, sir.

Q. Is it fair to say that special team play is characterized

by high speed and violent hits?

A. Very accurate, yes.

Q. Is the NFL a violent game, in your opinion, Mr. Evans?

A. Yes.

Q. You and your teammates are expected to deliver big hits.

That's your job, isn't it?

A. Correct.

Q. Of course, those big hits are and should be legal hits,

correct?

A. Correct.

Q. Is it fair to say that big hits are just part of the game,

part of the NFL game?

A. Yeah. Tackling is a major part of defense and special

teams, and big hits are part of tackling.

Q. Can you characterize for me what impact a big hit -- what

is a big hit?

A. A big hit is -- how do you classify it? A big hit is

obviously a high-speed probably collision that would result in

sometimes the defender and sometimes the offensive player

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violently getting taken down, which in turn makes the crowd go

crazy.

Q. I was going to ask you about that. It has an impact on

the crowd, obviously. Correct?

A. Yes, sir.

Q. Does it have an impact on the team, your team?

A. Absolutely.

Q. What kind of an impact does it have?

A. Just euphoric, natural, celebratory -- it's part of the

game. Hard hits just kind of -- it's like slapping the table

in this room. Everybody would jump.

Q. Do those kind of hits also have an impact on the opposing

team?

A. Absolutely. One side of the crowd gets loud, and the team

gets jumping up and down; and the other team is picking the

other player up, and the crowd goes quiet.

Q. How long have you known Jonathan Vilma?

A. I've had the pleasure of knowing Mr. Vilma now for 5 1/2

6 years.

Q. You say you have had the pleasure. Why has that been a

pleasurable friendship?

A. I kind of winked at him. It's not that pleasurable. No,

I'm kidding.

Obviously, I'm here. I respect him as a man, first

and foremost, and as a player. Anybody that's played this game

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TROY EVANS - DIRECT

knows how he plays the game, and you have to respect it.

Q. Let's talk just briefly, just a little bit about how he

played the game, and tell us how he played the game and why you

respect the way he plays the game.

A. First and foremost, one of the smartest football players

in my almost 10-year career, and then -- don't get mad at me,

JV. For a littler guy playing a linebacker position, he plays

it very physical and knows where to be and how to do it

properly and when to be there, which is the key to the

position.

Q. Jonathan was the defensive captain, was he not?

A. Yes, sir.

Q. Because he was the defensive captain, did you have reason

to interact with him more frequently and perhaps on a different

basis than you would just a regular member of the defense?

A. Yeah. Every day, all the time, and then like for, I

guess, extra interactions. There was once in a while meetings

where staff or management would ask a handful of guys to be in

a room to talk about the team, talk about what we are doing and

stuff, so obviously I had those instances as well. But being a

linebacker, I mean, 80 percent of our day was spent together.

Q. While you were with the Saints, did you attend all of the

team meetings and pregame meetings?

A. Never missed a one.

Q. You attended those with Jonathan and the rest of the

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defense, I presume. Correct?

A. Yes, sir.

Q. During those meetings, all of those -- how many of those

meetings were there, do you think, over your career, ones you

were with Jonathan?

A. Oh, in three years, probably four meetings a day.

Thousands.

Q. There were a lot?

A. Yeah.

Q. During all those meetings, every single one of them, did

Jonathan Vilma ever put a bounty on another player's head?

A. No, sir.

Q. Did he ever say to you or any other member of the Saints

defense that he would pay them money, give them money to go out

and intentionally injure any player on the opposing team during

those years?

A. No, sir.

Q. Based on your knowledge and your friendship with Jonathan,

do you think that's the type of behavior he would ever

countenance or promote?

A. No, sir.

Q. Did you ever hear him put a bounty or tell anybody that he

would pay them money if they injured and put Kurt Warner out of

the playoff game?

A. No, sir.

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TROY EVANS - DIRECT

Q. How about the Minnesota game that we have talked about? I

know you weren't in the courtroom. We have talked a little bit

about it earlier. Did he ever put a bounty on Brett Favre's

head?

A. No, sir.

Q. Did he ever say to anybody that he would pay them if

they -- pay a teammate if they injured Brett Favre and put him

out of the game?

A. No, sir.

Q. Now, did anyone from the NFL contact you at any time to

ask you any questions about this so-called bounty investigation

or "Bountygate," as it's been called?

A. No, sir.

MR. GINSBERG: Thank you. Those are all the

questions I have.

CROSS-EXAMINATION

BY MR. JONES:

Q. Mr. Evans, my name is Gladstone Jones, and I represent the

National Football League.

On June 18 there was a hearing in New York that

Mr. Vilma attended with the commissioner of football, Roger

Goodell.

A. Yes, sir.

Q. Were you asked by Mr. Vilma to attend that hearing and

offer the same testimony that you have offered the Court today?

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A. No, sir.

Q. Do I understand it correctly that you were not in New York

and at that particular hearing you offered no testimony? Is

that correct?

A. Correct.

MR. JONES: Thank you.

Your Honor, that's all that we have.

MR. GINSBERG: Just a brief follow-up.

REDIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Mr. Evans, do you know whether or not you could have given

testimony at that hearing?

A. No, sir.

THE COURT: Thank you very much, sir. You may step

down.


THE COURT: I think your lunch is in the back.

MR. GINSBERG: He doesn't eat much.

MR. WILLIAMS: Judge, we have another witness. We

need to see who it is.

THE COURT: Just go on back and see who it is.

RANDALL GAY,




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THE WITNESS: Randall Gay, R-A-N-D-A-L-L, G-A-Y.

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good morning, Mr. Gay. How are you?

A. Fine. How are you?

Q. I understand you have a nickname. Correct?

A. Yes, sir.

Q. What's that?

A. "Blue."

Q. I may call you "Blue" at some point today, but --

A. That's fine.

Q. Do you prefer to be called "Blue" instead of "Randall"?

A. I've gotten to love them both.

Q. I've got the same problem.

Randall, where did you grow up?

A. Brusly, Louisiana.

Q. That's just up the road towards Baton Rouge, right?

A. West Baton Rouge Parish.

Q. I suspect a lot of people in the room know the answer to

this question, but where did you go to college?

A. I'm a proud LSU Tiger.

Q. You won a national championship at LSU, didn't you?

A. Yes, sir.

Q. What was your major at LSU?

A. Marketing.

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RANDALL GAY - DIRECT

Q. What year did you start your professional football career?

A. It was 2004. Yes, that's it.

Q. Were you drafted? Were you a free agent?

A. I wish I was drafted, but I was fortunate enough to become

a free agent with New England.

Q. You made the team, obviously. Correct?

A. Yes.

Q. That was the 2004 New England Patriots?

A. Yes, sir.

Q. That was your rookie year, and the Patriots went to and

won the Super Bowl that year?

A. Yes. Yes, sir. We whooped up on Mr. Vilma's team a

couple times that year.

Q. That would be his other team?

A. Yes. When he was with the Jets.

Q. What position did you play at New England?

A. Well, cornerback -- well, I was a defensive back because

wherever they needed me back there, that's where I played.

Q. Did you do the same thing while you were at LSU --

A. Yes, sir.

Q. -- play wherever they needed you?

A. Wherever they needed me back there, I'd go.

Q. You switched back and forth between cornerback and safety?

A. Corner, safety, and nickelback.

Q. Now, at some point, obviously, you left the New England

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Patriots and you came down back home, and you went to work for

the New Orleans Saints football club, right?

A. Yes, sir.

Q. What year was that? Do you remember?

A. I guess that was 2008 or 2007 -- well, let me put these

years together. I played four years with New England and

started 2004. So I guess it was 2007 or 2008. Those years,

how they start, is kind of --

Q. That's close enough. Are you still in football?

A. No, sir.

Q. When did you retire?

A. Well, I haven't officially filled out any paperwork, but

after the 2011 season, I decided that it was in my best

interest not to play anymore.

Q. Why is that?

A. Because of the head injuries that I suffered over my

career and the symptoms that I was still having and talking to

the neurologist that really felt that it wasn't in my best

interest to keep playing football.

Q. I understand. I understand.

Now, as a defensive back in the pro game, you do a

lot of hitting, don't you?

A. Yes, sir.

Q. How would you characterize the hitting that you guys do

back there in the secondary?

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A. Well, a lot more than a lot of us really want, especially

for a small guy like me, but it's a lot of contact. No matter

how you put it, you're going to get hit.

Q. That's what you're expected to do, isn't it?

A. If you want to play, you better.

Q. Even if a guy weighs 30, 45, 50 more pounds than you, you

still have to take them down as best you can?

A. Even when a guy weighs even more than that, because

sometimes you go against guys a hundred pounds more than you,

and you better get them down or they will find somebody else to

do it.

Q. In that position you're not just doing all the hitting.

You're not dishing out all the punishment. You're taking some

too, right?

A. Oh, yeah. Because if not, I would still be playing

football.

Q. I understand. Now, how many years did you play with

Jon Vilma as your teammate?

A. Well, we came in around the exact same time, because I was

a free agent and I signed with the Saints and I think either he

got traded to the Saints right before I signed or right after,

but we came in together.

Q. He was the team captain, wasn't he?

A. Well, I don't know about that year. He may have been. My

memory isn't that good, but he was -- you could tell he was a

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team leader from the beginning.

Q. How could you tell he was a team leader?

A. Some guys you can just tell. He was already well known

through the league as being a great player, a great linebacker,

and a great leader. Like I say, I played against him six to

eight times in my years in New England when he was with the

Jets, so he developed a reputation over those years as a

leader.

Q. When you guys were in the locker room at New England

getting ready to play the Jets, would you talk about Mr. Vilma?

A. Oh, he was one of the guys. Coaches always, they are

going to headline a guy that you need to take care of; take

care of as do your job against because, if not, he can end your

game, basically. He will mess up the whole game plan. If you

don't pay attention to this guy, that he is going to cause a

lot of havoc out there to your team. So he was one of those

guys.

Q. When you were at New England, did you ever hear any of

your coaches or other players ever say anything other than what

you have just told us, that he was a great player?

A. Not really. And I played with players that was with him

in Miami, and they would just talk about, you know, he was a

good dude. But on the field he was -- he got after it.

Q. Did you ever hear any rumors or anybody say anything about

Jon Vilma being a dirty player?

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A. No, never did.

Q. So you guys, you get together with the Saints. Did you

get to know Jon Vilma?

A. Yes.

Q. What do you think of him?

A. Good guy. I like him. I'm a guy who -- I like to sense

people. I don't hang with a lot of people that I don't really

know. I don't deal with a lot of people that I don't know

because I like good people, and that was a guy who -- I liked

him, so I dealt with him.

Q. Did Mr. Vilma -- while you guys were with the Saints, did

you -- were you ever on Injured Reserve?

A. Yes.

Q. Did you -- what year? I'm sorry I'm stuttering.

A. Oh, my last year I went on Injured Reserve because of a

concussion my last year.

Q. Up until that time, would it be fair to say you didn't

miss a team meeting ever?

A. No, I was in the meetings.

Q. Did you listen to what was going on in those meetings?

A. Yes. You had to.

Q. Did you ever, ever see Mr. Vilma stand up, sit down, from

his knees or any other position, and offer anybody cash money

or any other reward to intentionally hurt or injure an opposing

player?

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A. No, sir.

Q. If he had done something like that, would it have

surprised and shocked you?

A. Vilma? Yes. $10,000 money just to hurt somebody? No.

You don't see that in the NFL. Because like I said, I talked

about the guys from Miami who played with him in college. We

all played either with each other or against each other at some

time in our life. It's like it's a brotherhood. We are

family, really, because you never know when you are going to be

on the next person's team.

Q. Let's talk a little bit about your defensive coach, the

most recent defensive coach, Gregg Williams. You know who I'm

talking about?

A. Oh, yeah.

Q. When you first got to the Saints or you had your first

experience with Gregg Williams as your coach, were you a little

surprised by his behavior?

A. Oh, yes, from the first meeting --

THE COURT: Hold up one second. We need to get a

witness sequestered.

MR. GINSBERG: Sorry, Your Honor. I didn't realize

he had walked in.

THE COURT: The other two are not witnesses?

MR. GINSBERG: No.

THE COURT: Go ahead. Continue.

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THE WITNESS: I forgot where I was.

THE COURT: Why don't you read it back.

(Question read.)

THE WITNESS: Oh, yes. From the first meeting, it

was just, say, a little different. It was a little shocking,

just how he talked, just attitudewise, just different,

shocking.

BY MR. WILLIAMS:

Q. Was it because of the language he used, or did he scream?

What was it that you found shocking?

A. Well, the language -- playing football, you hear cursing

out there from players. Coaches, you hear it. But his was a

little excessive -- it was a lot of excessive cursing, and just

the whole attitude that he had was kind of -- it was just

shocking.

Q. Did you consider Coach Williams a good motivator? Did he

motivate the defense?

A. When you look back on it, it's like, all right, that's

what he is trying to do, trying to get motivation out of guys.

Different players need different types of motivation, and

different people use different ways of motivating people. And

once you get to the NFL, you kind of figure out that, all

right, that's what he is trying to do, get us motivated.

Q. Did you think he was a good coach?

A. A good coach? Yeah, pretty good. Not the best I have

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been around, but he was a pretty good coach.

MR. WILLIAMS: Hang on just a second.

Blue, I don't have any more questions. There

might be a couple from the other side. Thank you very much.

THE WITNESS: Okay.

CROSS-EXAMINATION

BY MR. JONES:

Q. Good morning, Mr. Gay. How are you?

A. All right.

Q. Gladstone Jones representing the NFL. Just a question or

two.

Can you please tell us when you were first asked to

provide testimony at this hearing.

A. I can't recall, but it was maybe two weeks.

Q. You were not asked to go to New York on June 18 and

provide testimony at the NFL headquarters before

Commissioner Goodell?

A. June 18, no.

Q. Were you ever asked to do that?

A. I got a voice mail on my phone one time, that it was some

guy who wanted me to call back and talk to him, but I don't

return 90 percent of the phone calls. You can check my phone.

My son laughs about it. "Dad, you've got 90 voice mails." I

know. I don't check it.

Q. You can recall that you weren't there, Mr. Gay, on June 18

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offering any testimony?

A. June 18? I know I haven't talked to anybody this summer.

MR. JONES: Thank you very much, sir.

MR. GINSBERG: Nothing further.

THE COURT: Thank you, Mr. Gay. You may step down

and go about your business.


MR. GINSBERG: Mr. Vilma calls Joe Vitt.

JOE VITT,




THE WITNESS: Joe Vitt, V-I-T-T.

THE COURT: Mr. Vitt, there's a pitcher of water

right there and some cups if you want some water.

THE WITNESS: Thank you, Judge.

DIRECT EXAMINATION

BY MR. GINSBERG:

Q. Good morning, Mr. Vitt.

A. Good morning.

Q. Been a busy day for you?

A. Yeah. JV will tell you these are long, long days. Things

are going well.

Q. I appreciate you coming this morning.

A. It's my honor.

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JOE VITT - DIRECT

Q. Mr. Vitt, how are you employed?

A. Well, I'm the assistant head football coach for the

New Orleans Saints. And our head coach has been suspended, so

you know, I'm taking over the head coaching duties while he is

suspended.

Q. How long have you been with the Saints, Coach?

A. Since 2006, post-Katrina. February 7, 2006.

Q. This is now your --

A. This is going on my seventh season.

Q. Where are you from?

A. Blackwood, New Jersey, born and raised. Actually born in

Syracuse, New York, was there for six months, then my father

moved to New Jersey.

Q. Did you used to play football?

A. I mean, I played my whole life, four years of high school,

a year of military academy, five years of college, and then was

out of football for about six months before I got my first job

with the Baltimore Colts back in 1979.

Q. What did you do for the Colts?

A. Well, back then we had eight coaches, not like we have

today, between 18 and 20. We had, I think, eight coaches. And

so I was the youngest guy on the staff, and you have to be like

a jack-of-all-trades. I started out as strength conditioning,

also defensive quality control. And really anything else that

needs to be done around the building, as the young guy, you do

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it.

Q. Have you been in the NFL ever since then, Joe?

A. Yes. I'm starting my 34th straight year.

Q. What teams have you been with?

A. 1971 to 1981, the Baltimore Colts; 1982 to 1991, the

Seattle Seahawks; '92 to '95, the Los Angeles Rams; '95 to '99,

the Philadelphia Eagles; '99 to 2000, the Green Bay Packers;

2001 to 2003, the Kansas City Chiefs; 2004 and 2005, the

St. Louis Rams; and presently with the New Orleans Saints.

Q. Are you involved in coaching defense?

A. Yes. The only thing that I've been flexible on defense, I

think 14 of the 34 years I've been in the league I was coaching

the secondary, but the majority of the time the task-on job has

been linebackers.

Q. Coach Vitt, in your 34 years of coaching, how many great

players do you think you have coached?

A. You know, we all throw the word "great" around now like

they are breath mints. I think there's things that really

distinguish a great player. I would say probably 15 to 18.

We had our first meeting last night, Judge, and I had

a former player from the St. Louis and Los Angeles Rams, Isaac

Bruce, and I didn't even put him in the "great" category when I

introduced him last night for our staff. He played 16 years in

the league, had over a thousand catches, 91 touchdowns,

averaged 14-point yards per carry and catch, and I kind of

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JOE VITT - DIRECT

forget about him. He was a great player. He is third all-time

in catches. So I say 15 and then look back, it might be 20,

but between 15 and 20.

Q. What are the characteristics, other than being just a

great athlete, that makes a great player?

A. Well, great players have a burning desire to get better

and improve every day. A great player has to have a unique

skill set that includes speed, height, weight that's needed for

a particular position, but then that great player has to a have

a burning desire every day to want to improve and get better.

And every day when he wakes up, he is thankful where he is, he

is thankful for the years he has to play in the league.

A great player sets himself apart, I think, from

other players because a great player can truly make other

players around him better just because of his presence both

physically and mentally.

Q. Coach, do you have a pretty good sense of what makes a

leader?

A. I do. I think that people in a leadership role -- it

really came to me in 2009 when we won a world championship,

what a true leader is. A true leader, number one, has to have

that skill set where he is potentially the best player on your

team or he is the best player in that unit. But a great leader

will always put the needs of a teammate, put the needs of a

team, put the needs of people in the organization above

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JOE VITT - DIRECT

himself. You have got to do that on a daily basis.

And a great leader is every day, every hour, every

minute, every game, every quarter, every snap, every series

exhibiting those skills, and then they become great leaders and

they become leaders for all time. Complete integrity. Know

your job. Great communication skills. And you always put

yourself second.

Q. How long have you known Jonathan Vilma?

A. You know, when I was with the St. Louis Rams, 2004, we had

some pretty good linebackers there. We were about a week

before the 2004 NFL draft and I started looking at Jonathan

Vilma on tapes, college senior, so it was kind of late in the

process. I had been to the Combine, seen him work out, but

about a week before -- am I talking too loud?

Q. You have been out in the field too long today.

A. I know. So about a week before the draft -- the draft,

the old college draft was on a Sunday at that time. So about a

week before the draft -- I want to say it was a Thursday

night -- I called up Jonathan. He also had another real good

college teammate, D.J. Williams, and a kid by the name of

McGlover we felt could be a good special teams player.

I called him on the phone. I wanted to meet them for

dinner on a Thursday night and then the next day meet at the

university, where we watched four or five hours of film

together, and then go out in the field to work them out, see

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kind of what their skill level was.

It was a great meeting. Our dinner lasted 3 1/2,

4 hours because they were talking ball. They were coming off a

great year. They loved football.

I remember leaving there that day and telling

Jonathan, "Listen, if I can't draft you this Sunday, in four

years there's going to be somehow, someway I'm going to get

you." That meaning in four years, after a player has played

for four years in the league, he becomes an unrestricted free

agent and potentially we will have access to him.

Well, it just so happened that after our 2007 season,

the New York Jets had switched to a 3-4 defense and really

wanted a different skill level from a linebacker than Jonathan

Vilma and he became available. So we met. It was myself,

Jonathan Vilma, Gary Gibbs, Mickey Loomis, and Sean Payton in

Indianapolis, and we talked about a potential trade. JV and I

had already kept in touch. When he wasn't playing with the

Jets, we talked with each other after the games and things like

that. We were able to set that trade.

He was coming off of a micro-fracture surgery that

year, and he was able to play for us. His first year with us

was in 2008. We were 8-8. In 2009 we won a world

championship. In 2010 we were 11-6, we lost the first-round

playoff game to Seattle, and then the next year won 14 games.

That's been our history. Since I have been with Jonathan

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Vilma, as a team we have won more games than anybody in the

National Football League.

Q. Have you formed an opinion about whether Jonathan is a

great leader?

A. Jonathan Vilma means to our defense every bit of what Drew

Brees means to our offense. Jonathan Vilma has been there for

every coach and Jonathan Vilma has been there for every player.

On a personal and a professional and at times

spiritual level, as a coach in the National Football League,

it's my job to make sure that I give our players and our

linebacker corps particularly, because that was my job before I

became the interim head coach, structure and discipline. And

it's up to me as a coach to make sure that I can teach,

motivate, and inspire my players.

When you have a player like Jonathan Vilma, who has

an expectancy level that really exceeds the expectancy level of

the coach and the team, he becomes a joy to coach. Not many of

these players come around in a lifetime to a coach. I don't

think I have ever seen anybody play with the courage he has

played with. I don't think I've ever seen anybody play with

the leadership qualities he has exhibited on defense for us.

And I know I have never coached anybody who has been as

unselfish as he has. So I have been blessed.

That being said, as a coach in the National Football

League, you earn the right to coach your players hard, and I

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coached Jonathan hard. But it's with the understanding, number

one, I love him; and number two, I care about him. I care

about his physical, mental, and emotional well-being. But I'm

not his friend; I'm his coach. I'm his coach; I'm not his

friend. We'll be friends when he retires. We'll be friends

somewhere down the line.

It's up to me to make sure he becomes the best player

he can be, teach him a scheme, motivate him to do as best he

can, and inspire him, try to take him to a place he couldn't

get to by himself, and try to do it walking hand in hand.

I hope I have answered your question.

Q. Coach Vitt, one of the characteristics that you said that

go into becoming a great leader is integrity. Does Jonathan

Vilma have integrity?

A. Without a doubt. I think this -- I go back and think

about the history of our relationship. One of the things

that -- when you put on a film of a player and you watch the

way he plays our game, it takes a tremendous amount of courage

to play it the right way; snap in, snap out, game in, game out,

year in, year out. It's hard. It's physical. It's world

class athletes banging into one another at full speed, and to

do that snap after snap takes courage.

I remember asking Jonathan as a senior in college,

"Where did you get this courage?" because it's not easy what

players do, and he related the story to me about when

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Hurricane Andrew had hit the Miami area. I think it was the

Homestead area in particular. And I think the weather dial or

mark of the winds broke at 185 miles an hour, and his house

collapsed and he was underneath the bed with his sister and had

to go through an experience like that for eight to ten hours.

Anything after that was kind of gravy, wasn't quite as hard as

what he went through as a player after that.

So I think to be a great leader you have to have

great courage because it takes courage to stand up and stand

behind your core beliefs day in, day out. And I think it's one

of the unique qualities Jonathan Vilma has already shown.

I hope I have answered your question.

Q. Has Jonathan ever done anything on or off the field that

led you to question his integrity?

A. Absolutely not.

Q. Is he also a great player?

A. Yes, he is a great player. I think that -- we haven't

seen the best of Jonathan Vilma yet because he has great

intestinal fortitude to get over the injury he has right now.

He is one of those guys that can conceive something in his mind

and visualize it and then achieve it in his life. He is a

great player. He has played great football for us.

When I make the comment that he means to our defense

what Drew Brees means to our offense -- I'll take one game in

particular. It was the biggest game of my life. We played the

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Indianapolis Colts in the world championship back in 2009.

Peyton Manning is notorious for changing plays at the line of

scrimmage and getting into a play that best fits his offense

based on what a defense is running. I don't know that there's

ever been anybody in the history of the National Football

League that has done it better than Peyton.

Jonathan Vilma, academically, going into that game,

had the Colts down cold. Jonathan Vilma -- I think there were

64 plays in that game mobilized, 31 of the defense that we were

originally put in. I may be off a play or two.

But Peyton Manning is a great player, and Peyton

Manning got Jonathan Vilma early in the game. And Jonathan

Vilma -- none of use were batting a hundred, none of us.

Jonathan Vilma has the unique quality and the unique

characteristic that when something goes bad, it's put behind

him. It's on to the next play, and he forgets about it. And

those are the qualities I think you find in great leaders and

great players. They are always looking one step ahead.

Yesterday is over, we look forward to tomorrow. This game is

over, we look forward to the next game. This play is over, we

look forward to the next play.

So those are the unique qualities and unique set of

skill level he has.

Q. He is the middle linebacker, correct?

A. Yes.

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Q. What does it mean to your team to have a middle linebacker

like Mr. Vilma?

A. Well, again, just to -- I have made this comment over the

last couple weeks. And I'm sure everybody in here is not a

football fan, but we just signed Drew Brees. I stated earlier

I have probably coached anywhere from 15 to 20 great players.

When we signed Drew, I categorized Drew as a great player.

Drew Brees is in the middle of our offense. He takes

the ball from center. He has two wide receivers. He is in the

hub of what we do. He calls the play in the huddle, he touches

the ball every play, and so whatever happens on offense starts

and ends with Drew Brees.

Jonathan Vilma is the same way. Jonathan Vilma gets

the call from the sideline, he comes into the huddle, and now

he verbalizes the call for our defense. It could be one call,

it could be two calls, it could be a set of calls.

We have a defense that we used to call AFC, automatic

front coverage. And what that means is a defense is not going

to be called until an offense breaks the huddle, we see what

the formation is, and now we make a check.

The defense that Jonathan calls, he has full leeway

to check every defense that we have. So if we have a defense

on first and ten and it's over cover two and all of the sudden

they come out, based on the split of a wide receiver, based on

the slot formation, based on the down distance, the time left

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in a game, based on the wide side, short side of the field,

Jonathan has the ability to check that.

So just like you see Drew Brees do, call the play in

the huddle from the sideline to the earpiece, Jonathan does the

same thing. He calls the defense from the sideline to the

huddle, and then he has full leeway in our defense to make all

checks necessary.

Now, that being said, again, what amazes me -- and I

understand everybody is not a football fan here. But we get to

our practices and you watch Drew Brees, a great player, break

the huddle and take the snap, and you see Jonathan Vilma see

the formation and make an audible. Drew Brees is now going to

make another audible. Now Jonathan Vilma is going to make

another audible. And all this time the clock is running, all

this time you are out of breath. So it's a tremendous chess

match between these two great players, one in charge of the

defense and one in charge of the offense.

Q. Jonathan is also captain of the defense, correct?

A. Elected, and that's a huge difference. There's a lot of

captains in the National Football League that either by draft

status or social status are given the title of "captain."

Jonathan Vilma was elected by his teammates as a captain.

Ever since Jonathan Vilma has been here and been a

part of our program, after year one when he proved himself, he

has been an elected captain. And it hasn't been close. It

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hasn't been close in the voting.

Q. What does it mean to be a captain under those

circumstances?

A. Well, again, I think when you're an elected captain, it

speaks volumes of who the person is because in the National

Football League, players have a very short window for a career.

Now, by position, that career could be longer or it could be

shorter. Take, for instance, our defense. The majority of our

players on our defense are married, so they have a window of

opportunity to clothe, house, educate, and feed their families.

You're better equipped to do that if you can win.

So when these grown men, who make a lot of money,

vote for this man to lead them into critical situations and

make critical calls and make critical audibles and be there for

them in times of need personally, I think it speaks volumes.

Q. Have you gotten to know about Jonathan's activities

outside of football as well?

A. You know, I say this again. I know some about his

foundation. As I said earlier, you earn the right as a coach

to coach your players hard.

I have gotten to know Jonathan's father very well. I

have gotten to know his sister very well. But there's got to

be a line where you draw where you don't go personally into

some other areas. I am proud of him and the foundation work he

does, but no, specifically, I don't know about it all. I know

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it's at Morton's Steakhouse, and we talk about it. I know

every time Jonathan asks players to get involved with the

foundation, there's a hundred percent participation because the

players are a team, don't want to let him down. They want to

be there for him.

Q. Coach Vitt, what would it be like for you and for the team

to be without Jonathan?

A. You know, I made this comment when I was asked about it

the other day, you know, what it's been like for me not to be

around Sean Payton, with his suspension, and there's been a

huge hole in my chest both personally and professionally. That

same hole would be there with Jonathan Vilma's absence, not

only for me but for our team.

Q. Sean Payton means a lot to you as well?

A. Yes.

Q. When is the last time you talked to him?

A. Probably 3 1/2, 4 months.

Q. Why so long?

A. Well, there's a protocol. Once a coach is suspended, we

go through league channels. We had an equipment manager that

had gotten ALS, and I wanted to tell Sean about that. We had

another coach whose sister was diagnosed with cancer who Sean

was very good friends with. I had to notify him about that.

In situations like this where protocol says that I

can't talk to him -- if I haven't talked to him in four months,

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that usually means it's a good thing for our team because we

are not going through any catastrophic situation, and I don't

have to be the bearer of bad news.

Q. Has Mr. Goodell prohibited Sean Payton from talking to

you?

A. Well, yeah. Listen, if Sean needs to talk to me, the

commissioner has provided an avenue which he can talk to

somebody in the League and talk about what we are going to talk

about, and he gets through to me. But he hasn't had the reason

to call me, and I have had the reason to call him twice.

Q. So Mr. Payton would have to debrief somebody who works for

Mr. Goodell about the subject matter if he wanted to talk to

you?

A. I want to say yes, but I don't know -- Sean should

probably answer that question. I would say yes.

Q. Jonathan suffered a knee injury last year, correct?

A. Yes, he did.

Q. How did that happen?

A. You know, since Jonathan and I have been together, we have

played the Chicago Bears twice, and twice we had lost to the

Chicago Bears, one in overtime in a nationally televised game

on a Thursday night. So the second game of the season this

year, we were playing the Chicago Bears. And, really, since

2006 when we played in the NFC Championship, we are 0-3 against

the Bears. So this was a huge game coming up for us

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emotionally. We're going to play a team, it's a good team,

that had been in the NFC Championship the year before and lost

going to the Super Bowl to the Green Bay Packers. This is a

huge early season game for us. It was game two.

And on Friday -- as the week goes on, we kind of

taper practice back, and Friday we go into what we call the red

zone, which is the 20-yard line to the goal line. It's a

shorter area on the field that you have to defense

schematically. We were in this area, and it was a walk-through

where we actually have our defensive players simulating routes

of the Chicago offense and JV putting us into the proper

defense and getting to our proper landmarks based on formation

and release of the wide receivers and tight ends.

We were what we would call a cover two concept where

he has to protect the hashmarks all the way to the end zone,

the uprights. This is probably three-quarter speed. And I'm

watching him and, bam, his knee kind of tweaked. Which I've

seen his knee go like this before, but then I see him bounce

back into the huddle. But I saw him kind of just, you know,

that smart and kind of limp back into the huddle, and that's

when he originally hurt his knee.

I want to say that we had to play games without him

all the way up to the bye, and then he went and got surgery.

He had the bye so that he would be ready for the second half of

the season so he could participate with our football team. But

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it was a noncontact walk-through type injury.

Q. What was the process like to get Jonathan back to playing?

A. Excruciating. Again, Jonathan Vilma, like the other great

players that I have been around, know that they only have so

many years to play, which means they only have so many games to

play, and they are not going to miss any game. Since we have

been together with Drew, touch wood, he hasn't missed any

games.

So Jonathan would go as long as he could for as hard

as he could, getting treatment during the course of the week,

knowing he would have to miss practice because his knee was

swollen. His knee was being drained daily. Then we would show

up to the stadium on Sunday morning and he would try to run and

we would evaluate his physical skill and how he was moving. No

matter how slow or how much he was limping, he was going to

play because that's his nature.

So what we had to do is we would have to work him out

all Sunday morning knowing that he couldn't play, knowing that

he was injured. We just wouldn't bring his football uniform to

the stadium. He would come back in the locker room, his

uniform wasn't there. He thinks he's playing. Well, you can't

play without a uniform. And he would want to hit me, and then

he would sit there and not talk to anybody for about

10 minutes.

But there was a game to be played. He put the good

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of the team and his teammates above everything else. He would

grab a clipboard, start diagramming defenses, get on the

sideline, and help the rest of his teammates try to go win a

football game, including the coaching staff.

Q. Describe the rehabilitation he went through.

A. Well, you know, I'm not a doctor and I'm not a

rehabilitator. I know that it's long and I know that it's

tedious hours, and able to recover from micro-fracture surgery

and to be able to play, what he went through, is a full-time

job. What I mean, a full-time job, the rehabilitation is 8

hours a day and then you eat. And if you go get more

rehabilitation, it potentially is 10 hours a day.

You are constantly carrying machines. You're getting

your knee hooked up on a plane. You're getting to the team

hotel, you put more machines on your knee. You take it up to

your room, you have got it on your knee. Now you have got the

trainers that are giving you massages. You have got the

trainers and they are giving you treatment, and you have the

doctors that are draining it. It's a full-time 8- to 10- to

12-hour job to get your body and get your knee right to play a

game. Actually, you have to rehab the knee just to be able to

get back to practice.

Q. Coach, based on your experience, is it important, as

Mr. Vilma continues his rehabilitation, to do that under the

guidance of the team and the team trainer?

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A. I think absolutely it's critical. We have a full-time

trainer in Scottie Patton, besides our doctors, that knows the

full medical history of Jonathan Vilma and helped Jonathan

Vilma the first time he had micro-fracture surgery back in 2007

to get back to full speed to play in 2008.

Our trainer has got a personal, vested interest in

Jonathan Vilma. This is one of our players. Scottie Patton

has a family to feed. Scottie Patton wants to educate his

family. Scottie Patton wants to get our best players ready to

go back on the field. It is personal. It is a vested

interest.

We also, for the first time since I've been here,

have now a full-time physical therapist that works with us,

which I think is going to be a great bonus for our team and our

players. So now we have another set of skill level, another

set of hands, another set of eyes working on our injured

players now. Our team doctors have worked closely with

Jonathan since he came to us. It's personal with them. So,

yes, it's important.

Q. Incidentally, the NFL in some papers filed recently in

this Court suggested that Mr. Patton and the others on your

staff could go offsite to help Jonathan in his rehabilitation.

Does that make any sense to you?

A. Not in my opinion.

Q. Why not?

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A. Again, I don't know how anybody else feels in here. I can

only give you my personal opinion. But when you can come, you

are inside the confines of our complex. You are inside the

confines with your teammates. You are protected from the

outside world. You have got warriors, you have coaches, you

have trainers all working in the same direction for a common

goal. What we want to do is win a world championship for our

city again. And I don't expect anybody in this room who's a

nonplayer or a noncoach or a nontrainer or a nonequipment

manager to appreciate that and understand that.

So if something happens to one of our players, not

only one of our great players, it's important that they have

the camaraderie and the support of the people that love them;

and not love them because they are a professional player and

have a lot of money in the bank but love them because they love

them, because they are part of the team, because they are part

of what we have to accomplish together.

I would venture to say -- and Jonathan wasn't here

post-Katrina. I don't know that there's another team in the

National Football League that has been through as much as our

football team has. Post-Katrina was hard for us. It was hard

for our city. Nobody went through more than our city did. Our

players, along with Jonathan, took a personal pledge to try to

help bring our city back, make our fans feel good about

themselves again. Our players, including Jonathan, knew at one

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point in time, if we had 75,000 people in the Superdome, maybe

55,000 of those people were returning to FEMA trailers. They

worked hard for their season ticket money to come watch us

play.

So when you have that commitment with a group of

players to a city, you also have to have a commitment to one

another. So when you are rehabbing and you're going through

tough times, besides your family, besides your children,

besides your mom or your dad, that support system comes from

within, from the teammates that love you and from the teammates

that have gone to war with you and from the teammates that have

depended -- have always had your back. I don't know how else

to put it.

Q. Coach, let me ask you a practical question. How many

people are at the facility -- how many players or would-be

players are at the facility these days during camp?

A. We have 90 players right now that are at our facility. We

start our first practice this afternoon at 4:00. We have been

through two walk-throughs and did some player testing

yesterday.

Q. What would it be like for Mr. Patton to say, "Hey, Coach,

I have to go and spend the next eight hours with Jonathan Vilma

offsite because the NFL won't let him come here for

rehabilitation"?

A. Understand one thing. Scottie Patton wouldn't say that

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because we are all -- we're going to do what we have to do.

But Scottie Patton is our head trainer, he has a capable staff,

and that would just be another challenge for us to overcome.

Easy? No.

Q. Coach, when is the last time you missed a defensive team

meeting?

A. I have never missed one. Now, you are talking about the

New Orleans Saints? Never.

Q. Are you familiar with Mr. Goodell's conclusion that the

New Orleans Saints had a program by which money was put on the

heads of specific opposing players to secure their injury?

A. Yes.

Q. Have you been punished as a result of Mr. Goodell reaching

that conclusion?

A. Yes.

Q. What punishment was imposed upon you?

A. I have a six-game suspension and a $100,000 fine.

Q. Who else, other than players, has been punished based on

Mr. Goodell's conclusion?

A. Sean got a year, and I'm not really sure what his fine

money was. And Mickey Loomis, our general manager, got eight

games.

Q. Is the allegation true?

A. No.

I want to say one more thing. I want you all to

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listen to me hard because I want to speak to you soft. I said

no.

Continue.

Q. Incidentally, you said Sean Payton had been suspended for

a year. Does he automatically get back to his job in a year?

A. No. You have to petition to be reinstated again.

Q. So he has to go back to Mr. Goodell?

A. I don't know exactly what Sean's protocol is, but I

believe that might be true.

Q. Have you had the opportunity to explain to Mr. Goodell and

his investigators that his conclusions were not true?

A. Yes.

Q. On how many occasions have you told Mr. Goodell and his

representatives that the conclusion Mr. Goodell has reached,

which has led to your punishment and Mr. Payton's punishment

and Mr. Loomis' punishment and Mr. Vilma's punishment, the

Saints' punishment, Mr. Smith's punishment -- how many times

have you been able to tell Mr. Goodell that his conclusion is

not true?

A. I have looked our commissioner in the eye on two separate

occasions and told him the first time that the integrity of our

league was never breached. The second time, my opening

statement to him when I was going for my appeal process, I said

at no time did our players ever cross the white line with the

intent to hurt, maim, injure, or end the career of another man.

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At no time.

Q. So you participated in an appeal opportunity that

Mr. Goodell gave you, correct?

A. Yes.

Q. You told him that he was wrong, correct?

A. In my opinion.

Q. How long did that meeting last where you explained to

Mr. Goodell that he was wrong in his conclusion?

A. My appeal process, I think, probably lasted longer than

anybody's, between 2 1/2 and 3 hours.

Q. What was Mr. Goodell's reaction?

A. You know, there's a lot of people that are taking shots at

the commissioner right now. I know there's a lot of people

that -- I think everybody has their own opinion. I think what

struck me, what made me respect the commissioner -- I think he

is an emotional man that has a lot of passion for our game.

You know, he would look me in the eye and at times he was a

little -- I mean, always a little teary-eyed and grab my hand

and shake it hard.

So at the end of the day, I had no problem with the

commissioner's passion for our game, the way he

enthusiastically embraces it. I think that during my appeal

process, he looked me right in the eye. And I hope at the end

of the day, he would think that it's my constitutional right to

respectfully disagree with what he says and disagree with what

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his conclusions were. At the end of the day --

And I want to make this clear, Judge. I have taken

full responsibility for what I allowed to take place with

overheads, with what I allowed the defensive coordinator to

speak. I was the assistant head coach. I've taken full

responsibility for the spoken word but never the clinched fist.

I think there's a huge difference because in the National

Football League, what you say means nothing. It's what you do

in the National Football League that means everything. You

gain your respect, you gain your integrity by the production

and the durability and the availability you have on the field.

Q. Was there a bounty program?

A. No.

Q. Did Mr. Payton also explain to Mr. Goodell there was no

bounty program?

A. I would assume. I'll tell you, one of the things that --

we all went through the first process. You have to understand

that we have a unique setup with the New Orleans Saints. Sean

Payton, he took over the head coaching duties in 2006, also

really acted in the beginning as the offensive coordinator. So

Sean Payton would come up with the offensive game plan. Sean

Payton would be the play caller on offense. Sean Payton would

make the corrections. Sean Payton did it all and continued to

really do it all until he broke his leg a year ago.

So I would say in the course of -- I'm going on my

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seventh year -- the last six years, I can only think of one

instance where Sean was actually in a defensive meeting. We

actually asked him to come into the defensive meeting so he

could explain to us what we call the first 15,and that's the

first 15 plays that a lot of people script around the league

for success and try to get the tempo of a game going quicker,

try to get the ball in the end with all your offense players

early in the game or go after a particular defensive guy early

in the game.

Sean was never privy to defensive meetings, and Sean

really chose to stay on the offensive side of the ball. So

Sean knew nothing about any of this that was going on.

Q. You assume that Mr. Payton told that to Mr. Goodell?

A. I assume that.

Q. He was suspended for a year and has to go back to

Mr. Goodell to get back into football?

A. Yes.

Q. You made it clear to Mr. Goodell that there was no bounty

program and no program designed to injure opposing players?

A. Yes.

Q. What did Mr. Goodell react? What was his reaction to your

telling him the truth?

A. I have no problem with the commissioner. I think this. I

think -- when we were there in New York, I told -- I will

repeat it again. At no time did our players cross the white

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line with the intent to injure, maim, or end the career of

another player.

We spent a significant amount of time, myself and the

commissioner and his staff, on player safety and coming up with

some ideas that we think might make our game a safer game and a

more productive game. When I say "productive," I mean

productive for those players, after they get finished playing,

can live a little bit more healthier and safer life. And I'm

on board.

I've been in the league for 34 years, and in the last

year I've had two players diagnosed and now suffering from ALS;

and I have three players, two under the age of 45, that have

died, and one under the age of 52 that has died.

So we spent a significant amount of time talking

about player injuries and some programs potentially to be put

into place. I think the commissioner and commissioner's office

knows that I'm on board. This is a very serious, serious

matter.

Q. Have you ever seen any evidence that Mr. Vilma engaged in

a program designed to --

A. No.

Q. Did you tell that to Mr. Goodell?

A. Yes.

Q. What did Mr. Goodell --

A. Let me say this. This is important. My response -- and I

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want to say this again because I have said it about six times.

Everybody, listen again hard. At no time did any of our

players ever cross the white line with the intent to hurt,

maim, or end the career of any player that we ever played

against. At no time.

Q. You told that to Mr. Goodell?

A. Yes.

Q. Are you aware of a New Orleans Saints player ever putting

money on the head of an opposing player?

A. No.

Q. Would you have allowed such a thing?

A. No.

Q. Why not?

A. It's a hard, hard profession to coach because you're

coaching world class athletes with a tremendous amount of

courage. Number one, how are you going to tell a player to go

out and hurt or maim another player and have that on your

conscience personally? That's number one.

Number two, how are you going to tell a player go out

there and maim, hurt, or injure another player, and what are

you going to give him? A thousand dollars, two thousand

dollars? And that player is going to get suspended for four,

five, six weeks and potentially lose half or three-quarters of

his salary for the year, which could be in the millions? It

doesn't make sense.

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We take great pride in New Orleans, because it's a

unique city, to draft and acquire the right type of people:

Character, integrity, intent, and accountability. Why would we

bring those people into our city and then try to ask them to do

such a thing? No. No. It's not done.

Q. Coach, did you explain that to Mr. Goodell?

A. Yes.

Q. Were you present during the 2009 season before the Arizona

playoff game?

A. Yes.

Q. Did Mr. Vilma --

A. No.

THE COURT: Let him ask the question.

THE WITNESS: I'm sorry, Judge.

BY MR. GINSBERG:

Q. -- offer $10,000 to secure the injury of Kurt Warner?

THE COURT: You can answer it now.

THE WITNESS: No.

BY MR. GINSBERG:

Q. Were you present before the Green Bay -- no, it wouldn't

have been Green Bay anymore -- before the Minnesota playoff

game?

A. Yes.

Q. Did Mr. Vilma offer $10,000 to anyone who injured Brett

Favre?

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JOE VITT - DIRECT

A. No.

Q. Did you ever hear Mr. Vilma offer money to anyone to

obtain the injury of anyone?

A. No.

Q. Did you tell that to Mr. Goodell?

A. Yes.

Q. Did you also tell the same information to the NFL

investigators?

A. Yes.

Q. What was your reaction when you were suspended, Coach?

A. You know, from a selfish standpoint -- I've done this my

whole life. There's nothing else I've ever done but coach

football and play football. And when you get to be my age, at

57 years old, you know, your needs really diminish. So what

you have is you have your faith, you have your family, and in

my case my grandchildren also, and then you have your players.

It's the first time in my life that this is going to

be taken away from me. So from a personal standpoint, in the

beginning you kind of feel sorry for yourself, what am I going

to do with this time, and then really after that it kind of

goes to some personal reflection and humiliation. I've been

suspended from the game that I truly love.

So I'm not going to say that time heals all. I still

feel I'm going to miss this game terribly when I'm away from

it. I'm going to try to use that time to be a true proponent

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JOE VITT - DIRECT

of player safety and educate myself as best I can to head

injuries and potentially what could be positive for our league.

I've talked to some people that maybe we would do

some work with the Wounded Warriors at Walter Reed Hospital.

When we won the Super Bowl, we went and met the president, and

after that went and spent almost a full day at Walter Reed

Hospital. Truly, it was an amazing visit, some courageous

young men. So, you know, volunteer our time there and maybe,

potentially make a difference there and at the same time maybe

learn a little bit more about head trauma. But I want to try

to make the most out of this situation during my suspension and

make it positive and help me grow.

Q. Coach Vitt, when is the last time you missed an NFL game?

A. The last time I missed a National Football League game was

in 1986. I was diagnosed with cancer, and I think I missed

four games that year. Back in the old days, when you had

cancer, the treatment back then was kind of barbaric and

horrific. You would actually be in a hospital and get the

chemotherapy and radiation for 18 hours a day, and you would

get sick. So the only time that I would miss the game was if

my white blood cells went down and I would miss a treatment and

it would carry into the weekend. If not, if I could get out of

the hospital on Friday, I would try to get to the game that

Sunday. So I think I missed like three or potentially four

games that year in 1986.

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JOE VITT - DIRECT

Q. Coach Vitt, I would like to show you what's in evidence as

Exhibit 14.

MR. GINSBERG: May I approach?

THE COURT: Uh-huh.

BY MR. GINSBERG:

Q. Coach Vitt, Mr. Goodell and Mary Jo White have described

Exhibit 14 as a ledger or a revised/redacted transcribed ledger

from the meeting before the Minnesota playoff game. Do you see

that?

A. Uh-huh. Yes, I do.

Q. That ledger has your name on it, right?

A. It does.

Q. It seems to imply that you offered $5,000.

A. That's what it says.

Q. Is it true?

A. No. I have never in 34 years put money up, number one,

for anything in the National Football League, not a

pay-for-performance. I'm not a betting man. I don't and

certainly did not -- certainly never in my career have I put

money up to hurt another player. Again, all you do is lose

credibility with players when you do things like this.

Q. Did you tell Mr. Goodell and his investigators that that

document was not accurate?

A. I told the commissioner that, yes.

Q. Coach Vitt, what was your reaction when you learned that

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JOE VITT - DIRECT

Jonathan had been suspended for a year?

A. Let me reiterate what I have said. I've been in this

league my whole life. I have my wife who I've been married to

now for 36 years, I have two grown children, I have

grandchildren, in relation to myself and my wife right now. So

my players are my family. My players are an extended family to

me. So I see something happen to someone whom I love very much

and care very deeply for, it hurts, and I'm very disappointed.

Listen, I'm not going to just say this as -- this is

Jonathan Vilma and this is Scott Fujita. Both of those men

were in my room. I have stated publicly before that both of

these men are like my sons. I also want to reiterate they are

not my friends.

MR. GINSBERG: Coach, I appreciate your time today.


MR. GINSBERG: There may be a couple questions from

the NFL.

CROSS-EXAMINATION

BY MR. LEVY:

Q. Mr. Vitt, my name is Gregg Levy. I represent the National

Football League in this case.

A. How are you?

Q. Well. Thank you.

When were you first asked to testify on behalf of

Mr. Vilma?

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JOE VITT - CROSS

A. I don't recall. Three weeks ago. A month ago. Six weeks

ago. I really don't recall. We were involved in OTAs. I went

on vacation for four weeks. I've been back here now for about

20 days. So listen, I knew all vacation that this was a

distinct possibility. I didn't know the exact date of it, but

I would say probably about five or six weeks.

Q. Were you asked to testify on behalf of Mr. Vilma at the

appeal hearing held before Commissioner Goodell on June 18?

A. No.

Q. As I understand it, you said that you had 90 players in

camp today. Is that right?

A. Yes.

Q. Why 90?

A. It's the roster limit.

Q. It's the roster limit. That's the limit on the number of

players you can have on your roster imposed by the Collective

Bargaining Agreement?

A. Yes.

Q. That means that if Mr. Vilma's suspension is lifted,

another player will lose his job; isn't that right?

A. Yes.

MR. LEVY: That's all I have. Thank you.

MR. GINSBERG: Coach, thank you for your time.

THE COURT: I do have one question I wanted to ask

you, Mr. Vitt. Were you aware of a pay-for-performance pool

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going on for the defensive players?

THE WITNESS: Yes, Judge.

THE COURT: Would you tell me a little bit about what

did you know about that and what that consisted of.

THE WITNESS: Judge, I'm with you. I'm with you.

This is a great question.

You know, since I've been in the National

Football League in 1979 -- and I think it's eight teams I have

been with now, and really the only people that I come in

contact with are coaches on other teams and players that I have

coached in the past.

This has always been a fun-based performance,

and what I mean is this. If a player gets a tackle for a loss,

he may get $50. I think it's $50 now or it may go as high as

$75, but this is the kind of money that players put up amongst

one another for big plays. Back in the old days, in '79, it

was like $5.

So there's a list of big plays potentially a

defensive player could make. He could make an interception.

He could recover a fumble. He could get a tackle for a loss.

He could sack the quarterback. He could tip a ball that

results in an interception. He could tackle the quarterback

for a safety that results in points. And players would have a

good time and pay each other for big plays; big plays, not

hurting anyone.

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I have also been at places, Judge, where

management was involved, and they may give out big screen color

TVs for a big play. They may give out dinner for two at the

finest restaurant in town. They may give out a vacation for a

quarterback that threw for over 400 yards. Judge, this was

always just in the spirit of the game that, hey, listen, let's

have a little bit of fun.

Now, Judge, on the other hand, when you are

talking about pay-for-performance, if a player gets a needless

penalty, if a player is penalized, we had the same type of

fund. That player had to pay everybody on defense because you

hurt the team with careless play. So it kind of went both

ways.

It was just a way to keep players in bounds. It

was just kind of a way to -- a kangaroo court, if you will, to

have everybody accountable. And it really became fun when you

had a full team buy into it. You'd hoop and holler a little

bit.

And that's what the pay-for-performance was.

THE COURT: Could you show him Exhibits 15 and 16 and

17 and 18.

The first question is: Have you ever seen any

of those documents before? They may not be the final form that

they were in, but have you seen the contents of them?

THE WITNESS: Yes.

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THE COURT: Look at 15. Can you tell me what that

is?

THE WITNESS: "Kill the head"?

THE COURT: Uh-huh.

THE WITNESS: What we would do, Your Honor -- and I

find this kind of ironic lately. In know we have a lot of

talking heads on TV, sports commentators that are kind of

blasting what we are saying, one of them being a former head

coach, and this sign was hanging in his room, "kill the head,"

and all that stuff the mind does. All this meant right here

with "kill the head," when a ball carrier was trying to go

forward and gain an extra couple yards, all's we did was try to

turn his head, which would turn the body so that the ball could

not be advanced for a potential first down. That's what that

meant.

THE COURT: What about Exhibit 16?

THE WITNESS: I don't have a 16.

THE COURT: Maybe the other side of the piece of

paper.

THE WITNESS: I gotcha. Okay.

THE COURT: What is that?

THE WITNESS: This is called a whack. Where these

would take place most, Your Honor, is what we would call a

perimeter play. Now, a perimeter play for us defensively, the

ball carrier is getting outside what we call the tackle box and

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is going toward the sideline. When you are out there trying to

leverage that tackle, it's really -- the most tackles that are

missed in the National Football League is when a tackle has to

be made in space.

A whack meant for us a legal hit where we would

try to take the ball carrier's legs out so the ball carrier

could not advance the ball and the ball would go down, a legal

hit. A whack is going between the bottom of the numbers to the

top of the -- excuse me, to the kneecap and taking the legs

out, which is completely legal.

THE COURT: Number 17.

THE WITNESS: Your Honor, this is a report that we

would do every year, and every team in the National Football

League does this. YAC to us is yards after contact. So if you

are the ball carrier and I'm tackling you, but you're stronger

than I am and you run me over, I may have hit you at the line

of scrimmage, but you may have gained another 5 yards because

you ran me over. So yards after contact -- so our ability to

secure the tackle in a bent knee position, eyes are over our

thighs, your head is up, you are seeing through the target, you

wrap it up, and you try to knock the ball carrier backwards.

It's called yards after contact.

THE COURT: Okay. Do you have No. 18 up there also?

THE WITNESS: I have it right here.

THE COURT: This does not purport to be the original

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134

notes, but it purports to be an accounting of what was on some

original notes. Have you seen this before?

THE WITNESS: Your Honor, I'm sorry. Could I borrow

somebody's glasses?

THE COURT: You can borrow mine, actually.

THE WITNESS: Perfect. I'll say this to you. I've

never seen this before, "Fujita to the D line," so I don't

know. I've never seen this. I don't know what this is.

THE COURT: So you haven't seen the content. It

doesn't purport to be what it was originally. It purports to

be notes and these are typed up. These are not familiar to

you?

THE WITNESS: No, ma'am. I've never seen it before.

THE COURT: Can you also give him Exhibit 24.

Have you seen that document before?

THE WITNESS: You know, I've seen this document

because it was shown to me when I went for my appeal process.

THE COURT: Okay.

THE WITNESS: And then I have seen this again because

they turned over evidence to us, so I subsequently have seen

that.

THE COURT: Tell me what you understand a cart-off to

be.

THE WITNESS: Your Honor, again, a cart-off for us --

Your Honor, who's your favorite running back? Do you have one

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135

in the National Football League? I'm being serious. Besides,

I know -- all right, here we go. We trade Pierre Thomas to the

Atlanta Falcons. Okay. Everybody likes Pierre Thomas.

THE COURT: Not a good move.

THE WITNESS: I'll tell him that this afternoon.

A cart-off means this. In our business we have

to physically reduce our opponent's will to compete. It's a

physical game. If we were to hit a running back legally, if we

were to hit a wide receiver legally and all of the sudden he

had to go out for a couple plays, the trainers are giving him

smelling salts, he is taking a breath, he is taking some

Gatorade on the sideline, we would call that a cart-off. He is

out of the game. He is not playing.

THE COURT: Last question. Are you aware that

pay-for-performance rewards are prohibited under the Collective

Bargaining Agreement?

THE WITNESS: You know, I didn't, but I should have.

I didn't, but I should have.

THE COURT: Okay. If anybody wants to ask something

else as a result of what I asked?

Thank you, Mr. Vitt. Go back to training camp.

THE WITNESS: Do I have to?

THE COURT: You guys decide how we proceed. If you

want to break, we'll break. We can keep going if you want to

keep going.

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136

MR. GINSBERG: It might make sense to have a short

lunch break, maybe a half hour, so if we could make sure

everyone is here.

THE COURT: That's fine.

(Discussion off the record.)

THE COURT: You had listed four more. I think you

had listed a total of four more.

MR. GINSBERG: I think that's probably right,

Your Honor.

THE COURT: Let's say come back at 2:00.

MR. GINSBERG: That would be great.

(Lunch recess.)

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137

AFTERNOON SESSION

(July 26, 2012)

(The following proceedings were held in open court.)

THE COURT: Be seated.

SCOTT SHANLE,




THE WITNESS: Scott Allen Shanle, S-H-A-N-L-E.

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good afternoon, Mr. Shanle. My name is Duke Williams, and

I represent Jon Vilma.

Could you tell us what you do for a living, please.

A. I play linebacker for the New Orleans Saints.

Q. Where did you go to college?

A. University of Nebraska.

Q. Did you play linebacker at Nebraska?

A. Yes, I did.

Q. Did you play all four years?

A. I played all four years, started for three of them.

Q. What did you major in?

A. Family financial management.

Q. How long have you been a member of the New Orleans Saints?

A. I've been a member since 2006.

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SCOTT SHANLE - DIRECT

Q. Did you go to the Saints straight out of college?

A. No. I was drafted to the St. Louis Rams and then from

there played for the Dallas Cowboys and was traded here in

2006.

Q. You have been a starting linebacker for the team for the

past few years, have you not?

A. Since 2006, yes.

Q. How long have you known Jon Vilma?

A. I've known Jon since 2008, which would have been his first

year here.

Q. So you had been with the team and had some experience with

the team before Jon got to the Saints, obviously, a couple

years?

A. Yeah, a couple years.

Q. Now, did you notice whether or not Jonathan brought a

different mind-set or different energy, a different attitude to

the Saints when he came to the team?

A. Yeah. Jonathan fit great into our locker room. He was a

guy who automatically commanded respect based on what he had

done, his reputation as a linebacker, as a player. Within that

first year he was automatically respected by the entire team.

He has been one of our team captains every year he has been

here, I believe, and he is one of the top two or three leaders

we have on the team.

Q. He is a fellow linebacker, correct?

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A. Yes.

Q. You have worked closely with him the last few years; is

that correct?

A. Yes.

Q. You mentioned he is captain of the defense. What does the

captain of the defense do?

A. Really motivates everybody. I mean, 16 weeks throughout a

season you need a personality and a voice to rally all the guys

together. You need a guy, when you're speaking among guys

ranging from age 22 to 35, a guy who when he speaks everybody

listens, and that's something that I think he has been born

with. He is a natural leader and someone that's very important

to our defense.

Q. Did he also fulfill a role on the team defense as a

teacher of players as well?

A. Oh, absolutely. I always watch the young guys, especially

the guys who play middle linebacker position, and they watch

the way he works. I've never seen a guy work as hard as he

does, and I think even sometimes people have to tell him to

slow down a little bit. That's just the way he is. He tries

to outwork everybody, always helps the younger guys. He is a

vital goal to the young guys and a great teacher.

Q. During your tenure as a teammate of Jonathan's with the

Saints, did you ever, ever hear him tell you or anyone else,

any of the other players in the locker room -- whether it was

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in the locker room or a team meeting, did he ever tell anyone

to go out and intentionally injure another player?

A. No. Those words would never come out of his mouth, to

intentionally go out and injure somebody.

Q. Did Jonathan during your time together ever admonish his

teammates to play clean, to play up to the line but never cross

it, things like that?

A. Absolutely. And, you know, we had -- we try to keep

ourself accountable by tracking our penalties, plays that cost

the defense yards, and we took pride in playing hard and

playing fast and aggressive but playing clean and not having

penalties against us as a defense.

Q. I appreciate your answer to my question just a minute ago,

but I want to make sure we get this right. Did Jonathan ever

offer any teammate money to take somebody on the opposing team

out of the game by injuring them?

A. No.

Q. Never happened?

A. No.

Q. If somebody said it happened, would they be lying?

A. Yes.

Q. Did you or have you attended every defensive team meeting

since you have been on the team?

A. Yes.

Q. Have you attended every defensive team meeting since

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Jonathan has been on the team?

A. Yes.

Q. If somebody had -- if Jonathan had said those things --

which you testified he never did. If he had, you would have

heard them. Is that a fair statement?

A. Yeah, that's a fair statement.

Q. How many defensive team meetings do you think you went to

with Jonathan, just a rough number?

A. I would just say 20 games a year, probably 80 meetings.

Are you talking game meetings or just throughout the

entire -- every day?

Q. All meetings. All meetings that the defense has.

A. Wow. Hundreds. 400, 500 meetings we probably had

together with game meetings and linebacker meetings.

Q. Did anybody from the commissioner's office or a

representative of Roger Goodell or Roger Goodell himself,

anybody that worked with the NFL, did anybody bother to call

you at any time to ask you any questions about this alleged

bounty system or anything else having to do with Jonathan

Vilma?

A. No, they didn't.

MR. WILLIAMS: Thank you. Those are all the

questions I have.

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CROSS-EXAMINATION

BY MR. JONES:

Q. Mr. Shanle, my name is Gladstone Jones, and I represent

the National Football League. Good afternoon.

A. Good afternoon.

Q. I just have a couple of questions for you.

When were you first asked to provide your testimony

to this Court?

A. A week and a half, two weeks ago.

Q. Were you ever asked by Mr. Vilma or anyone else to travel

to New York around June 18 and offer testimony to the

commissioner, Commissioner Goodell, in relation to this matter?

A. No.

Q. You have been interviewed, have you not, with regard to

the circumstances regarding a pay-for-performance program at

the New Orleans Saints? Correct?

A. With the local media.

Q. Yes.

A. Yes.

Q. Do you recall giving an interview with the local media?

A. Yes.

Q. Would you agree with me that there was a pay-for-

performance program at the New Orleans Saints?

A. Yes.

Q. You admitted as much to the local media that you provided

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143

SCOTT SHANLE - CROSS

that interview to, correct?

A. Yes.

Q. You would agree with me that there were money in the pay-

for-performance program related to cart-offs; is that correct?

A. Yes.

Q. That's what you told the local media as well?

A. Yes.

Q. You likewise -- included in that pay-for-performance

program was the exchange of money for knockouts?

A. Yeah.

Q. Is that correct?

A. Yeah. "Knockout," not knocking somebody out the game, but

a knockout-type of hit, a big-time type of hit.

MR. JONES: Thank you very much for your time.

That's all the questions I have.

MR. GINSBERG: No further questions, Your Honor.

THE COURT: You may go back out to camp.

SEDRICK ELLIS,




THE WITNESS: Sedrick Ellis, S-E-D-R-I-C-K,

E-L-L-I-S.

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144

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good afternoon, Mr. Ellis.

A. Good afternoon.

Q. Where did you play college ball?

A. The University of Southern California.

Q. Did you get a degree? What did you major in?

A. Sociology.

Q. While you were at USC, were you selected or given any

honor?

A. Yeah. I got a lot of different honors, All-American

honors, so forth and so on.

Q. What are you doing right now?

A. I play for the New Orleans Saints.

Q. What position do you play?

A. Defensive tackle.

Q. How long have you been with the Saints?

A. This is my fifth year.

Q. Has Jonathan Vilma been captain of the defense since you

have been on the team?

A. The whole time.

Q. What kind of relationship have you developed with

Mr. Vilma during the period of time that you have been

together?

A. Well, you know, he has been the captain of the team since

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145

SEDRICK ELLIS - DIRECT

I got there in 2008, and he has been a tremendous help to me

from the time I was a rookie and I didn't even know where to

line up. He always had to do his job and kind of help me do

mine. He has always been a great influence and a friend, and

he is always there when you need him, you know.

Q. Was he a good teacher?

A. Yeah, definitely. He kept me in the league my first year.

Q. Does the rest of the defense respect him in your opinion?

A. 100 percent.

Q. Do you think he is a good captain of the defense?

A. I think he is a great captain. I wouldn't want to play

with anyone else.

Q. In that teaching role you just described briefly, has

Jonathan imparted any wisdom or given you any advice as to how

the game of professional football should be played?

A. Yeah. Me and him talk all the time during the season and

in the off-season. One thing about Jonathan is he is very

passionate about football, whether we are in the middle of the

season or the middle of a game. Even in off-season he is still

very passionate about his football. He just wants you to play

it the right way, have respect for the game. In that sense he

always said that the game will have respect for you.

Q. Has he ever told you since you have been with the Saints,

or anyone else that you know of or have heard of, that he would

pay money as a reward or a bounty if you or any other member of

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SEDRICK ELLIS - DIRECT

the defense intentionally hurt a player on an opposing team?

A. No.

Q. Never happened?

A. No.

Q. Now, Jonathan's issues with the NFL, when you learned of

that, at any time after that or before, did anybody from the

commissioner's office, the NFL, any representative,

investigator, anybody else ever call you or seek to interview

you to get some information on the vocabulary of the game? We

have heard about cart-offs and whacks and things like that.

Did anybody call you to ask you questions about that?

A. No.

Q. Nobody called you to ask you whether Jonathan had done the

things he was accused of?

A. No.

MR. WILLIAMS: Thank you very much. I appreciate it.

This lawyer might have a couple questions for you, so just hang

on.

CROSS-EXAMINATION

BY MR. JONES:

Q. Very brief, Mr. Ellis. My name is Glad Jones. I

represent the National Football League.

When were you first asked to come and provide your

testimony on behalf of Mr. Vilma to this Court?

A. I don't recall the exact date, but maybe a week ago.

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SEDRICK ELLIS - CROSS

Q. Were you ever asked to go up to New York around June 18

and offer your testimony on behalf of Mr. Vilma to the

commissioner of football, Roger Goodell?

A. No.

MR. JONES: That's all the questions I have. Thank

you. Thank you, Mr. Ellis.

THE COURT: Anything else?

MR. WILLIAMS: You're done.

THE COURT: Thank you Mr. Ellis.

JONATHAN CASILLAS,




THE WITNESS: Jonathan Casillas, J-O-N-A-T-H-A-N,

C-A-S-I-L-L-A-S.

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good afternoon, Mr. Casillas. I'm Duke Williams, and I'm

one of the lawyers representing Jonathan Vilma.

Could you just tell us real quickly where you went to

college.

A. University of Wisconsin.

Q. How long have you played for the Saints?

A. This will be my fourth year.

Q. What position do you play?

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JONATHAN CASILLAS - DIRECT

A. Outside linebacker.

Q. Is the linebacking corps on the Saints team a close unit?

A. Yeah, very much so.

Q. You spend a lot of time off the field together, in the

training facility and elsewhere?

A. Yes, we do.

Q. Y'all are good friends?

A. Yeah, pretty much so.

Q. When you joined the Saints, was Jon Vilma captain of the

defense?

A. Yes, he was.

Q. Describe for me briefly what kind of a captain Jon is.

A. He is one of the best I've been around. Everybody knows

who Drew Brees is. I put him on the same level with him. He

is our quarterback of the defense. As we say, he's a very

intelligent guy, very caring, very loving. He's very dedicated

to the sport and to his craft, and a lot of people look up to

him, including myself.

Q. Has he ever suggested to you or any other player that you

may have overheard that you break a rule established by the

NFL?

A. No, sir.

Q. Has he ever or have you ever heard him tell anyone that he

would pay them or reward them, you or any of your teammates,

for intentionally hurting another player?

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JONATHAN CASILLAS - DIRECT

A. No, sir.

Q. Did Mr. Vilma ever admonish you or suggest to you that the

game should be played within the rules?

A. Yes, at all times.

Q. Now, in 2010 you were on the IR list, is that right, the

Injured Reserve?

A. Yes.

Q. Did you still attend defensive meetings?

A. Yes.

Q. So you were present throughout 2010 even though you

weren't playing, correct?

A. Yes. I would say I attended maybe 80 percent of the

meetings.

Q. It's your testimony that you never heard him place a

bounty on anybody's head, hold up handfuls of cash or stack

them on a table and say something to the effect that this money

is yours if you go hurt Kurt Warner, Brett Favre, Cam Newton,

or anyone else; is that correct?

A. Yes. No, sir, he never said anything like that.

Q. Has the NFL ever contacted you at any point in the last

year to ask you questions about Jonathan, the so-called "bounty

program," or anything related to it?

A. No, sir.

MR. WILLIAMS: Thank you very much.

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CROSS-EXAMINATION

BY MR. JONES:

Q. Good afternoon, sir. My name is Glad Jones. I represent

the National Football League.

When were you first asked to provide your testimony

before the Court?

A. A few days ago. I'm not too sure how long ago it was.

Q. Were you ever asked to go to New York and provide any

testimony before the commissioner of the NFL, Roger Goodell?

A. No, sir.

MR. JONES: Thank you, sir. Have a nice evening.

THE COURT: Mr. Casillas, you may step down.


MR. WILLIAMS: The next witness will be Roman Harper.

ROMAN HARPER,




THE WITNESS: My name is Roman Harper, R-O-M-A-N,

H-A-R-P-E-R.

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Good afternoon, Mr. Harper. I'm Duke Williams, and I

represent Jonathan Vilma.

A. How are you doing, Mr. Williams?

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ROMAN HARPER - DIRECT

Q. Where did you play college ball at?

A. University of Alabama, 14-time National Champion.

Q. I knew I shouldn't have asked that question.

Although it's probably no secret, what's your current

occupation?

A. I play football for the New Orleans Saints.

Q. How long have you been with the Saints, Roman?

A. This will make seven years, the season coming up.

Q. In addition to winning the Super Bowl, the world

championship in 2009, have you been recognized in any other way

by the NFL or gotten any other awards or accolades?

A. I've been sent to the Pro Bowl twice, I've been NFC

Defensive Player of the Year a couple times. I've been in the

league six years, seven years, so I don't know. I don't know

all my accolades.

Q. Fair enough.

You're a strong safety; is that right?

A. Yes, sir.

Q. Briefly describe what you do in that position, what your

job is and how you accomplish it.

A. My job is -- really, I cover the tight end a lot of times.

I'm more involved in the run game against the offense. I have

to know my gaps fit it. I have to get most of the defensive

backs lined up. I have to relay the calls from my middle

linebacker, from JV and Curtis Lofton, to the back half of the

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defense to get everybody lined up. I'm like a second tier

quarterback of the defense.

Q. You mentioned tight ends and running backs, I think, were

the first two offensive positions on that list. Does that mean

you do a lot of hitting?

A. I do do a lot of hitting. That's part of my job

description. I'm definitely the guy who's called upon to come

downhill and tackle running backs and hit guys whenever I need

to, wide receivers, sack the quarterback. So I'm kind of a

jack-of-all-trades guy.

Q. I guess in the case of tight ends, also in the case of

most running backs, they are probably a little bit bigger than

you are?

A. I'm considered probably a smaller strong safety in the

NFL. Most guys are about 215, 220. I'm about 205 on a good

day.

Q. Based on your experience and your observations as a

college and professional football player, can an entirely legal

hit sometimes hurt somebody?

A. It can hurt both sides, actually. I've been in those

collisions where it's just large men running into each other at

high rates of speed, and collisions are going to happen; big

hits, things like that will occur, and sometimes guys get

injured. I've been hit a few times.

The rules now have changed to where you are trying to

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change your aiming point on guys and things like that, so you

are trying to abide by those rules. But, you know, whenever

you stick, you try and get your head out of the way and things

like that, your shoulders exposed. Especially against bigger

guys that you hit, sometimes it happens.

Q. You mentioned big hits. What's a big hit?

A. A big hit is when you pretty much take the guy down,

whether it's when you go low on him and you try and hit him in

the lower area to try to get him down -- because you can't

tackle big guys that weigh about 260. Well, at least I can't.

I will get run over.

Then sometimes you catch a guy's feet when he doesn't

see you and you quarter him. In other words, he is coming off

the ground, he just is not ready for the hit, that's when you

really try and get the guy. So other than that -- that's what

I would consider a big hit. Or sometimes you just face them

up. Like most linebackers, when they hit running backs in the

hole and things like that, they really catch them. When you

are coming downhill and the guys are trying to make a cut or

they don't see the guy, that's when you really see the big hit

in the NFL.

Q. Would you say, among other things, that the NFL is a

violent sport?

A. It's a violent sport. It's a gladiator sport. I hate to

use the word "violent" because people think violence is guns,

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knives, things like that. I think it's a gladiator sport where

guys are actually grown men, they get out there and compete in

front of a large crowd. It's all about winning. We are going

out there and compete with each other.

It's a blessing to be in this business, and we all

understand that, but I would never want to say it's a violent,

violent sport, but it is a physical sport. It's a gladiator

sport. We are all out there competing to try and get out there

and earn a living.

Q. The expectation is, when you are in a position to do so,

your job is to deliver the big hit. Is that a fair statement?

A. Yes, sir.

Q. Every chance you get, correct?

A. Yes, sir.

Q. That's not just your job, that's the job of every NFL

player on a football field during a game, isn't it?

A. Yes, sir.

Q. Not just defense, but offensive players as well?

A. If the offensive lineman catches a corner on the sweep, he

is going to try and hit him and take him out. It's just part

of the job, and it's been going on for a long time.

Q. Have you ever heard of a television show that's on ESPN --

or used to be, I'm not sure if it still is -- called Jacked Up?

A. Yes, sir.

Q. Do you watch it, or did you?

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A. Yes, sir. It's on Sunday -- Monday night, Primetime.

They used to do it from -- ESPN would do the Jacked Up thing,

and they would have like the biggest hits of the week. I think

they have it, all five, because it's five guys. It's Chris

Berman, Chris Carter maybe, and Steve Jackson. They usually

have some other guys on there. And they always pick a play

from the week of the last football games. They have the

Jacked Up settings where the guys have the biggest five hits:

Somebody gets de-cleated; or it's a big hit on a wide receiver,

somebody like that; somebody's getting jacked; a quarterback

gets hit.

And it's usually sometimes, you know, it's plays

within a game that you might not ever see them going to make

the highlights, but if you watch film long enough you're going

to see it. And you see those same hits every week from special

teams on kickoffs to anything. So that's what Jacked Up is,

the whole special on the ESPN show.

Q. Jacked Up aren't clips of guys making beautiful

ballet-like catches in the end zone. These are hard, hard hits

that lay somebody out. Is that right?

A. Yes, sir. These are the extreme hits of the NFL each week

in and week out, whether this guy's getting flipped on his head

or a guy is getting pummeled straight on and going across the

middle.

Q. Have you ever heard of an NFL film called The Best of

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Thunder and Destruction: NFL's Hardest Hits?

A. No, sir, but I have heard of NFL's Hardest Hits by

Steve Sabol.

Q. That's NFL Films, right?

A. Something like that. I just remember watching it when I

was little. I haven't seen the one that you are talking about.

Q. In your experience -- and you can go back as long as you

want to, even when you played when you were a younger boy -- is

it true that football talk, locker room talk, meeting room talk

between coaches and players, it's pretty rough, profane, and

violent talk at times, or gladiator talk? I now you don't like

the word.

A. Yes, sir, it's pretty brash. The thing is, when you are

younger, you can try and motivate guys, "Hey, guys, if we win

this game, let's go to McDonald's. Let's go to Pizza Hut."

And then as you get older, those same things don't matter

anymore. You have to take care of your body. Nobody wants to

get excited about McDonald's. You can always go by McDonald's.

That's not going to be the same case.

Then as you get older, college, it's more about the

Buckeye on the helmet or a different stripe or different

things, you know, getting out -- girls. You know, they get

girls if they make big plays and things like that that enthused

other guys.

Now that you are in the league, you get out there,

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you have to rowdy guys up, you have to talk it. Not everybody

cares about girls. Most guys are married and things like that.

Nobody cares about McDonald's because we all can afford that.

Now you have to go out there and use different angles and

different ways, choose your words to try and fire guys up and

get them going. And that's where you can kind of get it

misconstrued because you're working with grown men.

We all have our different factors of motivation.

When you try to get a group of grown men thinking the same

angle, with the same mind-set, that's what you want to try and

do, sometimes your words can be misconstrued from the outside

looking in when they don't know exactly what you mean. That's

what it's about, trying to get everybody on the same page to go

out and try to win the game.

Q. Think back to your college days at Alabama. Now you as a

veteran pro -- is it harder for a coach to fire up a locker

room or a meeting room full of wizened veterans like yourself

than it was for a college coach to light a fire under his

players?

A. Yes, sir, of course it is, because you have heard the

"rah, rah, sis, boom, bah" cheers and the whole speeches since

you were young. Everybody reads the John Wooden book. You try

and learn this kind of thing and how to get guys motivated and

things like that. You have heard the Lou Holtz speeches and

things like that. And it doesn't have the same effect when you

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have heard it the second, third time, fourth time.

So there's different ways you have to try and get

guys to get motivated. Most of us are motivated by actually

playing the sport that we love, and we all cherish and love

getting out there competing against the best of the best, and

that's a lot of motivation for most people. So when you get

out there, as a coach you have to really try and get guys

enthused, all on the same page, and you have to use different

techniques to try and get a different team going. No team's

the same.

Q. What kind of techniques did Coach Williams use? How did

he get you fired up?

A. Oh, he was a fiery guy. He's going to use four-letter

words I'm not going to use in this courtroom. And he is brash.

He's loud. He's going to say different things. When you look

at it and you hear it for about the fifth or sixth time, you

think, well, it's just Gregg. You think it's a little off at

first, but you kind of just understand that he is who he is,

and that's the type of language that he uses, the type of

speech he uses. He doesn't care.

We have had one, the main -- you know, that Christian

guy say we had some small kids in the building. And you know,

hey, you gotta cover their ears because you know Gregg's going

to coach the way he coaches. Once you get to playing for him,

you love to play for him. It's very motivational. He wants

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you to play fast, play hard, and don't ever hurt the team.

But, you know, we are going to go out there and play with our

sense of attitude and the way he wants us to play, and that's

what we did.

Q. Let's get back to your teammate Jonathan Vilma for a

minute. Have you ever heard, in your years playing with

Jonathan, him ever suggest to you or any player to

intentionally injure a player on the opposing team?

A. No, sir.

Q. Have you ever heard Jonathan admonish you or tell you or

tell other teammates that the game should be played within the

rules?

A. Yes, sir. Well, this is what he says before he breaks out

of every huddle, before we go out and play any game. The

offense goes in there. He calls up the defense. He gives a

speech talking about how we need to go out and play. "Let's

play to the end of the whistle. Let's play fast. Let's play

physical, and let's dominate this game." That's what he would

always tell you, it's about dominating the game, dominating

your opponent physically, mentally, emotionally. Let's go out

and lead us to victory. What I tell him before we go in the

huddle every time, I say, "You just lead us, and I got your

back." And that's what we did every game.

Q. In your years in the locker room with him and the meeting

rooms, did you ever hear Jonathan Vilma offer money to you or

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any other player or a bounty or a reward to go out on the field

and intentionally injure another player, whether it's Brett

Favre -- we have heard his name -- Kurt Warner, Cam Newton?

I'm not restricting the universe to those three players. I'm

saying any player.

A. Anybody. No, sir, I did not. I love JV to death. He is

a great guy. He's a great leader. And some of the stories I

have heard, I don't want to get into things like that because

it's not what we are here for, to go into all these stories and

things like that. I'm just going to tell you what I know. I

know this guy is a smart guy. He is a finance major. He is

smart with his money. There's no way he would go out there and

start throwing around large amounts of cash for things like

this. He is a numbers guy. This is what he does. We talk

about things like that.

Q. Forget about the money, and then I will leave this alone.

A. Yes, sir.

Q. Forget about the money, the holding up cash in his hands

or stacking it up on a table or stuffing it in an envelope. I

don't care. You have never heard him suggest or tell another

player that they should go out and intentionally injure a

player on the opposing team; is that right?

A. Yes, sir, that is correct. No, sir, he has never said

that.

This is a privilege to play this game. Nobody wants

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to take it from anybody. It's a brotherhood. We all are

trying to go out there to earn a living, and we all understand

that. I would never want to try to intentionally hurt anybody.

Injuries do occur playing this sport, but nobody wants to

intentionally hurt somebody. We are all trying to earn a

living for our family and friends.

Q. You often have good friends, sometimes very close friends

on opposing teams, right?

A. Yes, sir. All the time -- I grew up playing with a lot of

guys on other NFL teams and things of that nature. So nobody

wants to hurt anybody. We are just out there competing at the

highest level, and we definitely enjoy it and we all love to do

it. We've been doing it since we're kids.

MR. WILLIAMS: Thank you very much. I appreciate it.

CROSS-EXAMINATION

BY MR. JONES:

Q. Good afternoon, Mr. Harper. My name is Glad Jones. I

represent the National Football League. How are you?

A. I'm doing well. Is it Jones or --

Q. Jones.

A. Jones, yes, sir.

Q. When were you asked to provide your testimony in this

court today?

A. When was I asked? I guess earlier this week, if I was

interested in doing it.

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ROMAN HARPER - CROSS

Q. Were you ever asked to go to New York around June 18 and

appear at the NFL offices to offer your testimony, the

testimony that you have provided this Court today, to

Commissioner Goodell?

A. I don't know if it was June 18. I did receive one call

from somebody that worked in the NFL. I don't know who it was

or anything. It was some security guy.

I called my agent, and he told me that he would get

in touch with him, and that's all I remember. I never heard

anything from anybody else.

Q. To the best of your knowledge, Mr. Harper, you don't have

any recollection of going up and offering Mr. Goodell and the

NFL the same testimony that you've offered today?

A. I did not talk to anybody from the NFL, no, sir.

MR. JONES: Thank you. Have a nice afternoon.


MR. WILLIAMS: No further witnesses, Your Honor.

THE COURT: Mr. Harper, you may step down.


THE COURT: Are we done with witness testimony?

MR. WILLIAMS: Unless somebody has crawled into that

room since we have been out here.

THE COURT: Do you want to check?

MR. WILLIAMS: I'll double-check.

That's it, Your Honor.

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THE COURT: Let's take about 10 minutes just because

I have to change places. We'll have a 10-minute recess and be

back.

(Recess.)

THE COURT: Have a seat, please. I'm not going to

restrict anybody in terms of what you want to argue. Both with

Mr. Vilma and with the NFL, I do have some specific things I do

want you to address in your arguments in addition to anything

else you might want to.

With respect to Mr. Vilma, I think the issue

that concerns me the most is the alleged failure to exhaust

your remedies under the collective bargaining agreement because

it's a jurisdictional issue. If I were to conclude that there

was a failure to exhaust, then the only remedy is to dismiss

the TRO and motion for injunction because I wouldn't have

jurisdiction.

The NFL alleges two ways that you failed to

exhaust. One was not participating fully in the appeal hearing

before Commissioner Goodell. Then the second was the fact that

there was an appeal filed by the NFL Players Association on

Mr. Vilma's behalf and a few other players to the system

arbitrator, Mr. Burbank, and that Mr. Burbank disagreed with

what the Players Association asked for, but the appeal of that

is still pending. So that's another exhaustion issue.

The second ground of concern is the allegation

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that it's required under the Norris-LaGuardia Act before an

injunction can issue that there be proof that unlawful acts

would be committed unless restrained by the injunction. In the

Fifth Circuit at least, these unlawful acts have generally been

interpreted to be violence, intimidation, threats of physical

harm. Mr. Vilma doesn't seem to have alleged that sort of

threat.

So those are the two primary issues. And then,

thirdly, one that I actually am going to ask the NFL to address

also: If I were to overturn the arbitrator's decision, is the

appropriate remedy to make a ruling myself or is the

appropriate remedy to vacate the decision and remand it for

another arbitration proceeding?

So those are really the three things. Again,

you can address whatever else you want to address that was

raised, but please do deal with those, if you don't mind.

MR. GINSBERG: Be glad to, Your Honor.

THE COURT: Thanks.

MR. GINSBERG: May it please the Court. Thank you

again, Your Honor, for giving me the privilege to be here. It

has not only been a privilege to be here but to be here on

behalf of Jonathan Vilma. Having gone through today's hearing,

I'm sure Your Honor has an insight into why that is such a

privilege.

I think the best place to start, Your Honor, is

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to start with Roger Goodell's conclusion -- his conclusion

reached publicly, unwaveringly, and wrongly, and perhaps even

most important months before the appeal process provided by the

CBA -- was that Jonathan had embraced and helped to establish a

program designed to secure the injury of opposing players by

providing monetary incentives. It wasn't even couched in terms

of an allegation or of an investigation.

It was stated by Mr. Goodell time and time again

publicly, not in the confines provided by the CBA but publicly

and months before Mr. Vilma was allowed to go through a

process, that Mr. Vilma essentially had committed that criminal

act of conspiring to assault opposing players. This conclusion

by Mr. Goodell was the conclusion that in the guise of a fair

and neutral arbitrator, he was going to decide if he was right

or wrong in publicly and vehemently making those claims.

He said it in March in press releases, in

reports. He said that Mr. Vilma, in March, offered $10,000 to

secure the injury of Brett Favre. He repeated that Mr. Vilma

intended to have other players injured. He repeated that

conclusion in press releases in May. In May, he said it wasn't

just Mr. Favre that Mr. Vilma offered $10,000 but it was even

Kurt Warner. Time and time again, Mr. Goodell said that

Mr. Vilma had embraced that program.

There are many, many other examples, but I think

it's very clear and I think it's important to make sure we all

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understand that this wasn't a pay-for-performance program that

Mr. Vilma was accused of, that Mr. Goodell claimed Mr. Vilma

violated. It wasn't what he has been punished for. And

indeed, if this were a pay-for-performance program, it would be

within the jurisdiction of Special Master Burbank, as Special

Master Burbank made clear. This was a bounty program, a

program to injure.

Mr. Vilma, as Your Honor has heard, has

vehemently, unequivocally, and adamantly denied those

conclusions, but for today's purposes -- because at some point,

in a fair and neutral tribunal, I think that we will be able to

address how wrong those conclusions were. But for today's

purposes, I think it's important to focus on the process that

we have been going through and that Mr. Goodell invoked.

That process, Your Honor, was uniquely

defective. It was defective with regard to the fundamental due

process rights that any person is entitled to, to be abusive.

There was a process that was intended, and Commissioner Goodell

abused that process. It is almost beyond comprehension that a

person with the power and authority that Mr. Goodell has could

be so oblivious to the very fundamental rights that not only

should an individual be entitled to, but in this case an

individual under the CBA should have been entitled to. There

are federal statutes designed to assure against this very type

of abuse. It is pursuant to those federal statutes, the LMRA

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and the FAA, that we have used to come to court to seek justice

for Mr. Vilma, and those two statutes provide specific judicial

review for specific reasons.

Now, in order to analyze the two federal

statutes that provide protection against this sort of abuse, I

respectfully submit that there are facts that are relevant.

The NFL, as I think you are about to hear, will tell you this

is really a pure question of law, that what happened here, with

regard to the process and the abuse and the prejudgment, that

that's not really relevant, but it is. If it weren't relevant,

these statutes effectively would be nullified. The NFL can't

just wish away the protections that our legislature has given

to individuals, whether members of a union or otherwise.

Thank goodness the law does not countenance this

kind of abuse. There are, as I said, a series of grounds under

those two federal statutes that provide for judicial review and

judicial nullification of an arbitration decision, but I think

for today's purposes, so as not to take too much of the Court's

time, I would like to focus on two of those grounds. In a way,

as I talk about it, I'm going to be a little out of order

because I'm going to talk about the process that was used and

then address the bias that Mr. Goodell brought into these

proceedings.

The process, Your Honor, as I said, in this case

was uniquely abusive and unfair. We are not challenging that

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Mr. Goodell had the right to be the arbitrator. We are not

saying that every time Mr. Goodell and his office investigate

something and reach a conclusion that Mr. Goodell then can't be

the final arbitrator. He can be. He should be. That's what

the parties to the CBA negotiated for. But this is different.

Let's look at first how he carried out his

responsibilities. Then I want to go back, as I said, to his

bias. We offered to meet with Mr. Goodell and his

investigators over and over again. Mr. Vilma went through

those pieces of evidence and those offers to meet. Mr. Goodell

was telling the press and telling the public that he reached

his conclusions by reviewing 50,000 pages of documents and by

looking at 18,000 such documents. That's how he was justifying

his conclusions to the press. When we asked to have him share

that information with us, when we said, "We don't think, we

know that what you have concluded is not true, but we need to

be able to see what you have so we can address it, so we can

discuss it with you, so we can really come to the truth,"

Mr. Birch, Adolpho Birch, and Mr. Goodell said, "No. We don't

have to show you anything."

When we finally reached the point of having the

appeal, one huge obstacle we had is that we knew what happened

to Coach Vitt and Sean Payton and Mickey Loomis. We knew that

no matter what they did to explain to Mr. Goodell that the

documents they had such as this fabricated ledger, that the

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information that Mr. Goodell supposedly had like interviews

with Gregg Williams and Mike Cerullo, had communicated to him

untruths.

When those leaders of the Saints went to the

commissioner and said, "Roger, you have it wrong," Mr. Goodell

pretended to listen, called them liars publicly, told the

public that those gentlemen, including Coach Vitt, had

obstructed his justice and he was going to impose punishments

unique to the NFL, we knew that unless we were given the right

fairly to review the evidence and respond to the evidence, that

there was nothing that could be done to change the minds of the

man who had already so publicly and so vehemently so many

months before reached a conclusion that Mr. Vilma had abused

his role as a leader with the New Orleans Saints.

Finally, when it came time for the hearing,

Mr. Goodell released some documents. Now, we can put aside for

a moment whether he violated the CBA by making the production

less than 72 hours in advance because although I think that's

important and although I think that shows some insight into how

unmindful the NFL was of its obligations, it is a blip on the

globe of abuse.

What Mr. Goodell sent to us, albeit late, was

less than one percent of the documents that he said that he

considered to reach his conclusions. Less than one percent.

The documents he gave us on the eve of the hearing were

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redacted, were revised, altered, and we knew some of them were

fabricated. We received no document with attribution. So

although we may be able to guess who created those documents,

we don't know. We don't know which investigator manipulated,

altered, and revised the documents either.

We received not a single witness statement. We

received not a single memorandum of interview. We received not

a single handwritten document that we could use to understand

time, place, and manner of creation. We received a newspaper

article that had been published after the initial discipline

had been provided. We received a video of Mr. Hargrove that

Mr. Hargrove adamantly said was not his voice saying, "Where's

the money?" And Mr. Goodell has finally backtracked from that

allegation. We essentially received nothing.

Then we arrive for the hearing having already

made a request for specific documents categorized in 17

different ways and a list of witnesses that we were asking

Mr. Goodell to present, and those witnesses weren't there

either. Instead we were presented with someone that I had

worked with closely and had quite a bit of professional respect

for, but an attorney who made the pronouncement that our

request for evidence was a red herring because my client, the

criminal, knew what he had done, so why does he need to see the

evidence. I think I was more disappointed than shocked, but

I'm not sure which sentiment took precedent.

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We made a motion on legal grounds with regard to

the document production, and Mr. Goodell turned to my opponent

in this arbitration and sought clandestine counsel about how to

respond. We made arguments regarding his jurisdiction and

whether he should be holding the proceeding or not and we

received no response. We were told basically that Mary Jo

White was going to be giving us kind of a show-and-tell and

telling us her understanding of the evidence.

I know Mr. Vilma was under the impression that

we were allowed to cross-examine supposedly the investigator.

That, in fact, wasn't the ground rules that we understood them

to be. I think that there was going to be an opportunity to

ask questions, not an opportunity to provide cross-examination,

and the witnesses were not going to be sworn.

We were provided with not a single piece of

exculpatory evidence. From our own investigation and from what

has materialized since that appeal, we now know that that

ledger, the smoking gun, was fabricated and false. As

Coach Vitt told you, he told Mr. Goodell well in advance of our

hearing that that ledger was fabricated and false, but we

didn't know it because Mr. Goodell didn't think it was

important enough. Why didn't he think it was important enough?

He believed it was not exculpatory. And why? Well, because he

didn't believe what Mr. Vitt had told him. So if it's not

truthful in Mr. Goodell's mind, it's not exculpatory because he

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had rejected it. He had rejected the contrary evidence, so he

wasn't going to give it to us.

There were e-mails that were repudiated by the

authors. There were e-mails from a Michael Ornstein.

Mr. Goodell had concluded, apparently, that Mr. Ornstein in a

communication indirectly to Mr. Williams was offering money

into this bounty program. Well, now we know that Mr. Ornstein

was trying to contribute money to a Gregg Williams charitable

foundation. Mr. Ornstein had told Mr. Goodell that, but did

Mr. Goodell disclose that information to us before the hearing?

No. He gave us the Ornstein e-mails.

I traveled to California afterwards, finally

tracked down Mr. Ornstein, and Mr. Ornstein told me that he had

told Mr. Goodell even before the coaches had been punished that

those e-mails had nothing to do with a bounty system, they had

to do with a charity, but Mr. Goodell wasn't going to tell us

that. There are countless examples of exculpatory information

that we should have been provided but we weren't.

Now, the NFL claims that we didn't exhaust, that

we didn't participate on that day, June 18, before Commissioner

Goodell. That is simply not correct. We may not have

participated the way the NFL suggests we should have

participated, but we appeared. We provided legal argument. We

provided jurisdictional arguments. We asked for discovery.

What the NFL has totally omitted from their representations to

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you, Your Honor, is that I did make a detailed factual proffer

to Mr. Goodell in which I explained why he was so wrong in his

conclusions. That's participation.

Did I present Mr. Vilma as a witness? No. Did

the NFL present Gregg Williams as a witness? No. Does that

mean the NFL didn't participate at the hearing because they

provided no witnesses with firsthand knowledge? Perhaps. But

it's rather ironic that the NFL says, "Well, we did what we did

because we are the NFL, and we participated the way we believe

we could participate, but you essentially did the same thing

and you didn't participate."

Well, we did participate. Did the NFL not

participate today because it didn't bring any witnesses before

Your Honor? That's essentially their argument with regard to

our participation. They may not like how we participated, but

we participated. We exhausted. We gave enough to Commissioner

Goodell that he should not have imposed these sanctions. If

you add to that all the information that by the hearing date we

knew that Mickey Loomis and Sean Payton and Joe Vitt and the

other Saints had given to Mr. Goodell, he had more than enough

information before him.

There's also a futility argument, Your Honor.

The law provides if there's no point going through the process,

there's no point going through the process. That's not really

our primary argument because we did go through the process.

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But we also knew that if Jonathan had given testimony to

Mr. Goodell that Mr. Goodell was going to reject what he had to

say no matter what the truth, no matter what the facts, the

same as Mr. Goodell rejected what Joe Vitt said and Mickey

Loomis said and Sean Payton said.

The NFL case law essentially almost entirely,

and perhaps entirely, stand for the proposition when you don't

take an appeal, then that is not exhausting. We did take an

appeal. We went to the appeal and we participated.

I made this argument before, Your Honor, and I

just want to make sure it's clear. We are not saying that

Commissioner Goodell cannot preside over "conduct detrimental"

proceedings. He clearly can. It was negotiated for and that's

his right. But having negotiated for that right to take that

position, having taken on that obligation, Commissioner Goodell

also has the obligation to act the way arbitrators must act

under the law. That is his obligation under the CBA.

That brings me to the second ground under the

LMRA and the FAA. An arbitrator, quite simply, can't be

biased. It is hard to conceive of a more biased arbitrator

than a man who is paid $18 million a year to preside over a

$10 billion industry and goes before every major media outlet

in the country and says Jon Vilma embraced and helped to

establish a program designed to injure other players, and makes

those pronouncements several times and well in advance of the

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hearing. It's hard to conceive of a more biased and a more

abusive arbitrator. It is shocking, it is arrogant, and it is

exactly what the law does not allow. He had prejudged

Mr. Vilma. He had not conducted an appropriate investigation.

Your Honor heard just sort of the tip of the

iceberg of the people that the NFL didn't want to hear from.

Who could know more about what happened in the meetings than

the people who were in the meetings? The NFL didn't interview

those people. Who could know more than Joe Vitt, who's been at

every defensive meeting since 1986 and has been in the league

for 34 years, when he says it didn't happen? And they simply

brush it off.

It was Roger Goodell who breached the bargain.

It was Roger Goodell who breached the CBA. It was Roger

Goodell who breached his duties, and it is he and the NFL who

have violated the law. He is allowed to be the commissioner

and the arbitrator. He is not allowed to prejudge.

THE COURT: Hang on one second.

Go ahead. I'm sorry.

MR. GINSBERG: Thank you, Your Honor. Now, as I

said, the LMRA and the FAA do provide additional grounds for

reversing or enjoining these arbitration decisions, but they

all essentially overlap in one way or another.

One of the grounds is if the arbitration doesn't

draw its essence from the CBA. I think that when one thinks

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about the type of investigation, the type of prejudgment, and

the type of abuse, it's easy to conclude this arbitration

didn't take its essence from the CBA.

Is their misconduct another ground? I think I

have made myself clear how I think about that.

Did Commissioner Goodell exceed his authority,

another ground? Well, sure. Because although he had the right

to hold those two positions, as I said, he didn't have the

right to do it in the way he did.

I respectfully submit, Your Honor, that the

record is enough now to permanently enjoin the suspensions.

But at the very least, the very least, if Your Honor concludes

that the record isn't sufficient to permanently enjoin the

suspensions, we should have the right to do some limited

discovery. After all, Your Honor, if the NFL's position were

correct and Mr. Goodell could have any motive to do what he has

done and we didn't have the right to explore what that motive

was because the CBA is the CBA and Mr. Goodell is Mr. Goodell

and essentially he can do whatever he wants, let's think about

how abusive that could be. Let's think about what the NFL is

really saying.

As a hypothetical, let's say Mr. Goodell decided

that small market teams shouldn't survive. Let's say that he

truly wants, as has been reported in the press, a team in

Los Angeles. Perhaps this is a Machiavellian scheme to destroy

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the Saints, cripple them financially, and have them move to

Los Angeles. I'm not suggesting that's the truth, but what I'm

suggesting is we don't know what the truth is about

Mr. Goodell's motives, but we do know that there is not

sufficient evidence to support what he has done. If the NFL

has its way, that doesn't matter. The law cannot countenance

that. There was no fair process, prejudgment, and abuse of the

system.

So when we look at the various factors that are

involved in providing injunctive relief, I respectfully submit

that the likelihood of success on the merits has been easily

satisfied; that in reviewing the FAA and the LMRA, the grounds

that I have discussed today about an abuse of the process and

the bias of the arbitrator shows that we have a likelihood of

success at the end of the day in this litigation.

We look at irreparable injury. I respectfully

submit, Your Honor, in these situations I don't believe that

one has to enjoin a life-threatening event to obtain justice

and assure that a person is not inflicted with irreparable

injury. The irreparable injury to Mr. Vilma is, I think,

self-evident. His career would be compromised by this

punishment. His rehabilitation will be compromised.

His career has already exceeded expectation in

terms of duration. Taking a year of Mr. Vilma's career is like

taking 10 years of a coach's career. There aren't that many

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years in this violent sport for a player. It has done damage

and will do further damage to his reputation.

Your Honor, talk about irreparable injury, if

Mr. Vilma can't do as he told Your Honor he needed to do with

regard to his charities and his fund-raising because of this,

he is not the only one being hurt. So are the kids in Haiti.

He has devoted his years here to the city, and I

respectfully submit that even for the city to lose its faith

and its perspective of Mr. Vilma is a shame. The Saints take a

huge amount of pride, as Coach Vitt told you, in their roles as

ambassadors for this city. Commissioner Goodell, I believe,

has taken a real swipe at one of those true ambassadors. So

there's a public interest as well.

Jonathan, as Your Honor has heard, stands out as

a leader of his team. Your Honor has heard how his teammates

would suffer professionally, as well as personally, if this

suspension is not enjoined.

The NFL argues if the suspension is enjoined

that the public would lose confidence in the commissioner and

in the NFL. Are they kidding? Can the NFL truly stand up in

this courtroom and say that the public has any confidence any

longer, has any respect any longer for what has happened here?

Quite the opposite, Your Honor.

I respectfully submit if the law isn't used to

tell Mr. Goodell that this is wrong, that the public would lose

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confidence in more than just Mr. Goodell and the NFL. The law

has to protect against this type of abuse. The law has to tell

Mr. Goodell that if he was provided with this kind of power

through the CBA, he has responsibilities and duties and must

live up to those obligations.

The law simply cannot leave to the vagaries of

Roger Goodell under these circumstances the career, the

physical well-being, the reputation, and indeed all that

Mr. Vilma has dedicated his life to in terms of gaining

respect, in holding himself out as a citizen, in helping people

even beyond the borders of the United States. Roger Goodell

not only doesn't have the right to do that to Mr. Vilma, he

doesn't have to legal right to do it to Mr. Vilma. That's why

we have laws, and thank goodness that's why we have courts.

Thank you, Your Honor.

THE COURT: Okay. You did address the first concern

I had about failure to exhaust, which is what happened at the

hearing itself. The second round that the NFL alleged for

failure to exhaust was that the appeal from Mr. Burbank is

apparently still pending.

MR. GINSBERG: Well, that's actually interesting.

THE COURT: So do you have a response to that? Let

me just say also -- this is not criticism in any way. After

the NFL filed their brief, you did not file a reply brief, so

that's why I'm asking some of these questions now. I didn't

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know what your response would be.

MR. GINSBERG: The question about the jurisdiction,

the appeal of Mr. Burbank's decision, is interesting because

the NFLPA -- and I believe this is correct -- asked Mr. Goodell

to hold off in proceeding with the appeal until those issues

were resolved on appeal, and the NFL said no. We piggybacked

on that request. We told Mr. Goodell that until these issues

were resolved, he should not proceed with the appeal.

THE COURT: Now, which appeal are you talking about,

Burbank's appeal?

MR. GINSBERG: Yes, Your Honor.

THE COURT: Okay.

MR. GINSBERG: We had gone through Mr. Burbank's

decision.

THE COURT: Right.

MR. GINSBERG: The NFLPA then filed an appeal of

Professor Burbank's decision.

THE COURT: Right.

MR. GINSBERG: Our position, the PA's position was

that Mr. Goodell didn't have jurisdiction and should hold off

until those appeals were exhausted, and the commissioner said

no. So I don't think I can even fathom what's behind that

argument except --

THE COURT: Does the NFL have any idea how long it

takes -- I know this is an unusual situation -- for these kind

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of appeals to get to the appeal counsel?

MR. LEVY: Your Honor, the appeal panel is being

constituted now.

THE COURT: "Now" meaning today or "now" on a global

"anytime soon"?

MR. LEVY: No, no, "now" meaning there are

invitations out to judges. We do not have a full complement of

judges ready to rule on the appeal.

THE COURT: How many hear it?

MR. LEVY: Three. I should add this is a new process

created under the new collective bargaining agreement, so that

panel should be in place soon. If there's any interest, the

issue is addressed in Article 15 of the new collective

bargaining agreement, which is one of the large exhibits that

have been --

MR. KESSLER: Your Honor, if I just may, at some

point -- I'm sorry. Jeffrey Kessler for the NFLPA.

Your Honor, at some point either before Mr. Levy responds or

after, I would like a brief opportunity to address these

exhaustion points on behalf of the union because they are also

directly relevant to the motion the NFL has filed against us.

So we also have not had a chance to put it in our reply yet.

If Your Honor is going to be addressing that, we would just

like a brief opportunity to supplement what Mr. Ginsberg said.

THE COURT: Well, as a practical matter -- and I

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think an order went out yesterday -- we have three different

cases sort of ongoing, but they all overlap substantially in

terms of issues. The main reason I ordered yesterday that the

process be expedited is because I want to have everything at

one time before I make a decision.

I know Mr. Vilma wants a decision sooner than

that. As a practical matter, I don't want to be making a

decision and not having had the full benefit of all the related

parties, essentially, who are raising much of the same issues.

Somebody may have an argument that's like, "Oh, I didn't think

of that." You can talk today if you want, but you are

certainly going to have the opportunity. I'm not going to rule

today.

MR. KESSLER: Thank you, Your Honor. If I can have

just a few minutes, I'll take very few minutes to just let you

know what we are going to be presenting in our papers, and then

Your Honor can address it at an appropriate point.

THE COURT: Let's then go, if we could, to the -- you

sort of addressed the no threat of violence issue, but then you

sort of didn't. You sort of seem to be saying that maybe it

shouldn't be applicable, this business about that under the

case law, the Fifth Circuit anyway, that you don't get an

injunction unless there's really a threat of physical danger or

harm or intimidation, that sort of thing.

MR. GINSBERG: There are cases that deal specifically

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with this sort of situation, especially when a professional

athlete's career is threatened by an action, and those cases

discuss the unique situation that Your Honor is facing and

discuss the fact that it's really a balancing of the equities

approach.

Essentially, those cases stand for the

proposition that if the other elements necessary to satisfy

injunctive relief are met that -- for instance, in this case

the NFL can suspend Mr. Vilma at any time if at the end of the

day Your Honor rules that Mr. Goodell was correct or can't be

reviewed, but that for a professional athlete to miss time in a

short career, that that sort of balancing satisfies the prong,

which is somewhat unique to a sport situation.

THE COURT: What was the date we set for the briefing

for next week?

THE LAW CLERK: August 3.

THE COURT: For the briefs, August 3? If you could

get a reply brief in, which would include some of those cases.

MR. GINSBERG: Sure.

THE COURT: I may have read some of them already, but

I may not have read them in the context you are raising them.

So if you would get something in by the 3rd as well, that would

help us.

MR. GINSBERG: If I could address the remedy.

THE COURT: The last thing was if I do decide to

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overturn the arbitration decision, do I make a decision or do I

just send it back to another arbitration?

MR. GINSBERG: Your Honor, there are two things I

would like Your Honor to consider. One is I understand

Your Honor can't possibly decide the legal issues today --

THE COURT: Thank you.

MR. GINSBERG: -- but what Your Honor can do is

decide that we have satisfied our burden sufficiently to let

Mr. Vilma go back to work tomorrow. Mr. Vilma's medical

condition isn't something to be taken lightly. The process of

training for the season isn't something that can be taken

lightly. Pretraining is a process that is required in order to

really get yourself ready for the season.

The Saints need him. He needs the Saints. The

NFL essentially loses nothing by having an injunction enjoining

the suspension so that Mr. Vilma can go back to work, can get

his knee rehabbed, can become part of the team. And then if

Your Honor ultimately rules that we are correct, the NFL is

incorrect, Mr. Vilma will be sort of in full swing. If

Your Honor ultimately rules that we are wrong and Mr. Goodell

can do what Mr. Goodell did, then it doesn't do anything

negative. Then at that point the suspensions would go into

effect. So the most immediate aspect of dealing with the

remedy, Your Honor, is that I respectfully request that

Mr. Vilma be allowed to go back to work.

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With regard to the remedy Your Honor ultimately

should provide, in my opinion I think that this suspension

should be permanently enjoined, that there really isn't an

avenue to remand to Mr. Goodell. Mr. Goodell --

THE COURT: I wasn't saying it would necessarily be

going to Mr. Goodell. It could be a remand to a system

arbitrator or something else.

MR. GINSBERG: I don't know that the CBA provides for

that. As a resolution, I think the idea of sending it to a

neutral binding arbitrator is a wonderful idea. It makes a lot

of sense. Unfortunately, I think it takes two to tango, and we

don't have a dance partner in that resolution.

So I think, respectfully, that the record is

such that Your Honor is empowered and, again respectfully,

should let Mr. Vilma go back to work tomorrow and ultimately

permanently enjoin Mr. Goodell from doing what he is attempting

to do.

THE COURT: Okay. Thank you.

From the NFL's perspective, I have really a

number of issues I want to raise. You might want to jot these

down so that you can follow the sequence.

I understand that judicial review of arbitration

decisions is narrow, but it's not precluded. The award is

legitimate only if it draws its essence from the collective

bargaining agreement. If it doesn't, a Court can refuse to

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enforce it. So I have a number of serious jurisdictional

concerns with respect to what Mr. Goodell did.

Article 14, Section 1 of the CBA talks about a

player may not at any time enter into any undisclosed

agreements involving consideration of any kind to be paid,

furnished, or made available or guaranteed to the players,

basically a pay-for-performance provision.

Under Article 15 the system arbitrator has

exclusive jurisdiction over this type of allegation. It's a

distinction of significance because under Article 15 the

players have broader discovery rights than were afforded by the

commissioner in these proceedings. For example, discovery

includes a full production of documents and also the taking of

depositions.

I think it's worth noting that in the report of

the NFL security on March 3, Exhibit C, it prominently cited

the noncontract bonuses provisions of Article 14 of the CBA as

applicable, which arguably I think should have triggered the

exclusive jurisdiction of a system arbitrator.

The commissioner's own March 21 memorandum of

decision regarding sanctions to be imposed on the coaching

staff, Exhibit D likewise cited a prohibition against

noncontract bonuses in the opening paragraphs, again which

arguably should have triggered the exclusive jurisdiction of a

system arbitrator.

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I'm aware that system arbitrator Burbank also

concluded that Mr. Goodell did have jurisdiction over

discipline of the kind that is at issue here. My first

question, I guess, with respect to that is whether someone

within the NFL can absolve the commissioner of requirements

under the collective bargaining agreement.

Secondly, I think the basis of Mr. Burbank's

conclusions are questionable. He concluded that the

commissioner's punishment was not covered under Article 14

because it was a distinction as to players between funding the

pool or making the offers or pledges to contribute sums to it

on the one hand and accepting or agreeing to accept

distributions from it on the other. Accepting payments clearly

comes under the exclusive jurisdiction of the system

arbitrator.

But then Mr. Burbank went on to say that in the

commissioner's letters to the other three players -- this was

Fujita, et al -- it states clearly that he imposed discipline

because of the various roles they allegedly played in

establishing and/or funding a pool that rewarded on-field

conduct calculated to injure opponents and that also included

bounties on specific opponents.

Frankly, when I was initially drafting my notes

for possible questions to you all, I was concerned about the

system arbitrator being potentially intimidated by the

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authority of the commissioner to issue a decision to please

him. However, in one of the cases that you all cited,

Black v. NFL, the court noted that an NFL-selected arbitrator

may have an incentive to appease his employer, but since the

parties chose that method in their dispute resolution, that

would include any inherent partiality.

So again the issue is whether such an

arbitrator, including one that has an incentive to please the

commissioner, can still absolve the commissioner of the

requirements of the CBA, and that gets back to my concern about

whether proper procedures were followed at all.

Finally, Mr. Burbank concluded that Mr. Goodell

was punishing the players for funding the pool. I think that's

kind of slicing the salami very thin to avoid the mandatory

jurisdiction of the system arbitrator and not that persuasive a

distinction. Even Mr. Burbank concluded that this did involve

on-field conduct to injure players, which brings me to my next

jurisdictional concern about Mr. Goodell's sanctions.

Separate and apart from the issue of the system

arbitrator, there is another provision of the collective

bargaining agreement which arguably should have applied.

Article 46, titled "League Discipline," states in part that

fines or suspensions imposed upon players for unnecessary

roughness or unsportsmanlike conduct on the playing field with

respect to an opposing player or players shall be determined

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initially by a person appointed by the commissioner after

consultation concerning the person being appointed with the

executive director of the National Football League Players

Association.

This dispute appears to clearly involve a fine

and suspension for "unnecessary roughness or unsportsmanlike

conduct" on the playing field, which then arguably should have

triggered the commissioner appointing someone to hear the case

after consulting with the executive director of the NFLPA.

Turning back to Exhibit C, the March 3 report of

the NFL security states in the first paragraph the players

received cash payments from those pools for, among other

activities, violent hits on opposing players, all with the

intent to cause the opposing player to leave the game and be

unable to return. So according to the NFL security report, the

on-field conduct was an important component. Again, should

this have triggered the appointment of a hearing officer in

consultation with the Players Association?

Then again the commissioner's own March 21

memorandum of decision, which is at Exhibit D again, broadly

described the transgressions as a pay-for-performance bounty

program which involved cash payments made into a pool, payments

made out of a pool, including payments for plays resulting in

opposing players leaving a game due to injury.

Mr. Goodell in his letters to the players on

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July 3 of this year, Exhibit A in the NFL exhibits, he states

in part that this section of the collective bargaining

agreement was inapplicable because "the conduct for which you

were disciplined took place in locker rooms and meeting rooms,

not on the playing field."

I have to tell you I think that characterization

borders on the ridiculous, and at a minimum it's just another

instance of slicing the salami very thin to avoid serious

jurisdictional concerns. Clearly, these players were not being

punished only for what happened in the locker room. It was the

implementation of the plan, the actual attempts to injure

players that justifiably -- justifiably -- incurred the wrath

of the commissioner, but again it also creates, I think,

serious issues of jurisdiction.

They were being punished clearly for unnecessary

roughness and unsportsmanlike conduct on the playing field.

Again, the report of NFL security, Exhibit C, confirms that all

this was implicated. So again at a minimum it should have at

least triggered the exclusive jurisdiction of the system

arbitrator or the appointment of an arbitrator with the

consultation of the NFL Players Association.

I do agree obviously under Article 46,

Exhibit B, the commissioner does have the authority to suspend

a player who engages in conduct detrimental to the integrity or

the public confidence in the game of professional football.

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Also, the NFL cited Appendix A, Section 15 of the NFL players

contract. There is that particular provision in the players

contract. I would like to read it, Section 15, "Integrity of

the Game":

"Player recognizes the detriment to the league

and professional football that would result from impairment of

public confidence in the honest and orderly conduct of NFL

games or the integrity and good character of NFL players.

Player, therefore, acknowledges his awareness that if he

accepts a bribe or agrees to throw or fix an NFL game, fails to

promptly report a bribe offer or an attempt to throw or fix an

NFL game, bets on an NFL game, knowingly associates with

gamblers or gambling or gambling activity, uses or provides

other players with stimulants or other drugs for the purpose of

attempting to enhance on-field performance, or is guilty of any

other form of conduct reasonably judged by the commissioner to

be detrimental to the league of professional football, then the

League has the right to fine or suspend those players."

I think it's worth noting that none of the

specific examples cited -- bribery, fixing games, betting,

associating with gamblers, using or providing

performance-enhancing drugs -- are involved in this case.

I make one last observation. When these

allegations of Bountygate came out last year, I was appalled

and disgusted with the New Orleans Saints. If the allegations

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are in fact true, the fines and suspensions are appropriate

probably, but I think the issue here is whether the

commissioner complied with the requirements of the collective

bargaining agreement in imposing the sanctions, and obviously I

have a serious question as to whether he did.

I don't know if the Players Association,

whenever you want to chime in -- do you want to chime in at the

end or do you want to chime in now?

MR. KESSLER: I would like to do two minutes, and

then Mr. Levy can respond as well, if Your Honor doesn't mind.

THE COURT: That's fine.

MR. KESSLER: Your Honor, on the exhaustion points

that you raised, first, Mr. Ginsberg is entirely correct, and

we will put this in our brief at length. We actually asked

Commissioner Goodell at the hearing to not rule because the

appeals panel, on the issue of Professor Burbank's ruling, had

not yet even been formed at that time. It is now about to be

formed, as Mr. Levy said. They haven't yet even constituted.

There could be a decision or there will be a decision sometime

maybe a month or two from now.

The problem is it was the NFL who decided that

there was no need to wait for that to be exhausted. It was

Commissioner Goodell who decided to rush forward and impose the

discipline, which leaves us no choice but to move to set aside

the arbitration.

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So to argue a failure to exhaust in that context

is completely inconsistent with the case law. It's the NFL

who's decided to go forward. There's no other remedy to us now

other than to move to set aside the arbitration because by the

time the appeals panel even can get constituted -- there hasn't

even been a brief filed there yet, but they don't exist yet as

a body. You couldn't possibly use that. So this can't be a

failure to exhaust there. He could have waited on the

discipline.

On the other exhaustion point regarding the

hearing, again Mr. Ginsberg is correct. We participated. He

participated. We made every argument on jurisdiction,

documents. We asked that there be witnesses. It was only

after none of the documents were turned over except for the

very small number of 200, no witnesses were presented, the

commissioner refused to await the appeals court decision, all

these points were rejected, and we concluded it was not in our

interest to cross-examine and present evidence and possibly

waive our jurisdictional argument.

As Your Honor knows, the Fifth Circuit gives you

a choice. If you argue all the merits even though you think

the arbitration is improper, you might waive your

jurisdictional argument. So we made an informed decision not

to present on the merits. That's not a failure to exhaust.

The cases on failure to exhaust are all about

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not going to the hearing at all. We are entitled to present

our defense in any manner we decided just like the NFL had a

right to decide how they were going to present their evidence.

So the failure to exhaust is a canard, it's a red herring, and

we will address that all in our brief.

On the issue of remedy, Your Honor, we do

believe very firmly you have the power to appoint a neutral

arbitrator, and I just want to state that. I don't know if

Mr. Ginsberg was disagreeing with that or not, but we have

already cited in the petition the Morris, Shuler case, which

was a precedent where the NFL commissioner was found to be

evidently partial and a neutral arbitrator was appointed

pursuant to the LMRA. So you have that power.

What the precise remedy would be here will

depend on what grounds you overturn this. If you overturn it

on the grounds that this belonged before Professor Burbank and

that in fact this is pay-for-performance, there's no evidence

it was a program that in fact involved injuring players or was

pay-for-performance, on that ground it would go to Professor

Burbank. You wouldn't have to appoint anyone.

I would note, by the way, that if that is the

grounds, the CBA specifically prohibits any suspensions for

that conduct for players. That's something else we will brief.

So it would be against the essence of the CBA to suspend a

player for pay-for-performance. There are other remedies,

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fines, etc., but no suspensions at all.

So if that were the case, Mr. Ginsberg is right,

you would permanently enjoin the suspension because it's

against the essence of the CBA. If Your Honor finds evidence

of partiality, you would appoint a neutral arbitrator. If

Your Honor finds abuse of process by not providing the required

discovery, complying with the CBA, etc., you would void the

arbitration. Then whether or not there would be further

proceedings in part would depend on what the NFL tried next,

but the arbitration and the discipline would be set aside. So

there are many possible remedies depending on the grounds that

Your Honor would find. I think you have a full panoply of

remedies.

The last thing I will say, Your Honor, is that I

am glad you're giving Mr. Ginsberg a chance to brief the

Norris-LaGuardia Act issue because there are many cases that

have held that that requirement of violence would not apply in

this particular type of context to block this injunction under

the Norris-LaGuardia Act. I'm sure Mr. Ginsberg will present

those cases to you.

THE COURT: Just in case he doesn't, why don't you

put them in yours also.

MR. KESSLER: Thank you, Your Honor. I will.

THE COURT: I don't mind duplication.

MR. KESSLER: We will supply those as well, although

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we are not seeking an injunction, obviously. We are seeking

just -- well, I guess we are only in the sense that we are

seeking to void the discipline. We are seeking equitable

relief in that sense, but really it's a petition to vacate the

arbitration is our first remedy.

THE COURT: Okay.

MR. KESSLER: Thank you, Your Honor.

THE COURT: NFL.

MR. LEVY: Your Honor, let me turn first, if I may,

to the issues that you raised here at the end. I want to start

by inviting the Court's attention to General Warehousemen and

Helpers Union Local 767 v. Albertson's, a Fifth Circuit case,

331 F.3d 485.

THE COURT: F.3d 485?

MR. LEVY: Yes, 331 F.3d 485. That case discusses

the general principle and the general distinction between

substantive arbitrability and procedural arbitrability. It

makes clear, with all due respect, Your Honor, that the Court's

role in deciding which of the arbitrators should have heard

this issue -- the Court has no role in making that decision.

Just to quote from the language of the opinion,

"The court's role is very limited when deciding issues of

arbitrability. The court decides only whether the parties

agreed to submit the subject matter of the grievance to

arbitration. For questions of so-called procedural

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arbitrability," including the question of which arbitrator

presides, "the arbitrator, not the court, generally decides

whether the parties complied with the agreement's procedural

rules."

Here, that's exactly what happened. The

arbitrator, Professor Burbank, made the decision that this was

within the commissioner's jurisdiction, and let me say a word

about Professor Burbank. Professor Burbank has been the system

arbitrator since August of last year, but before that he served

in essentially the same capacity by another name for five or

six years. He was the special master overseeing the collective

bargaining agreement that expired last year. He has decided

many cases and disputes between the Players Association and the

League. He has decided a good number of those cases for the

League. He has decided a good number of cases for the Players

Association.

He is a very highly respected, experienced

arbitrator, and he made the judgment and he made findings that

the basis for the commissioner's decision here was not within

the scope of Article 14, Section 1. It was not within the

scope of the provision that requires the commissioner to

appoint a designee, but it was squarely within the

commissioner's jurisdiction, and I'll explain why. I'll

explain why that was right.

Article 14, Section 1 of the CBA, as Your Honor

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can tell, deals with the salary cap. It is designed to address

the issue of salary cap circumvention. It is focused on

undisclosed compensation -- and I think that's the language of

the provision, "undisclosed compensation" -- paid by the club

or club affiliate to a player or player affiliate. It does not

deal with the issue of players funding and incentivizing hits

that have the potential to injure other players.

THE COURT: I think the commissioner, doesn't he send

out a notice -- as I understood it somewhere in the briefing, I

think it was your briefing where it was said that the

commissioner sent out a reminder every year to all the teams of

Article 14, Section 1, pay-for-performance, this means you

don't pay players for any kind of performance-conduct type

behavior. Am I right about that? Was that in your brief?

MR. LEVY: I think you are partially right,

Your Honor. Forgive me if I'm wrong but I believe that the

notice that goes out says that pay-for-performance arrangements

violate the constitution and bylaws and that they are

prohibited.

THE COURT: Under Article 14.

MR. LEVY: I don't think it says under Article 14.

I'm quite confident it doesn't say under Article 14.

THE COURT: Okay.

MR. LEVY: Article 14 deals with the salary cap,

deals with club-paid compensation, and that's what the special

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master found.

Now, in making those findings, what did he focus

on? He focused on the letters, the four letters that were

mailed to the players or sent to the players -- I think the

date is May 5 -- the letters that outline and provide with

specifics the conduct for which the players were being

disciplined. He made findings that that was the basis for the

discipline.

In the case of Mr. Hargrove, he said that the

commissioner's letter was ambiguous, and the commissioner then

sent another letter clarifying that the basis for the findings

of "conduct detrimental" was not clubs providing undisclosed

compensation but was instead players contributing money to a

pool that incentivized hits that had the potential to cause

injury. Those were his findings. Your Honor, if those

findings are wrong, if they are wrong, they will be revealed by

the appeals panel, but the standard for the appeals panel

review of those findings is clearly erroneous.

Now, I respect the fact that Your Honor has said

that you think that those distinctions slice the salami too

thin and I appreciate that, but those were findings made by

Professor Burbank, who has seven years of experience with the

collective bargaining agreement and this industry. They will

be reviewed by the appeals panel under a "clearly erroneous"

standard. If the appeals panel disagrees with system

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200

arbitrator Burbank's decision, then presumably there will be a

reversal of that decision and the world will look different.

THE COURT: Let me ask you. Mr. Goodell, in his

letter to the players said, as I quoted before, "The conduct

for which you were disciplined took place in locker rooms and

meeting rooms, not on the playing field."

MR. LEVY: Yes, Your Honor, that's precisely right,

and that's what the system arbitrator found.

THE COURT: Go ahead.

MR. LEVY: The conduct for which they were

disciplined was creating the pool, funding the pool, and

creating the incentive. The consequences of that conduct may

have appeared on the football field, but what the commissioner

was concerned about, what the commissioner focused on was the

agreement among the players to fund this sort of pool that had

those consequences.

It was not to discipline a player for an

individual hit or unnecessary roughness. If that had been the

basis for the decision -- and the Players Association, by the

way, argued before system arbitrator Burbank that that was the

basis for the discipline -- then presumably the matter would

have been or should have been sent to one of the commissioner's

designees, but that's not what the system arbitrator found and

his findings are binding.

Now, if you go back to the Fifth Circuit case

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that I mentioned, the Albertson's Distribution case, the issue

for this Court on the threshold question of arbitrability is

whether the parties committed this issue to arbitration. There

can't be any reasonable doubt that the parties committed this

issue to arbitration. Indeed, there's a provision of the

collective bargaining agreement that says that all disputes

between players and clubs or between players and the League are

committed to arbitration, and then there follows the criteria

for allocating those proceedings among the different

arbitrators. It's worth adding that there was a second

arbitration proceeding involving these issues. It was

before --

THE COURT: Mr. Das?

MR. LEVY: Mr. Das, yes, the noninjury arbitrator,

Mr. Das. The players there also made a similar argument that

the commissioner didn't have jurisdiction. They withdrew that

argument before the arbitrator reached his decision, but he

confirmed as well that the commissioner had authority to impose

the discipline.

So here we have three arbitrators created by the

collective bargaining agreement, the entire universe of

decision makers that the collective bargaining agreement has

authorized for disputes in any way related to any of these

issues, and all three have come to the same conclusion, and

that is that this is within the commissioner's jurisdiction.

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Under the Fifth Circuit's holdings and the principles of

procedural arbitrability, that's an issue that is not

reviewable by this Court. I understand you disagree, but it's

not reviewable.

I don't know whether that responds to the points

that you raised, to all of the points that you raised, and I'm

happy to entertain questions on any of those points. The one

thing I can tell you is this is not a situation where you had a

weak arbitrator or a novice arbitrator resolving an issue in

fear of the commissioner. This arbitrator was selected by both

parties. He has been repeatedly re-upped, if you will. He was

most recently on August 4 re-upped as the system arbitrator.

He is as -- I'm not going to say he gets them all right because

we have lost a few, but he has not been shy about ruling

against the National Football League on matters broader than

this. I think that is an issue that is just not subject to the

Court's review.

Now I would like to spend a few minutes talking

about what we saw here this morning and early this afternoon --

THE COURT: All right.

MR. LEVY: -- because Mr. Vilma's extensive

testimony, as well as the testimony of the other five or six

witnesses who testified on his behalf, begs a fundamental

question: Where were those witnesses? Where was that

testimony when Mr. Vilma's appeal was pending before

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Commissioner Goodell? Where were those witnesses on June 18,

the date of the appeal hearing, or in the subsequent period

during which Mr. Goodell left the record open for

supplementation by either the union or by Mr. Vilma?

The oral and written testimony offered in this

Court today confirms beyond dispute and Mr. Kessler just

admitted that Mr. Vilma and his counsel made a strategic

decision to forego the dispute resolution process to which his

union had agreed and instead to seek from this Court relief

that the Court lacks jurisdiction to grant.

Now, Mr. Vilma this morning testified that when

asked why didn't he tell his story at the time of the hearing,

he said, "Well, that's not what the hearing was intended for,"

but I would like to invite the Court's attention to the

transcript of the hearing. It's at Exhibit T. I have a copy

if the Court would like it.

THE COURT: No, I have it.

MR. LEVY: Exhibit T, page 4 of the hearing

transcript, which begins with Commissioner Goodell speaking:

"Thank all of you for coming. I want to be

respectful of your time, so we will get started quickly here.

As you know, the purpose of today's hearing is to hear from the

players. And contrary to the reports and some of the

statements, I do want to hear from the players, so I

respectfully hope that you will speak up."

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Now, there was nothing that prevented

Mr. Ginsberg or Mr. Kessler from reserving their rights, but

what happened instead was both the union and Mr. Ginsberg

elected not to pursue, not to exhaust that remedy. They still

haven't exhausted that remedy, and that failure to exhaust

dictates the outcome here in two different respects.

First, it establishes, as Your Honor recognized

earlier this afternoon, that Mr. Vilma cannot satisfy the

requirements of Section 8 of the Norris-LaGuardia Act and that

as a result this Court lacks jurisdiction to grant any

injunctive relief.

Second, it demonstrates that Mr. Vilma is not

likely to succeed on the merits of his claim because, among

other things, he failed to exhaust the remedies provided to him

under the CBA.

More generally, the presentation of evidence

that we heard today reflects a profoundly mistaken

understanding of the proper role of a Court in a proceeding

seeking to vacate a labor arbitration award. On this issue

there is no possible basis for dispute. Federal courts are not

authorized to review an arbitrator's decision on the merits.

That's true here with regard to Commissioner Goodell. It's

also true with regard to Professor Burbank. That is the square

holding of the Supreme Court in the Steve Garvey case. That is

the law.

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So regardless of how it's characterized,

virtually everything, all the testimony that we heard this

morning and certainly all the testimony offered on the issue of

the pay-for-performance bounty system is entirely and utterly

irrelevant to the issues before the Court. I understand and

respect the reasons that the Court permitted that testimony,

but that evidence serves no judicial purpose here.

Now let me turn to the question that Your Honor

asked of both Mr. Ginsberg and me, and the question is: "If I

were to overturn this, what is the remedy?" We'll be prepared

to address this in additional papers if Your Honor would like,

but one thing is clear, and that is that the Court does not

have authority to reach its own findings. I think Your Honor

acknowledged that. That's the Steve Garvey case.

The remedy here is to remand for further

arbitration and I, frankly, agree with Mr. Ginsberg. The CBA

does not permit arbitration of this issue by anyone other than

the commissioner, period. The system arbitrator does not have

jurisdiction to review the issue, and the noninjury grievance

arbitrator doesn't have jurisdiction to review the issue.

I would like to go into a little more detail on

the jurisdictional impediments that bar the relief that

Mr. Vilma seeks here. First, as I noted, the Norris-LaGuardia

Act withdraws jurisdiction from federal courts to issue

injunctions in labor disputes except under very limited

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circumstances. The established doctrine reflects the view that

courts simply should not intervene in labor disputes, disputes

concerning terms and conditions of employment, and that those

disputes should instead be resolved through the dispute

resolution procedures provided by the parties' collectively

bargained agreements.

Two provisions of the Norris-LaGuardia Act, both

of which you referred to, Your Honor, are key here. First,

Section 8 withdraws jurisdiction to grant injunctive relief to

any party that has not made every reasonable effort to resolve

the effort through arbitration mechanisms. The Supreme Court

confirmed this requirement in the Brotherhood of Railroad

Trainmen case in the mid '40s, emphasizing that the act

requires the applicant for injunctive relief to have made all

reasonable efforts to pursue his arbitrable remedies, and the

Fifth Circuit confirmed that in the Railway Express Agency case

in 1971.

Now, Mr. Kessler suggests there are lots of

cases out there that go the other way with regard to

professional athletes, and I respectfully submit there are none

that countermand the Fifth Circuit's holding upon this issue

that exhaustion is a requirement before the Court has

jurisdiction to grant injunctive relief.

THE COURT: I thought he was making that argument

with respect to whether you have to show violence or

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intimidation.

MR. LEVY: My answer is the same, Your Honor. I

acknowledge that there have been cases in other jurisdictions

holding that the requirements of the Norris-LaGuardia Act don't

apply in these circumstances, but the Fifth Circuit has never

so held, and the holdings of the Fifth Circuit are in very

broad language. I think the Railway Express Agency case is

really the source of that doctrine in this jurisdiction. There

are cases in other jurisdictions, some of which, Your Honor,

are now in doubt. A number of those cases come out of the

District of Minnesota, and a number of those cases are now in

doubt as a result of the Brady case decided in 2011 by the

Eighth Circuit. In the Fifth Circuit, the law is clear that is

a requirement.

As I suggested at the outset of my remarks,

there's little question that Mr. Vilma can't meet the

requirement of exhaustion here. He substantially refused to

participate in the appeal process. He and his counsel refused

to offer testimony. They have refused to cross-examine

witnesses. They refused to offer exhibits. Indeed, Mr. Vilma

and his lead lawyer left the appeal hearing. They left the

building before the hearing was over.

THE COURT: I think that two of the witnesses were --

I think they were both from NFL security, and they had actually

been requested by Mr. Ginsberg to be present.

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MR. LEVY: That's right.

THE COURT: Today was for the first time I heard

anything about witnesses were going to be sworn or not sworn.

I wasn't there, so --

MR. LEVY: I wasn't there, Your Honor, but

Mr. Miller, who is the head of NFL security, the chief security

officer for the League, Mr. Hummel, who was the lead

investigator in this matter, were both present. They were both

available. I believe there was a court reporter there.

There's a transcript of the session.

THE COURT: Do you know if they would have been

sworn?

MR. LEVY: I'm sure if they were asked to be sworn,

they would have been sworn, but there was no request that they

be sworn in that I know of. If there was, it would be in the

transcript, but I'm almost certain that there was not.

THE COURT: Well, they didn't testify, so --

MR. LEVY: Well, no. Mr. Miller gave a lengthy

presentation -- again, this is reflected in Exhibit T, the

transcript of that proceeding -- a lengthy recitation of the

nature of the investigation, who they talked to. He identified

the exhibits that they relied on. That went on for some time.

I don't believe Mr. Hummel gave testimony or spoke at that

session, but Mr. Miller did.

THE COURT: That was in the afternoon?

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MR. LEVY: That was in the early afternoon. It was

an examination led by Mary Jo White. Mr. Miller did address

those issues in detail. There were even opportunities for the

players to question him. Put aside the issue of

cross-examination. They didn't even ask questions. I would

respectfully submit that the failure to ask questions is itself

a failure to exhaust the remedies that are available under the

collective bargaining agreement because those questions might

have enabled them to make additional supplemental submissions

that would have affected the commissioner's ultimate appeal

decision.

Section 8 is known as the clean hands provision

of the Norris-LaGuardia Act, and in this respect Mr. Vilma

simply does not come before this Court with clean hands. He

didn't attempt to use the arbitrable procedure provided in the

CBA. In some respects, Mr. Vilma's counsel dug that unclean

hands hole a little bit deeper with every witness he called

today.

There was never an effort made to contact any of

these witnesses to arrange for their testimony, written or

oral, before the commissioner in the appeal process that was

prescribed by the collective bargaining agreement. There is no

reason that what we saw here today couldn't have happened live,

by video, by written submission in front of the commissioner.

It's an interesting question what the result would have been if

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the commissioner had heard that testimony, but Mr. Vilma and

his counsel elected not to pursue that remedy and not to

present that evidence before the commissioner.

Second, as Your Honor mentioned, Section 7 of

the Norris-LaGuardia Act permits injunctive relief in a labor

dispute only if the applicant can prove an unlawful act that

threatens violence. I don't think I need to go into that

except to say I am not aware of any case in the Fifth Circuit

that supports the interpretation that Mr. Kessler offered a few

minutes ago.

Now, even if the Court had jurisdiction to grant

preliminary injunctive relief, Mr. Vilma still couldn't meet

his heavy burden of demonstrating a likelihood of success on

the merits. Any analysis --

THE COURT: Can we can the music?

UNIDENTIFIED SPEAKER: I'm so sorry.

THE COURT: Just throw it to the wall.

MR. LEVY: Any analysis of the likelihood to succeed

on the merits issue has to start with a very limited scope of

judicial review permitted when a party seeks to vacate an

arbitration award issued pursuant to a collective bargaining

agreement, and you recognized that limited scope of judicial

review in your preliminary comments.

That scope of review is extraordinarily narrow,

as the Fifth Circuit held in the Columbian Chemicals case, and

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in some cases it's been described as the narrowest scope of

review known to our legal system. The reason for the narrow

scope of judicial review of arbitrable rulings not only on

issues of fact but also arbitrable rulings on issues of process

and procedure is clear.

Federal labor law, reflected in the Labor

Management Relations Act, and federal labor policy strongly

favor arbitrated resolution of labor disputes. They strongly

encourage parties to agree on the process and procedures for

resolution of their own disputes, to choose their own

arbitrators, to define their own discovery rules and applicable

appeal procedures, all in an effort to keep the courts out of

the business of resolving labor disputes. On a first

principles basis, this is the same policy consideration that

shapes the Norris-LaGuardia Act's limitations on injunctions

and labor disputes.

Under the governing standard of review, as

Your Honor recognized, the test for review of arbitration

decisions is whether the decision draws its essence from the

governing agreement. As the Supreme Court held in the MISCO

case, that standard is satisfied, and I quote, "as long as the

arbitrator is even arguably construing or applying the contract

and acting within the scope of his authority."

The Fifth Circuit in the Zimmerman case put the

standard this way: "All that is necessary to pass muster is

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that it is rationally inferable that in some logical way the

award was derived from the contract." That is a very, very

deferential standard of review. There can't be any question

that the award at issue here, the commissioner's decision to

suspend Mr. Vilma and to deny his appeal, easily meets that

standard. It draws its essence from the parties' collective

bargaining agreement.

The commissioner's authority to address issues

of "conduct detrimental" is expressly established in the

collective bargaining agreement. It's expressly established in

the standard form player contract, the form of which is

dictated by the collective bargaining agreement.

In addition, the authority, as I mentioned

before, has been expressly upheld in two different arbitration

proceedings brought by the union on behalf of Mr. Vilma. The

remedy -- suspension -- is expressly provided by the parties'

collective bargaining agreement, and the commissioner's

exclusive authority to review any appeal of such a ruling is

expressly prescribed by the CBA. That, I respectfully submit,

should be the end of the matter. Under MISCO and Zimmerman,

there can be no serious question that the arbitrable decision

this Court is being asked to vacate draws its essence from the

CBA.

It's simply no answer for Mr. Vilma to argue in

this Court that the commissioner got the facts wrong. As the

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Supreme Court held in the Steve Garvey case to which I referred

at the outset, "Courts are not authorized to review the

arbitrator's decision on the merits despite allegations that

the decision rests on factual errors or misinterprets the

parties' agreement." That's at 532 U.S. 509. For that reason,

as I said, virtually all of the testimony that Your Honor heard

earlier today, testimony that under the collective bargaining

agreement should have been presented, if anywhere, to the

commissioner at the appeal hearing, is entirely irrelevant to

the issues properly before this Court.

Now, Mr. Vilma has also brought a series of

procedural and evidentiary objections to the proceedings below,

but none of those has merit, and the resolution of every one of

theme draws its essence from the collective bargaining

agreement. Indeed, under the governing standard of review,

this Court does not have authority to overturn the arbitrator's

interpretation of the CBA or to review the arbitrator's rulings

and interpretations on issues of evidence and procedure. Those

are decisions for the arbitrator, as the Fifth Circuit held in

Columbian Chemicals. Nor can a Court overturn an arbitration

award because of limitations on compulsory process or on

cross-examination. The Supreme Court so held in the McDonald

case in 1984. On each and every challenge that Mr. Vilma makes

to the process, the commissioner's decision draws its essence

from the CBA.

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Let's start with the commissioner's decision to

permit introduction of certain exhibits that were produced to

its counsel three days but not 72 hours before the start of the

hearing. The commissioner rejected this argument on several

grounds, including the fact that when the parties wanted to

define a notice period in terms of hours rather than days, they

did so elsewhere in the CBA. This is a classic example of a

decision that draws its essence from the CBA. It reflects the

procedures upon which the parties agreed in the CBA. As the

Fifth Circuit held in both Columbian Chemicals and the

Teamsters case, these are decisions for the arbitrator not the

Court.

Similarly, Mr. Vilma asked this Court to

substitute its judgment for that of the arbitrator on the

proper scope of discovery. Again, the commissioner reached a

well-reasoned decision that compared and contrasted the

discovery provisions of the CBA that apply to "conduct

detrimental" proceedings with discovery procedures of the CBA

that apply to other issues. Your Honor did that for us just a

few minutes ago in talking about discovery options available

under --

THE COURT: The system arbitrator.

MR. LEVY: -- the system arbitrator salary cap

enforcement proceedings as opposed to the "conduct detrimental"

proceedings. The commissioner looked at those issues and

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looked at the language of the CBA and made his decision that

the parties had agreed to require production, to require

discovery only of the documents that the adversary intended to

use at the appeal hearing. That was an entirely reasonable

decision. At the very least, it drew its essence from the CBA.

Right to cross-examine and compulsory process,

again on this issue, when they refused to participate in the

appeal hearing, Mr. Vilma and his counsel gave up the right to

cross-examine the two senior members of NFL security who had

led the investigation.

As the Fifth Circuit held this time in the

Gonzales case, arbitrable fact-finding is generally not

equivalent to judicial fact-finding. The usual Rules of

Evidence do not apply, and rights and procedures common to

civil trials such as discovery, compulsory process,

cross-examination, and testimony under oath are severely

limited or unavailable. That's the Gonzales case. I should

add, in that decision the Fifth Circuit was quoting language

from the Supreme Court's decision in the McDonald case in 1984.

THE COURT: Let me just say this. The CBA in this

case did have broader discovery under alternative remedies --

MR. LEVY: Yes, of course.

THE COURT: -- including depositions and including --

MR. LEVY: That's my point, Your Honor. I recognize

that, but that's my point. When the commissioner went to look

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at what the parties had agreed was required under "conduct

detrimental" proceedings, he looked at those proceedings, the

collusion proceeding where the Federal Rules of Evidence

applies and the salary cap proceedings where broader discovery

is allowed.

THE COURT: Well, to some extent -- and maybe you're

correct, I can't get to it. But to some extent, to me it's a

cart and horse. He is the one who decided it was "conduct

detrimental." I know Mr. Burbank ultimately affirmed him on

that, but there were alternative routes that I think this case

could have easily gone to. That's why I set forth, when I

spoke earlier, why I felt it seemed to fit system arbitration

and why it seemed to fit unsportsmanlike conduct, that sort of

thing. He made the decision that it didn't.

MR. LEVY: I understand, Your Honor. Also, I don't

mean to be argumentative --

THE COURT: Go ahead. That's the nature of being a

lawyer.

MR. LEVY: I don't mean to be argumentative, but as

to which route to follow, that issue has been litigated. It's

been decided. The courts have held that that's an issue that

courts are not permitted to review. It's an issue of

procedural arbitrability.

If system arbitrator Burbank had reached a

different decision, we wouldn't be here today, but he did reach

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that decision. The appeal of his decision has not been

perfected. An appeal has been perfected, but we haven't gone

through the appeal process yet. He made findings on this

issue, and those findings are binding no less on the union and

Mr. Vilma than they are, with all due respect, on you.

Those are findings that the appellate panel has

to accept unless they are clearly erroneous. I invite

Your Honor to think about, even though you might slice the

salami differently, whether it's possible or reasonable to say

that it is clearly erroneous. I'm betting that that

three-judge panel is not going to find him clearly erroneous.

I'll just stop there. I've made my point on that issue.

THE COURT: Yes.

MR. LEVY: Now I want to spend just a second on the

issue of bias. Mr. Vilma complains the commissioner, the

arbitrator selected by the CBA, was biased. That contention

can't be reconciled with the structure of the collective

bargaining agreement, which provides that an appeal to the

commissioner is the exclusive means by which a player can

challenge action against him by the commissioner for "conduct

detrimental." In judicial parlance, that is the equivalent of

affording a player an opportunity for a petition for

reconsideration.

THE COURT: Well, I think the complaint was in the

report that was released which involved Sean Payton and Mickey

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Loomis and those folks, that he made a lot of findings even

before Mr. Vilma had an opportunity to appear even for the

initial hearing. As I understood it, that was the complaint,

that Mr. Goodell made a lot of statements regarding the players

and what they allegedly did which was prior to any hearing that

the players had.

MR. LEVY: He did make those findings, Your Honor,

and I should say --

THE COURT: That's where I think the bias argument

comes from.

MR. LEVY: Well, I'm prepared to deal with that as

well. The players were all invited to interview and the union

said no, to provide their input during that process. But more

to the point, this is the process to which the parties agreed

in the collective bargaining agreement. They agreed that the

commissioner would have responsibility for maintaining public

confidence in the integrity of the game. So when the

commissioner issued his suspensions, he had an obligation to

speak publicly about the circumstances that were at issue. He

couldn't simply have decided to suspend Sean Payton or Gregg

Williams and for there to be a void, for there to be silence.

He had the right -- and the Players Association knew that he

had that right -- and he had the obligation to explain why the

suspensions of the coaches were being made. That context is

inherent in the process to which the collective bargaining

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representatives agreed.

If it weren't otherwise clear, Your Honor, I

would invite the Court's attention to the last sentence of

Article 46, Section 2(a), of the collective bargaining

agreement, the large volume that appears -- I think it's JJ in

the declaration.

THE COURT: It's over there in the pile.

MR. LEVY: In Article 46, Section 2(a), the NFL and

the NFL Players Association agreed that notwithstanding

anything else under that article -- I'm quoting now -- "The

commissioner may serve as hearing officer in any appeal under

Section 1(a) of this article at his discretion."

"The commissioner may serve as hearing officer

in any appeal under Section 1(a) of this article at his

discretion."

In short, Your Honor, as the courts have held,

the parties to an arbitration choose their method of dispute

resolution and can ask for no more impartiality than adheres in

the method they have chosen. The parties here, the NFL and the

NFL Players Association, which represents Mr. Vilma, chose to

have the commissioner as the sole and exclusive arbitrator of

"conduct detrimental" proceedings. Mr. Vilma may not like that

bargain, but it's reflected in the CBA and it's not for him

and, with all due respect, it's not for this Court to set it

aside.

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Let me spend a few minutes on the other issues

relating to preliminary injunctive relief, the equitable

issues, if I may. On irreparable harm, the issue here -- and I

know Your Honor understands this well. The question is

whether, in the absence of an injunction, Mr. Vilma will suffer

irreparable harm in the short period before this Court can rule

on the merits.

I don't want to be presumptuous about the

Court's other obligations, but you have done us the courtesy of

scheduling the other motions on an expedited briefing schedule

and argument schedule. Mr. Vilma hasn't made any showing

suggesting that he will experience any harm, much less

irreparable harm, during the short period that will be required

for this matter to be brought to a close.

On the issue of harm to the NFL, the CBA

expressly provides that arbitration awards are final and

binding. An injunction here would undermine and encourage

suspended players to go to court hoping to temporarily block

their suspensions. There are lawyers who encourage such claims

and have brought them repeatedly only to lose in the end. The

NFL would be harmed if the bargain that it's reached on that

issue would be undermined by an injunction here. Among other

things, such a ruling would send a message to players near the

ends of their careers that if they can find a lawyer willing to

pursue their claim aggressively in court, they might be able to

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221

defer their suspensions until they retire, and that's exactly

what happened in the StarCaps case.

With respect to the public interest, Mr. Vilma

would define the public interest to be commensurate with the

interests of the Saints fans, and I understand that, but the

Saints fans have 31 counterparts elsewhere in the

United States. The real public interest here is in upholding

the strict requirements of the Norris-LaGuardia Act and in the

finality of final and binding arbitration under collective

bargaining agreements.

When all is said and done, Your Honor, this case

may be disposed of on the same ground that the district court

disposed of a case brought by Mickey Mantle's estate, a case we

cited in our papers. Mr. Vilma's ill-advised failure to

participate in the appeal hearing dictates the result here in

numerous respects, and I respectfully suggest that his motion

should be denied.

THE COURT: Thank you very much.

MR. GINSBERG: Very briefly, if I may.

THE COURT: Sure.

MR. GINSBERG: I can't emphasize enough that we are

not suggesting that Mr. Goodell can't serve the role of a

neutral arbitrator, but I equally can't emphasize enough that

that didn't happen and that that's why this is not based on the

essence of the CBA and why there is statutory protection from

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this sort of abuse.

I don't mean to mix cases, but the focus of the

defamation action are those statements, those accusations, and

those conclusions that are outside of the CBA that were

gratuitous, public, and unnecessary statements by Mr. Goodell.

Those well preceded Mr. Vilma's right to engage in the

appellate process, and that is why this situation is so unique.

That's why this situation needs a remedy that doesn't undermine

the CBA but enforces the bargain for the CBA because

Mr. Goodell assumed responsibilities under the CBA and

shirked/breached those responsibilities here.

The idea that the NFL would be harmed if

Mr. Vilma goes back to work tomorrow simply doesn't hold water.

In fact, I respectfully submit the NFL would be far stronger

and less embarrassed by what's happened here if Mr. Vilma does

not have to sustain further punishment while Your Honor

grapples with some of these complicated legal issues.

Just a point of fact, the investigator,

Mr. Miller, provided very little by way of explanation of the

evidence. It was Mary Jo White who did most of the talking,

and the record clearly reflects Mr. Miller was not sworn in.

Mr. Levy, unfortunately, is wrong. He and I

don't agree on the issue that he said we did. Some day we'll

find something we agree on, but not today. The commissioner

doesn't have jurisdiction over this. I respectfully submit

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that Your Honor ultimately is correct. And that perhaps if the

commissioner had allowed the appeal of Professor Burbank's

decision, we wouldn't be here today because the appellate group

that's being appointed would get it right, but we do not agree

that the commissioner has jurisdiction here.

I'm going to clarify something. Your Honor

asked me about the potential remedies, and I do believe that

the appropriate remedy here would be a permanent injunction,

but I believe the LMRA would allow Your Honor, given the nature

of these proceedings, to send this to a neutral arbitrator who

could ultimately determine the appropriate resolution, but that

also is something that I think we will all have to address in

our papers.

More than anything, more imminently than

anything because I understand Your Honor has a lot to deal with

next week or whenever our next set of papers are filed, I do

respectfully submit that we have shown enough with regard to

what the LMRA, the FAA, and the various elements of irreparable

injury require.

So when you balance the equities, when you look

at the harm to Mr. Vilma compared to the harm to the NFL,

Mr. Vilma should be allowed to go back to work. Although

Your Honor may not ultimately be the one to decide whether

Mr. Goodell got the facts wrong or not, he quite clearly got

the facts wrong, and I respectfully submit there is a legal

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remedy to right that wrong. Although Your Honor can't rule on

that issue today, Your Honor can make a determination as to

whether Mr. Vilma ultimately will be harmed by having to sit

out another two weeks when he has to go to rehab, when training

camp has started, when he has already played eight years of

football. So again I thank the Court for Your Honor's time.

Obviously, if there are any questions, I'm here, but thank you

very much.

THE COURT: I want to thank both sides for extremely

good briefing also.

MR. KESSLER: Your Honor, I just want to note for the

record that when we file our papers, we will be disagreeing

with a number of the points that Mr. Levy just made --

THE COURT: Really?

MR. KESSLER: -- factually, Your Honor, including the

fact that there were no witnesses or testimony presented by the

NFL at the Goodell hearing despite what Mr. Levy has stated.

We will demonstrate that from the transcript.

The "clearly erroneous" standard does not apply

in the context he is speaking about, and we will demonstrate

that in the papers.

Finally, what he is ignoring is the commissioner

made an agreement. The commissioner agreed to serve as an

arbitrator so that Mr. Levy could come in and argue to

Your Honor you should give deference to him as an arbitrator

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and not question the merits. The price for that agreement by

the commissioner is he gave up his ability to advocate in an

evidently partial way. He gave up his ability not to comply

with the standards of the LMRA and the standards of the Federal

Arbitration Act. It was the commissioner's agreement to be an

arbitrator that limits him here and gives you a basis to

overturn that. We will address all that in the brief as well,

Your Honor.

THE COURT: Okay. Well, thank you all very much.

Again, well briefed and well presented. If anybody wants to

file anything more, it needs to be done by the 3rd.

THE LAW CLERK: Or before.

THE COURT: The 3rd or before. The sooner the

better, obviously. Thank you all very much.

(Proceedings adjourned.)

* * *

CERTIFICATE

I, Toni Doyle Tusa, CCR, FCRR, Official Court Reporter for the United States District Court, Eastern District of Louisiana, do hereby certify that the foregoing is a true and correct transcript, to the best of my ability and understanding, from the record of the proceedings in the above-entitled matter.

s/ Toni Doyle Tusa Toni Doyle Tusa, CCR, FCRR Official Court Reporter

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EXHIBIT O


REGGIE WHITE, et al.,

Plaintiffs,

v.

NATIONAL FOOTBALL LEAGUE, et al..

Defendants

APPEARANCES:

FOR THE WHITE CLASS AND NFL PLAYERS ASSOCIATION

DEWEY BALLANTINE LLP By: Jeffrey L. Kessler, Esq. 1301 Avenue ofthe Americas New York, N.Y. 10019-60

FOR THE NFL MANAGEMENT COUNCIL COVINGTON & BURLING By: Gregg H. Levy, Esq.

Benjamin C. Block, Esq. 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401

BEFORE SPECIAL MASTER

STEPHEN B. BURBANK

RE: SALARY CAP VALUATION ISSUES

OPINION


Class Counsel and the National Football League Players Association (collectively "Players Association") initiated this proceeding on July 22, 2005, pursuant to Article XXII of the White Stipulation and Settlement Agreement, as amended ("SSA"), and Article XXVI of the Collective Bargaining Agreement, as amended ("CBA"), concerning contract valuation issues for purposes of the Salary Cap provisions in Article XXIV,§ 7 of the CBA and Article X,§ G of the SSA. The NFL Management Council ("Management Council") responded on August 31, 2005; the Players Association replied on September 16, 2005, and a hearing was held in Cambridge, Mass. on September 22, 2005. The matter is ripe for decision.

The Players Association contends that the Management Council's treatment of three different types of contract provision violates the Salary Cap rules contained in the CBA and SSA, to wit, provisions concerning (1) certain off-season roster bonuses, (2) contract year voidables that are based upon a contingency, and (3) salary set forth in Paragraph 5 of the NFL Player Contract when guaranteed in an extended contract. Although the parties' arguments concerning each issue are framed by reference to a specific player's contract, the issues are not confined to those contracts, with the result that the Players Association requests general declaratory relief as to all of them.

I. Off- Season Roster Bonuses (Jamie Sharper)

In 2005 Jamie Sharper signed a contract with the Seattle Seahawks for five seasons. Appendix A to that contract includes roster bonuses for 2006 and 2007. The 2007 roster bonus provides:

Player will receive a roster bonus of $1,000,000 if he is on the Club's 80 man Roster on the 71

h day after the start ofthe 2007 League year. Notwithstanding the previous sentence, said roster bonus will become guaranteed for skill and injury if Player plays a minimum of 85% ofthe defensive plays during the 2006 NFL regular season. If earned, said roster bonus shall be payable on March 10, 2007.

Players Association Opening Brief, Ex. A, App. A.

The Players Association contends that the proper treatment of this provision for Salary Cap purposes is dictated by a side letter dated October 10, 1996, section 1 of which provides in pertinent part:

[T]he full non-guaranteed amount of any ... off-season roster bonus ... shall be included in Team Salary only in the League Year in which it is earned by the player, without any proration. For purposes of this paragraph only, "guaranteed" means Salary that is fully guaranteed, prior to being earned, for skill, for injury, and regardless of any termination of the contract by the Club.

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CBA, Art. XXN, § 7(b); 10/21196 Side Letter,§ 1 (Printed CBA at 104).

On the Players Association's interpretation of this provision, Sharper's 2007 off-season roster bonus should be included in Team Salary only if (and when) it is earned, because it is not "guaranteed" in the defined sense of that word that is set forth in the side letter.

The Management Council, invoking one dictionary's interpretation of"non" as "[t]he common prefix of negation," and another dictionary's definition of "negate" as "to nullify" or "rule out," Management Council Brief at 2, argues that this provision does not apply to Sharper's 2007 off-season roster bonus, because it is subject to a conditional guarantee. That is (the Management Council argues), this off-season roster bonus is not "non-guaranteed," because a guarantee has not been negated or ruled out. Rather, the Management Council contends, this roster bonus should be treated as an "incentive amount," subject to the "likely to be earned" test under the following provision of the CBA:

Any and all incentive amounts, including but not limited to performance bonuses, shall be included in Team Salary if they are "likely to be earned" during such League Year based upon the player's and/or Team's performance during the prior year .... Any incentive within the sole control of the player (e.g., non-guaranteed reporting bonuses, off-season workout and weight bonuses) shall be deemed "likely to be earned."

CBA, Art. XXN, § 7(c)(i) (Printed CBA at 106). See SSA, Art. X,§ G(3). 1

Side letters interpreting the CBA make reference to different types of roster bonuses (offseason, pre-season, and regular season), and treat them differently in various circumstances, for Salary Cap purposes. Some are treated as signing bonuses, subject to partially deferred recognition through proration over the term of the contract? Others are treated as incentives subject to

1 Reference will be made to specific provisions of the SSA hereafter only ifthere is a conflict between the CBA and the SSA. In the event of such a conflict, the SSA controls.

2 "The total amount of any signing bonus shall be prorated over the term of the player contract in determining Team and Player Salary [subject to prescribed exceptions]." CBA Art. XXN, § 7(b)(i) (Printed CBA at 100). A 1993 side letter provides that "any roster ... bonus which is earned or paid before the start of the Club's preseason training camp shall be treated as a signing bonus." CBA, Art. XXN, § 7(b ); 6/23/93 Side Letter, § 6 (Printed CBA at 1 04). A 1996 side letter also provides for treatment as a signing bonus "at the time of execution" of offseason roster bonuses contained in player contracts, or renegotiated or extended contracts, executed in "the Final Capped Year," if it "is to be earned or paid to the player in the Final League Year (which is an Uncapped Year)." CBA, Art. XXN, § 7(b); 10/21/96 Side Letter,§ 2 (Printed CBA at 1 04).

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accelerated recognition through application of the "likely to be earned" test based upon performance during the prior year under section 7(c)(i), quoted above.3 The treatment of"nonguaranteed" off-season roster bonuses is different. In exempting qualifying amounts from both the proration to which signing bonuses are subject and the acceleration under the "likely to be earned test" to which incentives are subject, the section of the 1996 side letter on which the Players Association relies treats those qualifying amounts like Paragraph 5 Salary, which, subject to certain exceptions, "shall be included in Team Salary in the year earned." CBA Art. XXIV, § 7(a)(i) (Printed CBA at 99).

It is not my role to attempt to divine or implement a coherent treatment of roster bonuses for Salary Cap purposes. In interpreting the CBA, a complex agreement that has been supplemented by side letters reflecting numerous interpretive disputes and compromises over more than a decade, I must seek an interpretation that is faithful to the language used by the parties and their apparent intent, mindful of the context in which that language reposes. See White v. NFL, 899 F. Supp. 410, 414 (D. Minn. 1995). In doing so, I must try to avoid an interpretation that either would create conflict between contractual provisions or render any such provision a nullity. See Reda v. Eastman Kodak Co., 233 A.D.2d 914,915 (N.Y. App. Div. 1996).

The Management Council's position that the 1996 side letter provision on off-season roster bonuses is not applicable to Mr. Sharper's 2007 off-season roster bonus, because it contains a conditional guarantee, requires reading the prefix "non" to mean "incapable ofbeing" rather than "not" "guaranteed" at the relevant time. Although such a reading might not be umeasonable in some contexts and for some purposes, I agree with the Players Association that it does not in any event exclude this roster bonus. Under the special definition in the 1996 side letter, "guaranteed" means "Salary that is fully guaranteed, prior to being earned, for skill, for injury, and regardless of any termination ofthe contract by the Club." The conditional guarantee in Mr. Sharper's 2007 roster bonus is "for skill and injury'' only, and that roster bonus is therefore not only "non-guaranteed" in the sense of"not guaranteed" in 2005; it is also incapable ofbeing "fully guaranteed" within the meaning of the 1996 side letter.

Even if I were to agree with the Management Council that the 1996 side letter provision concerning off-season roster bonuses did not apply to Mr. Sharper's 2007 roster bonus, I could not

3 A 1993 side letter includes roster bonuses among incentive bonuses that depend on a player's performance, exempting them, however, from automatic treatment as "likely to be earned." See CBA Art. XXIV,§ 7(c); 9/21/93 Side Letter, § 11 & Ex. B (Printed CBA at 106 & 1 09). Regular season roster bonuses are listed among "ROOKIE 'LIKELY TO BE EARNED' INCENTIVES." Printed CBA at 110. In addition, a 1995 side letter provides both that "[a]ny roster bonus which is deemed not 'likely to be earned' based upon the player's performance during the prior year shall immediately be included in Team Salary when earned," and that "[p]reseason roster bonuses are automatically deemed 'likely to be earned'." CBA Art. XXIV, § 7(c); 5/24/95 Side Letter,§ 8 (Printed CBA at 128) (emphasis added).

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accept the treatment accorded it as an incentive.4 Article XXN, section 7(c)(i) ofthe CBA cannot reasonably be interpreted to authorize including in Team Salary for 2005 a roster bonus that can only be earned in the 2007 off-season. Such a reading gives to the language, "[a ]ny and all incentive amounts," a meaning that is contextually unlikely, putting it in serious tension with language that clearly calls for a year-by-year determination, "based upon the player's and/or team's performance during the prior year," whether an amount is "'likely to be earned' during such League Year." Moreover, any doubt on that score is removed when one considers the scheme for adjustments in sections 7(c)(ii) & (iii), which are to be made "[a]t the end of a season." When it is certain that an incentive amount cannot actually be earned during a League Year, it makes no sense to include that amount in Team Salary as "'likely to be earned' during such League Year."

II. Voidables Based Upon a Contingency (Denard Walker)

In 2004 Denard Walker signed a contract with the Oakland Raiders for five seasons, which contract provides for a signing bonus. In addition, an addendum to the contract provides:

If Player participates in 10% of the defensive plays (excluding special teams) during the 2004 regular season, and achieves any of the incentives in Addendum A (A-C), then Player may elect to void the 2005, 2006, 2007 and 2008 contract years by sending proper written notice to the NFLMC, NFLPA and Club on or before the last day of the 2004 League Year.

Players Association Opening Brief, Ex. E, Addendum "A".

At issue is whether the proration of Mr. Walker's signing bonus should be accelerated under the following section of the CBA:

Any contract year that the player has the right to terminate based upon a contingency shall count as a contract year for purposes of proration until the contingency is fulfilled, at which time any amounts attributed to such year shall be accelerated and included immediately in Team Salary. To the extent that such acceleration puts the Team over its Salary Cap, the difference shall be deducted from its Salary Cap for the following year.

CBA, Art. XXN, § 7(b)(ii)(4) (Printed CBA at 102).

4 Colloquy at the hearing on September 22 made it clear that the Management Council also deems the 1996 side letter provision inapplicable to the 2006 off-season roster bonus in Mr. Sharper's contract and thus also treated it as an incentive subject to Art. XXN, section 7(c)(i) of the CBA. The amount of that bonus was not included in Team Salary for 2005, however, because it was not deemed "likely to be earned."

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The Players Association argues that no acceleration of the proration of Mr. Walker's signing bonus should occur, because, although the 10% participation and incentive contingencies were fulfilled during the 2004 regular season, Walker did not in fact elect to void the 2005-2008 contract years. Under this view, "sending proper written notice" is itself a "contingency" for purposes of section 7(b )(ii)( 4), and the words, "the player has the right to tem1inate" in that section mean "terminates." The Management Council contends, on the contrary, that, whatever the meaning of "contingency" generally, in this contract providing the required notice is not a "contingency" upon which "the right to terminate [is] based," but rather merely the means by which the player is to exercise that right.

In ordinary usage, Mr. Walker had the "right to terminate" the 2005-2008 contract years once he had fulfilled the 10% participation and performance contingencies specified in his contract. Failure to send the "proper written notice" required by his contract meant that he did not exercise that right, not that the right did not exist. See Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 277 N.E.2d 641 (1971) (court should give words in a contract their plain and ordinary meaning unless the contract mandates a different interpretation). If the parties to the (SSA and) CBA had intended to tie acceleration to the exercise of a right to terminate, they could have provided that voidable contract years "shall count ... for purposes of proration until the player exercises the right to terminate." They did not do so. Moreover, one can imagine language in a player's contract that might make the existence of a right to terminate depend, among other things, on sending effective notice, but that is not the language in Mr. Walker's contract.5

The Players Association argues that interpreting section 7(b)(ii)(4) so as to accelerate for proration purposes contract years that a player chooses not to void, although having the right to do so, leads to an absurd result. The Players Association also argues that acceleration does not occur under the other provisions of section 7(b )(ii) until it is certain that remaining contract years will not be operative.

As to the latter point, the provisions in question deal with very different situations. Moreover, a 1996 side letter interpreting section 7(b)(ii)(4) in a situation where a player "has one or more rights to terminate based on one or more not 'likely to be earned' incentives and the player also being on the roster at a subsequent time," supports the view that exercise of a right to terminate is not necessary for acceleration. If that were not true, it is hard to understand why the parties would have agreed that there would be no acceleration "until both the incentive(s) and the roster precondition(s) have been satisfied." See CBA, Art. XXN, § 7(b )(ii)(4); 10/21196 Side Letter, § 5 (Printed CBA at 102-03).

As to both points, counsel for the Players Association aclmowledged during the hearing that on certain assumptions acceleration in the absence of the exercise of a right to terminate would not in fact be absurd. Recognizing that (1) it is the nature of categorical rules to be either over- inclusive or under-inclusive (or both), (2) the (SSA and) CBA reflect numerous bargained-

5 The question whether section 7 (b )(ii)( 4) covers automatic voids is not before me.

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for compromises, and (3) it is not for the Special Master to rewrite the parties' agreements, I conclude that proration of the voidable years in Mr. Walker's contract was subject to acceleration once the 10% participation and performance contingencies were fulfilled.

III. Guaranteed Paragraph 5 Salary in Extended Contracts (Michael Strahan)

In 2002 Michael Strahan renegotiated and extended his contract with the New York Giants to cover the 2002 through 2008 seasons. The contract includes guarantees for skill and injury of portions of Mr. Strahan's Paragraph 5 Salary in 2003 and 2004. See Players Association Opening Brief, Ex. F, Addendum~~ 25-26. The Management Council treated the guaranteed portions as a signing bonus, subject to proration, under a CBA provision that defines as a signing bonus:

Any consideration, when paid, or guaranteed, for option years, contract extensions, contract modifications, or individually negotiated rights of first refusal.

CBA, Art. XXIV,§ 7(b)(iv)(3) (Printed CBA at 103).

The Players Association contends that Paragraph 5 Salary in an extended contract is still Paragraph 5 Salary, not "consideration ... for ... contract extensions," and thus that it is subject to the rule that "[t]he highest applicable Salary set forth in Paragraph 5 of the NFL Player Contract shall be included in Team Salary in the year earned."6 The Management Council responds that "because Paragraph 5 Salary guaranteed as part of a contract extension or modification is governed by Section 7(b)(iv)(3), which provides that it shall be treated as a signing bonus and therefore amortized over the term of the player contract, it is not 'applicable Salary set forth in Paragraph 5' governed by Section 7(a)(i)." Management Council Brief at 5.7 The parties also

6 Section 7(a)(i) reads in full: The highest applicable Salary set forth in Paragraph 5 of the NFL Player Contract shall be included in Team Salary in the year earned, except that, between March 1 and the first day of the regular playing season, only the following amounts from Paragraph 5 shall be included for players whose Player Contracts are not among the Team's 51 highest valued Player Contracts, tender offers and Offer Sheets (as determined under this section 7):

(1) Any amount that exceeds the applicable Minimum Active/Inactive List Salary for Undrafted Rookie Free Agents; and

(2)Any amount that exceeds twice the applicable Minimum Active/Inactive List Salary for all other players.

CBA, Art. XXIV,§ 7(a)(i) (Printed CBA at 99).

7 In that regard, the Management Council points out that section 7(b)(iv)(5) calls for treatment as a signing bonus of the "difference between the Salary in the second contract year

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disagree as to which provision is more specific and thus should govern in the event they are found to be in conflict.

The Management Council's argument that, in combination with section 7(b)(iv)(3), section 7(a)(i) excludes the guaranteed portion of Paragraph 5 Salary in Mr. Strahan's extended contract is ultimately not persuasive. In context, the suggested interpretation of "applicable" is strained, and it appears to neglect the adjective "highest." The Players Association's argument that this language is designed to deal with split contracts (see Article XXXVIII,§ 14 of the CBA (Printed CBA at 177)) suggests what the words seem to convey, to wit, that they speak, and speak only, to a situation in which more than one salary is "set forth in Paragraph 5."

It is true that the exception in section 7(a)(i) (see footnote 6) contemplates treatment of only a portion of Paragraph 5 Salary as "included in Team Salary in the year earned," which is the treatment urged by the Management Council here for the non-guaranteed Paragraph 5 Salary in an extended contract. But the fact that such treatment is specified in an exception indicates that it is not an instantiation of the concept of "applicable salary" for these purposes, a reading that is confirmed by the use of the term "applicable" within the exception (see section 7(a)(i)(l) &(2), quoted in footnote 6), where that term is used to distinguish between two possible salaries in a split contract.

The fact that, as I interpret it, section 7(a)(i) covers all of the Paragraph 5 Salary in Mr. Strahan's extended contract raises the possibility of a conflict between that provision and section 7(b )(iv)(3). Moreover, if the latter were applicable to the guaranteed Paragraph 5 Salary in this (extended) contract, it would also appear to conflict with a provision in the CBA stating (with exceptions not relevant here) that "[a ]ny portion of Salary for which a team fully guarantees payment for skill or injury shall be included in Team Salary during the year earned." CBA, Art. XXN, § 7(d) (Printed CBA at 130).8

I do not accept the Management Council's interpretation of section 7(b )(iv)(3), and thus I need not resolve either potential conflict. To be sure, "Salary'' is a defined term for these purposes, and the definition in Article XXIV, section 1(c) (Printed CBA at 94) is very broad. It may also be true that Paragraph 5 Salary in an extended contract is, in one sense, part of the "consideration for" the entire contract, including the extension. Under the scheme set forth in section 7, however, following this line of interpretation, so as to treat amounts of Paragraph 5 Salary that are guaranteed as subject to section 7(b )(iv)(3), loses the forest in the trees.

In setting forth the amounts that are "Salary" to be included in Team Salary, section 7

and the first contract year" when the former is less than half of the latter.

8· This provision was not briefed by the parties. When I raised it during the hearing,

counsel for the Management Council acknowledged the apparent conflict with section 7(b )(iv)(3), interpreted as the Management Council interprets it.

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distinguishes between Paragraph 5 Salary, treated in section 7(a)(i), and signing bonuses, treated in section 7(b ). Section 7(b )(iv)(3) is one of a number of subsections that specify amounts to be deemed signing bonuses, the first of which is "[a ]ny amount specifically described in a Player Contract as a signing bonus." No comparable provision is found in section 7(a), because no such provision is necessary. Paragraph 5 salary defines itself by being set forth in Paragraph 5. It is one thing to provide specifically that the difference in "Salary" (a term broader than, but including, Paragraph 5 Salary) between the first and second year of a contract be treated as a signing bonus in prescribed circumstances, as the parties did in section 7(b )(iv)(5). It would be quite another to treat the same amount as Paragraph 5 Salary and a signing bonus, subject to conflicting recognition rules under the CBA. I do not believe that was the parties' intent.

A result of the Management Council's capacious interpretation of the language, "consideration ... for ... contract extensions," in 7(b )(iv)(3) (if its interpretation of section 7( a)(i) were also accepted) would be that all non-guaranteed Paragraph 5 Salary in extended contracts would be treated as a signing bonus, requiring proration, when paid. No such interpretation is necessary so long as a common sense approach is taken to section 7(b )(iv)(3) and "consideration ... for ... contract extensions" is interpreted with the concept of a signing bonus in mind. Indeed, Mr. Strahan's extended contract contains just such a provision:

I. ADDITIONAL CONSIDERATION As Additional Consideration (the "Additional Consideration") for Player's execution of separate NFL Player Contract(s) (the "Contracts") for the 2002, 2003, 2004, 2005, 2006, 2007 and 2008 NFL seasons and for Player's adherence to all provisions of said Contracts, Club agrees to pay player the sum of $6,400,000 (less usual, customary and/or required deductions) as follows:

$6,400,000 on his signing of this Contract

subject to the provisions of Section II and III below. Players Association Opening Brief, Ex. F, "Signing Bonus Addendum."

Perhaps the caption ofthe addendum suffices to bring this provision within section 7(b)(iv)(l) ("Any amount specifically described in a Player Contract as a signing bonus"). Even if not, however, it would clearly fall within section 7(b )(iv)(3) ("Any consideration, when paid or guaranteed, for ... contract extensions .... ").

Finally, were I to conclude that Mr. Strahan's contract revealed a conflict between sections 7(a)(i) and 7(b )(iv)(3) of the CBA, for reasons adumbrated above I would regard section 7(a)(i) as controlling, and thus as requiring the recognition of all amounts of Paragraph 5 Salary in Mr. Stragan' s extended contract in the year earned. That result would flow not only from a consideration of the structure of the CBA, distinguishing between Paragraph 5 Salary (which is self-defining) and signing bonuses (which may or may not be), but also from awareness, on these

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assumptions, of another conflict- that between section 7(b )(iv)(3) and section 7(d), and of the fact that the latter treats Salary amounts that are fully guaranteed for skill and injury according to the same recognition rule as does section 7(a)(i). Cf Preminger v. Columbia Pictures Corp., 267 N.Y.S.2d 594, 599 (N.Y. Sup. Ct. 1966) ("[ w ]here the parties have particularized the terms of a contract, an apparently inconsistent general statement to a different effect must yield.").

N. Conclusion

In sum, I conclude that the Players Association is entitled to relief on the first and third issues raised in this proceeding. I am confident that, subject to any review either party may seek of this decision, the Management Council will conform its conduct in the future administration of the Salary Cap to the interpretations set forth in this opinion. At the hearing counsel for both parties agreed that, in light of reliance interests created by past practices,9 care and cooperation would be required to achieve a smooth and fair transition if I were to rule in favor of the Players Association on the third issue (and perhaps on others). Having done so, I am also confident that the parties, assisted by their able counsel, can and will achieve such a transition. I will, however, retain jurisdiction in the event disputes arise in that process which the parties are not able to resolve consensually.

Stephen B. Burbank Special Master September 28, 2005

9 At the hearing counsel for the Management Council eschewed reliance on evidence of past practices to which the Players Association had objected under Article LV, section 19 of the CBA. Counsel for both sides agreed, however, that such practices may be germane for their purposes in fashioning any transition required by my decision in this proceeding.


EXHIBIT P


EXHIBIT Q


EXHIBIT R


REGGIE WHITE, et al.,

Plaintiffs,

V.

NATIONAL FOOTBALL LEAGUE, et al..

Defendants

APPEARANCES:

FOR THE WHITE CLASS: DEWEY BALLANTTNE LLP By: Jeffrey L. Kessler, Esq. 1301 Avenue of the Americas New York, N.Y. 10019-60

FOR THE PLAYERS ASSOCIATION NFL PLAYERS ASSOCIATION By: Richard Berthelson, Esq. 2021 L Street, N.W. Washington, D.C. 20036

FOR THE NFL MANAGEMENT COUNCIL COVINGTON & BURLING By: Neil K. Roman, Esq.

Benjamin C. Block, Esq. 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401 NFL MANAGEMENT COUNCIL By: Dennis L. Curran, Esq. 280 Park Avenue New York, N.Y. 10017

BEFORE SPECIAL MASTER STEPHEN B. BURBANK

RE: TODD SAUERBRUN

OPINION


Class Counsel and the National Football League Players Association ( "NFLPA") initiated this proceeding on April 6, 2007, pursuant to Article XXII of the White Stipulation and Settlement Agreement, as amended ("SSA"), and Article XXVI of the Collective Bargaining Agreement, as amended ("CBA"), concerning an alleged violation of the SSA by the New England Patriots ("Patriots") in connection with the contract of Todd Sauerbrun ("Sauerbrun"). The NFL Management Council ("Management Council") responded by letter brief on April 16, and a hearing was held on April 17.

Sauerbrun was an Unrestricted Free Agent when, in December 2006, his agent entered into negotiations with the Patriots for a contract covering the remainder of the 2006 League Year.' Although the negotiating parties agreed that Sauerbrun would be paid the League Minimum Salary, he declined a two year contract term. The Patriots then offered a one-year contract with a Right of First Refusal ("ROFR"), which offer, following discussion with his agent, Sauerbrun decided to accept. The Patriots drafted the contract (the "2006 Contract"), and after his agent read it and advised Sauerbrun to sign it, he did so. Sauerbrun and his agent knew that, as an Unrestricted Free Agent, Sauerbrun was not under any obligation to agree to a ROFR, and they both believed that the ROFR contained in the 2006 Contract would be enforceable if the Patriots exercised it in a timely fashion according to its terms.

Although Sauerbrun's agent orally informed the NFLPA that Sauerbrun was going to agree to a ROFR, and although the NFLPA received a complete copy of the 2006 Contract shortly after its execution, Class Counsel first received a copy of the contract in April 2007. Moreover, neither the NFLPA nor Class Counsel communicated with Sauerbrun or his agent about the ROFR until after he had reached agreement on the terms of a proposed contract with the Denver Broncos ("Broncos").

When contract negotiations between the Patriots and Sauerbrun's agent for the 2007 League Year failed to yield agreement on the terms Sauerbrun desired, negotiations commenced with the Broncos, and a proposed contract was agreed to that Sauerbrun's agent forwarded to the Patriots in accordance with the terms of the ROFR in the 2006 Contract. The Patriots decided to exercise the ROFR by matching the terms that the Broncos offered and on April 5 sent Sauerbrun a Player Contract containing all of those terms. Class Counsel commenced this proceeding on April 6.

Article VII, Section 5 of the SSA governs "Individually Negotiated Limitations on Player Movement." Section 5(a) provides that "[an individually negotiated limitations on player movement are prohibited except as specifically provided as follows." The exception applicable to Unrestricted Free Agents permits them "to negotiate and contract for an individual [ROFR] with any Club with respect to the services of such player so long as the player is not a Franchise Player

' The facts summarized in this and the next paragraph are drawn from a Stipulation of Facts executed by Class Counsel and the Management Council on April 11, 2007.

-2-


or Transition Player at the time of such negotiation and contract." In the event an Unrestricted Free Agent negotiates and contracts for an individual ROFR, however, Section 5(c) provides that it "shall be void and unenforceable unless it is specified in a separate document signed by such player in the form annexed hereto as Appendix E, acknowledging such player's waiver of the express right that Unrestricted Free Agents have under this Agreement to be free of any [ROFR] restriction on their freedom of movement."

There is no question that, in drafting the ROFR in the 2006 Contract, the Patriots did not comply with Section 5(c). The purported waiver of Sauerbrun's express right to be free of any ROFR restriction on his freedom of movement is not contained in a "separate document signed by such player," but in a two-page addendum to the standard Player Contract ("Additional Agreements"), in which the fourth of five numbered paragraphs ("Paragraph 29") concerns the ROFR, and which contains but one signature line for the player, at its end. Class Counsel and the Management Council disagree whether that is the extent of material differences. In that regard, the separate document in Appendix E of the SSA, to which Section 5(c) refers ("Appendix E"), contains the caption, "Waiver of Free Agent Rights," whereas Paragraph 29 is entitled "Right of First Refusal." Appendix E is framed in the first person, while Paragraph 29 is framed in the third person. Appendix E requires discrete specification (i.e., following a colon at the end of the sentence) of the "additional compensation, if any" to be received for renouncing the player's rights, while Paragraph 29 states that "[i]n exchange for renouncing these rights, he understands that he will not receive any additional compensation from the Club." Finally, Appendix E contains a separate line for the signature of a witness, whereas there is no such line in Paragraph 29 (although there is a line for an agent's signature, following the player's, at the end of the Additional Terms)?

Section 5(c) appears to be, as Class Counsel argues that it is, both unambiguous and mandatory. If so, the ROFR in Paragraph 29 is "void and unenforceable." To escape that result, the Management Council stresses the facts that, notwithstanding the differences between Appendix E and Paragraph 29 discussed above, (1) as the negotiations for the 2006 Contract developed, a ROFR was the salient element of consideration — the way to bridge the gap between a two-year contract (which the Patriots had proposed) and a one-year contract (which Sauerbrun wanted), (2) Sauerbrun was aware that he was not required to accede to the Patriots' request that he grant a ROFR, and (3) both Sauerbrun and his agent believed that the ROFR in Paragraph 29 would be enforceable if the Patriots exercised it in a timely manner, which they subsequently did. On this view, permitting Sauerbrun to benefit from what the Management Council refers to as

2 Given my conclusion that the ROFR at issue here is void and unenforceable because not specified in a separate document signed by Sauerbrun, I need not decide whether the other differences between Appendix E and Paragraph 29 noted here are material. At the hearing Class Counsel pointed out a difference between Section 5(c) and Section 3(b) potentially affecting the answer to that question. The former requires that the specification (in a signed separate document) be "in the folin annexed hereto as Appendix E," while the latter requires that a First Refusal Exercise Notice be "substantially in the form of Appendix D."

-3-


"inadvertent" failure to comply with a "procedural provision" would seem, if not unfair to the Patriots, then a windfall for Sauerbrun. The Management Council therefore urges on me the solution of reforming the 2006 Contract to bring it (as respects the ROFR) into accord with the contracting parties' mutual intent as to its legal effectiveness.

I am inclined to share the Management Council's view of the facts in this case. Thus, I am willing to assume, as was represented at the hearing (although not part of the Stipulation of Facts or otherwise reduced to admissible evidence), that the failure to comply with Section 5(c) was an innocent mistake caused by thoughtless borrowing from a prior contract that shared the same defect,' At the end of the day, however, such a view of the facts does not matter, because I conclude that I lack the power to rewrite Section 5(c) or to do indirectly through contract reformation what I cannot do directly.

I lack the power to rewrite the SSA by substituting my view about what it should mean given the equities of a particular case for what, according to its plain and unambiguous language, it does mean. See White v. NFL (Hobert-Grbac), 972 F. Supp. 1230, 1236 (D. Minn. 1997) ("Moreover, a court may not rewrite into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms."); id. at 1237 n. 5 ("It is our obligation to enforce the SSA, not rewrite it."). Section 5(c) leaves no latitude to give effect to an individually negotiated ROFR that does not meet its requirements, or at least the requirement that it be "specified in a separate document signed by [the] player." Rather, it requires the conclusion that such a ROFR is "void and unenforceable." The purpose of the rule is evidently to deny legal effect to a purported relinquishment of a right that does not conform to specified procedures designed to ensure the voluntary relinquishment of that right, recognized as such, for known consideration (or lack thereof). Given that purpose, the fact that the parties to the purported ROFR in the 2006 Contract may have believed that it was legally binding is irrelevant.

If I were to reform the 2006 Contract as the Management Council requests — to implement the parties' intent that it be legally effective -- I would in effect be rewriting Section 5(c). Special Master Friedenthal's decision in the Andre Collins matter is not to the contrary. Collins had apparently agreed to a ROFR in his 1995 contract in accordance with Section 5(c). The Special Master rejected Class Counsel's argument that including the ROFR in a tender made

3 Even accepting this explanation, it might not be possible for the Management Council to meet its burden of demonstrating the mutual mistake that is a prerequisite to contract reformation. See Restatement (Second) of Contracts § 155, cmt. b ("The rule stated in this Section applies only where both parties are mistaken with respect to the reduction to writing."); id. cmt. c ("clear and convincing evidence" of mistake required). For, in addition to repeating most of Appendix E while translating it into the third person, Paragraph 29 includes the following sentence: "The foregoing shall serve in full and sufficient satisfaction of any waiver requirement pursuant to the 1993 CBA, as amended." This sentence suggests that someone in the Patriots organization once understood that the approach taken in Paragraph 29 represented a departure from Section 5(c), and that knowledge may be imputable to the Club in 2006.

-4-


under Section 1(b)(i), which requires that the tender contain "all other terms of his contract identical to the prior year's contract" violated Section 5(a). He also rejected the argument that requiring Collins to accept or reject all of the tendered offer, including the ROFR, was inconsistent with Section 5(c). Key to the latter conclusion, placing certain language in the opinion in context, was the point that if a player in Collins' position were to refuse to "sign the appropriate waiver form," the contract [would not be] consummated and the offer [would be] rejected." In other words, without execution of the prescribed waiver form, there is no legally effective relinquishment of the ROFR. 4

Finally, language in the Restatement (Second) of Contracts regarding the possibility of reformation when there is "a mistake of both parties as to the ... effect of the writing," id. § 155, also needs to be considered in context. That language reflects the view that a mutual mistake concerning the terms of an agreement that causes it to be unenforceable does not preclude reformation (if it is otherwise called for). Thus, it reflects the "premise ... that a writing evidencing an agreement may be reformed under the rule stated in § 155 before it is subjected to the requirements of the Statute of Frauds." Id. § 156 cmt. a (emphasis added); see id. § 155 cmt. a ("Reformation is available even though the effect of the error is to make it appear from the writing that there is no enforceable agreement. See Illustration 2 and Comment a and Illustration 3 to § 156."). It is one thing to permit reformation of a writing "[i]f the parties are mistaken with respect to the legal effect of the language they have used." Id. § 155 cmt a. It would be quite another to use that remedy to obviate mandatory formal requirements designed to ensure that there is an enforceable agreement in the first place. Even if Paragraph 29 were reformed to match Appendix E precisely, it would lack Sauerbrun's signature.

It is regrettable that, as a result of an apparently innocent failure to comply with a provision of the SSA, the Patriots will be denied the full benefit of the bargain they sought in the 2006 Contract. At the same time, however, compliance with Section 5(c) would have been a simple matter, and it appears that someone in the organization made a choice not to comply with it at some time in the past. Going forward, compliance with this provision of the SSA will enable the parties to the SSA, Clubs and Players to avoid disputes about knowledge, voluntariness, and intent with respect to ROFR' s, which Class Counsel plausibly argued is its primary (and salutary) purpose.' Class Counsel is entitled to a declaration that the ROFR in the 2006 Contract is void and unenforceable. Whether, as a result of this ruling and the circumstances that brought it forth, the Patriots have any remedy against Sauerbrun is a question not before me.

'Moreover, this is not a protection that an individual player can waive, with the result that language in Paragraph 29, see supra note 3, is ineffective for that purpose.

Class Counsel also plausibly argued that the separate document requirement of Section 5(c) eases the burdens of contract review for compliance with the SSA and CBA.

-5-


Stephen B. Burbank April 18, 2007


EXHIBIT S


CASE 4:92-cv-00906-DSD-SPMS Document 477 Filed 03/30/00 Page 1 of 19Case 2:12-cv-01283-HGB-DEK Document 118-5 Filed 09/04/12 of 604

EXHIBIT T


SHYAM DAS, ARBITRATOR

In the Matter of Arbitration Between

THE DENVER BRONCOS and THE NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL

and

ASHLEY LELIE and THE NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION

} } } } } } } } } } ) }

} } }

}

Appearances

For the NFL Management Council:

Daniel L. Nash, Esq. T. David Gardi, Esq.

For the NFL Players Association:

ARBITRATOR'S OPINION AND AWARD

Case Heard: March 12, 2007 March 23, 2007

Award Issued: April 23, 2007

David Greenspan, Esq. Todd Flanagan, Esq.


BACKGROUND Broncos/Lelie

In this grievance the Denver Broncos and the NFL

Management Council seek an order requiring former Broncos wide

receiver Ashley Lelie to return a portion of his signing bonus,

and to pay fines that were levied for his failure to report to

the Club's mandatory minicamp and pre-season training camp in

2006.

The Broncos drafted Lelie in the first round of the

2002 NFL draft. He entered into a Player Contract with the Club

covering the 2002 through 2006 seasons, with 2007 as an option

year. The Broncos exercised the option by paying Lelie an

option bonus of $1.1 million in 2002. (The option year

subsequently was voided pursuant to other provisions of the

Player Contract.) Lelie was paid a $3.3 million signing bonus

in the first year of his contract pursuant to an addendum to his

Players Contract. This addendum further provides:

If Player fails initial physical, does not report to Club, does not practice or play with Club (unless his failure to practice or play is due to an NFL football related injury incurred while properly performing his services under this contract), leaves Club without prior approval, does not honor all terms of his Contract, including any addenda thereto, is suspended for, Conduct Detrimental, violation of the NFL Policy and Program for Substances of Abuse, the NFL Policy and Procedures for Anabolic Steroids and Related Substances, or the NFL Personal Conduct Policy, or violates any other agreements between Club and Player, Player shall be in default of this agreement and, upon demand by Club, will repay to Club based on the following schedule:


2 Broncos/Lelie

If Player defaults during Player will return

Calendar year 2002 $3,300,000 Calendar year 2003 $2,640,000 Calendar year 2004 $1,980,000 Calendar year 2005 $1,320,000 Calendar year 2006 $660,000

It is further understood that Player's waiver of rights to any unpaid amounts and Player's obligation to re-pay this Bonus as stated above, are express provisions of this Bonus and, but for the provisions herein contained, Club would not have executed this Bonus.

During the 2005 season, Lelie was one of two starting

wide receivers for the Broncos, but at the end of the season he

felt he was being "underutilized" and that his role was

"diminishing" on the team. He testified he also heard rumors

and reports that the Club was trying to get another "big time

receiver." At or shortly after the Pro Bowl, Lelie's agent,

Mike Sullivan, let the Club know that Lelie was unhappy with his

role on the team, did not want to come back and wanted to be

traded. Coach Mike Shanahan spoke to Lelie. Both of them

thought the conversation went well, and Shanahan thought there

was a good chance Lelie was coming back. The Club did, however,

look into possible trades. Shanahan had told Sullivan that if a

player did not want to be with the Broncos he would try to trade

the player provided an acceptable deal could be worked out.

During the 2006 draft, the Broncos traded a second

round draft pick for Javon Walker, a wide receiver with the

Green Bay Packers. The Broncos had proposed trading Lelie for


3 Broncos/Lelie

Walker, but the Packers rejected that. Broncos General Manager

Ted Sundquist stated the Club made this trade because it did not

know if Lelie would be back and needed a suitable replacement if

he did not return. Sundquist added that this trade did not

change the Club's desire to retain Lelie, as one of three strong

receivers. Coach Shanahan indicated that concern over Lelie's

return was part of the reason for the trade, but that the Club

also was interested in acquiring Walker because he was a good

football player.

Shortly after the draft, Lelie replaced Sullivan with

a new agent, Peter Schaffer. Lelie at that point felt he was

going to be on the bench and was quite upset. In a television

interview aired on May 7, Lelie stated:

Q: So what's gonna happen July 27th when training camp starts?

A: Hopefully, I'm in a camp playin football.

Q: You don't see any way that you'd return to the Denver Broncos-is that even feasible?

A: Not-not. No I can't be a number three receiver-! can't accept that role. You know, I wouldn't be able to live with myself if I did.

Q: If you don't get traded before training camp, what are your options then-how far can you take this?

A: To week ten.


4 Broncos/Lelie

The Broncos permitted Schaffer to talk to other Clubs

to try to arrange a trade that would be acceptable to the

Broncos. Schaffer discussed various possibilities with Coach

Shanahan, Sundquist and Broncos Director of Football

Administration Mike Bluem, but a trade was not worked out before

the start of mandatory minicamp in early July. Lelie did not

report for minicamp, and subsequently did not report for

training camp which opened on July 27.

On July 8, the Club notified Lelie it was fining him

$11,634 for missing minicamp. (This fine subsequently was

reduced to $8,000 in accordance with Article VIII of the CBA.)

The Club further notified Lelie:

Please be aware that although your conduct entitles the Broncos to pursue enforcement of the forfeiture provisions of the Signing, Reporting and Playing Bonus of your NFL Player Contract dated 7/25/02 as well as Attachment II (Option Agreement) of your NFL Player Contract dated 7/25/02, the Broncos are electing not to pursue repayment at this time.

The Broncos' decision in this present matter in no way limits the Club's ability to enforce our rights (forfeiture provisions of the Signing, Reporting and Playing Bonus, forfeiture provisions of the Option Agreement) in the event of any breach of your NFL Player Contract in the future, including but not limited to the failure to report to Training Camp on July 27, 2006 (mandatory reporting date for veterans) .


5 Broncos/Lelie

On July 28, the Club informed Lelie that he would be

fined $14,000 for each day of training camp he missed. (He

ultimately missed 27 days prior to being traded to Atlanta on

August 23.) On August 16, the Club demanded Lelie repay

$660,000 of his signing bonus as required under his Player

Contract.

Ultimately, on August 23, a three-way deal was worked

out under which Lelie was traded to the Atlanta Falcons and the

Broncos received draft pick compensation from the Washington

Redskins. The assignment of Lelie to the Falcons was subject to

several conditions set forth in the trade agreement, including

the following:

As additional consideration for the trade discussed herein, the Denver Broncos (the "Broncos") reserve any and all rights to seek repayment of $660,000 in bonus money that Lelie is required to return to the Broncos under the express terms of the Signing, Reporting, and Playing Bonus addendum in Lelie's NFL Player Contract (dated July 26, 2002). The Broncos also reserve any and all rights to collect any fines that have been levied against Lelie as of the date of this trade agreement. The preservation of rights provided herein is an express provision of this trade agreement and, but for this preservation of rights, the Broncos, Falcons and Redskins would not have executed this trade agreement.

The Broncos also insisted, as a non-negotiable condition of

agreeing to trade Lelie, that he sign an acknowledgment

(Acknowledgment) under which he acknowledged he was obliged to


6 Broncos/Lelie

return $220,000 of his option bonus (which he repaid at that

time) and $660,000 of his signing bonus, and to pay "in cash on

demand" fines levied for his missing minicamp and pre-season

training camp totaling $386,000 (to be reduced to $170,000 in

the event he repaid the $660,000 of his signing bonus, pursuant

to Article VIII of the CBA.)

In a proceeding initiated by Class Counsel and the

NFLPA pursuant to Article XXVI of the CBA and the White

Stipulation and Settlement Agreement (SSA), Special Master

Stephen Burbank ruled that the Acknowledgment signed by Lelie

was void under the terms of the SSA, and "may not be used for

any purpose in any other proceeding." The Special Master

further ruled that the return of $220,000 of Lelie's option

bonus was a prohibited forfeiture under the terms of the SSA,

and that Lelie was entitled to return of that money. 1

The present grievance was filed on September 11, 2006.

It was submitted to arbitration as an expedited appeal under

Article IX, Section 4 of the CBA. The parties filed pre-hearing

briefs and a hearing was conducted on March 12 and March 23,

2007. General Manager Ted Sundquist, Coach Mike Shanahan and

Director of Football Administration Mike Bluem testified on

behalf of the Broncos. Ashley Lelie and his agent, Peter

Schaffer, testified on behalf of the Player. There also was a

1 The Special Master issued his ruling, hereinafter Lelie Special Master Case, on November 16, 2006. The NFLMC appealed the ruling on the option bonus. That ruling was affirmed by U.S. District Court Judge Doty on March 26, 2007.


7 Broncos/Lelie

stipulation that if he were to testify NFLPA General Counsel

Richard Berthelsen would testify that he was unaware of any

player having paid any fine on demand or out of future salary

payments from other Clubs after his service with the Club

imposing the fine had ended.

CLUB POSITION

Fines

The Club contends that by withholding his services

from the Broncos mandatory minicamp and pre-season training

camp, Lelie was properly subject to the fines imposed by the

Club, which are expressly authorized by Article VIII of the CBA.

Lelie has not been able to demonstrate that the fines were not

uniform. In particular, Trevor Pryce -- a player cited by Lelie

as having been treated differently -- was fined for not

reporting to training camp for a 14-day period in 2000.

The Club insists that it has standing to collect the

unpaid fines through this grievance. Lelie incurred the fines

while under contract to the Broncos, and the Club specifically

reserved the right to collect the fines when he was traded to

Atlanta. The Club maintains that Lelie's reliance on Carolina

Panthers v. Greene (Kagel 1997) is misplaced. The Panthers

released Greene and terminated his contract. The NFLPA argued

in that case that the Club discharged Greene for alleged

violation of club rules, thereby superseding and mooting prior

lesser forms of discipline. Here the Club granted Lelie's


8 Broncos/Lelie

demand for a trade and expressly preserved its right to seek

payment of the fines.

Lelie also cites Greene for the proposition that a

Club may collect fines only through payroll deductions. But,

the Club contends, Paragraph 7 of his Player Contract -- which

is an Appendix to the CBA -- clearly states:

Any advance made to Player will be repaid to Club, and any properly levied Club fine or Commissioner fine against Player will be paid, in cash on demand ~ by means of deductions from payments coming due to the Player under this contract ....

{Emphasis added.)

Slaughter v. Jacksonville Jaguars {Das 2005) held that a Club

can rely on Paragraph 7 to enforce a demand for repayment of a

salary advance, and this language is just as applicable to

collection of fines.

Signing Bonus Forfeiture

The Club contends that Lelie is contractually

obligated to repay a portion of his signing bonus in accordance

with the terms of his Player Contract. As stated in NFLPA v.

Cincinnati Bengals {Loyalty Clause Dispute) {Bloch 2001) :

Arbitration precedent between these parties clearly establishes both the contractual nature of the signing bonus and the


9

enforceability of forfeiture provisions contained therein.

Broncos/Lelie

See: Denver Broncos v. Kennison (Wittenberg 2003); Miami

Dolphins v. Williams (Bloch 2004); Tampa Bay Buccaneers v.

McCardell (Das 2005). By failing to report to the Club's

mandatory minicamp and pre-season training camp, Lelie was in

"default" as defined in the addendum to his Player Contract.

Because his default occurred in 2006, he is obligated to repay

the amount specified therein $660,000.

Lelie breached his contract before he was traded to

the Falcons, and the Broncos expressly preserved the right

asserted here in the trade agreement. Enforcement of the

signing bonus agreement, the Club argues, is not disciplinary in

nature. See: Loyalty Clause Dispute. Nor does it amount to a

penalty in violation of Colorado law governing liquidated

damages. As Arbitrator Bloch held in Williams, the bonus

repayment provisions in that case did not violate state law

because they were not, in fact, liquidated damages provisions.

See also: McCardell.

The Club further asserts that even if the signing

bonus repayment provisions were to be considered a liquidated

damages provision, it is enforceable under Colorado law. To be

unenforceable, a contract term must fix unreasonably large

liquidated damages. See Klinger v. Adams County School Dist.

No. 50, 130 P. 3d 1027 (Colo. 2006). That is plainly not the

case here. This grievance seeks repayment of the bonus in

accordance with the specific schedule set forth in Lelie's


10 Broncos/Lelie

contract -- $660,000 of the $3.3 million of the total bonus.

There is nothing unreasonable about such a forfeiture where, as

here, the player has effectively repudiated his contract with

one year remaining. 2

The Club maintains that the evidence shows the Broncos

only traded Lelie reluctantly because of his threat to hold out

through week 10 of the regular season. It also insists that the

Broncos ultimately got much less trade-wise than what it had

wanted when it considered the possibility of trading him before

his holdout. While the Club is not obliged to show harm, it

obviously was harmed and did not get the benefit of its bargain.

Most importantly, Lelie refused to finish out his contract and

did not play for the Broncos in the final season of his

contract.

PLAYER POSITION

Fines

Lelie contends that under the express language of

Article VIII, Section 5 of the CBA, as well as under long

standing industry custom and practice and arbitral precedent,

Clubs may only collect fines by deducting them from the

paychecks of a player still employed by the Club. See: Greene.

The rationale behind this CBA provision and practice is that a

Club ceases to have any valid disciplinary purpose for

collecting fines from a player who no longer is an employee.

2 The Club's prehearing brief states "with two years remaining," but the 2007 option year was voided.


11 Broncos/Lelie

Even if Lelie's Player Contract does provide for fines to be

paid in "cash on demand", which to the NFLPA's knowledge has

never occurred, the CBA does not, and the protections of the CBA

are controlling, as specifically provided in both the CBA and

Lelie's Player Contract.


Lelie stresses at the outset that this case differs

from other cases where arbitrators have upheld the application

of signing bonus default provisions because the evidence

establishes there was no harm to the Club. The evidence shows

the Club got market value and just what it wanted by way of

compensation when it traded Lelie to the Falcons. Indeed, if

the trade had been worked out a few months earlier, before

minicamp, the Club would have been in the exact same position as

it was after Lelie was traded on August 23, but there would be

no grievance at all. Lelie also fully performed under his

original Player Contract. He reported to Atlanta's training

camp the day after he learned he was going to be traded and

played for the Falcons throughout the 2006 season under the

terms of that contract, and thus continued to earn the signing

bonus the Broncos now are trying to recoup.

Lelie contends that the enormous financial penalties

imposed on him by the Broncos constitute discipline and violate

the CBA requirements of "uniform discipline" and "just cause".

A determination of whether a Club's response to player conduct

constitutes discipline is to be determined on the basis of the


12 Broncos/Lelie

precise circumstances at issue. See: Owens v. Philadelphia

Eagles (Bloch 2005). The punitive, i.e., disciplinary nature of

the Broncos response to Lelie's conduct is established by the

contrast between this case and the manner in which the Club

responded when all-pro defensive end Trevor Pryce held out from

training camp in 2000 as well as by the Broncos coercive

recovery of $220,000 of Lelie's earned option bonus.

Pryce held out from training camp because he felt he

was underpaid. His Player Contract had a signing bonus default

provision similar to Lelie's, but the Club did not exercise that

provision, and subsequently rewarded Pryce with a lucrative,

long-term contract. Lelie argues that in Pryce's case the Club

chose not to exercise the forfeiture provision in his contract

because it did not want to punish a player that it highly

valued. Here, however, the Broncos no longer had any need for

Lelie, and, thus, punished him with what he believes to be the

highest financial penalties imposed in Club history.

In the Lelie Special Master Case, the Broncos stated

that in recovering $220,000 of his option bonus, the Club was

simply enforcing its rights under his Player Contract. Yet, the

Club had informed Lelie before his trade that, in accordance

with his contract, it would seek repayment of one-seventeenth of

his 2006 option bonus allocation ($220,000) for each regular

season week he missed. Because he missed zero regular season

weeks, Lelie insists, the Club knew full well it was not

entitled to any portion of his 2006 option bonus allocation

under the terms of the forfeiture provision. Yet, the Club


13 Broncos/Lelie

insisted on its right to recover the full $220,000. The Special

Master's ruling has put an end to the Club's improper attempt to

recover Lelie's earned option bonus, but the Club's bad faith

attempt to recover money it knew it was not entitled to shows

this grievance is not about the Club's good faith exercise of a

purported contractual right. It is intended to punish him.

Lelie maintains that there is no arbitral precedent

that controls the precise circumstances of this case. In

particular, while the decision by Arbitrator Bloch in the

Loyalty Clause Dispute case found that forfeiture provisions may

in the abstract be "contractual" rather than disciplinary, in

this case it is the Broncos' selective exercise of Lelie's

forfeiture provision in response to his holdout which

establishes the disciplinary nature of that action.

Discipline, under the CBA, must be uniformly

administered. The lack of uniformity is established, Lelie

argues, by the Club's very different treatment of Pryce for the

same conduct. To the Player's knowledge and belief, not only

did the Broncos not exercise the forfeiture provision in Pryce's

contract and reward him with a new contract at the end of the

season, it did not even deduct the fines he accrued for the days

he missed training camp.

Discipline also must be for just cause. Here the

punishment is out of all proportion to the purported crime.

Lelie did not attend minicamp or the first few weeks of training

camp, but there was no harm to the Broncos. His absence from


14 Broncos/Lelie

practice caused no disruption or any adverse effect on the Club,

and when the Club voluntarily traded him it received the very

draft compensation it had been seeking.

Lelie further contends that the signing bonus default

provision in his Player Contract is an unenforceable liquidated

penalty under Colorado law.

In the just issued Lelie Special Master Case, the

Special Master expressly held that:

It is clear from the structure of section 9 [of Article XVII of the SSA] as a whole that a contractual provision vesting in a Club a right to recoup monies upon subsequent breach of contract by a player constitutes a "forfeiture."

This ruling, Lelie insists, is binding on all parties and the

Non-Injury Grievance Arbitrator because the Special Master has

exclusive jurisdiction over Article XIV of the CBA and Article

XVII of the SSA, which cover NFL Player Contracts. Under the

Special Master's ruling, the signing bonus default provision in

Lelie's contract must be treated as a "forfeiture" --not a mere

contractual term determining the conditions under which the

bonus is earned. There is no way to reconcile this controlling

interpretation of the SSA with the holdings in McCardell and

Williams that such default provisions are not liquidated damages

provisions because they are contractual incentives.


15 Broncos/Lelie

The signing bonus default provision in Lelie's

contract is, by definition, a liquidated damages provision under

Colorado law. A liquidated damages provision is invalid as a

penalty if it is unreasonably disproportionate to the expected

loss on the very breach that did occur. See: Yerton v. Bowden,

762 P. 2d 786 (Col. Ct. App. 1988); Gouger v. Buffalo Special~

Co., 141 P. 511 (Col. Ct. App. 1914). Under the forfeiture

provision in his contract, Lelie would forfeit his signing bonus

allocation for the entire 2006 season regardless of whether he

missed a single day of training camp, a month of training camp,

or the entire regular season. If he missed the entire regular

season, such a forfeiture might have been appropriate, but here

Lelie resumed full performance of his contract after missing

minicamp and a few weeks of training camp, and continued

thereafter to earn the very signing bonus money the Broncos are

trying to recover. Clearly, the $660,000 penalty in this case,

in which the Club suffered no harm since Lelie was traded for

full value to another Club before the start of the regular

season, was an unenforceable penalty.

Moreover, Lelie contends, the facts in this case are

quite distinguishable from those in Williams and McCardell and

show that the incentive analysis applied in those cases -- even

if not now overruled by the Lelie Special Master Case -- is not

applicable here, and that the forfeiture exercised by the

Broncos is a liquidated penalty. Unlike Ricky Williams, who had

three years remaining on his contract when he stopped performing

all together, Lelie played out his entire contract without

missing a game. Unlike the finding in McCardell, Lelie is not


16 Broncos/Lelie

receiving any financial benefit for his holdout. Lelie has

earned all of the signing bonus allocation at stake in this

case. Moreover, his temporary breach caused no harm to the Club

unlike the findings in Williams and McCardell.

FINDINGS

Fines

In this case the Club rightfully cites and relies on

NFL arbitral precedent in support of its claim for return of

$660,000 of Lelie's signing bonus. Arbitrator Kagel's decision

in Greene is entitled to equal treatment. Notwithstanding the

language in Paragraph 7 of the NFL Player Contract stating that

fines will be paid "in cash on demand or by means of deductions

coming due to the Player under this contract," which is quoted

in Greene, Arbitrator Kagel concluded:

The Collective Bargaining Agreement in Article VIII, "Club Discipline," Section 5, "Deduction" reads:

"Any Club fine will be deducted at the rate of no more than $1,000 from each pay period, if sufficient pay periods remain; or, if less than sufficient pay periods remain, the fine will be deducted in equal installments over the number of remaining pay periods. This will not apply to a suspension." (Jt. Ex. 1, emphasis supplied)


17 Broncos/Lelie

Both the Collective Bargaining Agreement and Greene's Player Contract provide that payment of fines will be satisfied by "means of deductions from payments coming due to the Player under his contract" and the Collective Bargaining Agreement provided it to be " ... deducted at the rate of no more than $1,000 from each pay period."

Both the Collective Bargaining Agreement and Greene's Contract provide that payment of fines can only result from a Player earning a salary as a Player. In this case, Greene never worked as a Player under the 1997 contract and therefore earned no monies during any "pay period" from which a fine, even if proper, could be deducted.

Notably, there is no provision in Article VIII of the

CBA for collection of fines other than through deductions, as

specified in Section 5. Moreover, the decision in Greene is

consistent with unrebutted testimony in this record supporting a

finding that as a matter of practice over many decades Club

fines have only been paid by means of deductions by the Club

imposing the fine. While the facts in this case are somewhat

different from those in Greene, in that Lelie did continue to

work as a player under the 2002 contract he signed with the

Broncos after his trade to the Falcons, the only way Denver can

now collect the fines it imposed on Lelie is by insisting they

be paid in cash on demand. That is contrary to the law of the

shop in this industry.

The decision in Slaughter v. Jacksonville Jaguars (Das

2005), cited by the Club, involved repayment of a salary

advance. The CBA does not include any provision, other than


18 Broncos/Lelie

Paragraph 7 of the NFL Player Contract, relating to repayment of

salary advances. Moreover, a salary advance and a Club fine

obviously are very different in nature. One is a loan to be

repaid. The other is a disciplinary penalty imposed for

violating team rules. There is nothing illogical or

inconsistent in allowing a Club to seek repayment of a salary

advance from a player who no longer is under contract to that

Club "in cash on demand," while not permitting the Club to

demand payment of outstanding fines in those circumstances.

The Broncos are not entitled to an order requiring

Ashley Lelie to pay fines that were levied while he was under

contract to the Club.


The terms of Lelie's Player Contract clearly require

him to return $660,000 of his $3.3 million signing bonus to the

Denver Broncos.

Lelie's contention that the Club's decision to enforce

the provisions in the addendum to his contract governing his

signing bonus constitute improper disciplinary action is not

persuasive.

In the Loyalty Clause Dispute Arbitrator Bloch, after

reviewing prior NFL arbitration cases, concluded:


19 Broncos/Lelie

In sum, the finding here is that the existence of a separately-negotiated bonus provision requiring forfeiture of monies that may exceed the Article VIII Maximum Penalties does not conflict with Article VIII merely because it seeks to regulate conduct that may also be subject to disciplinary fines under that Article. The parties have utilized and applied such negotiated provisions in the past, and the arbitration precedent, discussed above, supports the conclusion that the contractual mechanism is distinct from, and does not conflict with, the Maximum Discipline provisions of the CBA. For these reasons, the grievance will be denied.

Lelie contends, however, that the particular circumstances in

this case distinguish it from others where arbitrators have

upheld forfeitures of various types of bonuses pursuant to

negotiated bonus provisions for conduct that may also be subject

to disciplinary fines.

First, Lelie cites what he claims was a very different

response by the Broncos to a similar holdout by Trevor Pryce in

2000. The evidence establishes that Pryce -- like Lelie -- was

fined, and the fines were collected as deductions from payments

due Pryce under his contract. The Club did not demand repayment

of a portion of his signing bonus, as it had the right to do

under the terms of his contract. As in Lelie's case, when Pryce

began his holdout, the Club put him on notice that it had the

right to do so. Two weeks later he reported to the Club's

training camp, and the Club took no further action to enforce

that right. In Lelie's case, the Club only demanded repayment


20 Broncos/Lelie

of $660,000 of his signing bonus on August 16, almost three

weeks after the start of training camp, at which time there was

no reasonable basis to expect that Lelie would report to the

Club. Even accepting the testimony by Pryce's agent that Pryce

only returned after being told that the Club would "revisit" his

contract (which had two years left) at the end of the year -

which Coach Shanahan insisted he would not have done -- the fact

is Pryce returned to the Club after a two-week absence, whereas

Lelie had made it clear he had no intent or interest in doing

so. The evidence does not support Lelie's claim of disparate

treatment.

Second, Lelie points to the Club's action in

recovering $220,000 of his option bonus which, Lelie contends,

the Club knew it was not entitled to. The Club disputes that

assertion, pointing out that Lelie did not play for the Broncos

in the final year of his contract. The Club's action was

overturned in the Lelie Special Master Case, and the Club may

have overreached in an effort to recoup as much of the bonus

monies it had paid to Lelie as it could after he defaulted on

his obligations to the Club. The Club's efforts to maximize its

recovery after Lelie made it clear he would not honor the final

year of his contract does not establish that its decision to

seek return of $660,000 of his signing bonus was improper

because it was disciplinary in nature.

The remaining issue is whether the signing bonus

default provision in Lelie's Player Contract is an unenforceable

liquidated damages penalty under Colorado law. Prior NFL


21 Broncos/Lelie

arbitration decisions, particularly Williams which was followed

in McCardell, have held that signing bonus forfeiture provisions

like the one in Lelie's contract are not liquidated damages

provisions. The rationale for these decisions is set forth in

Williams, the first case to squarely address this issue, as

follows:

... But the clauses in these agreements are not liquidated damage provisions; they are, instead terms that highlight, with precision, those circumstances in which bonus monies will be given and those in which they will be taken away.

To be sure, whether a provision is seen as forfeiture, penalty, refund or return, the end result is the same: Net monies are reduced. But there are meaningful differences in the nature of the financial arrangements and, hence, in the contractual consequences of a breach. Reading the contract as a whole, there is no real question that what was bargained here was a comprehensive incentive and default mechanism. At stake was not solely a series of individual field performance goals and rewards for the player but also a long-term arrangement that figured prominently in the Club's overall plan. Under the circumstances, it was not unreasonable for the parties to structure incentives that recognized and accommodated both expectations. These were not simply surrogate methods of estimating damages in the event the bargain went sour; rather, they were the essence of the bargain themselves.

Failing to honor and enforce the clear terms of this particular arrangement would be to


22 Broncos/Lelie

at once ignore both the overlay of the master collective bargaining agreement and the overall structure of this individual Player Contract. In this case, the Miami club had made extensive plans for the Player, attempting to provide both benefits and costs that would ensure a long-term relationship. All this was held for naught when Williams walked away. In response, the Club was entitled to reclaim the bonuses.

Lelie's contention that the ruling in the Lelie

Special Master Case that a contractual provision vesting in a

Club a right to recoup monies upon subsequent breach of contract

by a player constitutes a "forfeiture" as that term is used in

Article XVII of the SSA (and Article XIV of the CBA) does not

invalidate the rationale and holding in Williams and McCardell.

Those cases did not hold that repayment of bonus monies was not

a "forfeiture". Indeed, in Williams the Player Contract

specifically provided for "forfeiture" of various performance

bonuses. Nomenclature is not conclusive; what is important is

the substance and nature of the bargain. The issue decided in

Williams and McCardell, which was not addressed in the Lelie

Special Master Case, was whether a bonus forfeiture or repayment

provision constituted a liquidated damages provision. The

analysis in Williams is not overruled, in my opinion, by the

ruling in the Lelie Special Master Case.

It is true that the facts in this case are different

from those in Williams, McCardell and Kennison. Indeed, other

than not showing up for minicamp and training camp and

communicating privately and publicly that he was not going to


23 Broncos/Lelie

report to the Broncos, at least until the tenth week of the

season when the NFL rules gave him an incentive to do so, Lelie

conducted himself quite professionally. His agent worked with

the Club to try to work out a trade that would be acceptable to

the Broncos, who had little choice but to trade Lelie.

Following the trade, Lelie performed for the Falcons under the

terms of his Player Contract during the remainder of 2006, after

which he became a free agent. But by his intentional failure to

report to minicamp and training camp and his continued refusal

to perform for the Broncos, Lelie defaulted on his obligations

under his signing bonus provision, triggering the Broncos'

contractual right to demand repayment of $660,000 of his signing

bonus.

The parties are far apart on whether the Broncos were

harmed by Lelie's holdout. 3 By holding out and making clear he

would continue to do so, Lelie left the Club little choice but

to trade him. The Club presented evidence that its clear

preference was that Lelie play for the Broncos in 2006 pursuant

to his contract. As the Club also has argued, absent a likely

holdout by Lelie the Broncos may not have traded for Javon

Walker, although that is a moot issue on this record. While the

Club accepted the terms under which Lelie was traded to the

Falcons, there is evidence it had sought more when it first

considered the possibility of trading Lelie earlier in the off

season before he had refused to report to camp. Moreover, Club

witnesses, whose credibility is not challenged, testified that

3 It is important to keep in mind that there is no equitable restitution issue in this case as there was in McCardell.


24 Broncos/Lelie

after the Club had demanded repayment of part of his signing

bonus the Broncos made it clear they would only agree to a trade

on condition it receive that repayment plus the other monies it

believed it was entitled to as a result of Grievant's failure to

comply with Club rules and the terms of his contract. In the

final analysis, however, Williams stands for the proposition

that if a Player fails to perform in accordance with the terms

of a bonus provision he is subject to having to return that

portion of the bonus specified in his contract.

Lelie also stresses that unlike players in other

signing bonus forfeiture cases he has "earned" all of the

signing bonus allocation at stake in this grievance by playing

under his contract after his trade to Atlanta. In this regard,

Williams is instructive. That case did not just involve

repayment of a signing bonus allocation corresponding to the

remaining duration of Williams' contract after his announced

retirement. The Dolphins also successfully sought enforcement

of performance bonus provisions under which Williams was

required to return to the Club the full amount of over $5

million of various performance bonuses he had already earned and

been paid.

The Williams decision was unsuccessfully challenged in

Federal District Court in Florida on the issue of liquidated

damages. Absent a controlling court decision compelling a

finding that the analysis and rationale in Williams is legally

indefensible, it is the law of the shop. The parties are free

to change that "law" by agreement, as they have done in certain


25 Broncos/Lelie

respects in the 2006 CBA. But those changes are not by their

terms applicable to Lelie's signing bonus, as they are to his

option bonus which was at issue in the Lelie Special Master

Case.

For the reasons set forth above, I conclude that the

Broncos are entitled to repayment by Lelie of $660,000 of his

signing bonus.

AWARD

The Club's grievance is denied in part and granted in

part as set forth in the above Findings. Ashley Lelie shall

forthwith repay the Denver Broncos the total sum of $660,000.

Shyam Das, Arbitrator


EXHIBIT U


SHYAM DAS, ARBITRATOR

In the Matter of Arbitration Between

THE NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION On Behalf of Steve Harvey, David Alexander and Marlon Kerner

and

THE NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL On Behalf of THE BUFFALO BILLS and THE NEW YORK JETS

-) ) ) ) ) ) ) ) ) ) ) )

- - - - -)

- - - - - - - - - - - - - - - -) THE NATIONAL FOOTBALL LEAGUE ) PLAYERS ASSOCIATION On Behalf ) of Charles Smith, Dusty Renfro, ) Michael Swift and Jason Peter )

) and )

) THE NATIONAL FOOTBALL LEAGUE ) MANAGEMENT COUNCIL On Behalf ) THE CAROLINA PANTHERS ) - - - - - - - - - - - - - - - -)

Appearances

For the NFL Players Association:

ARBITRATOR'S OPINION AND AWARD

February 14, 2007

Richard A. Berthelsen, Esq. Jeffrey L. Kessler, Esq. Adam J. Kaiser, Esq. Kristin A. Meister, Esq.


2

For the NFL Management Council:

T. David Gardi, Esq. Daniel L. Nash, Esq. Brook F. Gardiner, Esq. Sylvia A. Krainin, Esq.

NFLPA/NFL we Offset


BACKGROUND NFLPA/NFL we Offset

On May 17, 2005, the NFLPA filed a grievance stating

as follows:

Pursuant to Article IX of the NFL 2002-2008 Collective Bargaining Agreement ("CBA"), the NFLPA hereby files a non-injury grievance against the Buffalo Bills, New York Jets (collectively, the "New York Clubs") and the NFL Management Council.

It is our understanding that following the New York State Workers' Compensation Board's decisions in Steve Harvey, WCB Case #89516968 {April 4, 2005) and David F Alexander, WCB Case #89814852 (April 4, 2005), the Buffalo Bills and the New York Jets are now claiming an offset against money paid to NFL Players Steve Harvey and David Alexander, respectively, for the entire amount of the workers' compensation benefits awarded to those players (i.e., a "dollar for dollar" offset) in the above cited cases.

The New York Clubs' conduct in seeking this dollar for dollar offset violates the express language of Paragraph 10 of the NFL Player Contract, which permits Clubs to take only a limited offset for the amount of workers' compensation benefits due and payable during the ~ period of time in which a player is deemed to be entitled to his salary under his contract (i.e., a "time" offset). See CBA, App. C (NFL Player Contract) at ~10. The New York Clubs' conduct likewise violates various NFL arbitration decisions holding that Paragraph 10 permits Clubs to take only a "time" offset, as opposed to a "dollar for dollar" offset. See, e.g., Kyle Freeman v. Los Angeles Raiders (Arbitrator Kagel, Dec. 28, 1994) .


2 NFLPA/NFL we Offset

To the extent that New York state workers' compensation caselaw provides for a greater offset than is permitted by Paragraph 10, and is therefore inconsistent with the terms of the CBA as interpreted in arbitration, such state law is preempted pursuant to federal labor law. See, e.g., Tampa Bay Area NFL Football, Inc. v. Jarvis, 668 So. 2d 217, 219 (Fla. Dist. Ct. App. 1996) (applying the "time" offset provided for in Paragraph 10 of the NFL Player Contract instead of the "dollar for dollar" offset provided for by Florida statutory law) .

The NFLPA therefore seeks a ruling from the Arbitrator that the New York Clubs must cease and desist from any further attempts to claim offsets for the entire amount of workers' compensation benefits awarded to NFL players (i.e., a "dollar for dollar" offset) instead of the limited "time" offset permitted by Paragraph 10 of the NFL Player Contract. The NFLPA further seeks declarations that (1) Paragraph 10 of the NFL Player Contract provides for a "time" offset and not a "dollar for dollar" offset; (2) the "time" offset in Paragraph 10 applies regardless of whether New York state law provides for a greater offset; and (3) the New York Clubs may not make any further attempts to claim a "dollar for dollar" offset against workers' compensation awards. Finally, the NFLPA seeks any additional remedy that the Arbitrator shall deem just and equitable.

(Underlining in original.)

On September 14, 2005, the NFLPA filed a separate

grievance against the Carolina Panthers, which has been



consolidated with the New York grievance for purposes of

arbitration. The Panthers grievance states as follows:

Pursuant to Article IX of the NFL 2002-2008 Collective Bargaining Agreement ("CBA"), the NFLPA and players Charles Smith, Dusty Renfro, Michael Swift and Jason Peters [sic] hereby file a non-injury grievance against the Carolina Panthers pursuant to Article IX of the 1993 CBA, as amended.

It has come to the NFLPA's attention that the Carolina Panthers are taking the position that they are entitled to claim a "dollar-for-dollar" offset against workers' compensation awards paid to their players. For example, the Panthers have taken the position within the past month that they are entitled to a "dollar-for-dollar" offset against any workers' compensation award paid to Jason Peters [sic] . The club and/or its insurer has also claimed to the North Carolina Court of Appeals that it is entitled to a dollar-for-dollar offset against the claims of Charles Smith, Dusty Renfro and Michael Swift.... The NFLPA has challenged a similar position taken by the Buffalo Bills and New York Jets in a grievance previously filed on May 17, 2005, and believes that this case can be consolidated with the New York case for purposes of final disposition under Article IX.

In this grievance, the NFLPA requests the same relief from the Panthers that it is currently seeking from the Bills, Jets, and NFL Management Council in the New York case ....



On September 14, 2005, the NFLPA also filed an amended

grievance to include NFL player Marlon Kerner as an additional

grievant in the May 17, 2005, New York grievance, on the basis

that: "the Bills have claimed a 'dollar-for-dollar' offset

against the entire amount of the workers compensation benefits

awarded to Mr. Kerner, in violation of Paragraph 10 of the NFL

Player contract."

The consolidated grievances were heard in arbitration

on January 10, 2006. The parties filed pre-hearing briefs.

* * *

Players who are injured and unable to play may be

entitled to a number of benefits under the Collective Bargaining

Agreement (CBA), including salary continuance, as provided in

Paragraph 9 of the NFL Player Contract, and injury protection

benefit, as provided in Article XII of the CBA.

Since 1977, Paragraph 10 of the NFL Player Contract,

which is an integral part of the CBA, has provided:

10. WORKERS' COMPENSATION. Any compensation paid to Player under this contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers' compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers' compensation



benefits due Player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers' compensation.

One of the issues presented in Freeman v. Los Angeles

Raiders (Kagel 1994) -- a case cited by the NFLPA in the present

grievances -- was the extent to which the Raiders were entitled

to a workers' compensation offset against injury protection

payments that Kyle Freeman was found to be eligible to receive

in that decision. The Raiders contended they were entitled to a

complete "dollar-for-dollar" offset, regardless of the period

for which the workers' compensation payments were received.

Freeman argued the Club was only entitled to a limited "time"

offset. In addressing this issue, Arbitrator Kagel stated:

In view of the decision to award Freeman the monies due him under the Injury Protection provision of the Agreement, the Club contends that it is entitled to an offset for Workers' Compensation monies which have been and may be received by Freeman.

Freeman contends that the offset granted under paragraph 10 should be limited strictly to the amount of Workers' Compensation benefits due and payable to him during the same period in which he was deemed entitled to his salary and/or his Injury Protection benefit.

Paragraph 10 is designed to avoid "double dipping" by a Player in a case where the Player is receiving a salary or injury protection compensation and is also receiving Workers' Compensation by providing that the Club can offset Workers'



Compensation payments against such salary or injury protection payments.

The "period" during which such offsets can be made by the Club is the period of salary payments or the period related to the injury protection period, in Freeman's case the 1993 regular season.

The decision in Freeman on this issue stated: "The Workmen's

Compensation for Freeman shall be an offset on a time basis for

the 1993 regular season .... "

Article LIV (Workers' Compensation) of the CBA

provides, in relevant part:

Section 1. Benefits: In any state where workers' compensation coverage is not compulsory, a Club will either voluntarily obtain coverage under the compensation laws of that state or otherwise guarantee equivalent benefits to its players. In the event that a player qualifies for benefits under this section, such benefits will be equivalent to those benefits paid under the compensation law of the state in which his Club is located.

* * *

Section 3. Arbitration: In any state where a Club (e.g., Miami Dolphins/Florida) has legally elected not to be covered by the workers' compensation laws of that state, the equivalent benefit, if any, to which a player may be entitled under this Article will be determined under the grievance procedure of Article IX (Non-Injury Grievance) .


7

* * *

NFLPA/NFL we Offset

Section 6. Preservation of Rights: The NFLPA and the Clubs preserve their prior positions with regard to the legality of workers' compensation offset provisions under state law, and nothing in this Article shall prevent any player from claiming that an offset provision is not legally binding upon him or prevent any Club from asserting that an offset provision is legally binding upon a player. In addition, neither party nor members of the NFLPA's bargaining unit will claim that the other party's agreement to this Article or the revised NFL Player Contract appended hereto affects the rights set forth above.

NFLPA POSITION

The NFLPA asserts that the Clubs are not entitled to a

dollar-for-dollar offset under the plain terms of the

arbitration decisions interpreting Paragraph 10 of the NFL

Player Contract. In addition to Freeman, the NFLPA cites two

earlier decisions: Wandler v. Minnesota Vikings (Volz 1990) and

Green v. Washington Redskins (Stark 1992). Each of these cases

found the purpose of Paragraph 10 was to avoid "double dipping"

during the period in which a player is receiving compensation

under his contract or the CBA by permitting a time offset only.

The same ruling was thereafter applied in Donald Smith NFL Arb.

(Malka 1996), aff'd Donald Smith NFL Arb. Appeal (Kagel 1997).

No arbitrator has since disagreed.



The NFLPA contends that Freeman and the other relevant

arbitration decisions have become part of the CBA and are

binding on all Clubs. Article II, Section 1 makes it clear that

there is a uniformity rule. All players have to be treated

alike, and all Clubs have to be treated the same. Article IX,

Section 8 specifically provides:

The decision of the arbitrator will constitute full, final and complete disposition of the grievance, and will be binding upon the player(s) and Club(s) involved and the parties to this Agreement ....

(Emphasis added.)

All Clubs are parties to the CBA. The preclusive effect of such

arbitration is also required by basic principles of federal

labor law. Here, not only has Paragraph 10 never been annulled,

it was twice ratified and reaffirmed by the parties when the

1993 CBA was extended after the Freeman decision without any

change to Paragraph 10. Freeman is the law of the shop, fully

binding on each NFL Club, and state and federal courts and

administrative bodies are bound to follow it as such. Moreover,

the issue of whether the holding in Freeman is the law of the

shop and binding on all of the parties to the CBA is a decision

for the arbitrator, not for the courts.

The NFLPA insists that Freeman is indistinguishable

from the present consolidated grievances. Clearly, Arbitrator

Kagel held that the time offset in Paragraph 10 governed all

compensation payable to a player under any provision of the CBA


9 NFLPA/NFL WC Offset

or NFL Player Contract. Indeed, that result is required by the

plain language of Paragraph 10. It makes no difference that in

the present consolidated case the Clubs reduced the workers'

compensation award, not the injury benefit, because the CBA

provides that injured employees are entitled to both contractual

injury benefits and workers' compensation. See NFLPA v. Dallas

Cowboys and Houston Texans (Das 2005), hereinafter referred to

as Texas Workers' Comp.

The NFLPA maintains that arbitration decisions

interpreting Paragraph 10, like Freeman, preempt inconsistent

state laws. 1 In particular, Texas Workers' Comp establishes that

where a state workers' compensation law conflicts with a

provision of the CBA, the CBA must control. The NFL also cites

Tampa Bay Area NFL Football, Inc. v. Jarvis, 668 So. 2d 217

(Fla. Dist. Ct. App. 1996), which it states held that a dollar

for-dollar workers' compensation offset provision in Florida law

was preempted by the limited time offset provision in Paragraph

10 of the NFL Player Contract. Moreover, as in Texas Workers'

Comp, it is proper and appropriate for this arbitrator to decide

the preemption issue.

The NFLPA asserts that the "Preservation of Rights"

provision in Article LIV, Section 6 of the CBA merely preserves

the parties' prior positions concerning the constitutionality

and preemption of state offset laws. This is clear from the

1 The NFLPA relies on the Machinists preemption doctrine. See Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132 (1976).



text and bargaining history of this section. Nothing in this

section makes state offset laws part of the CBA, or vests state

tribunals or legislatures with the right to interpret or modify

the limited time offset provided for in Paragraph 10 of the NFL

Player Contract. That provision, like the rest of the CBA,

remains subject to the exclusive jurisdiction of the parties'

arbitrators, who have conclusively decided what its meaning is.

Only they can decide what Paragraph 10 means. Certainly, the

parties did not agree to delegate to the 23 states having NFL

Clubs the contractual "right" to interpret Paragraph 10, with

the end product being a patchwork of disparate decisions that

treat players unequally under a uniform CBA.

The NFLPA requests the following remedy in this case:

(1) a damages award for any grieving player whose workers'

compensation benefits were reduced as a result of a Club

obtaining a greater offset than the time offset permitted by

Paragraph 10 of the NFL Player Contract; (2) a declaration that

Freeman establishes that Paragraph 10 is a time offset only, and

that it is a benefit or right to the player, as well as the Club

-- in that it defines the scope of the injury benefits provided

for in other provisions of the CBA and that Freeman is the

law of the shop, binding on all Clubs for salary continuance and

injury protection; and (3) a declaration that to the extent any

state statute purports to create a greater offset and,

therefore, diminishes a contractual benefit it is preempted.

The NFLPA stresses that it is not asking the arbitrator to order

state authorities to do anything, and it is not seeking an order



preventing or limiting the Clubs from making any arguments they

want in state proceedings.

The NFLPA also contends that the Clubs' argument that

these grievances are untimely insofar as they seek monetary

damages is without merit. The source of the injury to the

affected players was not the Club's arguing for a greater offset

than that provided in Paragraph 10, but the granting of an award

by the state tribunal which permitted such an offset and,

thereby, reduced the player's contractual injury benefit. In

the case of all players, except Peter and Kerner, the grievance

was filed within 45 days of such an award, and, therefore, was

timely under Article IX, Section 2. In Peter's case, there are

no damages yet, as the parties in that workers' compensation

proceeding have put the case on hold. In Kerner's case, the

NFLPA -- which is not a party in any of the state proceedings

did not know of the decision within 45 days of the award, but

filed an amended grievance to include Kerner a former player

who could not file a grievance on his own -- in the New York

grievance within 45 days of when the NFLPA did learn of the

award.

CLUBS POSITION

Initially, the Clubs argue that this arbitrator lacks

jurisdiction to resolve these grievances because they involve a

dispute over how state law should be interpreted and applied in

purely state law proceedings. As recognized in Texas Workers'

Comp, state law, not the CBA, determines what benefits a player



who files a claim for workers' compensation benefits under state

law is entitled to receive. Any dispute over how such a claim

is to be calculated, including the amount of any appropriate

offset, always has been presented to, and resolved by, the

respective state authorities.

In any event, the Clubs contend, the grievances are

meritless because the CBA does not guarantee players any minimum

level of workers' compensation benefits, but instead leaves the

players' entitlement to such benefits for determination solely

by state authorities in accordance with state law.

Paragraph 10 of the NFL Players Contract gives Clubs

the contractual right to be reimbursed for money paid to players

that the parties deem to be an "advance payment" of workers'

compensation. Paragraph 10 confers no affirmative rights upon

NFL players that could be subject to violation. Past

arbitration decisions have not created any player rights to a

minimum level of workers' compensation benefits under state law.

The holding in Freeman may be asserted as authority in a

subsequent NFL arbitration in which a Club seeks to reduce a CBA

benefit by the amount of a state workers' compensation award,

but it cannot be extended to preclude Clubs from arguing how a

claim for workers' compensation should be determined by state

authorities under state law. Donald Smith followed the Florida

court's decision in Jarvis in interpreting Paragraph 10 to

provide a time offset under Florida law. State decisions in

Ohio, Louisiana and Pennsylvania likewise considered Paragraph

10 in determining that laws in those states provided Clubs with



a full dollar-for-dollar offset for advance compensation paid to

players for their injuries.

The Clubs insist this is not a case of Machinists

preemption. A state's determination as to how a particular

workers' compensation award should be calculated under state law

does not in any way deprive a player of any collectively

bargained benefit. The NFLPA's reliance on Freeman and the law

of the shop principles is inapposite. The question is not

whether Freeman should be followed in a subsequent arbitration

involving substantially identical claims under the CBA, or even

whether that decision has become part of the CBA and may not be

relitigated. The grievances at issue here do not concern a

claim, as in Freeman, for injury protection benefits under the

CBA.

Neither Freeman nor any of the other arbitration

decisions cited by the NFLPA holds that Paragraph 10 only

permits a limited time offset and precludes a dollar-for-dollar

offset to workers' compensation. Indeed, Arbitrator Kagel

himself issued two decisions prior to the 1993 CBA granting a

Club a dollar-for-dollar offset. See Harris v. Los Angeles Rams

(Kagel 1989) and Miami Dolphins v. Bennett, et al. (Kagel 1990).

The Clubs stress that since Freeman was decided in

1994, Clubs and players -- with the assistance of the NFLPA --

have been arguing in state proceedings over whether Freeman's

analysis should be adopted in determining the offset to be

provided under state law on the particular facts in issue. This


14 NFLPA/NFL WC Offset

shows that preemption does not apply, and that the practice

established under the CBA is that these issues are to be

resolved at the respective state level.

Indeed, the Clubs argue, the Preservation of Rights

provision in Article LIV, Section 6 of the CBA protects the

Clubs' right to make offset arguments to state authorities.

Ever since this provision was included in the CBA in 1993, both

parties have routinely argued to state workers' compensation

authorities regarding the legality of workers' compensation

offset provisions under state law, as Section 6 expressly

authorizes.

The Clubs assert that federal court decisions make

clear that a party to a CBA cannot obtain declaratory relief

precluding the other side from filing grievances or advancing

arguments that it believes already have been decided in

arbitration. See, e.g., AG Communications Systems Corp. v.

Int'l Brotherhood of Electrical Workers, Local 21, 2005 WL731026

(N.D. Ill.). Here the NFLPA seeks to bar the Clubs from ever

arguing about the offset issue not only in subsequent

arbitration, but even in a forum outside of the CBA under state

law.

The Clubs contend that there is no obligation that a

state apply state law in a manner consistent with Arbitrator

Kagel's decision in Freeman. State authorities are not bound by

Freeman in how they interpret Paragraph 10 in the context of

applying state workers' compensation statutes. An arbitrator



cannot tell states how they should interpret and apply their own

state statutes.

Finally, the Clubs maintain that to the extent the

NFLPA is seeking damages for the named players in these

grievances, the grievances are untimely. The Clubs assert that

the conduct being challenged here is the argument the various

Clubs have made at the state level about the application of

state workers' compensation offset provisions. The Clubs argue

that in each instance the NFLPA was well aware of that far more

than 45 days prior to the filing of the grievance.

FINDINGS

In Freeman, the player had received an award of

workers' compensation benefits before he was found to be

entitled to injury protection benefits under the CBA. After

concluding that he was entitled to injury protection, Arbitrator

Kagel granted the Club a time offset under Paragraph 10 of the

NFL Player Contract. 2 In Freeman, the parties disagreed on

whether Paragraph 10 provided only for a time offset or for a

dollar-for-dollar offset. Freeman squarely held that Paragraph

10 only provides for a time offset, and not for a dollar-for

dollar offset. While Freeman involved injury protection, not

salary continuance, neither the parties, nor Arbitrator Kagel

2 Freeman is consistent with the two prior decisions, Wandler and Green, in which arbitrators granted a club a time offset, although it does not appear that the issue of a time offset versus a dollar-for-dollar offset was raised in either case.



appeared to see any distinction between those contractual

benefits for purposes of the offset allowed by Paragraph 10.

That is perfectly understandable given the language of Paragraph

10.

Under the holding in Freeman, a Club which has paid

salary continuance and/or injury protection to a player who

subsequently receives an award of workers' compensation would be

entitled to be reimbursed on a time offset basis under Paragraph

10. For purposes of Paragraph 10 it would not seem to matter

whether such a time offset was factored into the workers'

compensation award itself or was repaid by the player after

receiving an award that did not include such an offset.

The Clubs have cited two other arbitration decisions

that preceded Freeman, both also decided by Arbitrator Kagel.

Bennett was a case decided under the special procedure

applicable to the Miami Dolphins who elected not to be covered

by the workers' compensation laws of Florida. As Arbitrator

Kagel later stressed in Donald Smith, the ruling in Bennett was

that a Florida dollar-for-dollar offset statute applicable only

to professional athletes did not apply retroactively. Harris

was decided on the basis of an individualized insurance

provision included in the player's contract which specifically

provided for a dollar-for-dollar offset.

Donald Smith can be viewed as implicitly acknowledging

that a state law can legitimately provide for a different offset

than Paragraph 10 in determining the amount of workers'



compensation to be awarded under state law to a player who has

also received contractual benefits, such as salary continuance

and/or injury protection, when it states that Jarvis not Freeman

was the appropriate precedent to consider. Donald Smith, like

Bennett, was decided under the special procedure applicable to

the Dolphins, which looks to Florida state law to determine the

"equivalent benefits" to be provided under Article LIV, Section

1. Jarvis was a Florida court decision which held that,

although Florida law provided for a dollar-for-dollar offset in

the case of professional athletes, Florida law also would

enforce a contract to provide greater benefits than otherwise

mandated by law. The court in Jarvis then read Paragraph 10 of

the NFL Player Contract as only providing for a time offset, and

determined that was controlling under Florida law. As I read

Jarvis, it applies state law, which in this instance looks to

the parties' agreement to see if they have agreed to greater

benefits than those provided by statute. There is no mention of

federal preemption in Jarvis. The only citation is to an

earlier Florida workers' compensation decision. Moreover, in

Jarvis the Florida court interpreted Paragraph 10 on its own,

without any reference to how that provision had been interpreted

in arbitration proceedings under the CBA. 3

Texas Workers' Comp held that the CBA does not define

what workers' compensation benefits a player is entitled to

3 In that case, of course, the Florida court's interpretation coincided with the prior interpretation by Arbitrator Kagel in Freeman. Other courts in states such as Ohio and Pennsylvania have interpreted Paragraph 10 as providing for a dollar-fordollar offset, contrary to the holding in Freeman.



receive under state law in a case where state workers'

compensation coverage applies. That is a matter to be

determined under state law. Texas Workers' Comp directed the

Texas Clubs not to require players to make an election between

contractual benefits guaranteed them under the CBA and workers'

compensation benefits under the Texas statute, even though the

statute directed the Clubs to do so, because that could place a

player in the position of waiving guaranteed contractual

benefits in order to receive workers' compensation benefits,

when the CBA clearly provides he is entitled to both. The Texas

statute required an election be made only when the contractual

benefits were greater than the statutory benefits, and that part

of the state law was deemed to be preempted.

Texas Workers' Comp involved an election imposed on

the players by the Clubs -- albeit in conformity with state law

--not an offset. That decision also recognized that the

arbitrator did not have the authority to determine what the

consequences of the decision would be in a state workers'

compensation proceeding. That does not mean there would be no

consequences, but it does mean they would have to be determined

in a different forum.

It is in the context of these prior NFL arbitration

decisions and the terms of the CBA that the issues raised in

this case must be decided.

Freeman clearly decided that Paragraph 10 provides for

a time offset only. Under Article IX, Section 8 the decision in



Freeman is binding "upon the player(s) and Club(s) involved and

the parties to this Agreement", which includes the NFLPA, the

NFLMC and all of the Clubs. As the NFLPA contends, the CBA

contemplates a uniform "law of the shop". Freeman's

interpretation of Paragraph 10 is the precedent in this shop.

Taking into account that the parties have twice renewed the

terms of Paragraph 10 without change since Freeman was decided,

Freeman is the law of the shop and is binding as such on all of

the Clubs, including those involved in these grievances.

There is a separate issue, however, as to whether

Paragraph 10 limits the right of a state to provide a greater

offset in determining what workers' compensation benefits a

player is entitled to under state law. Article LIV, Section 6

makes clear that the parties agreed to disagree over the

legality of state offset provisions, and preserved their rights

to assert their respective positions on that matter. In

particular they agreed that the parties' agreement to Article

LIV and to Paragraph 10 would not be the basis of any claim that

either party was precluded from making such an assertion. As

the NFLPA has stated, the legality question involved two issues

-- the constitutionality of state offset laws that provided for

a greater offset for NFL players or professional athletes, and

whether Paragraph 10 preempted state statutes providing for more

than a time offset.

The CBA does not guarantee any particular level or

amount of workers' compensation benefits, but rather provides

that injured players are entitled to receive workers'



compensation benefits -- whatever they might be -- in addition

to contractual benefits. The legality of provisions of state

workers' compensation laws is a mater to be decided in the

appropriate state or federal forum, not arbitration under the

CBA. The parties seemed to have recognized this over the past

12 years during which those issues have been litigated in such

tribunals. While neither the NFLPA nor the NFLMC has been a

party to such proceedings, they both have participated in

raising the respective positions which they preserved the right

to do in Article LIV, Section 6.

This arbitrator cannot grant the damages sought by the

NFLPA in this case without in effect granting the affected

players a greater award of workers' compensation benefits than

they were deemed entitled to by a state tribunal applying state

law, which is not within my authority to do. Indeed, if the

NFLPA believed such damages were available through the grievance

and arbitration procedure of the CBA it is difficult to

understand why they waited 12 years during which other players

were similarly affected by state offset laws before seeking such

a remedy.

The issue of preemption can arise in a state workers'

compensation proceeding in a variety of contexts. A state law

may grant a dollar-for-dollar offset in state workers'

compensation proceedings, regardless of what the parties have

agreed to regarding offsets in the CBA. A state law may grant a

dollar-for-dollar offset unless the CBA provides for a lesser

offset (i.e., a greater benefit), as in the Florida cases--



Jarvis and Donald Smith. In the latter situation, it would seem

that preemption would only be an issue if the state tribunal

concluded that the CBA provides for a dollar-for-dollar offset,

which was not the case in the Florida cases. A state law may

grant a dollar-for-dollar offset only where that is provided for

in the parties' contract -- which apparently is the law in North

Carolina.

Where the application of state law turns on what is

provided in the CBA, there is an issue as to whether a state

tribunal is free to interpret a provision in the CBA in this

case Paragraph 10 -- on its own without regard to what

arbitrators have held or to the law of the shop as determined by

arbitrators. In each of these instances, however, the

preemption issue is one to be decided by the courts.

What can appropriately be done here, however, is to

issue a declaration that: Freeman holds that Paragraph 10 of

the NFL Player Contract provides only for a time offset, and not

for a dollar-for-dollar offset; that this is a benefit or right

to the player, as well as the Club; and that this is the law of

the shop under this CBA and is binding on all the Clubs. In

light of the position taken by some Clubs and/or their workers'

compensation insurers in state proceedings -- where they argue,

among other things, that Paragraph 10 provides for a dollar-for

dollar offset and/or that Freeman is not the law of the shop or

binding on all the Clubs -- the NFLPA has a legitimate interest

in obtaining such a declaration because the parties have agreed

that the arbitrator, not a court or other tribunal, is to be the



final determiner of what a provision in the CBA means and what

constitutes the law of the shop.

AWARD

1. DECLARATION: The decision in Kyle Freeman v.

Oakland Raiders (Kagel 1994) holds that Paragraph 10 of the NFL

Player Contract provides only for a time offset, and not for a

dollar-for-dollar offset; this is a benefit or right to the

player, as well as the Club; and this is the law of the shop

under this CBA and is binding on all the Clubs.

2. The NFLPA's request for other relief is denied for

the reasons stated in the above Findings.

Shyam Das, Arbitrator


EXHIBIT V


EXHIBIT W


Date:

To:

From:

Re:

August llp 1

Gary Wichard

It .is WJ.derstood by al.l parties~ Gary Wicha.rd, and the San Francisco 49e.rs that the: escalator for the year 2000 is achieved if player plays 50% of the offensive plays and starts 8 gatnes during the 1999 regular season. The team does not have to achieve any of the 3 team incentives and the player does not have to ac.hieve any of the 5 .individual incentives listed in the contract for the player to qualify for the escalator of$2,000~000.

ln addition, it is understood that the sixth year of the contract was added for cap reasons only and that the player will not be asked to bono.r that year.


MRizik

Sticky Note

Accepted set by MRizik

EXHIBIT X


EXHIBIT Y


NFLPA Book on Bounty

Documents

Transcript of NFLPA Book on Bounty