Keeping Score

Reading Between the Lines of the Bountygate Ruling

Former commissioner Paul Tagliabue confirmed that Saints players participated in a bounty program. But he questions, and overturns, the disciplinary decisions of his former lieutenant, Roger Goodell

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Elise Amendola / AP

NFL football commissioner Roger Goodell is surrounded by reporters after delivering a Dean's Distinguished Lecture at Harvard School of Public Health in Boston on Nov. 15, 2012, where he discussed some of the rules that have been created to limit concussions in the game of football.

The “final” Bountygate decision, from former NFL commissioner Paul Tagliabue, offered each side a win. Tagliabue, whom Roger Goodell appointed to hear the appeals of the current or former New Orleans Saints players he suspended for their roles in the pay-to-injure program, upheld the NFL’s key findings: that the Saints orchestrated a bounty program, that many players participated in the program, that some Saints coaches and players lied to investigators about the program, and that New Orleans Saints linebacker Jonathan Vilma put a $10,000 bounty on former Minnesota Vikings quarterback Brett Favre before the 2010 NFC championship game. “This sad chapter in the otherwise praiseworthy history of the New Orleans Saints,” Tagliabue writes, “casts no executive, coach or player in a favorable light.”

Tagliabue also vacated the suspensions that Goodell handed down to the players, essentially placing the blame on Saints coaches and officials for the whole ugly affair.

So the NFL cannot claim a total victory. Nor is it facing a devastating defeat. But in reading through Tagliabue’s ruling, one thing is clear: in several instances, he dings the decision making of Goodell, his successor and former No. 2 in the NFL office. Amidst all the legalese, at one point, Tagliabue even suggests that common sense escaped Goodell when he handed down the penalty to Vilma, who was originally suspended for the entire season.

First off, Tagliabue implies that Goodell acted too fast, too soon, in handing down such severe suspensions to the Saints players. (Note: Tagliabue takes no issue with the penalties Goodell gave to Saints coaches and officials, like the season-long suspension for New Orleans head coach Sean Payton, which has pretty much crushed the team’s Super Bowl chances in a year when the Big Easy is hosting the Big Game. Tagliabue treats the Saints with contempt, saying the organization “contaminated” the entire case,  calling the team’s obstruction of the NFL’s bounty investigation “indefensible.”) Tagliabue notes that Goodell has focused on trying to improve player safety; a bounty program flies in the face of safety. “But when an effort to change a culture rests heavily on prohibitions, and discipline and sanctions that are seen as selective, ad hoc, or inconsistent, then people in all industries are prone to react negatively — whether they be construction workers, police officers or football players,” writes Tagliabue. “In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change. That’s what we see on the record here.”

(MORE: TIME Cover Story – Can Roger Goodell Save Football?)

Tagliabue then cites a model that Goodell could follow. In the late 1980s, former NFL commissioner Pete Rozelle faced a steroid epidemic in football. “He included a discipline-free transition year in the new policy,” says Tagliabue. “Rozelle warned one-year in advance that a discipline policy suspending players from steroid use would be implemented the following season.” The message: slow down, Roger. Maybe give the players some wiggle room. We’ll give you a year to clean this up. But if we catch you participating in a bounty program a year from now, we’ll come down hard on you.

Secondly, Tagliabue calls out Goodell for “selective prosecution” and “selective enforcement.” In the case of Saints defensive end Will Smith, for example, Tagliabue notes that “within the Saints defensive unit, Smith was one of approximately two dozen Saints defensive players who participated in the [bounty program]. Although Commissioner Goodell found Smith’s role as a defensive leader to be a basis, at least in part, for singling Smith out for discipline, this is inappropriate when most or all of the Saints’ defensive unit committed the same or similar acts as those underpinning the discipline of Smith. In addition, I am not aware of previous League discipline that similarly rested on whether or not a player was a team leader.”

And third, when it comes Goodell’s season-long suspension for Vilma, Tagliabue seems to question his former pupil’s common sense. “It is essential to recognize that Vilma is being most severely disciplined for “talk” or speech at a team meeting on the evening before the Saints-Vikings game,” Tagliabue writes, referring to Vilma’s $10,000 bounty offer on Favre before the NFC championship. Yet, Tagliabue notes, no Saints player was suspended for an illegal hit after that game. Talk is cheap — and not worth a season-long suspension. “If the League wishes to suspend a player for pre-game talk, including “offers” to incentivize misconduct, it must start by imposing enhanced discipline for illegal hits that involve the kind of player misconduct that it desires to interdict,” Tagliabue writes. “The relationship of the discipline for off-field “talk” and actual on-field conduct must be carefully calibrated and reasonably apportioned. This is a standard grounded in common sense and fairness.”

(MORE: Why the Bounty Scandal Looks Terrible for the NFL)

So who cares what Vilma said before the game? If none of the New Orleans hits were worth a suspension, why would Vilma’s words be grounds for such a severe punishment? Plus, Tagliabue writes, “there was no evidence that Vilma or anyone else paid any money to any player for any bounty-related hit on an opposing player in the Vikings game.”

So where does the NFL go from here? “To be clear,” Tagliabue writes, “this case should not be considered a precedent for whether similar behavior in the future merits future player suspensions or fines.” Still, to an extent, this case ties Goodell’s hands going forward. In several instances, Tagliabue argues that Goodell’s suspensions were unwarranted because, in prior cases, the NFL never punished players so severely. “The League has not previously suspended or fined  players for some of the activities in which these players participated,” Tagliabue writes,  “and has in the recent past imposed only minimal fines on NFL clubs — not players — of a mere $25,000 or less.”

(MORE: Q&A With New Orleans Saints Quarterback Drew Brees)

Tagliabue agrees with Goodell’s finding that former Saints defensive end Anthony Hargrove obstructed the NFL’s investigation by denying the bounty program’s existence — at the behest of his coaches. But, Tagliabue writes, “the context of previous NFL punishment for obstruction suggests that a seven-game suspension is unprecedented and unwarranted here.” The example that Tagliabue cites to back this up: the 2010 investigation into Brett Favre’s alleged sexual harassment of a New York Jets employee. “In December 2010, the NFL fined Brett Favre $50,000 — but did not suspend him — for obstruction of a League sexual harassment investigation,” he writes. “Although not entirely comparable to the present matter, this illustrates the NFL’s practice of fining, not suspending, players for serious violations of this type.”

Due to this ruling, Goodell could have a precedence problem. If he wants to strengthen penalties for dangerous hits, or other incidents where player safety is compromised, a player can point to Tagliabue’s words and argue that if the commissioner hasn’t punished a player in such a harsh fashion before, he has no right to do so now.

Goodell, who was unavailable to comment on the ruling on Tuesday, is not fond of reflecting on past mistakes. For our recent cover story on the commissioner, I asked Goodell on two occasions if there was one specific decision he made as commissioner that he regretted. He wouldn’t name one.

The NFL has said it “respects” Tagliabue’s decision, and Goodell might want to concede that he overreached on player discipline, and move on. Because despite Tagliabue’s rebuke, the NFL probably got what it wanted out of the whole Bountygate affair. After seeing what happened to the Saints, teams won’t risk getting caught running a bounty program. And if bounties are no longer a part of football, that’s good for the players — and the game.

VIDEO: 10 Questions For Roger Goodell

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