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Jonathan Vilma Defamation Lawsuit Raises Interesting Legal Questions

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footballBy Attorney Christopher L. Strohbehn

In response to the New Orleans Saints "Bountygate" scandal the NFL has issued groundbreaking discipline including suspensions for coaches, front office executives and players alike, a fine of $500,000.00 and forfeiture of second round draft picks in 2012 and 2013. Among the player suspensions, linebacker Jonathan Vilma was suspended by NFL commissioner Roger Goodell for a period of one year without pay. In the fallout surrounding the Bountygate scandal and the ensuing suspensions the information the question of Vilma's role has been debated and investigated by the NFL.

According to Vilma's complaint on March 2, 2012, Roger Goodell and the NFL issued a press release relating to the Bounty Rule investigations and a March 2, 2012 report to all NFL clubs detailing certain findings from the investigation. In the March 2, 2012 club report, Goodell refers to certain Saints defensive players, and specifically alleged that Vilma offered $10,000 bounty for any player that knocked Brett Favre out of the playoff game between the New Orleans Saints and the Minnesota Vikings.

Throughout the complaint Vilma alleges that there Goodell provided no sources of Vilma's leadership relating to bounties and specifically any support for the $10,000 bounty on Brett Favre. Vilma has filed ten claims alleging basically slander and libel claims, along with one claim for intentional infliction of emotional distress.

So what is the purpose of Vilma's lawsuit against Goodell? Isn't this a disciplinary issue that the NFL should handle? Expect Goodell's attorneys to argue that Vilma is trying to do an "end-run" around the NFL disciplinary process. It is interesting to note that Vilma sued Goodell in an individual capacity, i.e, Vilma did not sue the NFL as a party. Vilma is clearly trying to avoid triggers in his labor agreement that could damage his bringing a lawsuit against the NFL. What is Vilma's end goal from this lawsuit? It is unlikely he's going to be given reinstatement by the NFL, which is essentially Goodell's decision. Vilma could be seeking to get "discovery" from Goodell. Specifically, Vilma could be seeking "hard evidence" that the NFLPA has tried to obtain from the NFL relating to this matter but as yet the NFL has been unwilling to provide.

That being said, it is safe to assume that Goodell's attorneys will file a motion to dismiss prior to dealing with any discovery relating to this case. The argument will be fairly simple and will likely assert Vilma has to pursue his rights and remedies within his collective bargaining agreement. Specifically, expect Goodell's lawyers to argue that Article 43 of the collective bargaining agreement to limit Vilma's remedies to the "Non-Injury Grievance" contained within the collective bargaining agreement between the NFLPA and NFL. The collective bargaining agreement defines "Non-Injury Grievance" as follows:

Any dispute (hereinafter referred to as a "grievance") arising after the execution of this Agreement and involving the interpretation of, application of, or compliance with, any provision of this Agreement, the NFL Player Contract, the Practice Squad Player Contract, or any applicable provision of the NFL Constitution and Bylaws or NFL Rules pertaining to the terms and conditions of employment of NFL players, will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.  (2011 NFLPA Agreement p. 187)

The problem that Vilma may have is because when this clause is interpreted in conjunction with federal labor law his claim could be dismissed because they are preempted by § 301 of the Labor Management Relations Act ("LMRA"). Vilma's claims of defamation are essentially pled as state law tort law claims. If a court were to review whether Vilma's tort claims are preempted it would review his claims to determine if: (1) it arose from the CBA or (2) resolution of the claim is substantially dependent on an analysis of the terms of the CBA, or is inextricably intertwined with it. See Stringer v. National Football League, 474 F. Supp. 2d 894, 903 (S.D. Ohio 2007).

The Stringer court observed and relied on the case of Holmes v. National Football League,939 F.Supp. 517 (N.D.Tex.1996), to illustrates this concept of "inextricably intertwined."

In Holmes, an NFL player who was suspended after testing positive for marijuana filed suit against the NFL and the NFLMC alleging numerous state-law tort claims, including fraudulent inducement, intentional infliction of emotional distress, breach of implied covenant of good faith and fair dealing, and invasion of privacy. Each claim was based on his belief that he had been misled into submitting to the drug test, which was a condition of employment. He claimed that defendants knowingly misrepresented that the drug test was being administered to check for use of steroids. Plaintiff argued that the true purpose of the test was to check for use of marijuana, cocaine, and other controlled substances. The court found that Holmes' tort claims were preempted because their resolution was "inextricably intertwined and substantially dependent" upon an analysis of the provision in the collective bargaining agreement authorizing the team to conduct the drug test which prompted the claims. Id. at 527.

Stringer, 474 F. Supp. 2d at 909. Ultimately, the Stringer court held that based on this analysis the wrongful death claims related to inadequate NFL and team policies related heat and medical care which caused the death of lineman Korey Stringer's were preempted "because its resolution is "inextricably intertwined and substantially dependent" upon an analysis of certain CBA provisions imposing duties on the clubs with respect to medical care and treatment of NFL players." Id.

Based on this decision and its precedent, Vilma will have difficulty distinguishing the defamatory statements he alleges Goodell made from Goodell's role as Commissioner of the NFL in its disciplinary investigation of Bountygate. How is Vilma going to be able to argue that the statements made about him are something not inextricably intertwined and substantially dependent of an analysis of the CBA he is a signatory to? It is irrelevant to the analysis whether the defamatory statements are true or not, the analysis will hinge on the investigation and the disciplinary provisions of his CBA. Further, if Vilma has an issue with the process, evidence or other issues related to the investigation and disciplinary investigation of Bountygate, why can't it be addressed through the confines of the "Non-Injury Grievance" provisions of the CBA? How can Vilma's claim be separated from this portion of the CBA? It is going to be a tough legal argument for him to make.

In so doing, Vilma will likely argue that he is suing "Goodell" in an individual capacity rather than the "NFL." However, if that argument holds water what is to stop all NFL players from suing Goodell individually if and when the moment arises? This argument will probably fail in this circumstance because Goodell is the NFL and the NFL is Goodell as he serves in this disciplinary role as commissioner of the league. This argument will probably not be enough to save Vilma's case. Expect Vilma to learn another hard and expensive lesson.

One thing is certain though. Vilma is going to have plenty of time this year on the sidelines to figure out how he can make it work.

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