Some thoughts on Vilma’s case against the NFL
Based on a few twitter feeds from lawyers who were watching the hearing on August 10 (i.e., Gabe Feldman and Thomas McEachin), Judge Berrigan made it clear that she thought the NFL had wronged Vilma and that she would rule against the League if she could. Although Feldman thinks the NFL has the better position with regard to the law, many of the articles about the hearing suggested that the NFL should be worried and quickly settle the suit.
At the time of the hearing, however, I thought that Judge Berrigan’s comments were likely fatal to Vilma’s case. Given the recent order from Judge Berrigan requiring the Player’s Association to explain why it does not have a conflict of interest in representing itself and Vilma, the tea leaves lead me to double down and suggest that she’s getting ready to rule against him.
First, I have zero experience with labor law and have not looked at any of the substantive pleadings in the case. My prediction comes solely from my experience litigating cases over the last seven years (and clerking in federal court the year before that) and trying to advise clients on the best course of action. Although a big part of that comes from having a solid understanding of the substantive law and evidence, being able to read between the lines of a judge’s comments are an important part of properly preparing a client to make the final decisions on how to resolve his or her case (i.e., settle or go to trial).
Although it’s not unusual for a judge to offer some insight into his or her thinking to encourage the parties to settle the case, the clear signals that Judge Berrigan has issued are pretty rare in my experience. I’ve been on both sides of cases when a judge has made comments like those made by Judge Berrigan. Each time that the case has not settled, the judge ruled in favor of the party that she had previously indicated a strong inclination to rule against.
By way of explanation, the following is an example of the advice I would give if I was representing Vilma and the NFL.
I know what Judge Berrigan said was encouraging, but let’s dig a little deeper. She made it clear that she thinks what the NFL has done is wrong. We know it was wrong and that’s clearly a strong sign that she gets it. We know that Judge Berrigan is a strong and compassionate judge and that she will rule in your favor—if she can. That’s a pretty big caveat, however—if she can. As we’ve discussed from the beginning, we have a great case on the facts. Our weakness is the fact that Judge Berrigan may not be able to find a way around the collective bargaining agreement. In my experience, if she felt as strongly as she indicated about the NFL’s behavior, she would have just ruled in your favor today if she felt she had the authority to do so. The fact that she did not rule today is a sign that she is having trouble finding something to hang her hat on. If the NFL is willing to talk settlement, I think we should at least consider any offer that they put on the table.
Next, the NFL:
I know what Judge Berrigan said was discouraging, but let’s dig a little deeper. She made it clear that she thinks what the NFL has done is wrong that she will rule against you if she can. That’s a pretty big if, however. If she felt as strongly as she indicated, I think she would have ruled against you today if she felt she had the authority to do so. The fact that she did not rule today is a sign to me that she is having trouble finding something to hang her hat on. Nonetheless, even if she ultimately doesn’t rule against you, that doesn’t mean that she won’t write a scathing opinion explaining why she thinks your behavior is improper and why her hands are tied by the collective bargaining agreement. Accordingly, this might be one of those cases where you win the battle but lose the war (of public opinion and the players’ trust).
The ruling ordering the Player’s Association to show cause why it doesn’t have a conflict (and their response) confirms my suspicions that Judge Berrigan simply hasn’t found a way to get around the collective bargaining agreement and the federal law that favors such agreements (by encouraging courts not to interfere with them). By asking the NFLPA lawyers to explain why they don’t have a conflict of interest, Judge Berrigan may be signaling that she thinks the NFLPA made a bad deal with the NFL when it gave Goodell the power to be investigator, judge and jury. She is making such clear statements to encourage the parties to settle because she knows that’s really the only way that Vilma is going to get any relief—at least in regard to his suspension.
In the end, however, if Vilma can’t win on the merits, he’s probably better off getting a ruling against him—if that ruling excoriates the NFL and makes clear that the process leading to the suspensions was suspect. Presumably, the NFL is hoping that the Court’s ruling (that the player’s are bound by the agreement that they negotiated) is going to overshadow the fact that NFL’s process was shoddy. Regardless, this is one of those cases where Vilma clearly has no incentive to settle unless the NFL makes him a great deal. Based on Feldman’s summary of the NFLPA’s submission yesterday, the NFL is not offering anything of substance (which indicates that they think that Judge Berrigan won’t be able to rule against them).
As an aside, part of the thought process regarding advising a client is to understand and explain a judge’s motivation and philosophy. One of my thumbnail sketches is that conservatives, in general, are more likely to believe that the ends justifies the means. In contrast, I believe that liberals tend to believe that fairness in the process is paramount—even if that means that the end result is not what they would desire. These types of generalizations can often cause more harm that good, but it’s something that is taken into consideration. For what it’s worth, Judge Berrigan was a former state president of the Louisiana Chapter of the ACLU.