NFL Commish Passes the Ball to Predecessor for Player Appeals

For Roger Goodell, the National Football League?s commissioner, looking to the past looks like a great move. Under fire from some quarters for his handling of the New Orleans Saints? bounty scandal, on Friday the commish went to his bench and called in a sub to hear the latest appeals. And who did he come up with but his popular predecessor, Paul Tagliabue, the league?s commissioner from 1989 to 2006.

Nice maneuver by Goodell. He bursts through the line, gives the linebacker a feint, and he?s in the clear. But it?s not yet apparent whether it?s a great tactic for the players, for Tagliabue, or for his firm.

There?s at least a question about whether this arrangement represents a conflict of interest.

That?s because Tagliabue is senior of counsel at Covington & Burling, which happens to be the firm that is defending the NFL in a lawsuit brought by a player who is suing the league for its handling of the matter. And the firm is also defending Goodell in a defamation suit brought by a player against him.

The scandal was first made public last March, when the league announced the findings of a lengthy investigation of a scheme in which Saints?s players were offered money for injuring certain opponents. Goodell severely penalized several players and coaches for their involvement, including some lengthy suspensions. Their union sued to lift the penalties on three players; the fourth has his own lawyer. They are all now subject again to the league?s disciplinary process.

Published reports on Monday suggested that the NFL Players Association is considering asserting a conflict of interest on behalf of these four players, whose cases Tagliabue would decide. The union didn?t immediately respond to requests for comment, nor did a lawyer representing one of the players involved.

The NFL?s general counsel, Jeff Pash (another Covington alum) couldn?t immediately be reached for comment. But Greg Aiella, senior VP of communications for the league, argued that there?s no conflict at all.

Commissioner Goodell decided to recuse himself from the latest appeals, and designate a hearing officer to take his place. He does such things regularly, Aiella says, and just as regularly his replacements have an affiliation with the NFL ?because they know the issues.?

Goodell will have no role in the decision or the process, Aiella continues. Nor will Covington & Burling. ?This has nothing to do with Covington & Burling,? he says.

The firm is not involved in this appeal, and neither Tagliabue nor his firm will be paid for the work. It will be part of the consulting contract the former commissioner has had with the league since he left, and it won?t affect his compensation in any way, Aiella notes.

The union had asked Goodell to recuse himself, and the collective bargaining agreement gave him full authority to pick a replacement. He was obliged to consult with DeMaurice Smith, executive director of the players union, and he did--a half-dozen times, Aiella says. Asked if the NFLPA was comfortable with the selection, Aiella responds: ?That?s my understanding. But I don?t know what they will tell you, or what they?re saying now.?

Tagliabue and his firm declined to answer questions.

The ball is now in the hands of the players. There may well be a conflict, says Stephen Gillers, a law professor at New York University and an expert on legal ethics. ?But this is a conflict that can be waived, if no one objects,? he adds.

Goodell may have the power to appoint Tagliabue, Gillers acknowledges, but that power ?can?t override the players? right to object.?

So it?s up to the players to make a decision. And it?s really a matter of strategy. If they don?t object, and go through with the process, they?re stuck with the result. If they do object to preserve the point, they can still go through the process, he says, and see how it turns out. And then try to overturn an unfavorable result.

However, Gillers goes on, Tagliabue himself may not be willing to devote the time required under those conditions. And that could force the league to replace him. The risk to the players would be finding themselves faced with a hearing officer they find less palatable Tagliabue.

?The players could go from the frying pan to the fire,? he says. It?s all a matter of strategy.

Speaking of which, the timing of all this for Covington may not be in its strategic best interest. The firm is already embroiled in a messy, high-profile fight with 3M that?s all about an alleged conflict of interest.
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Earlier this month a Minnesota judge ordered Covington to stop representing the state of Minnesota in an environmental lawsuit against 3M because the law firm had previously represented the company in a matter that could have given it an improper advantage.
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Covington is planning to appeal.

Source: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202575882395&rss=rss_cc

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