- Lester Munson, Legal Analyst
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Oh, the places you'll go ... or, at least might go or maybe should go if you're caught taking part in a bounty system in organized sports. Like, say, the poorhouse. Or the nether world of a suspension. Or a court of law. Or a long stay in the bad graces of public opinion. None of those places is much fun; and in the view from our Courtside Seat, at least some of them look possible for the bounty hunters involved in the New Orleans Saints case. In fact, Courtside Seat's current view encompasses a cautionary tale for the Saints from eight years ago that still has litigation life even now. So today, we start with
The price of a bounty
His team was behind 8-2 in the third period, and Todd Bertuzzi's shift was over. But he stayed on the ice and stalked Colorado Avalanche forward Steve Moore up and down the length of the rink during that March 8, 2004, game, taunting Moore and demanding a fight. Bertuzzi, who is 6-foot-5, 245 pounds, wanted payback for what Bertuzzi and the Vancouver Canucks thought had been a cheap shot by Moore on Canucks star Markus Naslund three weeks earlier.
No penalty had been called on the Moore-Naslund collision in the Feb. 16 game, and an NHL review of the play concluded it was a legal hit. But Canucks players and management were infuriated and made little attempt to hide their intent to exact a measure of physical revenge on Moore.
"There is definitely a bounty on his head," said the Canucks' Brad May shortly after Moore leveled Naslund.
May's statement about a "bounty," as well as statements from Bertuzzi and Canucks officials, are documented in court papers filed as part of the pre-trial skirmishing in a civil lawsuit that Moore filed against Bertuzzi. Those pre-trial preparations have included a day-by-day examination of all that happened before and after Bertuzzi began to stalk Moore in that 2004 game.
Although the word "bounty" appears throughout the Moore-Bertuzzi litigation, there are some differences between the Canucks' idea of a bounty and the Saints' idea of a bounty. The Saints, for example, had instituted a system of payments for big hits that injured opposing players. There is no indication anywhere that Canucks players were to be paid for initiating payback fights. Nor is there any indication that Saints players were exacting specific, personal revenge in their attempts to knock, say, Brett Favre or Kurt Warner out of games, while the Canucks quite clearly had targeted Moore.
But in both cases, a "bounty" meant deliberate attacks on opposing players that were expressly designed to cause injury, and both involve significant issues of player safety and the integrity of competition.
The Bertuzzi attack on Moore offers a case study, a demonstration of an already-bad idea becoming even worse in its execution, causing unexpected and enduring harm.
In that game eight years ago, Moore refused to respond to Bertuzzi's stalking and taunts. He didn't turn to Bertuzzi and drop his gloves to fight. He had already fought another Canuck, Matt Cooke, in the first period in what might have been considered, under the NHL's unwritten codes, to be a conclusion to the lingering Naslund issue.
You can find the video of the incident easily enough on the Web, but here's a quick description of what happened after Moore turned away from Bertuzzi's demands for a fight. Without dropping his gloves, Bertuzzi grabbed Moore's sweater, pulled Moore toward him and, from behind, hit him in the head with a powerful right cross. The blow fractured three vertebrae in Moore's neck and instantly knocked him unconscious. He dropped forward helplessly to the ice.
Bertuzzi was not done. He threw himself onto Moore's body, driving the Avalanche forward's face into the ice as Moore was motionless in a pool of blood. Bertuzzi was winding up to throw another punch when another Colorado player intervened.
The consequences have been enormous. Moore's NHL career was over at age 25. The Harvard graduate, now 33, still suffers daily difficulties from brain damage -- a tear in the frontal lobe of the brain was confirmed in MRIs, according to court documents. After breaking down in tears in a public apology, Bertuzzi was suspended for 17 months, much of the suspension coming during the 2004-05 NHL lockout.
And now, even eight years later, the case is far from closed. The incident and its aftermath remain mired in increasingly acrimonious litigation in which Moore is seeking compensation for the injuries that destroyed his career and altered his life.
Moore's lawsuit is itself highly unusual. Most civil lawsuits based on actions that occur during a game will not be successful. None of the reported Saints bounties, for example, is likely to result in a lawsuit like Moore's. The hits that result in bounties being paid generally are accepted, rightly or wrongly, as part of pro football. Even Warner and Favre, known targets of bounty hits, have acknowledged that they are part of the NFL culture. Bertuzzi's attack on Moore, however, is one of a kind. It may be the most vicious attack in the history of team sports. Bertuzzi admitted it was unacceptable when he entered a plea of guilty to assault with intent to cause bodily harm. The injuries to Moore are permanent and profound, yet another factor that makes Moore's lawsuit unique in the annals of the sports industry.
Moore's lawsuit seems to be infused with the same sort of acrimony and bad blood that led to the deliberate attempt to harm an opposing player with a cheap shot in the first place. Within the last few weeks, the judicial officer (known in Canadian legal jargon as a "master") presiding over the pre-trial skirmishing has raised serious questions about the ethical standards of the lawyers who are defending Bertuzzi, then-coach Marc Crawford and the Canucks' ownership.
When Moore and his attorney, Tim Danson, filed Moore's demand for $40 million in compensation from Bertuzzi, the attorney for Bertuzzi asserted in court papers that Bertuzzi was merely following orders from Crawford, his coach. It was an attempt to add the coach and the team into the zone of responsibility for Moore's injuries -- the only realistic move for Bertuzzi after he entered a plea of guilty to assault in a court in British Columbia, a plea that eliminated any possibility that Bertuzzi could deny responsibility for the attack on Moore. His only hope was to bring others into the litigation to help pay Moore.
Crawford responded to Bertuzzi's claim with his own suggestion that he never said anything about Moore "paying the price," and that he had ordered Bertuzzi off the ice in the moments before Bertuzzi attacked Moore. Bertuzzi's shift was over, Crawford claimed, and he should have left the ice. The attack was Bertuzzi acting alone, Crawford and his attorneys insisted.
Moore was the immediate beneficiary of the dispute between Bertuzzi and Crawford. If Bertuzzi was blaming the coach and the team for the attack, it would ease the way for Moore to collect from the franchise and its billionaire owner, John McCaw Jr.
But in an unexpected and highly unusual development, Bertuzzi, Crawford and the ownership entered into what they thought was a secret agreement to cooperate with each other in an attempt to defeat Moore. It was a radical change in the posture of the litigation.
When attorney Danson began to have suspicions about the agreement, he alerted Ontario Provincial Court Master Ron Dash. Bertuzzi's attorney, Geoffrey Adair of Toronto, at first denied any agreement, suggesting that reports of its existence were "mere speculation." In open court, Adair said that the Moore-Bertuzzi dispute was "an adversarial process" and he need not "give an inch." When continued denials of the existence of the agreement became untenable, Adair claimed it was somehow privileged and its terms could not be disclosed to the judge or to Moore.
Dash, then, became incensed and suggested that Adair and the lawyers for Crawford and the team were violating a rule of ethics that gives them a "duty not to mislead the tribunal about the position of the client in the adversary process."
It is never a good thing for a lawyer when the lawyer finds himself standing before a judge who quotes the lawyer's argument and then reads aloud from the code of ethics and accuses the lawyer of violations.
Dash ordered Adair and the other lawyers to submit the agreement to him for inspection; and, in a 24-page written opinion issued a month ago, he revealed that the agreement was a "proportional sharing" device that would result in the team and Crawford paying agreed-upon percentages of the damages that Moore ultimately will collect from Bertuzzi. In the opinion, the judge did not specify the agreed percentages.
The attempt by Bertuzzi and his attorney to manipulate the litigation with a secret agreement with Crawford and the team is a courthouse equivalent of the Bertuzzi cheap shot that leveled Moore. And it still isn't over. Despite his precarious ethical position, Adair, the attorney who engineered the maneuver, is considering an appeal, a process that will delay the trial that is now scheduled for September. Adair did not respond to emails and voicemails from ESPN.com.
For the sports industry and the NFL, the lesson from this experience goes beyond the obvious and the simple. Any deliberate attack on a specific opponent for any reason is unacceptable. But in addition to the obvious problems, it can metastasize in ways that no one could foresee. In the Moore-Bertuzzi bounty, a cheap shot on the ice leads to a cheap shot in the courthouse; and eight years later, the incident and the unresolved litigation remain an embarrassing stain upon the league and the industry.
How long is the arm of Roger Goodell's law?
As they await disciplinary decisions from NFL commissioner Roger Goodell, the players involved in the Saints' bounty scheme might want to ponder their options.
It was clear in the league's announcement of the bounty investigation that Goodell is considering draconian penalties. The bounties, the commissioner said in his statement, involved "two key elements of NFL football: player safety and competitive integrity."
The carefully-worded statement also contained two explicit warnings. It promised that bounties would "not be tolerated" and that the league was changing "the culture with respect to player safety" and was "not going to relent."
In a clear signal to players, their agents and the NFL Players Association, Goodell stated that he intended to issue punishments and that any appeals of their severity "would be heard and decided by the commissioner."
That's where the players and the union can consider their options. There is no doubt that under the collective bargaining agreement of 2011, the commissioner has total authority to issue punishments and to hear appeals in matters involving "conduct detrimental to the integrity of, or public confidence in, the game." Goodell levies the punishment, and then, if the player appeals, Goodell considers the fairness of his own decision.
But in another section of the CBA's discipline program (Article 46, Para. 1(b)) that covers "unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player," the appeal procedure is different. The language in that section seems to apply to hits that are the result of bounties. Under this procedure, a player's appeal is to a hearing officer who is selected "jointly" by Goodell and the union.
Those hearing officers, right now, are former coaches Art Shell and Ted Cottrell. It might not be much, but the presence of a coach as an arbiter in an appeal might give a player some hope if he faces the loss of, say, half a season in a suspension from Goodell. A former coach as a hearing officer might look at the game and the circumstances of the incident, while Goodell looks to make a statement to the league and to the world. A player isn't likely to do worse with Shell or Cottrell, and he could easily do much better.
A spokesman for the NFLPA told ESPN.com that the players will insist on their right to appeal to one of hearing officers. That probably won't sit well with Goodell, who made it clear in his statement that he thinks he has the first and last words on punishments.
How will the issue be resolved? Like any dispute between NFL owners and players, there will be negotiation and possibly litigation. But either way, it will prolong the bounty crisis. And that's something Goodell no doubt wants to avoid.