By Michael McCann
May 17, 2012

Jonathan Vilma's lawsuit against Roger Goodell sets the table for a historic challenge to a historic commissioner.

On the surface, the suspended Saints linebacker's defamation claim has merit. Goodell made statements to third parties which ascribe alleged facts about Vilma, and those alleged facts likely harm Vilma's reputation. Most damaging, in a report distributed to the 32 NFL teams, Goodell alleged that "prior to a Saints playoff game in January, 2010, defensive captain Jonathan Vilma offered $10,000 in cash to any player who knocked [opposing quarterback Brett] Favre out of the game."

While it is impossible to know the exact damage to Vilma's NFL career, especially since the statement does not bear on Vilma's ability to perform as an NFL player, teams probably view him as a less desirable potential employee because of it. Also, unlike many defamation lawsuits that center on statements ultimately deemed non-actionable opinion, Goodell's statement is specific and objectively worded. These elements work in Vilma's favor.

The NFL will seek to dismiss the claim as frivolous or, alternatively, pre-empted by the collective bargaining agreement between the league and the NFLPA and the Uniform Player Contract. The league has expansively interpreted the collectively-bargained Personal Conduct Policy to include any conduct detrimental to the league's image. The policy commands that Goodell has final say on player discipline and that there is no right of appeal or review of his decisions. From that perspective, Vilma's anger should be with his union, which assented to Goodell having such sweeping authority. In response, Vilma could argue neither collectively-bargained nor language contained in the Uniform Player Contract contemplates defamation lawsuits between players and the commissioner, and thus any pre-emptive language would not apply to his specific dispute.

The league will also argue Vilma, as a public figure, must prove actual malice on the part of Goodell. The requirement of actual malice makes defamation lawsuits more difficult for public figures than for typical persons. It would require Vilma to show that Goodell not only should have known better in making the statement, but that he either intended to defame Vilma or had clear knowledge Vilma would be defamed. Vilma hopes to overcome the actual malice requirement by arguing Goodell's statements are defamatory per se, meaning so egregious on its face there is no need to examine it further. Courts are generally weary of classifying statements as defamation per se.

The league's best argument may be the simplest: truth is an absolute defense to defamation. The problem for the league in making such an argument is that, through the discovery process, it would likely have to disclose information it does not want to reveal. For instance, the league may have to divulge it's sources of information, including the identities of players and coaches who were informants. The backlash of such disclosures could be considerable. Moreover, much like the Mitchell Report has been criticized for relying on disreputable persons, expect similar critiques if the same proves true of the NFL's Bounty Report.

If Vilma's claim advances to the stage where damages are possible, the league can argue that Goodell's specific comments about Vilma, while clearly published to third parties -- the personnel of 32 NFL teams -- were not broadcast to the media, and thus any reputational damage was limited. Of course, the report was read by those who employ or could employ Vilma as an NFL player, meaning the most important group for his career. Also, the report was predictably leaked to the media.

Vilma v. Goodell is more than just a defamation lawsuit. It is a direct challenge to a commissioner who, until now, has acted with more power than any commissioner in U.S. sports history. It is also an attempt to import judicial review of an individual who, until now, has been judge, jury and executioner of NFL justice.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

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