The NFL Players Association filed papers in federal court pointing out that the NFL permitted a 1996 incentive program for big hits funded by then-Green Bay defensive lineman Reggie White.
In papers filed Thursday in U.S. District Court, the union questioned why NFL Commissioner Roger Goodell should now be able to suspend former Saints linebacker Scott Fujita for offering then-New Orleans teammates rewards for big plays during the 2009 season.
The filing cited media reports about White's "smash-for-cash" program that paid $500 for big plays, including big hits.
The reports, now nearly 16 years old, include players from other teams discussing similar pools climbing into the thousands of dollars. In one report by ESPN, Troy Vincent, then a defensive back with Philadelphia, discusses a similar player-funded incentive program run by Eagles players.
Vincent now works for the NFL as a vice president overseeing player engagement.
In the reports, an NFL spokesman is quoted as saying the incentive programs are permitted as long as players use their own money and the amounts players pledge are not exorbitant.
NFL spokesman Greg Aiello said Thursday night that the league would defer comment to its own forthcoming arguments in court.
The NFLPA seized upon the NFL's 1996 stance particularly as it related to Fujita, who Goodell suspended this for one game this season even though he said he could not verify that Fujita participated in the bounty program the league says the Saints ran for three seasons from 2009-11. Goodell said Fujita, now with Cleveland, was still guilty of violating NFL rules by offering his own incentives for big plays and also, as a team leader, by failing to try to stop to the cash-for-hits program overseen by then-Saints defensive coordinator Gregg Williams.
The union said that while the NFL's player safety goals may have evolved since 1996, it is unfair to punish players for behavior it previously permitted without formally spelling out that such behavior is no longer allowed.
"The fact that the NFL has a different agenda today than it did in 1996 cannot change the unequivocal language of the NFL Constitution & Bylaws, which has never prohibited this type of behavior," the union wrote in its legal briefs. "The Commissioner's attempt to nonetheless suspend and scapegoat Mr. Fujita for conduct - incentivizing undisputed, legitimate plays - never before punished or prohibited by the NFL not only violates the 'essence of the (collective bargaining) agreement' but further demonstrates the Commissioner's evident partiality."
Fujita is one of four players suspended by Goodell in the NFL's bounty probe of the Saints. Saints linebacker Jon Vilma was suspended for the season, Saints defensive end Will Smith for four games and free agent defensive lineman Anthony Hargrove for seven games. None of the suspensions are currently in effect because they all have been appealed within the framework of the NFL's labor agreement, and Goodell has set hearings for those appeals this Tuesday in New York.
However, all four players also have asked U.S. District Judge Ginger Berrigan to throw out Goodell's disciplinary rulings on the grounds that he has demonstrated a bias against the players in his handling the bounty investigation, thereby violating the players' industrial due process rights. The players also have questioned the credibility of the league's evidence in the case or the witnesses upon which the league's investigation relied.
The NFL has said the union agreed that the commissioner would be able to serve as the lone arbitrator for matters deemed detrimental to football and that the evidence in the case is strong enough to support Goodell's rulings.
Still, the players have argued that Goodell should be barred from handling discipline in the bounty probe and that a neutral arbitrator should be appointed, an argument repeated by the union in its latest filing.
"It is only a neutral of unquestioned integrity who can restore public confidence in this process and mitigate the damage which the NFL's handling of 'bounty-gate has inflicted upon the game," the NFLPA said.
Meanwhile, former Minnesota Vikings defensive lineman Jimmy Kennedy submitted a sworn declaration stating he "knew nothing of any alleged 'bounty' program" that the Saints had in place on quarterback Brett Favre when they faced the Vikings in the 2009-10 NFC title game.
Kennedy's declaration states that he had only told teammates that the Saints were hitting Minnesota players "like there's money on the table," which was his way of urging teammates to match New Orleans' intensity.
Kennedy said NFL investigator Joe Hummel called him to ask about a Saints bounty program, and he told Hummel he did not know anything about it.
"Contrary to the League's claims, I did not act as a 'whistleblower,'" Kennedy stated.
An NFL memo from the bounty probe has indicated that Kennedy told then-Vikings coach Brad Childress about a Saints bounty on Favre after discussing it with Hargrove, his former teammate in St. Louis.