Deflategate – Blowout Loss for Brady

The Backdrop

We all remember the basic facts of Deflategate. It started on January 18, 2015, when D’Qwell Jackson intercepted a pass thrown by Tom Brady during the AFC Championship game. After confirming that ball was under inflated, the officials discovered that all eleven of the Patriots game balls were also under inflated.

Ted Wells was hired to launch a massively expensive investigation that seemed to show two equipment officials were implicated and also concluded that it was more probable than not that Brady was “at least generally aware” of the scheme. The report also says that Brady impaired the investigation by refusing to cooperate.

A few months later, the NFL notified Brady that he was being suspended for four games under Article 46 of the Collective Bargaining Agreement for “engaging in conduct detrimental to the integrity and public confidence” of the game. Brady then filed an appeal but, unfortunately for him, the CBA gives Roger Goodell the right to act as hearing officer.

At the hearing, the NFLPA argued that the conclusions in the Wells report were wrong and that Brady was being denied access to important information. Unsurprising, Goodell was unmoved by those arguments. But the hearing is also where it came out that Brady had destroyed his cell phone after learning investigators wanted access to it. Believing that wasn’t an accident, Goodell inferred Brady was destroying evidence and also inferred that was because it would have been bad for Brady if it saw the light. Goodell upheld the suspension.

A Race to the Courthouse and a Star-Struck Judge

The NFL filed a lawsuit in New York against Brady on the same day Goodell ruled. The league asked the court to “confirm” Goodell’s decision. This was an effort to beat the NFLPA as it raced to its own favorite courthouse in Minneapolis, where it has enjoyed almost unbroken success over the decades.

The league won that race and the dispute between Brady and the NFL was firmly planted in the Manhattan courtroom of Judge Richard Berman. But then something unexpected happened. Brady won.

From a legal standpoint, a case like this is not about who is right and who is wrong. It is about power. Who has the power to decide whether Brady gets punished? Is it the Commissioner (who defends his turf fiercely) or some judge?

When a Collective Bargaining Agreement (or almost any other agreement) spells out a process for arbitration and private resolution of disputes between the parties, courts are usually very reluctant to get involved.

As the Second Circuit said, review of an arbitration decision made under a CBA is “very limited.” The court is not supposed to decide whether the arbitrator got the decision right or misinterpreted the CBA itself. As long as the decision is within the arbitrator’s power to make and is not supported by a conclusive showing that the arbitrator is insane, these decisions are almost always upheld. That is why it was such a surprise (at least to me) when Brady won.

Judge Berman ruled for Brady on three separate grounds. One had to do with Brady not having notice that he could be suspended for messing with footballs. The other two had to do with evidence that the NFL refused to provide to Brady before the hearing.

While it was great win for Brady and his legal team, I think most legal observers following the case did not expect the victory to last. And what happened next was a blowout loss.

Second Circuit Weighs In

After discussing the usual legal standards in these cases, which basically say awards are upheld unless the arbitrator is crazy or on a vendetta of his own, the  appeals court made short work of Brady’s arguments.

The Court said Brady wasn’t entitled to know exactly what would happen if messed with footballs. Knowing that there will be punishment was good enough. And while Goodall’s analogy to steroid use may have been a bit of a reach, the court said it wasn’t crazy enough to overturn the result.

Brady faired no better on his arguments about not receiving evidence from the NFL that he wanted to present, and that he should not have been punished for the cell phone destruction (because that was something new that come up at the hearing in front of Goodell). The court essentially said Goodell gets to decide what the evidence will be and what the hearing is about.

Game, set and match. Goodell gets to decide what is “conduct detrimental”, gets to issue punishment and to hear appeals from his own decisions. While the court said this arrangement was unusual, it also said the remedy was to change the CBA and not to run into court seeking help.

Now What?

Brady has three alternatives. Since the decision came from a three judge panel and not the entire Second Circuit Court of Appeals, Brady can request that all 13 active judges hear his case. That procedure, which is call en banc review, is almost never granted and is a longshot at best.

Or he can appeal to the United States Supreme Court. The Supreme Court is asked to hear 7000+ cases each year and gives a formal hearing to less than 100. Admittedly, many of those 7000 cases are filed by jailhouse lawyers with time on their hands. But even taking those out, it is a real longshot to get the United States Supreme Court to take a case.

Or he can try to settle. I assume Brady could have settled when this first came up. But, by playing hardball, he has painted himself into a corner. Brady has very little leverage left. Maybe he can get Kraft or some other owners to plead with Goodell to do a deal for Tom.

Meanwhile, the NFLPA has little recourse except to try renegotiating the CBA. But then they would have to be prepared to give up something ( a 17th game? longer rookie contracts? ).

Personally, I don’t know why Goodell wants to be in the discipline business and this seems like something that could better be handled by a trained staff or a contracted outside arbitration firm.

I can’t ever see the NFL agreeing that players can file lawsuits every time they get disciplined, because lawsuits take years to resolve. But I could picture a different arbitration procedure. This one is unusual, but as the Second Circuit said, that is what the NFLPA agreed to so that is what they are stuck with unless they can re-open the CBA or let it expire.

Finally, allow me to apologize to any and all. This is my first, and perhaps last, attempt at posting. So, I could not figure out how simple things like page breaks work.