Why Tom Brady, NFLPA beat Roger Goodell in their Deflategate appeal

Story by Sports Illustrated
Written by Michael McCann

The Pittsburgh Steelers will need to adjust their game plan for their season opener against the New England Patriots on next Thursday, Sept. 10. Thanks to a decision by a federal judge on Thursday, Sept. 3, they’re going to face one of the NFL’s elite quarterbacks.

In one of the most significant legal defeats for the NFL in its 95-year history, U.S. District Judge Richard Berman on Thursday vacated Roger Goodell’s decision to uphold Tom Brady’s four-game suspension (view the entire decision here). By vacating Goodell’s decision, Judge Berman causes Brady’s suspension to be lifted before it was scheduled to take effect on Saturday, Sept. 5. Consequently, Brady will be able to practice with his teammates on Saturday and play against the Steelers next Thursday and in subsequent games.

The NFL will likely file a notice of appeal with the U.S. Court of Appeals for the Second Circuit and seek an expedited review. As explained below, even if the Second Circuit grants the NFL an expedited review, it would take several months before a decision is made. The NFL might also seek a stay of Judge Berman’s order that would allow the league to suspend Brady during its appeal, but it is unlikely a stay would be granted.

Why Judge Berman ruled for the NFLPA

The simplest explanation for Judge Berman’s decision is that the NFL failed to show that it applied Article 46 of the collective bargaining agreement in a fair and consistent way. Remember, this was a case about process and specifically how the NFL investigated and punished Brady. The NFL had a relatively low bar to meet. Federal judges rarely vacate arbitration awards and only in extraordinary circumstances. Yet Judge Berman identified so many problems in the NFL’s application of Article 46 that he felt compelled to vacate Brady’s suspension.

Among the problems identified by Judge Berman are those that relate to Brady’s arbitration hearing with Goodell on June 23. Goodell denied a request by NFLPA attorneys to question NFL general counsel Jeffrey Pash, who edited the Wells Report before its release, and to access the league’s investigative notes. Judge Berman regarded Goodell’s decisions on these issues as preventing Brady from enjoying a credible opportunity to make his case. Look at it this way: if Brady can’t confront an accuser and study the evidence used to punish him, how can he effectively defend against the accuser’s accusations and the implicating evidence? Judge Berman stressed that denial of access to key witnesses can be grounds to vacate an arbitration award.

Judge Berman also criticized the NFL for how it indistinctly notified Brady of accusations and confusingly explained under which set of rules he was being punished. Take the Wells Report, which used the league’s Integrity of the Game and Enforcement of Competitive Rules policy—a document not collectively bargained with the NFLPA—to find that it was “more probable than not” that Brady had “general awareness” of a football scheme supposedly hatched by two equipment assistants. Later, in his testimony during Brady’s appeal, NFL executive vice president Troy Vincent referenced the Game-Day Operations Manual—also not collectively bargained with the NFLPA—as a crucial document in finding Brady at fault. While the league has also cited Article 46 as grounds to punish Brady, Judge Berman seemed perplexed as to what degree non-collectively bargained documents should be considered sources of authority to punish Brady.

Likewise, Judge Berman criticized Goodell for asserting that Brady received adequate notice of discipline because the four-game suspension matches up the penalty scheme outlined in the collectively bargained steroid policy. The steroid policy, wrote Judge Berman, “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others . . . [the steroid policy sets forth procedures] none of which has anything to do with Brady’s conduct and/or his discipline.”

Judge Berman also seemed influenced by the lack of consistency in NFL discipline. In prior instances of players being implicated by equipment tampering, those players were fined, warned or not punished in any way. It was never made clear why Brady was treated differently and significantly worse. Similarly vexing for Judge Berman was how the league’s characterization of Brady’s alleged wrongdoing became harsher without explanation. What began as general awareness of others misconduct has morphed into active involvement in a scheme.

Lastly, Judge Berman raised distinctions between favorable court decisions cited by the NFL and the Brady arbitration. The most crucial distinction is that those decisions involved a neutral arbitrator whereas Goodell was clearly not neutral. While Article 46 permits Goodell to serve as the arbitrator for player appeals, Judge Berman noted that the “law of the shop”—which compels consistency and fairness in arbitration awards—bars Goodell from rendering a decision that may have been compromised by bias. Also, Brady, unlike participants in normal arbitrations, lacked the ability to change the arbitrator even if he could show Goodell was biased.
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Read more: http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa