Why Deflategate fell flat and what the decision against Brady means for dispute resolution in the NFLDan Werly
Back in December, the author wrote an article1 detailing New England Patriots’ quarterback, Tom Brady’s, sweeping district court victory over the National Football League (NFL) in Deflategate, and even suggested that Brady’s victory may lead to changes in the NFL’s dispute resolution system.
Since then, Tom Brady’s fortunes have taken an abrupt turn for the worse. The district court opinion,2 which vacated Brady’s four-game suspension, was reversed on appeal3 and Brady’s request to the appeals court to rehear the case was denied. Brady has announced that he will serve the four-game suspension this season, but the Players Association (NFLPA) hasn’t thrown in the towel just yet.
How did the Appellate Court Rule?
The appeals court’s analysis4 focused on one issue: did the district court judge overstep his authority in vacating the NFL Commissioner Roger Goodell’s arbitration decision? In a 2-1 decision, the court found in the affirmative, reversed the district court, and reinstated Brady’s four-game suspension.
In summary, the court ruled that an arbitrator, in this case Commissioner Goodell, must be given wide latitude to determine player discipline, and that a federal court can only disturb an arbitrator’s decision in exceptional circumstances, which did not exist in this case. The court repeatedly emphasized that the parties had collectively bargaining for this system - allowing Commissioner Goodell to act as the arbitrator to player discipline decisions that he gave out -and that Brady and the NFLPA could not now seek judicial intervention to change something that they previously agreed to. Describing Goodell’s power, the court stated:
“Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory.”5
The opinion cemented the validity of the NFL’s dispute resolution system and gives Commissioner Goodell nearly unchecked power moving forward. For example, the court ruled that in Goodell’s written arbitration opinion he is not required to “fully explain his reasoning”, and that Goodell has the full authority to determine the severity of the discipline. The court went on to point out that even if a specific provision in the NFL Collective Bargaining Agreement addresses the conduct at issue, Goodell can instead use his power to discipline for “conduct detrimental” to the game of football (and potentially levy a harsher penalty). Unless the arbitrator uses his “own brand of industrial justice” and ignores the collective bargaining agreement, a case-by-case determination not found to have occurred here, courts will not overturn an arbitrator’s ruling. Obviously, this is a very troubling ruling for NFL players and the NFLPA, who have long complained that Goodell’s ability to act as judge, jury, and executor exceeds the language of the CBA.
Brady’s Rehearing Request
After losing on appeal, Brady hired famous appellate lawyer Ted Olson,6 and asked the three appellate judges to rehear the case, or, in the alternative, to have all of the active appellate judges in the Second Circuit rehear the case. In support of his request, five groups filed amicus curie (friend of the court) briefs. Notably, Brady’s team, the New England Patriots, filed an amicus brief condemning the NFL’s investigation of Brady:
“From the outset of this matter the League's conduct reflects less a search for the truth than pursuit of a pre-determined result and defense of a report which, despite no direct evidence of tampering or Mr. Brady's involvement, was relied on to impose penalties with no precedent or correlation to the alleged offense.”
The Patriots brief send a strong message in support of Brady and was unexpected by most because it is rare for a team to take such a direct stance against the league. The other amicus supporters of Brady included a group of physics professors (who argued that there was no scientific proof of tampering the footballs), a labor union, a group of law professors, and a well-known arbitrator.
In the end, facing very long odds (less than 1% of rehearing requests are granted), Brady’s request was summarily denied on July 13th.
Brady will serve the suspension, but the NFLPA is still fighting
After losing his requests for rehearing, Brady had the option of asking the Second Circuit, and then the U.S. Supreme Court, to stay his suspension until the Supreme Court decided whether or not to take the case. Instead of seeking the stay, Brady issued the following statement on facebook,7 waiving the white flag:
“I'm very grateful for the overwhelming support I've received from Mr. Kraft, the Kraft family, coach Belichick, my coaches and teammates, the NFLPA, my agents, my loving family and most of all, our fans. It has been a challenging 18 months and I have made the difficult decision to no longer proceed with the legal process. I'm going to work hard to be the best player I can be for the New England Patriots and I look forward to having the opportunity to return to the field this fall.”
If Brady was granted a stay of the suspension, and the Supreme Court declined to hear the case (which is expected), Brady would have had to serve the four-game suspension at the end of the season and possibly during the playoffs. He likely took that into account when considering his litigation tactics, as well as general fatigue related to dealing with the litigation, in deciding to not pursue the stay and to just serve the four-game suspension to begin this season.
Even though Brady will serve the suspension, the NFLPA – who is also a party to the proceedings – hasn’t given up yet. Shortly after Brady’s announcement, the NFLPA released this statement8:
“After careful consideration and discussion with Tom Brady, the NFLPA will not be seeking a stay of the four game suspension with the 2nd Circuit. This decision was made in the interest of certainty and planning for Tom prior to the New England Patriots season. We will continue to review all of our options and we reserve our rights to petition for cert to the Supreme Court.”
The NFLPA has until October 11th to petition the Supreme Court to hear the case. Even if they do proceed, it is unlikely that that the Supreme Court will take the case as less than 1% of all petitions are granted.
Another NFL Player, Minnesota Vikings running back Adrian Peterson, and the NFLPA, were dealt another blow in their battle to limit the Commissioner’s discipline power when just last week a different federal appellate court ruled in favor of the league.9 The Eighth Circuit Court of Appeals ruling reinstated previously overturn discipline given to Peterson for his role in a child abuse incident. Since Peterson already served his six-game suspension in 2014, he will not have to miss any more games but he will be required to pay the $4.1 million fine levied by the league. The Peterson ruling, also subject to Supreme Court review, further solidifies Goodell’s absolute power10 as judge, jury, and executioner of player discipline issues.
The Deflategate and Peterson appeals rulings demonstrate the near absolute deference that U.S. courts give to parties who contractually agree to a discipline process through collective bargaining. In hindsight, the NFLPA likely wishes that they would have demanded changes to the NFL’s discipline arbitration process during the 2011 collective bargaining negotiations, including the use of a third-party arbitrator.
However, upon closer examination, it is not difficult to see how this issue was pushed to the back burner. While NFL discipline disputes frequent headlines in the U.S., they only impact a handful of players each season – none of which anticipate getting in trouble. Thus, when the players were faced with the option to take a larger cut of the League’s revenue or to modify the discipline appeals system (impacting only a few players a year), one can imagine why they chose the former.
NFL players are likely stuck with the current system until the CBA expires in 2020, and even then, the NFL will likely demand a large concession in order to change the current system, which now has the backing of multiple federal appellate court decisions.
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- Tags: American Football | Arbitration | Dispute Resolution | Governance | National Football League (NFL) | NFL Collective Bargaining Agreement | NFL Players Association (NFLPA) | Regulation | United States of America (USA)
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About the Author
Dan is an experienced sports lawyer and editor-in-chief of the sports law website TheWhiteBronco.com. He spent the last 6+ years working at two large U.S. law firms, including most recently practicing in Foley & Lardner LLP sports law practice group. He has experience working with professional teams, leagues, universities, and athletes on a wide array of legal issues with a general focus on complex civil litigation. Additionally, he is now a featured columnist and sports law expert for BleacherReport.com and a freelance sports attorney and consultant.