Will “Deflategate” lead to changes in the NFL’s dispute resolution process?Dan Werly
The “Deflategate” saga has dominated headlines during the National Football League’s (NFL) offseason in 2015 and has been the one of the most followed sports legal battles in the US since the O.J. Simpson case. The lawsuit, which is still pending in the appeals courts, pits one of the most popular U.S. athletes, New England Patriots quarterback, Tom Brady, against the NFL Commissioner, Roger Goodell.
This article serves as an overview of the key legal and factual issues and in particular focuses on the dispute resolution system in the NFL for handling player disciplinary disputes. The article also considers whether the events will lead to changes in the way the NFL conducts player discipline disputes.
The NFL’s Dispute Resolution System for Player Discipline
The dispute resolution process for player discipline is detailed in Article 46 of the NFL's Collective Bargaining Agreement (CBA).1 Any fine greater than $50,000 or suspension imposed on a player for conduct on the field or for conduct “detrimental to the integrity of, or public confidence in, the game” (which may include off-the-field conduct) is first decided by the Commissioner (or a representative appointed by the Commissioner) and communicated to the player and the Nation Football League Players Association (NFLPA) by written notice (Sec. 1(a), (c) CBA). The player then has three business days to appeal in writing to the Commissioner (Sec. 1 (a) CBA).
The initial hearing
Pursuant to the CBA, the Commissioner has discretion to either appoint one or more designees to serve as the appeals hearing officer(s) or to serve as the hearing officer himself. (Sec. 2 (a)2). There is no guidance in the CBA of who a “designee” may be but former NFL executives and a former federal judge have been appointed in the past. The Parties are required to exchange exhibits prior to the hearing and, if agreed to by the parties, may submit post-hearing briefs within three days of the hearing. (Sec. 2 (f) (ii-iii)).
At the hearing, the parties have the right “to present, by testimony or otherwise, any evidence relevant to the hearing” (Sec. 2 (b)). The hearing officer will render a written decision “as soon as practicable” after the hearing. (Sec. 2 (d)). If a player does not agree with the appeal hearing officer’s decision, the CBA provides for no further level of appeal. In practice, the player’s only legal option is to file a lawsuit against the NFL.
What are the key facts in Deflategate?
It is important to note at the outset that each team provides the footballs that their team uses while on offense. According to Rule 2, Section 1 of the NFL Rule Book,3 these footballs must be inflated between 12.5 and 13.5 PSI.
The Deflategate saga began when Indianapolis Colts’ linebacker D’Qwell Jackson intercepted a pass thrown by New England Patriots’ quarterback Tom Brady during the second quarter of the January 18, 2015 AFC Championship Game. After Jackson reached the sidelines, he immediately gave the ball to his team’s assistant equipment manager, who thought the ball seemed soft. After testing the PSI, the Colts coaching staff determined that the ball measured approximately 11 PSI, which was below the permissible limit.
The Colts coaching staff then notified the game and NFL officials who in turn measured the ball in question and all of the Patriots’ balls during halftime. They found that all of the Patriots’ balls fell below the permissible 12.5 -13.5 PSI range and inflated the balls to fall within the permissible range for use during the second half. The Patriots outscored the Colts 28-0 in the second half and won the game 45-7 to move on to the Super Bowl, which they later won.
Subsequently, the NFL hired Ted Wells of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to conduct an independent investigation into the incident (although his “independence” was later questioned because the report was jointly authored by the NFL’s general counsel4). The resulting report, called the Wells Report, stated, among other things, that:
“it is more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules.”
A copy of the complete findings, called the “Wells Report”, can be found here.5
As it relates to Brady, the Wells Report concluded that, “it is more probable than not that Brady was at least generally aware of the inappropriate activities” of the Patriots equipment personnel involving the release of air from the game balls, purportedly to give Brady an advantage in throwing the footballs.
Based on the investigation’s findings, and pursuant to Article 46 of the (“CBA”) (purportedly allowing the Commissioner power to suspend players for “conduct detrimental to the integrity of, or public confidence in the game”), the NFL’s Vice President of Football Operations Troy Vincent suspended Brady for the first four games of the 2015 regular season without pay.6 They also fined the Patriots $1,000,000 and docked the team two draft picks (the Patriots did not appeal this decision).
Brady, pursuant to CBA Article 46, Section 1(a), then appealed the suspension to the league office. NFL Commissioner, Roger Goodell, appointed himself in charge of the appeal hearing (as he has the discretion to do under Article 46, Section 2(a) of the CBA) and on June 23, 2015 held a hearing to review factual issues. Notably, during the hearing, Goodell did not compel the co-author of the Wells Report, Jeff Pash, to testify regarding his role in the investigation.
On July 28, 2015, Goodell issued a written opinion7 affirming the NFL’s four game suspension of Brady. While Goodell claims to have considered all of the record on appeal, the opinion’s “Factual Determinations and Findings” essentially recite the factual determinations made in the Wells Report. Goodell also considered some “new” information, namely that Brady had instructed his assistant to destroy his cell phone that may have contained text messages related to the incident.
In affirming the suspension, Goodell relied entirely on his power under Article 46 of the CBA, which allows the Commissioner the authority to impose discipline for conduct by a player that is “detrimental to the integrity of, or public confidence in, the game of professional football” and did not consider other provision contained within the CBA (specifically those pertaining to the tampering of game equipment).
Based on his view of the evidence, Goodell found Brady’s denial of any wrongdoing not credible and found that Brady had “failed to cooperate with the investigation”8 by destroying his cell phone.
The NFL, knowing that an appeal by Brady was imminent and wanting the case to proceed in a venue with preferred case precedent regarding the confirmation of arbitrations, filed a pre-emptive lawsuit9 in U.S. District Court for the Southern District of New York seeking to confirm Goodell’s arbitration decision. The NFL Player Association, on behalf of Brady, while initially seeking recourse from Judge Doty in the federal district court in Minnesota, responded with a motion to vacate the Goodell award, thus setting the state before Judge Berman in New York.
What were the key legal issues in the Federal District Court?
Arbitration awards are subject to extremely limited judicial review and may be vacated only where the decision violated certain statutory grounds10 and standards of fundamental fairness. Among the legal arguments addressed in the federal district court were:
- Whether Brady had adequate notice that he could be suspended for his alleged actions?
In order to be suspended under the CBA, the law requires that Brady had advanced notice of the prohibited conduct and of the potential discipline. Brady argued that:
- He did not have notice that he could be suspended for the general awareness of others’ actions (here the equipment managers that were the ones who allegedly actually deflated the footballs); and
- That he did have notice of the CBA policy for uniform and equipment violations, but that policy only allowed for fines and not for suspensions.
- Whether Commissioner Goodell improperly denied Brady’s request to cross-examine the co-author of the NFL’s investigative report?
Brady argued that it was fundamentally unfair of Goodell to deny Brady the opportunity to elicit the testimony of the co-lead investigator of the Wells Report Jeff Pash.
- Whether Commissioner Goodell was an “evidently partial” arbitrator? Brady argued that Goodell could not fairly oversee the hearing because he himself was a key witness on whether he properly delegated authority under the CBA and due to public comments regarding the Wells Report.
How did the Federal District Court rule?
First, the Court ruled11 that Brady lacked notice that he could be suspended for being “generally aware” of others deflating footballs and that Goodell, by suspending Brady without having adequate means to do so under the CBA, “dispensed his own brand of industrial justice”. (Para 25). Specifically, the Court held that nothing in the CBA allowed Goodell to suspend Brady for being “generally aware” of the equipment managers’ actions. It also held that Brady had notice of polices related to uniform and equipment violations, but that he could only be fined, and not suspended, under those provisions. Notably, the Court found that Goodell’s attempt to use the “conduct detrimental” standard, rather than using the specific policy related to uniform and equipment violations, was “legally misplaced”.
Next, the Court ruled that Goodell improperly denied Brady the opportunity to cross-examine the co-author of the NFL’s investigation report during the arbitration. Judge Berman found this fundamentally unfair because the co-author played an important role in drafting the investigation report and thus, Brady was prejudiced by not being allowed to cross-examine him. The Judge noted that “players must be afforded the opportunity to confront their investigators”.
Based on these rulings, the Court vacated Brady’s four game suspension. The Court declined to make a ruling on whether Goodell was an evidently partial arbitrator but retained jurisdiction to rule on this issue at a later point if necessary.
What is the status of the appeal?
The NFL appealed Judge Berman’s decision to the United States Court of Appeals for the Second Circuit (located in New York, NY). Each party has submitted its initial appellate brief and the NFL has until December 21 to submit the final brief, its response to Brady’s arguments.12 Oral argument has been scheduled for March 3, 2016.
What has this taught us about the NFL’s dispute resolution process?
There have been a number of recent high profile cases litigated (including the Ray Rice and Adrian Peterson cases) that have drawn into question the NFL’s dispute resolution process. The results of which have not been good for the NFL. Although appeals are still pending, the NFL’s Players’ Association has won every single high profile case to date.
In Deflategate and other recent cases, Commissioner Goodell has pushed the boundaries of his commissioner’s powers under the “conduct detrimental to the integrity of, or public confidence in, the game” clause in Section 46 of the CBA. The key issues in the other NFL cases relate to the Commissioner:
- Unilaterally enacting new polices without collective bargaining (e.g., domestic violence policy) and then retroactively applying the policies to conduct that occurred prior to enactment of the policy (ex: Greg Hardy case13); and,
- Suspending a player for a low number of games and then unilaterally increasing the suspension due to public pressure and the public release of a videotape (ex: Ray Rice case14).
What can be done to improve the dispute resolution process?
In the author’s opinion, if the NFLPA’s success rate and increasingly public and professional opinion are anything to go by, Goodell’s use of powers under the CBA is unsustainable. Unfortunately for the NFLPA, the CBA does not expire until 2021 and they will not be able to formally renegotiate the process, and the Commissioner’s role in the process, until then. At that point, the NFLPA will likely push for clear contractual language limiting the Commissioner’s power, including, at the very least, a process that includes independent arbitrator(s) to oversee player discipline appeals such as this one.
In addition, the NFLPA may attempt to set negotiate clear penalty structures for particular detrimental off the field conduct such as domestic violence (as noted above, although there is currently a domestic violence policy in place, it was unilaterally introduced by the Commissioner and likely subject to legal challenge). As demonstrated in Deflategate, clear penalty structures for particular conduct supersede the Commissioner’s ability to rely on Section 46 power to dictate fines and suspensions.
If the league learns anything from this case or the recent others, one would expect Goodell, and the Player’s Association, to change the way disputes are currently handled prior to the negotiation of a new CBA. It would not surprise many to an independent arbitrator handle the appeals of the Commissioner’s discipline decisions moving forward and/or not attempt to retroactively apply new policies to conduct that occurred before the policies were enacted. Indeed, Goodell has already voiced a desire to change his role in the league’s player discipline process because it has “become extremely time-consuming”. Whether the league’s hand is forced by the judicial system, or it decides to do so on its own, expect the NFL’s dispute resolution process for player discipline to undergo significant changes in the near future.
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- Tags: American Football | Collective Bargaining Agreement | Deflategate | Dispute Resolution | Governance | National Football League (NFL) | NFL Collective Bargaining Agreement | NFL Players Association (NFLPA) | NFL Rule Book | 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.