Working Together

U.S. District Judge Richard Berman recently vacated the four-game suspension of New England Patriots' quarterback Tom Brady for his alleged role in the (frankly overblown) "Deflategate" saga. In a June article in the Law Tribune, I noted that Brady had a good chance of winning his federal court challenge.

My opinion was based on an assessment of prior rulings in NFL player discipline cases, and on an assumption that the National Football League Players Association (NFLPA) would follow the same playbook that it successfully executed in these prior cases. My views were not unique, as they were shared by some writers who have distinguished themselves in covering this saga, such as Sports Illustrated's Michael McCann. I disagreed with certain so-called legal experts (including those who are employed by ESPN) who puzzlingly asserted that Brady had no chance of prevailing in his federal court challenge.

So how did we get here and what have we learned?

1) A Not-So-Brilliant Decision. While one so-called sports law expert who indicated that Brady had no chance in his appeal breathlessly praised the "meticulous" and "brilliant" decision by NFL Commissioner Roger Goodell regarding Brady's suspension, this same decision was filled with fatal flaws that drew Judge Berman's ire. Specifically, Berman was critical of Goodell for enhancing the nature of Brady's alleged misconduct from a) being "generally aware" of the possible intentional deflation of footballs by others (as found in attorney Ted Wells' investigative report) to instead b) approving and providing inducement and rewards for a scheme to deflate footballs, even though no additional evidence was offered in support of Brady's now allegedly enhanced role in this debacle. Goodell's decision tried to foster a PR-driven frenzy about Brady's destruction of his cellphone while omitting that Wells never informed Brady that he could be subject of discipline for failing to produce any texts or emails. Berman was critical of Goodell's comparison between Brady's alleged conduct and steroid use as a justification for the length of the suspension, in light of the difference between a) serious conduct that has specific sanctions for players in the NFL's performance-enhancing drug policies, and b) vague conduct (general awareness of possible football deflation by others) that does not contain possible disciplinary consequences for players. Goodell's decision relied on punishment of team officials/staff members for improper conduct with footballs, which highlighted the fact that there is no prescribed punishment for ball alteration issues for players.

2) The Transcript Doesn't Lie. While the NFL (and the media) tried to play up the titillating story of Brady's destruction of his cellphone as being the coup de grace as to Brady's guilt and the NFL's likelihood of success in this case, we believed that the transcript of Brady's hearing before Goodell (which was released against the NFL's wishes) would ultimately prove to be more important. The transcript revealed the above flaws in Goodell's decision.

3) About That Cellphone. The hearing transcript revealed that Wells expressly admitted that he never warned Brady of the consequences of failing to turn over cellphone-related evidence. Notwithstanding Wells' puzzling omission, it was still wise for NFLPA attorney Jeffrey Kessler to concede in court that perhaps Brady still should have acted differently with respect to his cellphone; such an admission probably increased Kessler's credibility in the eyes of the court.

4) Credibility Matters. While courts are generally deferential to the factual findings of arbitrators, Berman still inquired into the underlying facts of the case during the court hearings, and appeared to be skeptical of the findings contained in Wells' report (as well as Wells' "independent" nature). Berman's questioning may have been more aimed at the NFL's overall credibility. It is important for a party (and its lawyers) to have credibility before a court. Frankly, it appears that the NFL did not have any credibility before Berman, who was clearly not impressed by the league's mischaracterizing of prior testimony, apparently smug attitude in the courts, and reliance on (and shifting characterization of) the much-questioned Wells report.

5) Decision on Process. In the context of deference to arbitrators' factual findings, Berman did not reach the issue of Brady's actual innocence or guilt, but rather narrow legal/procedural issues. As we had previously written, the lack of notice to players that they may be subject to suspension for ball alteration and the disproportionate application of punishment to Brady represented the most fertile ground for the NFLPA in light of prior player disciplinary cases (such as Bountygate), and Berman followed this path in vacating the suspension. The court also relied on further errors by Goodell in his conduct of the hearing before him. Berman was alarmed that the NFL's general counsel, Jeffrey Pash, actually edited Wells' "independent" report and that Goodell then prevented the NFLPA from examining Pash at the appeals hearing. Berman noted that the failure to permit testimony by a witness in itself constitutes grounds to vacate an arbitrator's decision.

6) What's Next? The NFL has filed an appeal with the U.S. Court of Appeals for the Second Circuit. While I would rather be in the NFLPA's shoes on appeal, I will not commit the same sins of others and pronounce that a party has "no chance." The NFL has to get two members of a three-judge panel to agree with it and reverse Berman's decision (or order further proceedings). Meanwhile, Brady is free to play.

The bottom line is that the NFL tried to impose unprecedented punishment on Brady without: a) clear evidence of Brady's culpability (in whatever actions may have taken place); and b) prior precedent of similar punishment for remotely similar offenses. In addition, the NFL tried to impose unprecedented punishment without a clear idea of what it was punishing. The NFL's disciplinary system is irretrievably broken. At some time, these endless legal battles will not be good for business. Which leads to …

If you are an employer, do not emulate the NFL. Create clear workplace policies and follow them; do not make them up on the spot and then arbitrarily comply with them. Employers should have their proverbial ducks in a row before investigating and punishing alleged employee misconduct. Concepts such as "just cause" and "notice" are important, especially in a unionized workplace. Sometimes, it is not a bad thing to stay out of the headlines (and the courts).

Reprinted with permission from the Connecticut Law Tribune. ©2015 ALM Properties, Inc.
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