Court’s in recess and there goes the judge! In New England the Patriots again start the season as the Tom Brady Bunch. In New York NFL Commissioner Roger Goodell has crow for breakfast. Case closed!
After that Big Game in January, the NFL hired a law firm to do an “independent” investigation of the Patriots’ alleged use of “seemingly under-inflated footballs.” And Deflategate was born.
Per the NFL’s “policy on integrity,” a team “will give its full cooperation” to such matters. Or be deemed guilty of “conduct detrimental to the League.” The latter subjects “responsible individual(s) to appropriate discipline.” Ouch!
Early in the Game, a ball Brady threw was intercepted, given to the opponent, tested, and found to be inflated only to 11 psi (12.5 being the minimum allowable). Two Patriots equipment guys “participated in a deliberate effort to release air from game balls.” The investigative Report found it “more probable than not that Brady was at least generally aware of their inappropriate activities.”
Brady denied involvement and knowledge. Read about it in the Sept. 3 Order ending NFL Mgt. Council v. NFL Players Assn., No. 15 Civ. 5916, 5982 (S.D.N.Y.).
Accepting the Report’s findings, the NFL suspended Brady for four games. Brady appealed. Appellate recourse is to arbitration. Goodell named himself to preside.
Denying Brady’s request for access to the co-lead investigator’s files, Goodell found it “unlikely” Brady would not have known of the ball deflation. Noting that Brady instructed his assistant to destroy a cellphone containing “potentially relevant evidence,” the commish concluded Brady knew of, approved, and consented to the deflation.
There being no collectively bargained punishment for this, the commish determined “the closest parallel” to be first offense steroid abuse. Which calls for a four-game suspension without pay. Brady’s annual salary is $8 million.
The judge asked whether Brady was given notice that being generally aware of someone else deflating footballs was punishable by suspension. And whether he had a meaningful opportunity to confront his accuser by examining the examiner’s files and then cross-examining the examiner.
Under the Federal Arbitration Act, an award is subject to attack if there is “evident partiality.” In labor cases the arbiter must follow the “common law of the shop” and not administer “his own brand of industrial justice.”
Brady was not given notice “that he could receive a four-game suspension for general awareness of ball deflation by others” or “non-cooperation” with an investigation.
Pulling a little stare decisis from the shelf, the judge noted prior cases where suspensions were vacated for lack of notice: one player refused to practice; another didn’t show for a weigh-in; another allegedly obstructed the “bountygate” investigation of the Saints.
“A player’s right to notice is at the heart of the CBA and … of our criminal and civil justice systems.” An arbitrator must hold a “fundamentally fair hearing [at which parties are] permitted … to cross-examine adverse witnesses.” The person Brady sought to confront was simultaneously tagged “independent” counsel for the investigation and “retained” counsel for the NFL. Good work, if you can get it.
Brady was prejudiced by Goodell’s failure to be fundamentally fair, said the judge, who vacated the suspension, closed the case, and deflated a few egos, I suspect.
Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at email@example.com.