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Despite Support From His Team, Brady Remains The Underdog In Deflategate

Tom Brady and his legal team were backed by Brady’s football team this week when the New England Patriots filed an amicus curie (friend of the court) brief in support of Brady’s request for rehearing in the 2nd US Circuit Court of Appeals. Brady and the National Football League Players Association (NFLPA) have requested an en banc rehearing of a 2-1 decision by the 2nd Circuit to reinstate the NFL’s imposition of a 4-game suspension for Brady’s alleged role in what is commonly referred to as “deflategate.” The 2nd Circuit reversed a district court decision that vacated Goodell’s suspension of Brady. The significance of the amicus filing is in the fact that one of the NFL’s premier franchises has taken a stand against the League and its commissioner in a high profile case.

An en banc rehearing is a legal process by which an entire federal circuit re-evaluates a case that was previously decided by one of its three-judge panels. This type of review is rarely granted by any federal circuit, in fact, sports lawyer Daniel Wallach estimated that the 2nd Circuit grants en banc for only .03 percent of cases. Compounding the problem for Brady and the NFLPA is the fact that the 2nd Circuit’s decision in the deflategate case follows a long line of Supreme Court precedent that limits the role of the courts in overturning grievance arbitration decisions that were conducted pursuant to the terms of a collective bargaining agreement (CBA).

The CBA grants the NFL Commissioner (Roger Goodell) the authority to use reasonable judgement in punishing players for conduct that he views as detrimental to or undermines the integrity of the NFL or public confidence in professional football. Also incorporated in the current CBA is a provision that gives the commissioner the discretionary authority to either appoint an independent arbitrator to hear arbitral appeals to his decisions, or to hear cases himself. Pursuant to those provisions, Goodell decided that Brady played a role in the deflation of footballs, suspended Brady for four games, and then decided to appoint himself as arbitrator for Brady’s appeal of that decision.

Goodell’s exercise of authority provided to him in the CBA was central to the 2nd Circuit’s decision. Courts must exercise caution when dealing with CBA processes so as not to disturb the delicate balance of risks assumed by the parties to the CBA. In the last round of CBA negotiations, the NFLPA could have, and perhaps should have, bargained for player appeals to be handled by independent arbitrators in all cases. The players instead chose to concede that authority to Goodell in favor of fighting for other benefits from the bargaining table.

Following that last round of CBA negotiations, the NFLPA has legally challenged almost every grievance arbitration decision, even those that Goodell assigned to independent arbitrators. This litigious approach runs counter to the policies that Congress and the courts have relied upon in defending both collective bargaining and arbitration resulting from collective bargaining. To be specific, both congress and the courts have made clear that they would prefer the parties to collective bargaining to resolve their own CBA-related disputes, either through arbitration, negotiation, or through the use of economic weapons such as lockouts and strikes. And when the parties agree to handle CBA disputes through arbitration, the courts must be hands off in almost all situations (emphasis on almost).

In their amicus brief, the Patriots challenge this notion with the statement that the 2nd Circuit’s reversal “threatens to undermine vital principles governing arbitration of collective bargaining agreements throughout the national economy.” Yet, a strong argument could be made that it’s the NFLPA’s litigate everything approach to grievance arbitration that most threatens those “vital principles.” Collective bargaining and arbitration are designed to serve as mechanisms for “industrial stabilization” so that parties privately handle their labor disputes rather than involve the courts. The NFLPA’s involvement of the courts in practically all problems related to the CBA arguably jeopardizes the industrial stability expected from the CBA and the process for dispute resolution agreed to by the parties in the CBA.

However, the primary reason for why the 2nd Circuit ruled the way it did was out of respect for arbitrator authority. As the 2nd Circuit pointed out in deflategate, judicial reviews of labor arbitrator decisions are “among the most deferential in the law.” Accordingly, neither the district court nor the 2nd Circuit in deflategate had the authority to question whether Brady deflated footballs, whether the suspension was too long or too short, or even to second guess the arbitrator’s procedural rulings. Whether “good, bad, or ugly”, if Goodell’s actions fell within the scope of his authority according to the terms of the CBA, the courts could not interfere. Additionally, the Supreme Court has made clear that interpreting CBAs is the role of arbitrators rather than courts.

The CBA authorized Goodell, as arbitrator, to discern the very limits imposed on him, as commissioner, in judging player conduct as “detrimental to” professional football. This is why Brady and his legal team have a daunting task in reversing the 2nd Circuit panel with their request for en banc rehearing. This is also why resolution of the case likely will not turn on the physics of football deflation or any other evidence that exonerates Brady. Lastly, this is why the NFLPA must place tighter restraints on Goodell’s role as commissioner and strip him of arbitral authority through negotiation rather than litigation. The NFLPA failed its players in the last round of CBA negotiations and Brady is paying the cost.

Still, Brady has a chance in this round of deflategate, but the odds are so slight that they could be likened to a Hail Mary pass, thrown against a stout defensive secondary, from the goal line, and with less than a second left on the clock. In filing their amicus brief, the Patriots voiced strong and loud support for Brady from the stands. Even with their support, however, Brady remains a tremendous underdog in this case, a role that he does not often play on the gridiron. If his pass falls flat this time, Brady will have an even greater challenge if he aims for Supreme Court review.

Post by: Thomas A. Baker III, J.D., Ph.D., Ruling Sports Contributor (@DrTab3)

Thomas A. Baker III, J.D., Ph.D. is a commercial litigator turned professor of sports law at the University of Georgia. His research is mostly on the application of commercial laws to sport. Follow him on Twitter @DrTab3.

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