By: Alexandra Foster

On July 28, 2015, National Football League (NFL) Commissioner Roger Goodell, acting as arbitrator, imposed a four-game suspension against New England Patriots Quarterback Tom Brady under the Collective Bargaining Agreement (CBA).[1] Brady stood accused of involvement in the deflation of the Patriots’ game balls before their game against the Indianapolis Colts during the AFC Championship Game.[2] An independent Wells Report concluded that it was more probable than not Patriots locker room and equipment personnel deliberately violated the Playing Rules.[3] It determined Brady was probably “at least generally aware” of their actions.[4] Brady was charged with engaging in conduct detrimental to the integrity of the game and public confidence in the sport.

The NFL Players Association (NFLPA) represented Brady in his appeal of the suspension. Under their Collective Bargaining Agreement, Commissioner Goodell designated himself arbitrator.[5] The NFLPA filed a motion seeking Goodell’s recusal from the appeal, arguing that it was a conflict of interest to arbitrate an issue in which he held a stake and played a role.[6] Goodell denied this motion, deciding to remain hearing officer on the case. Goodell then denied the NFLPA’s request for all documents used in the Wells Report investigation, all documents concerning prior incidents and punishments involving violations of NFL playing rules, and documents involving alleged failure to cooperate on the part of an NFL player in an NFL investigation.[7]

At the arbitration appeal hearing, Brady argued that the rules he had been disciplined under, the Competitive Integrity Policy (CIP), are only provided to Club Executives, Presidents, General Managers, and Head Coaches.[8] As a player, Brady claimed he only had the League Policies for Players, and had no knowledge of the rules imposed by the CIP.[9] Regardless, Goodell upheld the four-game suspension, concluding Brady “knew about, approved of, consented to, and provided inducements and rewards in support of a scheme . . . [to tamper] with the game balls.”[10] He cites electronic evidence and information from interviews, as well as Brady’s instruction to his assistant to destroy his cell phone.[11]

In judicial review, the Court denies Management Council’s motion to confirm the arbitral award, and grants the Players Association’s motion to vacate the arbitral award. This holding vacates Brady’s four-game suspension, effective immediately. Arbitration awards are generally not open to judicial challenge; however, scrutiny of legal deficiencies is allowed in certain circumstances.[12] The Federal Arbitration Act permits vacating an arbitral award when the arbitrator has clearly “dispensed his own brand of industrial justice.”[13]

Commissioner Goodell’s Arbitral Award presents several legal deficiencies. First, Brady received inadequate notice of alleged conduct and potential discipline of the conduct. He would have had no idea that ball deflation and noncooperation could lead to a four-game suspension. The Court rejects Goodell’s attempt to equate ball deflation to steroid use because of the unfair competitive advantage; the 2014 Player Policies handbook explicitly addresses steroid use, but not ball deflation.[14]

Brady had no notice that his refusal to cooperate would result in punishment. In Bounty-Gate, NFL Commissioner Tagliabue fined Brett Favre $50,000 for obstructing a sexual harassment investigation, but did not suspend Favre.[15] The Player Policies handbook says that first offenses for equipment, uniform, or On Field violations detected in post game review will be fined $5,513, with no mention of suspension.[16]

Goodell’s refusal to give Brady the opportunity to examine Pash was wrong. An arbitrator is not bound to all federal court procedure, but must let each party present evidence and cross-examine witnesses. Under Bounty-Gate, players are allowed to confront their investigators; under Ray Rice, the arbitrator must compel witnesses necessary for a fair hearing to prevent misrepresentation of critical content.[17] Denying Brady’s motion to compel Pash’s testimony is fundamentally unfair and a violation of the law.[18]

Brady was prejudiced by Goodell’s denial of access to interview notes and investigative files that were the basis for the Wells Report. The NFL’s counsel switched from independent investigators to retained counsel at the arbitral hearing. This means that they would have known all information from the investigation, and arbitrators have an affirmative duty to ensure relevant information is made available to both parties.[19] The court reinforces Bounty-Gate precedent, where Commissioner-Arbitrator Taligabue correctly ordered production of requested NFL investigative reports and redacted witness memoranda.

Section 301 of the Labor Management Relations Act was implemented to ensure unions and employers are accountable for the actions of their agents, as well as enforcement of CBAs.[20] Under the Federal Arbitration Act, a court may vacate an arbitral award when the arbitrator refuses to hear evidence pertinent and material to the controversy, or if the arbitrator was not impartial.[21]

NFL cases regarding the “Law of the Shop” and “Conduct Detrimental” are reinforced. Reggie Langhorne and Ricky Brown say a rule must clearly and unambiguously establish scope of prohibited conduct, as well as consequences of violations, in order to be enforceable.[22] Under Ray Rice and Adrian Peterson there is no basis for disciplinary action when a conduct is only addressed in the CIP.[23] Rice and Peterson only had notice of the 2007 Personal Conduct Policy, which did not address the matter of domestic violence.[24] A Carolina Panthers ball attendant who warmed a ball on the sidelines was issued a warning, and there was no investigation or punishment.[25] New York Jets equipment staff members who attempted to use unapproved equipment to prepare kicking balls in 2009 were punished, but the kicker who would have benefitted was not investigated or punished.[26]

CBAs are used in sports to ensure that the players adhere to the same uniform set of rules, regardless of the team affiliation, and to ensure a bilateral agreement to the terms. Each time an issue is not explicitly addressed in the NFL policy handbooks, there is a corresponding change made to the next version, and the offending player is not held to a retroactive application of that change. The Players Association’s uncanny ability to convince courts to adhere players solely to the black letter word of the handbook will cause the handbook drafters to more thoroughly expand the scope of matters addressed in each agreement going forward.

Historically, arbitrators have been given much deference in their decisions, and this case may initiate a new way in which courts treat arbitral awards. The dismissal of Goodell’s Award is not preceded by many similar decisions, but may change the way people view arbitration clauses. If an arbitral award can easily be judicially overturned, the involved parties are less likely to put their faith in the process. Predictably, this will either detract from the amount of arbitration clauses used in business transactions, or spark changes to the Federal Rules of Arbitration to create more airtight awards.

[1] NFLMC v. NFLPA, 15 Civ. 5916, 1 (S.D.N.Y. Sept. 3, 2015).

[2] Id.

[3] Id. at 5.

[4] Id.

[5] CBA Art. 46 § 2(a)(“the Commissioner may serve as hearing officer in any appeal . . . at his discretion.”).

[6] Def.’s Countercl. Ex. 157.

[7] NFLMC v. NFLPA, 15 Civ. 5916, 13-15.

[8] Def.’s Countercl. ¶ 113.

[9] Id.

[10] Award or Final Decision on Article 46 Appeal of Tom Brady, at 10.

[11] Id.

[12] See Gilmer v. Interstate/Johnson Lane Corp., 111 S. Ct. 1647, 1655 (1991).

[13] 187 Concourse Assocs. V. Fishman, 399 F.3d 524, 527 (2d Cir. 2005). See 9 U.S.C. § 10.

[14] NFLMC v. NFLPA, 15 Civ. 5916, 21.

[15] Def.’s Countercl. ¶ 129; Id. Ex. 113; Bounty-Gate, slip op. at 13.

[16] See Player Policies at 15, 20 (2014 Schedule of Fines).

[17] Def.’s Countercl. Ex. 166D, E.

[18] 9 U.S.C. § 10(a)(3).

[19] Id.

[20] 29 U.S.C. § 185 (1976).

[21] 9 U.S.C. § 10(a)(2)-(3) (1925).

[22] See In the Matter of Reggie Langhorne, slip op. at 25 (Apr. 9, 1994); NFLMC v. NFLPA (Ricky Brown), slip op. at 10 (July 16, 2010).

[23] NFLMC v. NFLPA, 15 Civ. 5916, 30 (S.D.N.Y. Sept. 3, 2015).

[24] Id.

[25] Id. at 31; Def.’s Countercl. ¶ 117.

[26] NFLMC v. NFLPA, 15 Civ. 5916, 31-32.

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