The back-and-forth between the NFL and the other side — in this case the Patriots and/or the NFL Players Association — continued Friday morning, as the Players Association released the full appeal letter it sent to the league on behalf of Tom Brady.
The NFLPA move came about 12 hours after news came from the league that Roger Goodell, not an independent arbitrator, would be the hearing officer for Brady’s appeal of his four-game suspension.
Unlike the multimillion-dollar Wells report, which had some salient points but numerous holes, and unlike the Patriots’ rebuttal website, which had some salient points that were washed away by silly ones, the NFLPA letter cut right to the chase and did so unmercifully.
The letter, addressed to NFL executive vice president of football operations Troy Vincent, who the league said meted out the punishments for both Brady and the Patriots, outlines three major points, the first of which is that under the rules set forth in the 2011 Collective Bargaining Agreement, Vincent does not have the authority to determine discipline.
“As both Mr. Brady’s discipline letter and the NFL’s public statements make clear, you were tasked by Commissioner Goodell to determine whether Mr. Brady should be subject to discipline for conduct detrimental in connection with the events described in the Wells Report, and if so, to decide and impose the discipline,” said the letter, signed by NFLPA general counsel Tom DePaso. “And you have, in fact, imposed Mr. Brady’s discipline pursuant to the Commissioner’s purported delegation of his authority.
“Any such delegation is a plain violation of the CBA. The CBA grants the Commissioner — and only the Commissioner — the authority to impose conduct detrimental discipline on players.”
It cites Article 46, Section 1(a) of the CBA, which states, “All disputes involving a fine or suspension imposed upon a player for conduct on the playing field or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.”
As the NFLPA letter notes, while the CBA allows for Goodell to empower someone other than himself to serve as an appeals officer, there is nothing in that paragraph that allows for the commissioner to delegate his authority to render discipline decisions to another individual, as he did with Brady’s case.
The NFLPA’s second point in the letter, which largely reads as though the aim is to have Brady’s suspension completely overturned, not simply reduced, is that the four-game penalty “for his alleged ‘general aware[ness] of the actions of the Patriots employees involved in the deflation of the footballs’ and ‘failure to cooperate fully and candidly with the investigation’ is grossly inconsistent with the League’s prior disciplinary treatment of similar alleged conduct, including lack of cooperation and not complying with League rules regarding game balls and equipment.
“Indeed, no player in the history of the NFL has ever received anything approaching this level of discipline for similar behavior — a change in sanctions squarely forbidden by the CBA and the law of the shop.”
The letter mentions the suspensions of both Ray Rice (his second punishment, after the video from inside the elevator came out and he was suspended indefinitely) and the players involved in the Saints’ “Bountygate” scandal more than once; in those cases, Goodell’s punishments were overturned on appeal when it was decided they were too harsh.
The third point attacks the validity of the Wells report, which the NFLPA says “contains insufficient evidence to find that Mr. Brady committed any violation of NFL rules.
“Indeed, the Report is wrought with unsupported speculation regarding Mr. Brady’s purported knowledge of, and involvement with, two Patriots employees’ purported conduct, and grasps at dubious, contradictory and mischaracterized circumstantial evidence merely to conclude that it is ‘more probable than not’ that Mr. Brady was ‘generally aware of’ ‘inappropriate activities.’ ”
The letter informs Vincent and Goodell that it is the union’s intention to call both men as “essential witnesses” in the appeals proceeding. Given that Goodell has installed himself as the one to hear the appeal, the prospect of him moving from the judge’s chair to the witness chair is another potential oddity in one of the NFL’s oddest sagas.
As expected from the moment Brady’s agent, Don Yee, released a scathing statement Monday once the punishment was announced, there is also a formal demand for an independent hearing officer.
“The NFLPA believes that neither Commissioner Goodell nor anyone with close ties to the NFL can serve as arbitrator in Mr. Brady’s appeal under governing legal standards. The credibility of both you [Vincent] and Commissioner Goodell will be at issue in the hearing as well as numerous procedural issues regarding your testimony and the testimony of the Commissioner.
“Accordingly, this letter will serve as a formal demand that the Commissioner follow the Rice precedent [Goodell appointed Judge Barbara Jones, who had no ties to the league, as arbitrator] and appoint an independent person to serve as arbitrator over Mr. Brady’s appeal.”
That demand so far has fallen on deaf ears, as Goodell intends to hear the appeal. The NFLPA will continue to push for Goodell to recuse himself, and ESPN reported Friday that it’s “very unlikely” the commissioner will do that, increasing the chances that this case will end up in court.