Below are some excerpts from federal Judge Richard M. Berman’s 40-page ruling on the battle between the National Football League, New England Patriots quarterback Tom Brady and the NFL Players Association over the four-game Deflategate suspension of Brady.
Berman summarized his ruling in the fourth paragraph, highlighting it in bold.
Based upon the foregoing and applicable legal authorities, the Court hereby denies the Management Council’s motion to confirm the Award and grants the Players Association’s motion to vacate the Award, thereby vacating the four-game suspension of Tom Brady, effective immediately.
2. Rights, not science
Deeper in the ruling, Berman elaborated on his reasoning.The judge did not examine the scientific conclusions of the Wells Report, but instead focused on Brady’s legal rights during the disciplinary process.
The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award (Goodell decision) is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.
3. ‘Generally aware’
The judge broadly addressed NFL Commissioner Roger Goodell’s conclusion that Brady was “generally aware’’ that Patriot support staff were allegedly tampering with the air levels in footballs during the 2015 AFC Championship game at Gillette Stadium in Foxborough.
With respect to ‘general awareness’ of others’ misconduct - which is the principal finding in both the Wells Report and the Vincent Letter - Brady had no notice that such conduct was prohibited, or any reasonable certainty of potential discipline stemming from such conduct.
The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation.
4. Performance-enhancing drugs
Goodell based the length of the Brady suspension on comparable punishments imposed on players who violated the league’s substance abuse policy, including its ban on performance-enhancing drugs. The judge found that reasoning legally flawed.
The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation. Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs.
5. Investigative files
The judge ruled that Goodell was “fundamentally unfair’’ to Brady when he refused to turn over the notes from the investigators from the Paul, Weiss law firm who produced the Wells Report. He also ruled that Goodell was wrong for refusing to let the NFLPA question NFL general counsel, Jeff Pash, whom the judge said played a key role in the Wells Report investigation.
The Court finds that Commissioner Goodell’s denial of the Players Association’s motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady’s use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral hearing failed to put Brady ‘in the same position as the document[ s] would [have].”
The Court finds that Commissioner Goodell’s denial of Brady’s motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of 9 U.S.C. § !O(a)(3). Given Mr. Pash’s very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report. It is also problematic to the Court that there was no specification by Goodell as to the ways Pash’s testimony would have been ‘cumulative.’
Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash/Wells Investigation was truly ‘independent,’ and how and why the NFL’ s General Counsel came to edit a supposedly independent investigation report.
As co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL ‘s degree of involvement in, and potential shaping of, a heralded independent” Investigation.
6. Some stones unturned
Having reached a conclusion based on the arguments over whether Brady had adequate notice and access to information, Berman said he would not decide on several other issues raised in the case.
• An argument that Goodell upheld Brady’s suspension on appeal by improperly claiming that Brady “knew about, approved of, consented to, and provided inducements and rewards in support of” the game ball tampering scheme. Brady had protested that such a claim was not in the Wells report, and that Goodell should not have made the appeal ruling on grounds that were not found in the initial discipline.
• A claim by Brady that Goodell was “locked into” supporting the Wells report because he had publicly lauded it after its release. Brady had argued that those statements rendered Goodell “incapable of reaching a contrary conclusion in Brady’s appeal, as doing so would undermine his own competency as Commissioner.”
• Brady’s complaint that Goodell had improperly delegated his authority to discipline players “for conduct detrimental to the NFL” to football operations chief Troy Vincent.Andy Rosen can be reached at email@example.com. Follow him on Twitter at @andyrosen.John R. Ellement can be reached at firstname.lastname@example.org. Follow him on Twitter @JREbosglobe.