Legal specialists unwilling to pick winner in Brady suit

Case looks strong, but courts are reluctant to overturn arbitration

Some believe Tom Brady has a compelling argument and a chance to have his suspension vacated; others believe he has no shot.
Keith Bedford/Globe Staff
Some believe Tom Brady has a compelling argument and a chance to have his suspension vacated; others believe he has no shot.

Tom Brady had hoped to break new barriers this football season by becoming the first quarterback in NFL history to win five Super Bowls.

But for now, he’ll have to settle for breaking new ground in the legal system.

Brady’s lawsuit to vacate his four-game Deflategate suspension, filed Friday afternoon in the Southern District of New York, is one of the more unusual lawsuits in sports history and is nearly impossible to handicap, even for the sharpest legal minds.


Few, if any, specialists consider this a slam-dunk case for Brady. But opinions about Brady’s merits are generally mixed — some believe Brady has a compelling argument and a decent chance to get his suspension vacated before the Patriots’ season opener on Sept. 10, others believe he has no shot.

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This is one game Brady can’t control.

“We’re really in uncharted territory,” said Steph Stradley, a Houston-based attorney who has been writing about the NFL’s legal matters since 2007. “There’s nothing black and white about this area of the law at all.”

Typically, Brady would have a near-impossible chance of getting his suspension overturned. His suspension already was heard by an arbitrator — NFL commissioner Roger Goodell — and courts rarely overturn arbitration decisions.

Attorney Jeffrey Kessler, representing Brady, insists he has good grounds to prevail, saying after Goodell upheld the suspension last week, “We’ve long believed that a biased arbitrator was likely to yield a biased result, so I can say that we’re disappointed but not entirely surprised.’’


Yet Marc Greenbaum, a professor of labor and employment law at Suffolk University and an arbitrator in labor disputes, said only five of his 600 decisions have been overturned by a judge in his 30 years hearing cases. All five involved employees in the public sector, not private employees such as Brady.

While it seems unfair on its face that Goodell served as the hearing officer at Brady’s appeal on June 23, he is expressly given that power by Article 46 in the NFL’s collective bargaining agreement, which was agreed to by the NFL Players Association.

“If a judge treats this as a labor arbitration, the judge will be reluctant to overturn the decision unless the judge is really convinced that Goodell’s demonstrable lack of neutrality deprived Brady of any kind of fair consideration,” Greenbaum said. “One way to look at it is, the players made their bed with this one, let them figure it out in the next CBA.”

Tom Brady signed autographs during training camp in Foxborough Saturday.
Michael Dwyer/AP
Tom Brady signed autographs during training camp in Foxborough Saturday.

Even pro-union attorneys believe Brady faces an extremely uphill battle to win his case. Nick Pollard, an attorney for the Boston-based Sandulli Grace firm whose clients include three of the biggest unions in the state — The Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and the Massachusetts Teachers Association — said that the NFLPA lawsuit filed on Brady’s behalf offers fiery rhetoric but not a compelling argument.

“Appeals of arbitration awards are extremely deferential, and there are really only some narrow grounds by which you can overturn them,” Pollard said. “The complaint went well beyond any of those grounds. You can tell that whoever was writing it, was writing it for an audience, and not just the judge.


“No one’s going to say that Roger Goodell could in an unbiased fashion review his own decision to confirm the initial punishment. But unfortunately, the law requires more than that.”

But as Greenbaum pointed out, Brady’s appeal was not a typical arbitration, and his lawsuit is not a typical lawsuit. The NFL is a unique industry with its own rules of conducting business — its own “law of the shop,” a phrase that appears 29 times in Brady’s 54-page lawsuit — and Brady’s attorneys do appear to make several valid points about the potential unfairness of Brady’s punishment and appeal.

Brady was given a four-game suspension for being “generally aware,” as the NFL put it, of the Patriots deflating footballs for use in the AFC Championship game against the Colts in January, and then allegedly not cooperating with the league when it investigated.

The lawsuit leans heavily on recent cases that have gone in the union’s favor — Adrian Peterson getting his suspension vacated by a federal court, and the Ray Rice and Saints Bountygate player suspensions getting overturned by independent arbitrators.

Peterson was suspended indefinitely in November after he pleaded no contest to misdemeanor reckless assault for allegedly hitting his 4-year-old son with a switch; Rice was suspended indefinitely in September after a new video surfaced of his February 2014 assault on his then-fiancee; and the suspensions of three Saints players who were involved in the team’s program to intentionally injure opposing players were vacated in December 2012.

“Typically, the kinds of arguments that the union advanced in the pleading would not be considered by a federal district court judge,” Greenbaum said. “But this is not a traditional labor arbitration. I know that they agreed that Goodell could hear the case, but that doesn’t mean they waived any rights to some kind of fair and regular proceeding.

“If the court accepts that argument, they might look at some of the other arguments with a little more scrutiny than they otherwise would.”

Brady’s lawsuit strictly attacks the NFL’s procedures and focuses on four key points:

 That Brady did not receive proper notice of the possible punishment.

 That the “law of the shop” principle requires fair and consistent treatment in all player discipline.

 That the NFL conducted a fundamentally unfair arbitration proceeding.

 That Goodell was not an independent arbitrator, but “evidentially partial.”

“Brady’s legal filing is very well done,” Stradley said. “The strength of the argument is how it straightforwardly illustrates how the NFL failed to follow the CBA and the lack of a fair process about many things. The NFLPA is not arguing that the CBA as it is structured is unfair. They are arguing that Goodell didn’t follow the process that was collectively bargained between the parties as written.”

The argument about proper notice may be Brady’s strongest.

The NFLPA argues that Brady should have been punished under the NFL’s “Player Policies,” which are distributed to all players and state that the first offense for an equipment violation is a fine. Instead, the NFL penalized Brady under the “Competitive Integrity Policy,” which is distributed to teams and executives, not the players.

The union also argues that Brady had no notice that he could be suspended for failure to cooperate with an investigation and that Brady had no notice that he could be disciplined for being “generally aware” of another person’s conduct.

Then-Vikings quarterback Brett Favre was fined $50,000 in 2010 for refusing to turn over his cellphone in a sexual harassment case, which the NFL claims is much less significant than the Patriots’ alleged ball-deflating scheme.

The NFLPA makes the point that players aren’t disciplined for being “generally aware” of another player’s steroid use, and that no Dolphins players were disciplined for being “generally aware” of lineman Richie Incognito’s bullying tactics in 2013, another case that Ted Wells investigated for the NFL.

“They weren’t really disciplining him under any policy,” Pollard said. “It was more of a general, ‘You’re harming the league.’ Plus, the punishment mentions only a fine and team penalties.”

Brady’s attorneys also make a fairly compelling case about the lack of neutrality in his appeal to Goodell, calling it a “kangaroo court proceeding” in the suit.

“Brady can clearly point to a number of ways that the NFL’s process to judge him seemed fundamentally unfair,” said Michael McCann, sports law professor at the University of New Hampshire. “Especially if it turns out that Ted Wells wouldn’t share materials with [Brady’s agent, Don] Yee, due to an attorney-client privilege with the NFL.”

Brady’s attorneys point out that Goodell publicly lauded the Wells Report before the appeal was heard.

“Applicable labor law and arbitral standards simply do not permit an arbitrator to publicly comment on the very subject matter he has been called upon to arbitrate, and to then continue as arbitrator,” they write in the suit.

The suit also states that NFL lead counsel Jeffrey Pash reviewed and commented on the Wells Report before its release to the public, that Wells’s law firm acted as the NFL’s defense counsel at the appeal and had access to files it wouldn’t hand over to Brady, and that Wells’s co-investigator, Lorin Reisner, sat at the NFL’s table during the appeal.

“I think it is troublesome if the union’s allegation is correct, that Jeff Pash allegedly participated in the drafting of this report,” Greenbaum said. “It’s like the NFL as an entity in this case became investigator, prosecutor, judge, and jury, and I think that’s going to be troublesome.”

The NFL will argue, of course, that Article 46 gives Goodell broad disciplinary powers, particularly for what the NFL deems an action that strikes to the integrity and fairness of the game. Goodell’s 20-page document upholding Brady’s suspension also provides counterarguments about why many of the NFLPA’s claims don’t apply.

The fact that the NFLPA bargained away the right for Goodell to hear appeals could work against it.

“In most CBAs there is a more healthy appeals process by an actual neutral third party,” Pollard said. “This doesn’t exist here, and I think the inference from that is that the parties did intend for the commissioner to have a great deal of authority in meting out discipline.”

One thing almost every legal specialist contacted by the Globe can agree upon — Brady shouldn’t have destroyed his cellphone. It may be a “red herring,” as the NFLPA wrote in its lawsuit, and the NFL may not have had a right to view Brady’s cellphone, but the optics of his actions are terrible, specialists say.

“It was like an early Christmas gift to the NFL,” Greenbaum said. “It allowed the league to shift the focus from all of this ridiculousness to this one salient fact.”

The NFL views Brady’s alleged noncooperation as a serious offense, as the league’s investigative and disciplinary systems would not function without cooperation.

New York district Judge Richard Berman has stated that he is willing and ready to hear the lawsuit, which both the NFL and NFLPA want decided by Sept. 4, six days before the Patriots start the regular season. But he also is strongly encouraging both sides to reach a settlement, setting up mediation sessions for Aug. 12 and 19 in New York, which could force Brady to miss some practice time.

As of now, the chances of a settlement appear slim. The sides were unable to engage in any meaningful settlement talks in the five weeks between the appeal and Goodell’s announcement last week. The NFL wants Brady to serve some sort of suspension and admit guilt, and Brady has steadfastly refused to do anything other than pay a fine.

The NFL and NFLPA have been squabbling for the last four years over many issues, and the rhetoric has gotten so nasty between the parties — the Patriots included — that Berman ordered both sides to cut it out, writing in a ruling this past week that “the earth is sufficiently scorched.”

“I don’t see any ego- or face-saving way to do this,” Stradley said. “The NFL and NFLPA have had a difficult time doing cooperative things that are good for the league. I can’t think of an NFL-agreed settlement that led to a punishment reduction for a claim of actual innocence.”

Despite the compelling arguments made by Brady’s camp, ESPN legal analyst Lester Munson believes Brady has a very slim chance to succeed in his lawsuit.

“His effort to stop the suspension is doomed,” Munson wrote. “Goodell produced a decision on Brady that is brilliantly reasoned, meticulously detailed, and well-written. Goodell’s recitation of the evidence of the tampering with game balls is powerful, and his description of Brady’s attempt at a cover-up is persuasive.”

But if Greenbaum has learned anything in his 30 years as an arbitrator, it’s that there are very few sure bets in the legal system.

“A lot of times, when somebody says the case is a slam-dunk, it goes the other way,” Greenbaum said. “There are enough questions about Goodell’s role in this case that I don’t think it is appropriate or prudent to characterize the league’s case as a sure thing.

“They may have a stronger case on the surface, but not a slam-dunk.”

Ben Volin can be reached at Follow him on Twitter @BenVolin.