All that talk from the NFL earlier this year about Ted Wells conducting an “independent” investigation into the Patriots’ deflated football matter?
Never mind that.
The NFL and the NFL Players Association both filed briefs late Friday evening, laying out their arguments as the sides head to court over Tom Brady’s four-game suspension for his role in Deflategate.
And one of the NFL’s main arguments throws water on the notion that Wells’s investigation was “independent,” as Roger Goodell and the NFL have maintained since Wells’s law firm — Paul/Weiss — was hired to investigate the matter in January.
The collective bargaining agreement “does not require an ‘independent’ investigator prior to the imposition of discipline, and indeed it is commonplace for NFL personnel other than the commissioner to investigate the problematic conduct,” the NFL’s attorneys wrote. “The debate about the independence of the investigation has no bearing on whether the NFLPA had an adequate opportunity to present evidence at the hearing, which is all that the CBA and fundamental fairness require.”
The NFLPA argued in its lawsuit that Brady’s appeal hearing June 23 was fundamentally unfair in part because Paul/Weiss attorneys acted as the NFL’s defense counsel, and that Goodell publicly lauded the Wells Report before the discipline was announced. The NFL’s in-house counsel, Jeff Pash, also edited and provided comments to the Wells Report before it was released to the public.
But the NFL’s attorneys called that contention “irrelevant,” arguing that the CBA doesn’t state anything about players having a right to an “independent” investigation.
In making its argument, the NFL pointed out that the NFLPA uses a similar process to discipline agents, which are certified by the union.
“The NFLPA itself appoints the arbitrator for any disputes involving union discipline of player agents,” the NFL wrote, “and has successfully [and correctly] rejected challenges that this unilateral appointment right is unfair or renders the arbitrator evidently partial.”
The parties are scheduled to appear in New York federal court Wednesday morning for a settlement hearing in front of Judge Richard Berman, and hope to have the lawsuit settled by Sept. 4, six days before the Patriots’ regular-season opener. Berman is requiring Brady and Goodell to be in attendance at Wednesday’s hearing, as well as one scheduled for Aug. 19.
Berman has strongly encouraged both sides to reach a settlement, but Saturday at the Pro Football Hall of Fame, Goodell told the Canton (Ohio) Repository that he doesn’t intend to lower Brady’s suspension.
“The integrity of the game is something we will always protect. The rules apply to everybody,” Goodell said. “Listen, he’s a great player and he’s a great young man. We issued the decision just last week. We’re in the midst of litigation to . . . ensure that that’s enforced the way we ruled on that, after a long process that is established in our collective bargaining agreement. That’s something we’ll play through.”
After a review of both briefs, the key dispute appears to be whether the NFL suspended Brady for an “integrity of the game” violation, as the league contends, or an “equipment violation,” which the NFLPA contends.
The NFL argued that tampering with footballs after they have been approved by game officials “plainly” constitutes conduct detrimental to the game, with Goodell well within his rights to issue a suspension. The NFLPA argued that Brady should have been punished under Player Policies, in which the penalty for an equipment violation is a fine.
The NFLPA’s main arguments for vacating the suspension are well established:
1. That Brady received no notice of the consequences and potential punishments of his actions — particularly that being “generally aware” of wrongdoing can lead to a suspension.
2. That the punishment wasn’t fair and consistent based on precedent.
3. That Brady’s appeal hearing June 23 “defied fundamental fairness.”
4. That Goodell was “evidentially partial,” or inherently biased, in hearing the appeal and upholding the decision.
The NFL’s motion, though, laid out the league’s arguments for the first time.
The league’s primary defense, which it stressed several times in the brief, is that federal courts are bound to respect processes that are collectively bargained. The NFLPA agreed to give Goodell the power to oversee arbitration hearings in Article 46 of the CBA, and the NFL wrote that the courts should not supersede the CBA.
“Judicial review of labor arbitration awards is thus subject to a highly deferential standard that is among the ‘narrowest known to the law,’ ” the league wrote.
The NFL argued that because the NFLPA agreed to permit Goodell to serve as arbitrator, it waived its right to complain about Goodell’s partiality.
“In agreeing that the Commissioner may serve as arbitrator ‘at his discretion,’ the NFLPA ‘waived’ any challenge to the Award based on the Commissioner’s alleged ‘evident partiality,’ ” the NFL wrote. “But the union offers no ‘evidence;’ instead it merely speculates that the commissioner must be biased because he affirmed the suspension.”
The NFL also argued that even if Goodell committed serious error in interpreting the CBA, that wouldn’t be enough to overturn the suspension.
“The award could not be vacated so long as the arbitrator was ‘even arguably construing or applying the [CBA] and acting within the scope of his authority,’ ” the NFL wrote. “The award easily satisfies this extraordinarily deferential standard of review.”
And the NFL argued that Brady wasn’t suspended for being “generally aware,” as Wells originally ruled in his report. Goodell strengthened the language against Brady in his 20-page ruling upholding the suspension.
“As the award makes clear, the commissioner suspended Brady for having ‘approved of, consented to, and provided inducements in support of’ a scheme to tamper with the game balls,” the NFL wrote. “And for having ‘willfully obstructed the subsequent investigation.’ ”
The NFL countered that the NFLPA’s argument about consistent and fair punishment doesn’t apply, because Deflategate is a situation that never before has been addressed. And the NFL argued that Brady’s appeal was procedurally fair, given that he was given every right under Article 46 — the right to choose his counsel; to receive exhibits on which the NFL intends to rely; to attend all hearings and present testimony; and he is entitled to a written decision that is final and binding.
“Brady exercises all of these collectively bargained rights and more,” the NFL wrote, noting that “the commissioner issued a reasoned, written, final decision.”
Ben Volin can be reached at email@example.com. Follow him on Twitter @BenVolin.