All that talk from the NFL earlier this year about Ted Wells conducting an âindependentâ investigation into the Patriotsâ 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 Bradyâs four-game suspension for his role in Deflategate.
And one of the NFLâs main arguments throws water on the notion that Wellsâs investigation was âindependent,â as Roger Goodell and the NFL have maintained since Wellsâs law firm â Paul/Weiss â was hired to investigate the matter in January.
The collective bargaining agreement âdoes not require an âindependentâ investigator prior to the imposition of discipline, and indeed it is commonplace for NFL personnel other than the commissioner to investigate the problematic conduct,â the NFLâs attorneys wrote. âThe 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.â
The NFLPA argued in its lawsuit that Bradyâs appeal hearing June 23 was fundamentally unfair in part because Paul/Weiss attorneys acted as the NFLâs defense counsel, and that Goodell publicly lauded the Wells Report before the discipline was announced. The NFLâs in-house counsel, Jeff Pash, also edited and provided comments to the Wells Report before it was released to the public.
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But the NFLâs attorneys called that contention âirrelevant,â arguing that the CBA doesnât state anything about players having a right to an âindependentâ 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.
âThe NFLPA itself appoints the arbitrator for any disputes involving union discipline of player agents,â the NFL wrote, âand has successfully [and correctly] rejected challenges that this unilateral appointment right is unfair or renders the arbitrator evidently partial.â
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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 Patriotsâ regular-season opener. Berman is requiring Brady and Goodell to be in attendance at Wednesdayâs 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 doesnât intend to lower Bradyâs suspension.
âThe integrity of the game is something we will always protect. The rules apply to everybody,â Goodell said. âListen, heâs a great player and heâs a great young man. We issued the decision just last week. Weâre in the midst of litigation to . . . ensure that thatâs enforced the way we ruled on that, after a long process that is established in our collective bargaining agreement. Thatâs something weâll play through.â
After a review of both briefs, the key dispute appears to be whether the NFL suspended Brady for an âintegrity of the gameâ violation, as the league contends, or an âequipment violation,â which the NFLPA contends.
The NFL argued that tampering with footballs after they have been approved by game officials âplainlyâ 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.
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The NFLPAâs main arguments for vacating the suspension are well established:
1. That Brady received no notice of the consequences and potential punishments of his actions â particularly that being âgenerally awareâ of wrongdoing can lead to a suspension.
2. That the punishment wasnât fair and consistent based on precedent.
3. That Bradyâs appeal hearing June 23 âdefied fundamental fairness.â
4. That Goodell was âevidentially partial,â or inherently biased, in hearing the appeal and upholding the decision.
The NFLâs motion, though, laid out the leagueâs arguments for the first time.
The leagueâs 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.
âJudicial review of labor arbitration awards is thus subject to a highly deferential standard that is among the ânarrowest known to the law,âââ 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 Goodellâs partiality.
âIn agreeing that the Commissioner may serve as arbitrator âat his discretion,â the NFLPA âwaivedâ any challenge to the Award based on the Commissionerâs alleged âevident partiality,âââ the NFL wrote. âBut the union offers no âevidence;â instead it merely speculates that the commissioner must be biased because he affirmed the suspension.â
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The NFL also argued that even if Goodell committed serious error in interpreting the CBA, that wouldnât be enough to overturn the suspension.
âThe award could not be vacated so long as the arbitrator was âeven arguably construing or applying the [CBA] and acting within the scope of his authority,âââ the NFL wrote. âThe award easily satisfies this extraordinarily deferential standard of review.â
And the NFL argued that Brady wasnât suspended for being âgenerally aware,â as Wells originally ruled in his report. Goodell strengthened the language against Brady in his 20-page ruling upholding the suspension.
âAs the award makes clear, the commissioner suspended Brady for having âapproved of, consented to, and provided inducements in support ofâ a scheme to tamper with the game balls,â the NFL wrote. âAnd for having âwillfully obstructed the subsequent investigation.âââ
The NFL countered that the NFLPAâs argument about consistent and fair punishment doesnât apply, because Deflategate is a situation that never before has been addressed. And the NFL argued that Bradyâs appeal was procedurally fair, given that he was given every right under Article 46 â 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.
âBrady exercises all of these collectively bargained rights and more,â the NFL wrote, noting that âthe commissioner issued a reasoned, written, final decision.â
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Ben Volin can be reached at ben.volin@globe.com. Follow him on Twitter @BenVolin.