BEN VOLIN | NEWS ANALYSIS
Jason DeCrow/Associated Press
In a twist of irony, it turns out that it was the National Football League that didn’t follow the rules, not Tom Brady.
Throughout the seven-month “Deflategate” ordeal, the NFL justified its harsh four-game punishment against Brady because of his supposed lack of cooperation: He didn’t provide e-mails and texts to investigator Ted Wells and destroyed his phone on the morning of his meeting with Wells March 6.
But it was the NFL’s failure to cooperate with the rules of its own collective bargaining agreement that led to Brady’s getting his entire suspension vacated by US District Judge Richard M. Berman Thursday.
Brady should have received notice of his potential penalties, Berman decided. He should have been able to cross-examine all of the key witnesses at his appeal.
Instead, the NFL ignored its own agreement and made up the rules as it went along. And it cost the league a victory.
“The NFL handed this case to the union on a silver platter,” said Marc Greenbaum, a law professor at Suffolk University who also serves as an independent arbitrator. “By its actions, the NFL managed to snatch defeat out of the jaws of a likely victory.”
To be clear, Berman did not explicitly rule that Brady was innocent of the accusation that he knew that Patriot employees were defating footballs before the AFC Championship game on Jan. 18. The facts that Brady destroyed his cellphone and wasn’t fully cooperative with Wells did not factor into the decision.
The sole issue was whether the NFL violated Brady’s rights in his appeal in front of NFL commissioner Roger Goodell on June 23.
One significant misstep would have been enough to vacate the suspension. Instead, Berman found three: that Brady had no notice of his penalties, that the NFL did not make league executive Jeffrey Pash available to testify at the hearing, and that the NFL didn’t share some of its attorney notes with the NFL Players Association.
The NFL and players association don’t agree on much, but these facts cannot be debated: The NFL never informed Brady that not cooperating with an investigation would lead to a suspension. The NFL never informed Brady that being “generally aware” of someone else’s wrongdoing would lead to a suspension. The NFL never informed Brady that ball tampering could be punished the same as steroid use, as Goodell declared after the June 23 hearing.
And the NFL did not put Pash, who co-led the investigation and edited Ted Wells’s report before it was released, on the stand to testify.
It amounted to Goodell “dispens(ing) his own brand of industrial justice,” Berman wrote.
The NFL had argued that Article 46 of the bargaining agreement gave Goodell broad powers to discipline players who violate the integrity of the game. Instead, the union won in a landslide, based on “several significant legal deficiencies,” as Berman wrote.
“I think the mercy rule applied here,” quipped attorney Daniel Wallach, a sports law expert at Becker & Poliakoff in Fort Lauderdale, Fla. “It is an assembly line of mistakes that the NFL made that go directly to the fundamental fairness of the proceedings.”
Some legal analysts were split over what was the NFL’s biggest misstep — not providing notice of the potential penalties to Brady or not allowing Pash to testify at the appeal hearing.
Roger I. Abrams, a sports law professor at Northeastern who has served as an arbitrator for Major League Baseball contract disputes, said the “notice” argument alone won the case for Brady. The NFL tried to penalize Brady under policies that are handed out to team executives and personnel, but not players. The only penalty on record for players tampering with equipment is a fine for $5,512.
For the NFL to try to justify Brady’s four-game suspension by equating it with a four-game steroid suspension was preposterous, both to Berman and to some legal experts.
“It’s basic arbitration law that an employer cannot win before an arbitrator unless the employee has notice that what he did violated some standard,” Abrams said. “It seems that the NFL was making up the rules as they were going along. And instead, they go grabbing the steroid policy, which is not just apples and oranges, it’s fruits and vegetables.”
Wallach believes that the refusal to make Pash available to testify June 23 was the silver bullet for Brady’s legal team. Berman wrote that the NFL’s own precedent, as set forth in the Saints’ “Bountygate” case, is that “players must be afforded the opportunity to confront their investigators.”
The NFL refused to put Pash on the stand at Brady’s appeal, arguing that his testimony would be “cumulative” — i.e. repetitive to Wells’s testimony. But Wells testified that day that he didn’t really know how many edits Pash made to the report or what his involvement was in the process.
The NFL never really explained why Pash would be “cumulative.” This also doomed its case.
“He should’ve been given the opportunity to ask questions of Jeffrey Pash, but instead, Roger Goodell threw a protective blanket around him,” Wallach said. “That was a major mistake by the NFL, and the commissioner dug his own grave with that improvident decision.”
The legal battle is far from over, of course. The NFL already filed its appeal with the US Court of Appeals for the Second Circuit, although it will not seek a stay of Berman’s order and will not challenge Brady’s plans to play in all 16 regular-season games this year.
If and when the appeal is heard — and it likely won’t be until next spring or summer — the NFL will have to convince two out of three judges that Berman misapplied the law.
Between Aug. 1, 2013, and July 31, 2014, only 7.5 percent of the 1,667 civil cases in the Southern District of New York were overturned on appeal.
The NFL did win an appeal in this very court a decade ago, when it wanted to bar Ohio State running back Maurice Clarett from declaring early for the NFL Draft. But Wallach believes the exclusion of Pash makes Berman’s decision “reversal proof.”
Michael McCann, sports law specialist for Sports Illustrated and the University of New Hampshire, believes the NFL’s principal argument will now work against it — that courts are supposed to show high deference to decisions from the lower courts.
“The NFL faces an uphill climb,” McCann said. “Appellate courts typically do not reverse district court judges on their orders to vacate or confirm arbitration awards.”
Greenbaum said there is an outside chance that Berman may have set himself up for a reversal by focusing so much on a provision called the “law of the shop” in his decision, which may not have been his purview. The “law of the shop” refers to the rules of a particular workplace.
“The way it is written, there is some risk that the appellate court will view Judge Berman as having substituted himself for the arbitrator,” Greenbaum said. “His frequent references to ‘law of the shop,’ which is for arbitrators to apply, could support such a view.”
But in the end, it was the NFL, not the union, that tried to rewrite the collective bargaining agreement and broaden the scope of Goodell’s authority. And it was the NFL that was done in by noncooperation, not Brady.
“This decision is unquestionably a rebuke of Roger Goodell’s self-serving interpretation of the breadth and the limitlessness of the CBA,” Wallach said. “And thinking that the NFL can reverse this decision is a pipe dream.”
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