Brady must serve ‘Deflategate’ suspension, appeals court rules

Steven Senne/Associated Press/File 2016

Tom Brady stands to miss the first four games of the 2016 season.

By Globe Staff 

In a 2-1 decision announced Monday, the US Court of Appeals for the Second Circuit overturned Federal District Judge Richard Berman’s ruling from last September and reinstated Patriots quarterback Tom Brady’s four-game suspension for his role in Deflategate.

Brady has started 126 consecutive regular-season and playoff games, but is now almost certain to miss the first four games of the 2016 season — a road game against the Cardinals and home games against the Dolphins, Texans, and Bills.


The lawsuit and appeal were less about Brady and deflated footballs and more about whether National Football League commissioner Roger Goodell had the power to deliver a harsh penalty for “conduct detrimental” to the NFL under the league’s collective bargaining agreement. Monday’s ruling, adamantly in the league’s favor, reaffirms Goddell's strength and his bargained-for authority to discipline.

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Berman ruled in September that Goodell had overstepped his bounds, vacating the suspension and allowing Brady to play the entire 2015 season. But in a harsh rebuke Monday of Berman’s ruling, Judges Denny Chin and Barrington Parker ruled in favor of the NFL, stating that Goddell “properly exercised his broad discretion under the collective bargaining agreement” to punish Brady, and that “his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

Robert Katzmann, the chief judge of the entire Second Circuit, dissented.

In a statement, the NFL said, “We are pleased the United States Court of Appeals for the Second Circuit ruled today that the Commissioner properly exercised his authority under the collective bargaining agreement to act in cases involving the integrity of the game.

“That authority has been recognized by many courts and has been expressly incorporated into every collective bargaining agreement between the NFL and NFLPA for the past 40 years.”


Chin and Parker said that their role was not to determine whether Brady participated in a scheme to deflate footballs, but whether Goodell acted properly in handing down the punishment, then upholding it in an arbitration hearing at NFL headquarters last June, and whether Berman had the right to interfere with Goodell’s decision.

Berman had ruled that Goodell violated Brady’s rights by not providing him prior notice of his penalties, that no player had been punished for being “generally aware” of someone else’s misdeeds, and that the applicable penalty should have been a fine, not a suspension. Chin and Parker disagreed and stated that Berman’s basis for overturning the suspension was not sufficient.

“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all,” the judges wrote.

“Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”

The NFL Players Association, which represented Brady in court, said it was disappointed in the decision but did not reveal what steps it would take next, if any.

“We fought Roger Goodell’s suspension of Tom Brady because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement,” the association said in a statement. “Our Union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”


Monday’s ruling will make it difficult for Brady to avoid a suspension this fall, as the judges ordered the lower court to confirm the suspension instead of rehearing the case.

Chin and Parker even addressed points that Berman left open — mainly, the concept of “evident partiality,” or the idea that Goodell was inherently unfair in his role as “judge, jury and executioner” and that Brady never had a fair chance at his arbitration hearing. The NFL commissioner has had the power to mete out punishment and hear disciplinary appeals since the league’s first collective bargaining agreement was signed in 1968.

“The parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator,” the judges wrote. “Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.”

Monday’s ruling probably wasn’t much of a surprise for Brady. Last month, he renegotiated his contract with the Patriots to keep him with the team through the 2019 season, and also to soften the impact of a suspension.

With his new contract, Brady will save himself almost $2 million for a suspension. Under the previous deal, his salary in 2016 would have been $9 million, which means a four-game suspension would have cost him $2.118 million. In his new deal, Brady’s salary is only $1 million, meaning his lost wages will be only $235,294.

Brady, whose first game back would be Week 5 in Cleveland, still has three options to avoid a four-game suspension, but none are likely to occur.

The players association can ask for an “en banc review,” in which the entire Second Circuit hears the case. Failing that, the union can petition for certiorari with the US Supreme Court, though the odds of that court hearing a case about deflated footballs are slim.

“However good it looked for Brady when Judge Berman ruled in his favor, he’s on the exact other side of the fence now,” said Boston College sports law specialist Alfred C. Yen. “He’s got two possible avenues of appeal, neither of which is he guaranteed a hearing for.”

Brady also could try to strike a deal with the NFL to reduce the suspension, but the league is unlikely to waver after spending millions of dollars and almost a year and a half on its investigation and legal battle.

At the March 3 appeal hearing, the justices focused a significant amount of time on Brady’s destroying his cellphone before meeting with investigator Ted Wells in March 2015, and not alerting Wells or the NFL about it until months later.

Goodell didn’t increase Brady’s punishment upon learning about the cellphone, but used it as evidence to reaffirm the four-game suspension.

“We have difficulty believing that either Brady or the Association would have been surprised that the destruction of the cell phone was of importance to the Commissioner,” the judges wrote. “Brady was punished for failing to cooperate, and it is clear from the Commissioner’s decision that Brady’s cell phone destruction was part and parcel of the broader claim that he had failed to cooperate.”

The judges also were OK with Goodell equating Brady’s role in a football-deflation scheme to that of a player who uses steroids or other performance-enhancing drugs. Goodell used the comparison in deciding that a four-game suspension, which is the punishment for being caught with PEDs, was appropriate for Brady.

However, Katzmann did not agree on the cellphone issue or steroid comparison.

“I am troubled by the Commissioner’s decision to uphold the unprecedented four-game suspension,” Katzmann wrote in his dissent. “The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League’s steroid policy.

“This deficiency, especially when viewed in combination with the shifting rationale for Brady’s discipline, leaves me to conclude that the Commissioner’s decision reflected ‘his own brand of industrial justice.’ ”

But Parker and Chin relied mainly on the long-held belief that the courts should not interfere with a collectively bargained arbitration process, no matter how unfair it may seem.

“The basic principle driving both our analysis and our conclusion is well established: A federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential — indeed, among the most deferential in the law,” they wrote.

Ben Volin can be reached at
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