Aug 18, 2015
As Deflategate decision looms, NFLPA comes out swinging
The NFL and NFLPA will meet one more time this week to try and settle the mess that is Deflategate. TSN legal analyst Eric Macramalla writes that a settlement seems unlikely.
As the court hearing looms, the NFL and NFLPA will meet one more time this week to try and settle the mess that is Deflategate. Unless the sides can broker a deal, Judge Richard Berman will likely decide by Sept. 4 whether he will temporarily set aside Tom Brady’s four-game suspension. This is a big week for the New England Patriots quarterback and commissioner Roger Goodell.
Settlement seems unlikely as NFLPA goes after the NFL
The parties filed their written arguments with the Court last week, and the NFLPA came out swinging. The NFLPA, together with Brady’s lawyer Jeffrey Kessler, accused the NFL of engaging in a “smear campaign” with a “clearly biased agenda” lacking in “fairness and consistency.”
The NFLPA didn’t stop there. It also charged the NFL with attempting to misdirect the Court and that Goodell’s decision on appeal constituted nothing more than a “propaganda piece written for public consumption, at a time when the NFL believed the transcript would be sealed from public view, to validate the multi-million-dollar” Wells Report.
Those are some very strong words, and it suggests that the opportunity to settle may have passed.
Remember that Brady has every incentive to forge ahead. Judge Berman won’t increase the suspension so he has little to lose. Brady is looking to have his suspension vacated (or reduced to nothing), and absent that concession from the NFL, expect the quarterback to keep fighting. For Brady, this is about seeking to repair his legacy and reputation, and, in the face of Goodell potentially exceeding his powers together with arguably flawed evidence, Brady remains inspired to maintain his current position.
NFLPA: Brady proceedings were fundamentally unfair
While the union gave Goodell broad discretionary powers through the CBA, the NFLPA has reminded the Court that those powers are not absolute and do have limits. Those limits were crossed, and as a result, the proceedings were fundamentally unfair, not in keeping with past practice or precedent and violate the essence of the CBA.
Here are some of the NFLPA’s arguments:
1) The NFLPA focuses on notice, notice, notice – or the lack thereof. Brady never had notice that he could be suspended four games for the alleged violation. Rather, the rules unambiguously provide that “first offences will result in fines” in cases of equipment violations that “affect the integrity of the competition.” Remember, notice is really important in the context of discipline, particularly when it’s collectively bargained.
As well, there was no notice that Brady could be suspended for failing to cooperate with the investigation. On appeal, Ted Wells testified as follows: “I want to be clear - I did not tell Mr. Brady at any time that he would be subject to punishment for not giving - not turning over the documents. I did not say anything like that.”
2) The NFL never provided notice that a player could be suspended for being “generally aware” of another person’s alleged misconduct. This is important because it ties into the conclusion in the Wells Report that it was “more probable than not that Tom Brady...was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”
3) There was no direct evidence that Brady was involved in a scheme to deflate footballs. Wells declined to conclude that Brady was directly involved in ball tampering.
4) The NFL did not have strict ball testing procedures in place, and as a result the collected data was not reliable. Wells himself concluded that the scientific consultants' "analysis of [the halftime measurements] is ultimately dependent upon assumptions and information that is uncertain."
5) The Wells Report wasn’t independent as advertised since Jeff Pash, general counsel for the NFL, edited the Wells Report.
6) Goodell was not impartial. The commissioner was inherently biased and should have been disqualified as the arbitrator on appeal as he had a bias against Brady. One incentive, as argued by the NFLPA, was justifying the multi-million dollar cost of the Wells Report.
The NFLPA provided some examples of their allegations that Goodell was biased:
- Goodell led the arbitration decision with a "gotcha!" discussion about Brady purportedly destroying his phone, never acknowledging that Brady had turned over all of his emails and all of his phone bills or mentioning that it was Brady's career-long practice to recycle his phones because of privacy concerns
- Goodell radically changed Wells’ finding of "general awareness" of ball deflation to a conspiratorial "scheme" when the hearing record contains no evidence about any such scheme.
- Goodell found that Brady's increased communications with Jastremski after the AFC championship game "undermined any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations" when Brady actually testified at length that he did discuss the tampering allegations with Jastremski because he was concerned they were causing Jastremski considerable stress and he wanted to know what had happened.
The NFLPA is arguing that any reasonable person would have found that Goodell was partial, while the NFL is arguing that Goodell was well within his powers under the CBA to impose the league’s punishment.
How will Judge Berman rule?
Judge Berman could go any number of ways. He could find for Brady and temporarily set aside the suspension. If that happens, expect the NFL to appeal and also expect Brady to return and play for the Patriots.
Alternatively, the Court could find against Brady, at which point Brady will likely appeal and also ask the Court to let him play pending the disposition of the matter on appeal.
Finally, Judge Berman could send the case back to a neutral arbitrator.
So there are options available to the Court. While Brady’s case was initially weak given Goodell’s broad disciplinary powers under the CBA and given that judges don’t like to interfere with the decisions of arbitrators, it has certainly gained momentum in light of recent evidence and arguments.
So it remains possible that Brady could play the entire season.