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What argument can Tom Brady use to appeal his Deflategate suspension?
0:52 | NFL
What argument can Tom Brady use to appeal his Deflategate suspension?
Friday May 15th, 2015

NFL commissioner Roger Goodell’s search for an arbitrator to hear New England Patriots QB Tom Brady’s appeal of a four-game suspension apparently stopped when Goodell looked into the mirror. As first reported by Bleacher Report’s Mike Freeman on Thursday, Goodell chose himself to review whether the NFL properly suspended Brady for allegedly being “generally aware” that two other Patriots employees may have improperly deflated footballs before the AFC Championship Game. On Friday, NFLPA general counsel Tom DePaso notified NFL executive vice president Troy Vincent by letter of the NFLPA’s objections to the suspension and Goodell serving as arbitrator on grounds that he is inherently biased in the Deflategate controversy.

To amplify the argument that Goodell should not be the arbitrator, DePaso revealed that Brady intends to call Goodell as a witness. Among the reasons Goodell could be called as a witness is the NFLPA’s contention that Goodell had no legal right under the collective bargaining agreement to delegate player punishments to Vincent. Goodell, it would seem, cannot logically be the party who will decide on an appeal and a witness in that same appeal. It remains to be seen whether Goodell recuses himself or preside over a hearing in which he might be called to testify.

For now, it appears that Goodell will remain the arbitrator, which may not be the worst development for Brady. They would never admit it, but Brady’s legal team, led by famed sports litigator Jeffrey Kessler, probably smiled when hearing Goodell’s decision to serve as arbitrator. As explained below, Goodell selecting himself should help Brady pursue a remedy in court in the event his NFL appeal fails.

SI's complete coverage of the Patriots' Deflategate saga

Goodell can select himself, so long as it doesn’t violate federal labor law

To be clear, Goodell is generally authorized to select himself as the arbitrator in discipline appeals. The National Football League Players’ Association, of which Brady is a member, has agreed that Goodell or a designee of his choosing may serve as the arbitrator for discipline appeals by players. This process is spelled out in Article 46 of the collective bargaining agreement.

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To be equally clear, the NFLPA has and will continue to argue that the union never agreed to allow Goodell to select an arbitrator if that selection violates federal labor law. The NFLPA successfully made this argument in Adrian Peterson’s recent lawsuit. Among other points, the lawsuit concerned the decision-making of former NFL attorney Harold Henderson whom Goodell had designated as the arbitrator for Peterson’s appeal. The NFLPA stressed that under custom and practice (also known as “law of shop”), arbitrators must adhere to principles of fairness and consistency. Henderson, according to the NFLPA, incorrectly applied a new and tougher domestic violence policy to conduct committed by Peterson while an older policy was in place. U.S. District Judge David Doty held in favor the NFLPA, bluntly reasoning that, “Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA.” The NFL has appealed Judge Doty’s ruling to the U.S. Court of Appeals for the Eighth Circuit, but for at least the time being it highlights that Goodell must exhibit fairness and consistency in hearing Brady’s appeal.

Case history that would help Brady and NFLPA in court

Goodell’s selection of himself as arbitrator also calls to mind instances where courts have rejected commissioner’s serving as arbitrators in spite of commissioners’ authority to do so. Most illustratively, in Joe Morris and Mickey Shuler v. New York Giants and Paul Tagliabue, New York Judge Herman Cahn in 1991 rejected then-NFL commissioner Paul Tagliabue as an arbitrator in a dispute over appropriate pay for players after being released by a team. Despite having contractually agreed that Tagliabue serve as the arbitrator, Morris and Shuler argued that because Tagliabue “has an inherent interest in the outcome of the dispute,” he was “biased and, consequently, should be replaced by a neutral and impartial arbitrator in advance of arbitration proceedings.” Judge Cahn agreed with the players, reasoning that “Tagliabue's position as Commissioner, together with his past advocacy of a position in opposition to plaintiffs' position herein, deprive him of the necessary neutrality to arbitrate these claims…[and] to insure a fair and impartial hearing.”

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Brady and the NFLPA should also feel encouraged by the Missouri Supreme Court recently holding that the NFL is barred from requiring that disputes between teams and coaches must be submitted to Goodell for arbitration. In a case involving a contractual disagreement between former Rams equipment manager Todd Hewitt and the team, Hewitt objected to Goodell arbitrating the dispute on grounds he could not be fair or partial. Even though Hewitt’s contract made clear he accepted a rule contained in the NFL constitution dictating that Goodell would arbitrate these types of disputes, the Missouri Supreme Court disallowed the arrangement, reasoning, “the contract terms regarding the designation of the commissioner as the sole arbitrator with the power to unilaterally set the rules of arbitration are unconscionable.” To be sure, the Hewitt case has limited applicability to Brady. It does not concern the collective bargaining agreement and it only is law in Missouri. Still, it’s a reminder that Goodell’s authority to act as arbitrator is not without checks.

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Goodell selecting himself could lead to Brady seeking restraining order from court

As explained in a different SI.com article, Brady and the NFLPA have several possible legal strategies at their disposal, including seeking intervention by the National Labor Relations Board, filing a defamation lawsuit and seeking a restraining order that would enjoin the NFL from suspending Brady. If Brady pursues a legal action, he would likely be compelled to turn over his phone and other available data to the NFL. He would also face depositions, where he would be required to give sworn testimony. The same rules would apply for Goodell, Vincent, Ted Wells and other individuals who work for the NFL or whom the NFL has paid in the Deflategate investigation.

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Before pursuing any of these options, Brady would likely be required to exhaust his internal remedies in the NFL—specifically, go through the appeals process detailed in Article 46 of the collective bargaining agreement. This step is likely necessary because courts typically reject claims as not yet “ripe” when a plaintiff hasn’t first exhausted dispute resolution mechanisms that are contained in employment contracts, or when the employee is a member of a union (such as Brady being an NFLPA member), found in collective bargaining agreements.

Brady and the NFLPA could nevertheless petition a judge for a restraining order to prevent Goodell from serving as the arbitrator. There is no law that would bar an attempt to convince a judge to enjoin Goodell from ever serving as the arbitrator. A petition for such an order would surely highlight that Goodell may be called as a witness. This legal strategy, however, would face difficult odds. Goodell has served as the arbitrator in other player discipline disputes and until Brady’s appeal occurs, there is no evidence that Goodell has acted unfairly in the appeal itself. The NFL would also argue that Goodell being forced to step aside because he may be called as a witness would create perverse incentives in future appeals: in every appeal going forward the NFLPA could threaten to call Goodell as a witness as a means of blocking him from serving as the arbitrator. Courts, moreover, are generally unwilling to grant restraining orders, especially in the absence of a clear showing of irreparable harm. It is more likely that a court would permit Goodell to serve as the arbitrator but then scrutinize his decision-making in it.

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NFL could still prevail

In spite of the successful challenges to the commissioner’s authority discussed above, federal law still accords the NFL high deference in resolving player discipline disputes. The Federal Arbitration Act dictates that arbitration awards—as Goodell’s decision in Brady’s appeal would be—should only be vacated by courts in exceptional circumstances. This deference reflects the idea that if a player and league collectively bargain a dispute-resolution process, courts should let them sort out their disputes through that process. Still, Peterson and the NFLPA met this steep bar by showing that the NFL was inconsistent in applying its own rules.

Brady and NFLPA are prepared with counter arguments

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If Goodell sustains the four-game suspension or only reduces it, Brady and the NFLPA could argue (as explained fully on SI.com) that a suspension of any length is clearly excessive given the murky evidence and lack of precedent. Brady and the NFLPA would also contend that Goodell is inherently biased in this dispute. As the Patriots argued in its “The Wells Report in Context” memo, the NFL’s practices and procedures for testing air pressure, colleting scientific evidence and conducting witness interviews—things that directly reflect the job performance of Goodell—are implicated in the Deflategate scandal. For these reasons, Brady and the NFLPA would assert, Goodell should be disqualified from hearing Brady’s appeal.

Goodell should have picked Paul Tagliabue instead

Goodell could have mitigated this controversy and likely strengthened the NFL’s legal position simply by designating someone who would have been perceived as relatively neutral and clearly capable.

I would have selected the aforementioned Tagliabue, assuming he was available and willing. The 74-year-old Tagliabue, who served as NFL commissioner from 1989 to 2006 and now practices law at Covington and Burling in Washington D.C., has already shown a track record for fairness. In December 2012, Tagliabue, serving as an arbitrator, overturned the NFL’s suspension of Jonathan Vilma in the Bountygate scandal.

Yet Tagliabue would likely understand Goodell’s reasoning having been in the same shoes as NFL commissioner. Plus, unlike Goodell, Tagliabue is an attorney (and a highly respected one at that) and his legal training would likely help him understand the core legal issue at play in the Deflategate controversy. It stands to reason that a federal court would accord an arbitration decision authored by Tagliabue with more weight than it would one authored by Goodell. And that is among the reasons why Brady’s legal team is probably feeling good right now.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will be teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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