The NFL and NFLPA submitted legal briefs Friday night to U.S. District Judge Richard Berman in their litigation over the lawfulness of Tom Brady’s four-game suspension. Brady’s suspension stems from a supposed role in an alleged ball deflation scheme prior to the 2015 AFC Championship Game between the New England Patriots and Indianapolis Colts. While the briefs mostly retell arguments that the NFL and NFLPA have already raised, at least three new interesting wrinkles appeared in the NFL’s briefs.
1. While the NFLPA amplifies criticism of Goodell as inherently unfair, the NFL insists that it doesn’t matter whether Ted Wells was independent.
In its brief filed Friday night, the NFLPA aggressively derides Goodell as an “evidently partial arbitrator.” Part of Goodell’s alleged unfairness, according to the NFLPA, relates to Goodell’s reliance on Ted Wells and the multiple—and seemingly conflicting—roles played by Wells and his colleagues. As the NFLPA points out, how could Goodell have been sufficiently fair in judging Brady if “the same law firm that prepared the [Wells] Report represented the NFL at the arbitration to defend the discipline”? It’s arguably as if the “independent” investigator and prosecutor were the same person. To further this critique, recall that Wells even invoked the attorney-client privilege between himself and the NFL in response questions posed by Brady’s attorney, Jeffrey Kessler, during Brady’s appeal.
The NFL, however, considers these arguments to be “irrelevant” under the law. In its brief, the NFL correctly stresses that Article 46 of the collective bargaining agreement lacks any language that compels an “independent” investigation. Therefore, the NFL reasons, the league had no legal obligation to provide Brady with an independent investigation.
The likely problem for the NFL in making this argument is that the NFL has consistently assured Brady, the NFLPA and the public of Wells’s independence. Consider the NFL’s statement on Jan. 23, 2015 announcing the hiring of Wells: “Mr. Wells and his firm bring additional expertise and a valuable independent perspective.” Also take a look at Goodell’s statement from May 6, 2015, when he praised Wells: “I want to express my appreciation to Ted Wells and his colleagues for performing a thorough and independent investigation.”
Now, however, the NFL maintains that even if Wells was not independent, it shouldn’t make a difference. Not only does this reasoning pose an obvious public relations challenge for the league, but Judge Berman may find it untenable under the law. Judge Berman could deduce that the NFL should be stopped from reneging on procedural guarantees. In other words, even if Article 46 lacks language requiring that Wells be independent, the league arguably should have been expected to fulfill additional assurances made by the commissioner himself.
2. The NFL argues that Tom Brady is being punished for misconduct far worse than “general awareness.”
In its brief filed Friday night, the NFL insists that in spite of the Wells Report finding that Brady was “generally aware” of an alleged ball deflation scheme, Goodell did not punish Brady for being generally aware. Instead, according to the NFL, Brady was punished for far worse misdeeds: Brady allegedly “approved of, consented to, and provided inducements in support of . . . a scheme to tamper with the game balls” and “willfully obstructed” the league’s Deflategate investigation.
Given Brady’s categorical denials while under oath to these accusations and the absence of tangible NFL evidence disproving Brady’s denials, it is hard to understand how Goodell reached these conclusions. This seems particularly true of the serious allegation that Brady “induced” John Jastremski and Jim McNally to tamper with game balls (this assumes, of course, the tampering even occurred, rather than, as some insist, any ball deflation merely reflected the Ideal Gas Law in action).
If Goodell’s accusation against Brady about an apparent bribe is untrue, it would be well within Brady’s rights to file a defamation lawsuit against the NFL. Even though Brady, as a public figure, would need to prove “actual malice” (this means proof the NFL intentionally or knowingly lied), Brady could cite as possible evidence Goodell seemingly misconstruing Brady’s description of conversations with Jastresmki. Brady’s testimony indicated that he had a wide-ranging conversation with Jastremski, rather than, as Goodell portrayed in his order upholding Brady’s suspension, a far more limited (and suspicious) conversation about game ball preparation.
As to Brady “willfully obstructing” the investigation, while he did not turn over his phone’s contents, no rule in the collective bargaining agreement required that he do so. Plus, even Wells testified that he did not believe Brady’s refusal to turn over the phone and its contents warranted an NFL punishment, let alone a suspension.
The NFL better hope Judge Berman is not similarly perplexed.
3. The NFL maintains that the league’s loss in court to Adrian Peterson is irrelevant in Brady’s case.
As a third interesting take-away from the briefs filed Friday night, the NFL now attempts to render its loss to Adrian Peterson in the U.S. District Court for Minnesota to be inconsequential and irrelevant in the Brady matter.
In the Peterson case, U.S. District Judge David Doty reasoned that the NFL violated the “law of shop”—which requires fairness and consistency in arbitration decisions—because the league retroactively punished Peterson under a new and more harsh policy when his misconduct occurred during a previous and weaker policy. The NFL, which has appealed the Peterson holding to the U.S. Court of Appeals for the Eighth Circuit, claims that because Peterson’s transgression involved the league's domestic violence policy, it is inapplicable to Brady’s situation. The alleged misdeeds of Brady, as we know, revolve around slightly under-inflated footballs.
The NFLPA rejects the NFL’s dismissive theory about the Peterson case. In the view of the NFLPA, the relevance of the Peterson case is not Peterson's misconduct, but rather the NFL’s alleged procedural mistakes in punishing him. As the NFLPA writes Friday night, Peterson’s case is relevant to Brady’s case because, according to the NFLPA, both involve the NFL violating the law of shop by failing to give players “advance notice of the disciplinary policies, standards, and penalties to be imposed.”
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 teach 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 and he will teach “Intellectual Property and Media in Sports Law” at the 2015 Oregon Law Sports Law Institute.