Tuesday December 22nd, 2015

The NFL on Monday filed its reply brief in its appeal of U.S. District Judge Richard Berman’s Sept. 4 ruling in favor of Tom Brady. The reply brief mostly reiterates arguments the league raised in its filing to the U.S. Court of Appeals for the Second Circuit on Oct. 26 (the Oct. 26 brief was analyzed on SI.com) but escalates the rhetoric used to portray Brady—a candidate for the NFL’s 2015 MVP award—as a willful and cunning transgressor of league rules.

Explaining where the NFL’s reply brief fits into the league’s appeal

Technically, the NFL’s reply brief is a response to the brief filed by Brady and the NFLPA on Dec. 7 (the Dec. 7 brief was analyzed on SI.com). Monday’s reply brief is designed to help the NFL convince a yet-to-be-named three judge panel not that Brady partook in a scientifically-challenged ball deflation scheme, but that Judge Berman mistakenly applied the law. Specifically, the NFL must show that Judge Berman erred when concluding that NFL commissioner Roger Goodell wrongfully upheld Brady’s four-game suspension. The NFL’s appeal, in other words, is entirely a review about how one judge applied the law while evaluating an arbitration award. The appeal does not concern whether Brady “did it” or whether the NFL’s conclusions about ball deflation can withstand scientific scrutiny. In fact, the appeal will not involve any fact-finding or witnesses. So if you are interested in the NFL’s PSI measurements of game balls during the 2015 regular season, you unfortunately won’t be hearing about them through this case.

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The NFL’s reply brief is also the last scheduled major filing before the clerk’s office for the Second Circuit announces which three judges will hear the appeal, oral arguments for which are scheduled for Mar. 3, 2016. The selection of the judges will be based on a rotating schedule that determines which judges hear which cases. In other words, the fact that oral arguments for the NFL’s appeal of Brady v. NFL will receive considerable media attention plays no role in which three judges are assigned to hear it.

The identities of the three-judge panel will likely not be disclosed for a while—court rules indicate that their identities won’t be disclosed until Thursday, Feb. 25th. Their selection, however, will be a key development. As explained previously on SI.com, the pool of potential judges for the NFL appeal ranges widely in terms of the judges’ legal ideologies and whether the judges are more “pro management” (which would favor the NFL), “pro labor” (which would favor Brady and the NFLPA) or basically neutral on labor-management relations. The NFL may need a favorable panel more so than does Brady considering that Brady won before Judge Berman and Judge Berman’s decisions are only reversed or vacated 8% of the time. On the other hand, the three-judge panel will review Judge Berman’s decision “de novo” which means as new and without an obligation to defer to Judge Berman.

NFL doubles down on core argument that Judge Berman exceeded his authority

The most important argument for the NFL in the appeal is that Judge Berman exceeded his authority in vacating Goodell’s decision to uphold Brady’s suspension. Goodell’s decision arose while serving as an arbitrator (rather than as the commissioner) for Brady’s appeal during the summer of 2015. At the time, Goodell reasoned that Brady’s four-game suspension was justified because Goodell believed that Brady both partook in a ball deflation scheme and knowingly attempted to frustrate the league’s investigation. Goodell even compared Brady’s alleged involvement in a ball deflation scheme to a player’s use of performance-enhancing substances, which carries a four-game suspension.

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While Goodell’s reasoning in Deflategate has been the target of intense skepticism, the NFL’s legal argument is that such skepticism doesn’t matter. Under the NFL’s interpretation of the Labor Management Relations Act (“LMRA”), federal judges should accord arbitrators (including Goodell when he upheld Brady’s suspension) an “exceedingly deferential standard of review.” While the NFL’s reply brief hails Goodell’s decision as “eminently reasonable,” the league also stresses that Goodell’s decision need only be “plausible” in order to pass legal muster. Note that a “plausible” decision doesn’t require correctness. A plausible decision must only be believable or have the appearance of reasonableness.

From the NFL’s perspective, Goodell’s reasoning should easily meet this low bar. In the reply brief, the NFL argues that Goodell rationally concluded that Brady participated “in a scheme to deflate game balls after they had been checked by game officials” and also partook “in a deliberate destruction of highly relevant evidence.” Even if Goodell is wrong about these and other points, the NFL argues that Goodell reached these conclusions in a plausible manner. This particular argument highlights that so long as Goodell utilized an adequate process in arbitrating Brady’s appeal, his decision should be considered acceptable.

Along those lines, according to the NFL’s reply brief, Goodell relied on “the Wells Report as well as the evidence that Brady himself introduced at the hearing” in determining “that Brady did not merely have ‘general awareness’ of ball tampering, but actually ‘participated in a scheme to tamper with the game balls.’” While these sources of evidence may not actually prove what Goodell concluded, the NFL’s legal point is that these sources are reasonably sufficient and reliable for Goodell to reach his conclusion.

In the NFL’s view, Judge Berman ignored the deference he was obligated to show Goodell and instead wrongly applied a far more scrutinizing standard. Judge Berman, according to the NFL’s reply brief, went so far as to “second guess” Goodell’s reasoning. This “second guess” style judging, in the NFL’s eyes, violates the narrow grounds for judicial review enunciated by the LMRA. Further, Judge Berman allegedly “ignored the Commissioner’s superior experience and familiarity with the issues” and exhibited “haste” in “displacing the Commissioner’s reasoned judgment.” Put bluntly, the NFL contends that Judge Berman’s decision in Brady’s favor was the result of an unlawfully rigid standard of review. This is a crucial point: if the NFL can convince at least two of the three judges on the appellate panel that Judge Berman adopted the incorrect standard of review and that such a mistake led to Judge Berman ruling for Brady, the NFL would be poised to win the appeal. Such a win would restore Brady’s four-game suspension and, barring other legal action, Brady would be set to serve the suspension at the start of the 2016 regular season.

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The NFL also attacks the reasoning offered by attorneys for Brady and the NFLPA in their brief filed on Dec. 7. In that brief, Brady and the NFLPA charged that Goodell ignored collectively bargained policies that stipulate football tampering should only be punished by fines. For Brady and the NFLPA—and by extension Judge Berman—a line of reasoning that Goodell ignored the CBA in punishing Brady bolsters the Brady/NFLPA argument that no player could have been on notice that he would face a suspension for acts related to football air pressure. In response, the NFL’s reply brief charges that Brady and the NFLPA are citing the wrong rules and they admitted as much during Brady’s appeal before Goodell in June. The NFL asserts that the stipulated fines cited by Brady and the NFLPA in their Dec. 7 brief relate to the tampering of uniforms and equipment—not the tampering of game balls. Additionally, the NFL insists that regardless of whether game balls count under rules for uniforms and equipment, Goodell plausibly determined that Brady’s (alleged) active participation in a scheme to gain a competitive advantage justifies Brady’s four-game suspension.

The NFL’s reply brief also paints Brady in a very negative light. The brief describes Brady as engaging in “unique and aggregate misconduct” that “posed a threat to the integrity of and public confidence in the game.” While Brady will likely not pursue a defamation case against the NFL (for reasons I explain in an earlier SI.com article), the NFL almost seems to be tempting him to do so. As Massachusetts Institute of Technology Professor John Leonard observed during our “MIT Special Seminar: The Law and Science of Deflategate,” while Brady wouldn’t need any monetary damages that are potentially obtainable through a defamation case, he could always pledge to donate any winnings to charity.

Lastly, keep in mind that the NFLPA has countered these and other NFL arguments during the Deflategate proceedings. It will be interesting to see how the three-judge panel evaluates the dueling sets of arguments next March.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He teaches 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 teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.

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